dismissed O-1B Case: Culinary Arts

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 22, 2024 In Re: 29204683 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, a restaurant, seeks to classify the Beneficiary as an executive chef of extraordinary 
ability. To do so, the Petitioner pursues 0-1 nonimmigrant classification, available to individuals who 
can demonstrate their extraordinary ability through sustained national or international acclaim and 
whose achievements have been recognized in the field through extensive documentation. See 
Immigration and Nationality Act (the Act) section 101(a)(15)(O)(i), 8 U.S.C. § 110l(a)(15)(O)(i). 
The Director of the California Service Center denied the petition, concluding the Petitioner did not 
establish the Beneficiary's satisfaction of the initial evidentiary criteria applicable to individuals of 
extraordinary ability in the arts: nomination for or receipt of a significant national or international 
award, or at least three of six possible forms of documentation. Subsequently, the Director dismissed 
the Petitioner's combined motion to reopen and motion to reconsider. The matter is now before us on 
appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
As relevant here, section 10l(a)(15)(O)(i) of the Act establishes 0-1 classification for an individual who 
has extraordinary ability in the sciences, arts, education, business, or athletics, which has been 
demonstrated by sustained national or international acclaim, whose achievements have been recognized 
in the field through extensive documentation, and who seeks to enter the United States to continue work 
in the area of extraordinary ability. Department of Homeland Security (DHS) regulations define 
"extraordinary ability in the field of arts" as "distinction," and "distinction" as "a high level of 
achievement in the field of arts evidenced by a degree of skill and recognition substantially above that 
ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well­
known in the field of arts." See 8 C.F.R. § 214.2(o)(3)(ii). Next, DHS regulations set forth alternative 
initial evidentiary criteria for establishing a beneficiary's sustained acclaim and the recognition of 
achievements. A petitioner may submit evidence either of nomination for or receipt of "significant 
national or international awards or prizes" such as "an Academy Award, an Emmy, a Grammy, or a 
Director's Guild Award," or at least three of six listed categories of documents. See 8 C.F.R. 
§ 214.2(o)(3)(iv)(A)-(B). 
The submission of documents satisfying the initial evidentiary criteria does not, in and of itself, 
establish eligibility for 0-1 classification. See 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994) ("The 
evidence submitted by the petitioner is not the standard for the classification, but merely the 
mechanism to establish whether the standard has been met."). Accordingly, where a petitioner 
provides qualifying evidence satisfying the initial evidentiary criteria, we will determine whether the 
totality of the record and the quality of the evidence shows extraordinary ability in the arts. See section 
10l(a)(15)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iv). 
II. ANALYSIS 
The Director determined the Petitioner did not claim the Beneficiary's nomination for, or receipt of: 
significant national or international awards or prizes under 8 C.F.R. § 214.2(o)(3)(iv)(A). In addition, 
the Director concluded the Petitioner did not establish the Beneficiary's eligibility for any of the six 
claimed categories of evidence under 8 C.F.R. § 214.2(o)(3)(iv)(B)(l)-(6). In discussing each 
criterion, the Director explained how the Petitioner did not demonstrate that the evidence either 
qualified for the regulatory evidence or established the Beneficiary's eligibility. Furthermore, the 
Director pointed out inconsistencies and credibility issues with the documentation submitted in 
response to the request for evidence (RFE). For instance, the Director determined that the 
Beneficiary's name and other information was inserted into articles submitted by the Petitioner when 
compared to the original articles found online. Moreover, the Director concluded the Petitioner 
provided evidence regarding events occurring after the initial filing of the petition. 
On motion, the Petitioner did not challenge the Director's individual criterion determinations. Instead, 
the Petitioner made arguments regarding "knowledge" relating to willful misrepresentation under 
section 212(a)(6)(C)(i) of the Act, inappropriate application of case law pertaining to eligibility at time 
of filing, and consideration of"national or international recognition." The Director addressed each of 
these arguments: 
Your attorney states that the inadmissibility ground under INA 212(a)(6)(C)(i) requires 
a finding that the misrepresentation was deliberate and voluntary, and that the 
documents you submitted were summaries of the articles because "the layout and the 
inherent nature of ALL printed articles in newspapers/journals makes it too unwieldly 
to attach these write-ups in their entirety." USCIS first notes that it did not make an 
inadmissibility finding; rather, due to the unexplained discrepancies between the 
language in the documents you submitted and the language found in the articles online 
through public records searches, USCIS questioned the credibility and probative value 
of several of the documents and also whether they fell within the prescribed forms of 
evidence for the criteria. You now indicate that the documents you provided were 
summaries of the articles. However, with regard to the I I article in 
spiceroverindia.com, you have not explained how replacing one name with the 
beneficiary's name from elsewhere in the article constitutes a "summary." Specifically, 
as noted in the denial, while you provided: I I oriental cuisine restaurant 
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conceptualized by Chefl land Brand Chef [the Beneficiary]," the actual ...........--=----~ article states: I I is an oriental cuisine restaurant conceptualized by Chef 
I I in partnership with I I ( a hotelier with years of 
experience)." In the foll article that you have now provided, you have shown that the 
beneficiary is mentioned in the article as the Brand Che±: but only to say that "We had 
a chat with the Brand Che±: Chef [the Beneficiary] who informed us that they make all 
the sauces in-house and they're not sourced from outside." There is no indication in 
the article that the beneficiary "conceptualized" the restaurant as asserted in your 
"summary." You also provided a complete copy of the,______ ___,article, but it 
does not address or remedy the issues raised in the denial that the article "states that the 
beneficiary is a chef at I I and provide some stir fry sauce recipes.["] 
While this article falls within the prescribed forms of evidence, the statement of the 
beneficiary's occupation does not demonstrate that the beneficiary played a lead or 
starring role in distinguished events.[] These are the only two articles for which you 
provided complete copies, and therefore, you have not addressed or remedied the issues 
raised in the denial regarding the credibility, probative value, and permitted forms of 
evidence of your summaries. 
Next, your attorney argues that the denial analysis relies on Mater of Bardouille, 18 
I&N Dec. 114 (BIA 1981 ), Matter of Drigo, 18 I&N Dec. 223 (BIA 1982), and Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm'r 1971), and that they are "predicated 
on adjudications that are completely removed from the present case." However, USCIS 
indicated that it could not consider evidence that did not establish eligibility at the time 
of filing based on the regulation at 8 CFR 103.2(b)(l2). USCIS cited to the BIA 
decisions merely as farther support of this regulation. In addition, your attorney argues 
that, based on Matter of F-M- Co., Adopted Decision 2020-01 (AAO May 5, 2020), 
articles dated after the filing date are appropriate because the beneficiary's role in the 
I Iexpanded due to a subsequent acquisition of operation in other cities, and 
"Matter ofF-M- Co. clarifies that in the event of a restructuring (or acquisition) affects 
the petitioning organization, a petitioner may establish that the role of the beneficiary 
is expanded after the acquisition commanding increasing leadership responsibilities 
and a higher salary." However, Matter ofF-M- Co. is not about and does not mention 
a beneficiaries role following a restructuring event. Rather, it clarifies that for first 
preference multinational executives for managers, "the regulations require that a 
petitioner maintain its qualifying relationship [ with the foreign employer] from the time 
of filing and through adjudication of the petition," and that "in the event a corporate 
restructuring affecting the foreign entity occurs prior to the filing of a first preference 
multinational executive or manager petition, a petitioner may establish that the 
beneficiary's qualifying foreign employer continues to exist and do business through a 
valid successor entity." 
Finally, your attorney argues that "The service needs to consider the analysis presented 
in the Matter of T-O-S-U, Adopted Decision 2017 (AAO Jan 4, 2017). The phrase 'of 
national or international recognition ... ' in the statute has been interpreted in Taniguchi 
v. Kan Pacific Saipan Ltd., 132 S. Ct. 1997, 2002-03 (2012)... The respondent has 
provided relevant, credible and probative evidence regarding the beneficiary's 
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credentials and employments demonstrating that he is a highly experienced Brand Chef 
with several leadership skills. The evidence also establishes the volume and 
complexity of restaurant and brand management processes that the Beneficiary has 
excelled at with various employers." Your attorney then points to the two additional 
testimonials provided with the motion. Matter of T-O-S-U- involved an H-lB 
nonimmigrant worker petition, and clarifies that "for purposes of 8 C.F.R. 
§ 214.2(h)( 4)(viii)(C), a "physician of national or international renown is: (1) doctor 
of medicine or osteopathy, (2) who is widely acclaimed and highly honored in the field 
of medicine within one or more countries, (3) so long as the achievements leading to 
national renown are comparable to that which would result in national renown in the 
United States." The AAO noted that several terms were not defined in the statute or 
regulations, and therefore, consistent with Taniguchi v. Kan Pacific Saipan Ltd., it 
would look to their common usage and meaning within nonimmigrant and immigrant 
classifications. Regarding "national or international," the AAO found that the phrase 
means within one (whether foreign or the United States) or more countries. To help 
determine what kinds of evidence may demonstrate a physician of national or 
international renown, that AAO considered among other 0-1 extraordinary ability 
criteria. However, the only O-lB option for criteria that use the term "national or 
international" are the qualifying award, which requires a nomination or receipt of a 
significant national or international award, and criterion 2, which requires evidence that 
the beneficiary has achieved national or international recognition for achievements 
evidenced by critical reviews or other published materials by or about the individual in 
major newspapers, trade journals, magazines, or other publications. You have not 
claimed that the beneficiary meets the qualifying award option, and testimonials fall 
outside of the prescribed forms of evidence for criterion 2. 
On appeal, the Petitioner submits a brief mirroring the previous motion brief without addressing the 
findings in the Director's motion decision. In addition, the Petitioner does not contest the Director's 
particular motion determinations or specifically identify any erroneous conclusion oflaw or statement 
of fact for the appeal of the Director's motion decision. Issues not raised on appeal are waived. See, 
e.g. Matter of O-R-E-, 28 I&N Dec. 330,336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 25 I&N Dec. 
657, 658 n.2 (BIA 2012)). 
We adopt and affirm the Director's decision. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 
1994); see also Giday v. INS, 113 Fr.3d 230,234 (D.C. Cir. 1997) (noting that the practice of adopting 
and affirming the decision below has been "universally accepted by every other circuit that has 
squarely confronted this issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight U.S. Court of 
Appeals in holding the appellate adjudicators may adopt and affirm the decision below as long as they 
give "individualized consideration" to the case). The Director's initial decision denying the petition 
reviewed and analyzed the Petitioner's evidence relating to each of the six claimed categories of 
evidence. The Director provided a sufficient explanation indicating why the Beneficiary did not 
qualify for any of the criteria, including evidence containing inconsistencies and credibility issues, as 
well as evidence submitted in response to the RFE reflecting events occurring after the initial filing of 
the petition. Moreover, as stated above, the Director thoroughly addressed the Petitioner's arguments 
and evidence on motion, which were not disputed on appeal. 
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Consequently, the Petitioner has not resolved inconsistencies in the record with independent, objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other 
evidence submitted in support of the requested immigration benefit. Id.; see also Matter of O-M-0-, 
28 I&N Dec. 191, 197 (BIA 2021) ("by submitting fabricated evidence, the appellant compromised 
the integrity of his entire claim"). 
Furthermore, although the Petitioner presents new evidence, we will not consider it for the first time 
on appeal because the Petitioner was put on notice and given a reasonable opportunity to provide this 
evidence. See 8 C.F.R. § 103.2(b )(11) (requiring all requested evidence be submitted together at one 
time); Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (declining to consider new evidence 
submitted on appeal because "the petitioner was put on notice of the required evidence and given a 
reasonable opportunity to provide it for the record before the denial"). 
Accordingly, the Petitioner has not demonstrated the Beneficiary's eligibility for any of the criteria set 
forth at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l)-(6), in which at least three are required. 
III. CONCLUSION 
The Petitioner did not establish 
the Beneficiary fulfills the initial evidentiary requirement of at least 
three criteria. Accordingly, we need not provide a totality determination to establish whether the 
Beneficiary has sustained national or international acclaim, has received a high level of achievement, 
and has been recognized as being prominent, renowned, leading, or well-known in the field of arts. See 
section 101(a)(15)(O)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii) and (iv). 1 Accordingly, we reserve 
this issue.2 Consequently, the Petitioner has not demonstrated the Beneficiary's eligibility for the 0-1 
visa classification as an individual of extraordinary ability. The appeal will be dismissed for the above 
stated reasons, with each considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
1 See generally 2 users Policy Manual, M.4(0)(4), https://www.uscis.gov.policymanual. 
2 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7. 
(BIA 2015) ( declining to reach alternative issues on appeal where applicants do not meet their burden of proof). 
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