dismissed O-1B Case: Culinary Arts

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PUBLTCCOPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
DATE: NOV I 62011 Office: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(lS)(O)(i) of the Immigration and 
Nationality Act, 8 U.S.C § lIOI(a)(lS)(O)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 CP.R. § 103.S. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 CP.R. § 103.S(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider Or reopen. 
Thank you, 
'", Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Califomia Service Center, denied the nonimmigrant visa petition. The AAO 
dismissed the petitioner's subsequent appeal. The matter is now before the AAO on appeal for a second time. 
The appeal will be rejected. 
The petitioner filed this nonimmigrant petition seeking to classify the beneficiary as an 0-1 nonimmigrant 
pursuant to section IOI(a)(l5)(0)(i) of the Immigration and Nationality Act (the Act), as an alien with 
extraordinary ability in the arts. The petitioner, which is self-described as a senior housing community, seeks to 
employ the beneficiary in the position of Executive Chef. The beneficiary was previously granted 0-1 status for 
employment with a different petitioner and the petitioner now seeks to extend his status for two additional years. 
The director denied the petition on May 3, 2010, concluding that the petitioner failed to establish that the 
beneficiary is an alien of extraordinary ability in the culinary arts. The director determined that the petitioner 
failed to establish that the beneficiary meets the evidentiary criterion at 8 C.P.R. § 214.2(0)(3)(iv)(A), and 
submitted evidence to satisfy only one of the six evidentiary criteria set forth at 8 C.P.R. § 214.2(0)(3)(iv)(B), of 
which three must be met to establish eligibility. The AAO dismissed the petitioner's subsequent appeal on 
December 22, 20 I 0, and advised the petitioner that it could file a motion to reopen or motion to reconsider 
pursuant to the requirements at 8 C.P.R. § 103.5 within 30 days of the AAO's decision. 
On January 21, 20 II, the petitioner filed a Porm I-290B, Notice of Appeal or Motion, indicating that it was 
seeking to appeal the AAO's decision. Counsel indicated on the Porm I-290B that he would submit a brief and/or 
additional evidence in support of the appeal within 30 days. The AAO received the petitioner's brief and 
evidence on April 22, 2011. Upon review of the petitioner's submissions, there is no indication that counsel 
intended to file a motion to reopen or reconsider pursuant to 8 C.P.R. § 103.5. 
The petitioner's appeal must be rejected. The AAO does not exercise appellate jurisdiction over AAO 
decisions. The AAO exercises appellate jurisdiction over the matters described at 8 C.P.R. § 103.1(f)(3)(iii) 
(as in effect on Pebruary 28, 2003). See DHS Delegation Number 0150.1; 8 c'P.R. § 103.3(a)(iv). 
Accordingly, the appeal is not properly before the AAO. 
As the appeal was not properly filed, it will be rejected. 8 C.P.R. § 103.3(a)(2)(v)(A)(J). 
There is no regulatory or statutory provision that allows a petitioner more than one appellate decision per 
petition filed. As noted above, the AAO did advise the petitioner that it had the option of filing a motion to 
to reopen or a motion to reconsider the AAO's decision within 33 days of service pursuant to 8 C.P.R. § 
103.5. According to 8 C.P.R. § 103.5(a)(I)(ii), jurisdiction over a motion resides in the official who made the 
latest decision in the proceeding, in this case, the AAO. 
The regulation at 8 C.P.R. § I 03.5(a)(2) states: 
A motion to reopen must state the new facts to be provided in the reopened proceeding and be 
supported by affidavits or other documentary evidence. 
Page 3 
The regulation at 8 C.F.R. § \03.S(a)(3) states: 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or [U.S. Citizenship and Immigration Services (USCIS)] policy. A motion 
to reconsider a decision on an application or petition must, when filed, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. 
A review of the petitioner's submission reveals no facts that could be considered "new." Based on the plain 
meaning of "new," a new fact is found to be evidence that was not available and could not have been discovered 
or presented in the previous proceeding.' The majority of the supplemental evidence offered on this second 
appeal was previously submitted and already considered by the AAO in issuing its prior decision. Further, 
counsel's brief contains no citations to appropriate statutes, regulations or precedent decisions, such that it could 
meet the requirements of a motion to reconsider. 
In addition, the regulation at 8 C.F.R. §\03.S(a)(l)(iii)(C) requires that motions be "[a]ccompanied by a 
statement about whether or not the validity of the unfavorable decision has been or is the subject of any 
judicial proceeding." The petitioner's submission does not contain this statement. The AAO finds no basis 
to treat the improperly filed appeal as a motion to reopen or reconsider. 
As the appeal was improperly filed, it must be rejected. 
ORDER: The appeal is rejected. 
I The word "new" is defined as "I. having existed or been made for only a short time .. .3. Just discovered, 
found, or learned <new evidence> ... " Webster's II New College Dictionary 736 (2001) (emphasis in 
original).