dismissed O-2 Case: Culinary Arts

identifying data deleted to 
revent clearly unwarr~ted 
fnvasion ofpersona\ pnvac)' 
PUBLIC COpy 
FILE: Office: VERMONT SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Seeurity 
U.S. Citizenship and Irmnigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Date: DEC 0 8 LOla 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(IS)(O)(ii) ofthe Immigration 
and Nationality Act, 8 U.S.c. § 1101(a)(IS)(O)(ii) 
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 
infonnation 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 C.F.R. § 103.S. All motions must be 
submitted to the office that originally decided your case by filing a Fonn 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.S(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Vennont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed the nonimmigrant petition seeking to classify the beneficiary under section IOI(a)(lS)(O)(ii) 
~tion and Nationality Act (the Act), 8 U.S.C. § llOl(a)(IS)(O)(ii), as an accompanying alien to 
_ a chef who has been granted 0-1 classification for employment with the petitioner. The 
petitioner seeks to employ the beneficiary in the position of restaurant general manager for a period of 
approximately 22 months. The beneficiary has worked in the United States in H-IB status since 2004 and the 
petitioner requests that she be granted a change and extension of status. 
The director denied the petition, concluding that the beneficiary, as a restaurant general manager, would be 
assisting the petitioner's restaurant in general, rather than accompanying and assisting in the artistic 
perfonnance of the principal 0-1 alien chef. The director further detennined that the petitioner did not submit 
sufficient evidence to establish that the beneficiary has had a prior working relationship that is critical and 
essential to support the 0-1 's artistic perfonnance as a chef, or that she perfonns services that are an integral 
part of the principal alien's actual performance. Finally, the director found the beneficiary ineligible because 
the petitioner "did not file for the beneficiary in conjunction with the 0-1 as the beneficiary is filing for a 
change of status." 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO. On appeal, counsel asserts that "the conclusion that the beneficiary will be 
supporting the Restaurant and not the 0-1 alien is ... erroneous and demonstrates a misunderstanding of the 
situation." Counsel asserts that the beneficiary had a prior working relationship with the 0-1 alien and 
substantial experience performing the critical skills and essential support required to support the principal 
alien's performance as a chef. Counsel further contends that there is no requirement that the 0-2 alien must be 
petitioned concurrently with the 0-1 alien, and the fact that the beneficiary was lawfully present in the United 
States in another status does not prevent the approval of an 0-2 petition filed on her behalf. 
Counsel indicated on the Fonn 1-290B, Notice of Appeal or Motion, that he would submit a brief andlor 
additional evidence to the AAO within 30 days. Counsel filed the appeal on May 6, 2010. As of this date, no 
brief or additional evidence has been received, and the record will be considered complete. 
I. The Law 
Section 10 l(a)(lS)(O)(ii) of the Act provides classification to a qualified alien who: 
(I) seeks to enter the United States temporarily and solely for the purpose of accompanying 
and assisting in the artistic or athletic perfonnance by an alien who is admitted under 
clause (i) for a specific event or events; 
(II) is an integral part of such actual perfonnance, 
Page 3 
(III) (a) has critical skills and experience with such alien which are not of a general nature 
and which cannot be performed by other individuals .... 
(IV) has a foreign residence which the alien has no intention of abandoning. 
The regulations at 8 C.F.R. § 214.2(0)(4) provide the following requirements for an 0-2 accompanying alien: 
(i) General. An 0-2 accompanying alien provides essential support to an 0-1 artist or 
athlete. Such aliens may not accompany 0-1 aliens in the fields of science, business or 
education. Although the 0-2 alien must obtain his or her own classification, this 
classification does not entitle him or her to work separate and apart from the 0-1 alien to 
whom he or she provides support. An 0-2 alien must be petitioned for in conjunction 
with the services of the 0-1 alien. 
(ii) Evidentiary criteria for qualifYing as an 0-2 accompanying alien-
(A) Alien accompanying an 0-1 artist or athlete of extraordinary ability. To qualifY 
as an 0-2 accompanying alien, the alien must be coming to the United States to 
assist in the performance of the 0-1 alien, be an integral part of the actual 
performance, and have critical skills and experience with the 0-1 alien which 
are not of a general nature and which are not possessed by a U.S. worker. 
* * * 
(C) The evidence shall establish the current essentiality, critical skills, and 
experience of the 0-2 alien with the 0-1 alien and that the alien has substantial 
experience performing the critical skills and essential support services for the 
0-1 alien. 
II. Discussion 
The primary issue addressed by the director is whether the beneficiary will assist in the performance of the 0-1 
alien as an integral part of his artistic performance as a chef, and whether she has critical skills and substantial 
experience performing essential support services for the 0-1 alien. The petitioner must establish that the 
beneficiary's skills are not of a general nature and cannot be performed by a United States worker. 
The petitioner has offered the beneficiary the position of restaurant general manager of its critically-acclaimed 
New York restaurant. The petitioner indicated on the Form 1-129 that the beneficiary "has worked with the 0-1 
alien over the past year (2009)." 
In a letter dated February 8, 2010, the petitioner stated that the beneficiary "will be providing support services to 
an internationally renowned chef who is currently employed, in 0-1 visa status" at the 
petitioner's award-winning restaurant. The petitioner noted that it is part of a network of restaurants which 
Page 4 
includes the petitioner, 
stated: 
and the recently-opened restaurant, _ The petitioner further 
Through our network of restaurants, [the beneficiary] has worked using 
her extensive restaurant managerial skills to orchestrate the demands of a critically-acclaimed, 
top New York restaurant, as well as meeting the demands of an exactly clientele, while 
maintaining profitable margins. 
She has succeeded in developing mutually beneficial relationship with vendors for both The 
_ and [the petitioner's] Restaurants. Her important contributions have resulted in 
improving the overall operations of our restaurants; her highly valuable skill set has ensured the 
strengthening of our restaurant brand. She has become an invaluable asset to our trademark as 
she has leveraged her knowledge of Anglo food and customer service to the organization. 
The petitioner submitted an advisory opinion letter of The James Beard Foundation, who 
notes that the beneficiary will be employed by the petitioning restaurant as the general mana~ goal to 
assist and support a highly respected British chef." Of the beneficiary, _ further 
states: 
[The beneficiary's] international sensibilities, as well as her exacting management style and 
attention to detail, have made her an integral part of not only the success of 
restaurant] but also the success of the group's newest venture 
• • * 
Upon review of the material submitted, it is the position of the James Beard Foundation that [the 
beneficiary] possesses extraordinary skills in her profession and will provide the benefit of her 
expertise in her activities with the petitioner. We sincerely believe that [the beneficiary's] 
creative and technical skills support her status as an alien of extraordinary ability, of food 
industry expertise and utmost professionalism. 
The petitioner submitted evidence that the beneficiary was maintaining H-l B status at the time of filing, pursuant 
to an approved petition filed by 
The petitioner submitted substantial evidence regarding its restaurant, including reviews from major media 
sources and several articles the co-owner of the restaurant. All of the submitted 
documentation identifies as the petitioning restaurant's executive chef, although the AAO notes 
that the majority of this evidence is dated 2008 and earlier. The petitioner also submitted a recent article 
published in New York magazine regarding the which is owned by the 
petitioner's owners and appears to have opened in late 2009. 
Page 5 
With respect to the 0-1 alien, the petitioner submitted a copy of his approval notice authorizing 
0-1 employment with the petitioner since January 2009, accompanied by a number of testimonial letters which 
were apparently submitted in support of his 0-1 petition in 2008. 
The director issued a request for additional evidence ("RFE") on March 4, 2010, in which he requested, inter alia, 
the following: (1) a statement describing the prior and current essentiality, critical skills and experience of the 
beneficiary with the principal alien; and (2) a statement from the principal alien or from persons having first-hand 
knowledge showing that the alien has had substantial experience performing the critical skills and essential 
support services for the 0-1 alien. 
In response, the petitioner submitted a letter from its president, who described the beneficiary's skills and 
experience as follows: 
In January 2009, I offered [the beneficiary] employment with •••• at which time she was 
hired as a General Manager, Restaurants, in conjunction with several imminent restaurant 
projects which were being developed by our organization. It was [the beneficiary's] ten-plus 
years of experience within the hospitality industry that triggered the offer to join our 
Beginning in 2004, she achieved recognition for a long-standing tenure as Director 
Ijevera~e for the Hotels •••• 
In this role with our group, [the beneficiary] has assumed overall management responsibilities of 
all our new restaurant enterprises, the first of which was the 
She has been responsible for ensuring that all Food & Beverage ("F&B") operations for our 
forthcoming projects operate efficiently, and generate profits. She has been in charge of 
overseeing all aspects of the food and beverage operations for our restaurants as well as creating, 
implementing and developing service standards established for all outlets. 
More recently, over the past six~r group of restaurants, [the beneficiary] has 
been collaborating and assisting~ the 0-1 Chef at [the petitioner's restaurant], 
our flagship restaurant, using her broad restaurant managerial skills to orchestrate the demands 
of this critically acclaimed, top New York restaurant. 
We atrribute the continued success of our restaurants to the unique business model which we 
have created and adhered to over the years. The key ingredient in our recipe for success is a 
combination of strategic planning in day-to-day managerial activities and a meticulous attention 
to detail and creativity in our food preparation. We emphasize a team approach both in our 
kitchen and with our front-of-house staff. The front of the house efforts enable, back up and 
support the kitchen endeavors. The pairing of [the beneficiary] and_ has enabled us 
to continue to thrive in a contracting economic climate. 
[The beneficiary'S] extensive experience in the industry including her most recent tenure with our 
organization has enabled to focus his culinary obligations on the creative process, 
which is so essential to our brand. Her support has enabled the development of mutually 
beneficial relationships with vendors for both _ and [the petitioner]. [The 
Page 6 
beneficiary] also handles much of the administrative support elements of a job such as. 
_ including setting up press, sending out media kits and booking appearances (and the 
hotels and travel) for Food and Wine festivals and suchlike. She also manages the sourcing and 
purchasing of the necessary accoutrements to compliment food including but not 
limited to plateware and displayware. [The beneficiary] manages the financial aspects of the 
business_ food sales contribute to. It is as a result of her analyses that monthly. 
_ knows exactly what is selling, where his costs stand and the profit margin on his sales. 
The petitioner also submitted recent pay statements which show that she continues to be employed by her current 
H-I B employer, Counsel stated that this entity is a "member of the petitioner's restaurant 
group," although the AAO notes that the petitioner did not mention in describing its restaurant 
group, nor did it provide a fictitious name for this company. We further note that none of the submitted articles 
regarding the petitioner or its related restaurants mention this entity. 
The director denied the petition on April 8, 2010, concluding that the beneficiary "will not be supporting the 0-1 
alien but the restaurant itself which is not owned by the principle [sic] 0-1 alien." The director further noted that, 
based on the evidence submitted, the 0-1 alien is also not the head chef of the petitioner's restaurant. In addition, 
the director found that the petitioner "did not file for the beneficiary in conjunction with the 0-1 as the beneficiary 
is filing for a change of status." 
Finally, the director acknowledged the petitioner's statements that the beneficiary is very skilled and 
knowledgeable as a restaurant manager, but determined that the petitioner failed to establish "that the beneficiary 
has had a prior working relationship that is critical and essential to support the 0-1 's artistic performance as a 
chef." Specifically, the director determined that the evidence does not establish "that the beneficiary has 
substantial experience performing the critical skills and essential support necessary to support the services of the 
0-1 or as an intel,'Tal part of the actual performance of the 0-1 as defined by [the Act]." 
On appeal, counsel for the petitioner asserts that the director incorrectly concluded that the beneficiary would be 
supporting the petitioner's restaurant and not the 0-1 alien, and contends that such conclusion "demonstrates a 
misunderstanding of the situation." Counsel states that "[t]he Head Chef is in de factyo [sic] the restaurant since 
without the Chef, there is no restaurant." Counsel asserts that the "purpose of the 0-2 visa is to specifically 
permit the Chef to perfect his performance as a Chef and not be involved in the management/operation of a 
restaurant. " 
Counsel contends that the beneficiary "did in fact have a prior working relationship with the 0-1 alien which is 
critical and essential to support the 0-1 performance as a chef," and "does in fact have substantial experience 
performing the critical skills and essential support necessary to support the 0-1." 
With respect to the director's observation that the 0-1 chef, _, does n~ the head chef at 
the petitioner'S restaurant, counsel asserts that this conclusion is incorrect and that~as granted 0-1 
status "for the specific purpose of becoming Head Chef at [the petitioner's] restaurant in order that _ 
(Award-Winning Chef and co-owner of the restaurant) could assume responsibilities at the Group's 
newest restaurant, " 
Page 7 
Finally, counsel asserts that "there is no requirement that the 0-2 alien must be petitioned concurrently with the 
0-1 alien," and thus no basis for the director to conclude that the beneficiary was ineligible based on the fact that 
the 0-1 alien was granted that status in January 2009. 
As noted above, counsel indicated that he would be submitting evidence in support of the statements made on the 
Form 1-290B, Notice of Appeal or Motion, within 30 days of filing the appeal, but as of this date, no additional 
evidence has been submitted. 
After a careful review of the record, it must be concluded that the petitioner has failed to meet its burden of proof. 
However, the AAO agrees with counsel that there is no statutory or regulatory requirement that the petition for an 
0-2 accompanying alien be filed concurrently with the 0-1 alien's petition. While such petitions are typically 
filed together, the fact that the beneficiary was already in the United States in another visa status would not 
prohibit the approval of the petition, assuming, arguendo, that all other eligibility requirements for 0-2 
classification were met. As discussed below, these requirements have not been met. 
In order to establish the beneficiary's eligibility, the petitioner must, in part, establish that the beneficiary has 
substantial experience performing critical skills and essential support services for the 0-1 alien. 8 C.F.R. 
214.2(0)( 4)(ii)(C). The 0-1 alien, has worked forthe petitioning restaurant in the United States 
in 0-1 status since January 2009 and the petitioner has not claimed that the beneficiary worked with him prior to 
his arrival in the United States. While there is no doubt is a chef at the petitioner's' restaurant, 
the AAO concurs with the director's determination that, based on the evidence submitted, the head chef of the 
restaurant appears to be Although counsel states on appeal that_ was hired 
specifically to fill the head chef position at the restaurant, there were no statements or evidence to this effect 
submitted prior to the adjudication of the petition, and no supporting evidence has been submitted on appeal. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfY the petitioner's 
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). 
The beneficiary is in the United States in H-l B status pursuant to a petition filed by approved 
in January 2009. Counsel asserts that this entity is a "member of the petitioner's restaurant group," but no 
corroborating evidence has been provided in of this statement. It is not been established that the 
beneficiary's authorized employment for also included authorization for employment 
responsibilities performed for other restaurants. Further, the petitioner has provided no clear description of the 
roles the beneficiary has held since assuming H-l B status. The petitioner's president and co-owner indicates that 
he offered the beneficiary "employment with _ in January 2009, not employment with the petitioning 
restaurant. He states that the beneficiary has served as "General Manager, Restaurants" responsible for the 
group's "new restaurant enterprises," which would not appear to include the petitioning restaurant, which was 
opened in 2004. If the beneficiary was "offered employment with _" and petitioned for by _ 
_ it is unclear under what circumstances her claimed experience working with the beneficiary at the 
petitioner's restaurant occurred. 
Based on the petitioner's statements, the beneficiary's only experience with the principal alien appears to have 
occurred "over the last past six months," or since approximately September 2009, and "through [the petitioner's] 
group of restaurants." The petitioner indicates that during this time the beneficiary "has been collaborating and 
Page 8 
and "using her broad managerial skills to orchestrate the demands" of the restaurant. 
It has not been established that she has formally assumed the position of general manager of the restaurant, or 
for the petitioner's restaurant in conjunction with her authorized H-I B 
employment with The petitioner's vague statements regarding the beneficiary's employment 
history with its group of restaurants are insufficient to establish that the beneficiary has "substantial experience" 
working with the 0-1 alien, While there is no bright-line test for determining what amount of experience 
qualifies as "substantial" the petitioner has not even adequately documented the claimed six months of 
experience, The record does not contain a resume for either the beneficiary or the 0-1 alien, and their exact roles 
within the petitioner's organization, and the date they assumed such roles, remains unclear. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Even if the petitioner established that assumed the restaurant's head chef position in January 2009 
and the beneficiary assumed the restaurant general manager position in September 2009, it would be evident that 
someone other than the bene~ed the same types of management services for the restaurant during the 
first eight to nine months of_ employment in the United States. The petitioner must establish that the 
beneficiary assists in the performance of the 0-1 alien, is an integral part of his actual artistic performance as a 
chef, and has critical skills and experience which are not of a general nature and which are not possessed by a 
U.S. worker. 8 C.F.R. § 214.2(0)(4)(ii)(A). The AAO agrees with the director's conclusion that this burden has 
not been met. 
The petitioner initially described the beneficiary's skills as "extensive restaurant managerial skills," "maintaining 
profitable margins," "developing mutually beneficial relationships with vendors" and knowledge of "Anglo food 
and customer service." The petitioner did not address these skills in relation to the beneficiary's support 
relationship with the 0-1 alien, explain why there are no available U.S. workers who possess similar knowledge 
and skills, or describe how these skills are essential to artistic performance as a chef. 
Although the petitioner submitted an advisory opinion letter from _ of The James Beard 
Foundation, the letter does not address the beneficiary's prior working relationship with the 0-1 alien . •. 
_ stated that the beneficiary is "an integral part of not only the success of [the petitioning restaurant], 
but also the success of the group's newest venture called the _' While_ states that the 
beneficiary will assist and support the letter does not describe the beneficiary's essentiality to 
and working relationship with the 0-1 artist or whether there are available U.S. workers who can perform the 
support services, pursuant to the consultation requirements for 0-2 accompanying aliens as set forth at 8 
C.F.R. § 214.2(0)(5)(iv). Furthermore,_ spoke of the beneficiary's skills in similarly broad terms, 
noting her "exacting management style," "attention to detail," "international sensibilities," "creative and technical 
skills," "food industry expertise," and "utmost professionalism." Such attributes and skills would reasonably be 
possessed by the majority of restaurant managers employed at critically-acclaimed metropolitan restaurants in the 
United States and have not been shown to be more than skills "of a general nature," rather than skills 
that are specific to and integral to the performance 
When asked to provide additional evidence of the beneficiary's critical skills and her experience providing 
essential support services for the 0-1 alien, the petitioner stated that the duties the beneficiary performs and will 
Page 9 
perfonn for the restaurant "enabled _ to focus his culinary obligations on the creative process." The 
petitioner noted that the beneficiary perfonns "administrative support elements" such as setting up press and 
booking appearances, "sourcing and purchasing ... plateware and displayware," and managing "financial aspects 
of the business." Again, all of these duties appear to be the typical duties of a restaurant general manager in a fine 
dining establishment. The petitioner also emphasized its "team approach" among its kitchen and front-of-house 
staff, noting that "the front of house efforts enable, back up and support the kitchen endeavors." The petitioner 
has described the organizational structure and division of labor that would be found in any large restaurant. 
As noted by the director, a restaurant manager is clearly integral to the successful performance of the restaurant. 
The duties of the position are not, however, assistive to, supportive of, or integral to the artistic perfonnance of 
the head chef. The petitioner has not established that these skills are not of a general nature or addressed why 
such skills and duties could not be perfonned by a U.S. worker. The fact that the beneficiary and the 0-1 alien 
may have successfully maintained the front-of-house and kitchen operations of the restaurant for several months 
as general manager and head chef, respectively, does not establish the existence of the required essential support 
relationship between these two individuals. The petitioner has failed to establish the critical element of eligibility 
- that the beneficiary possesses critical skills that are integral to the chefs actual artistic perfonnance. 
Based on the foregoing discussion, we concur with the director's findings that the petitioner failed to establish that 
the beneficiary is an integral part perfonnance as a chef, or that she has critical skills and 
experience with that are not of a general nature and which cannot be perfonned by a U.S. worker. 
The beneficiary is clearly a skilled and experienced restaurant manager who is undoubtedly an asset to the 
petitioner's restaurant. The denial of this petition is without prejudice to the filing of a new petition by the 
petitioner in an appropriate visa classification, accompanied by the appropriate supporting evidence and fee. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dism issed.