U.S. Citizenship and Immigration Services

MATTER OF B-S- LLC

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 28,2017

PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER

The Petitioner seeks to temporarily employ the Beneficiary as an executive chef at its Japanese eel restaurant. To do so, it seeks to classify him as an 0-1 nonimmigrant, a visa classification available to foreign nationals 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)(0)(i). 8 U.S.C. ~ 1101(a)(15)(0)(i).

The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did not satisfy, as required. the evidentiary criteria applicable to individuals of extraordinary ability in the arts: a significant national or international award, at least three of six possible forms of documentation, or comparable evidence. 8 C.F.R. § 214.2(o)(3)(iv)(A)-(C). In addition, the Director found that the submitted consultation letter did not satisfy the requirement for a written advisory opinion from a peer group or labor organization. 8 C.F.R. § 214.2(o)(2)(ii)(D) and 8 C.F.R. § 214.2(o)(5)(ii)(A).

On appeal, the Petitioner maintains that sufficient evidence was presented attesting to the Beneficiary's distinction in the field and, thus, he is eligible for 0-1 classification. 1

Upon de novo review, we will dismiss the appeal.

I. LAW

As relevant here, section 101 (a)( 15)(0)(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

1 We decline the Petitioner's request for oral argument. 8 C.F.R. § I 03.3(b).

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Matter of B-S- LLC

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 well­known in the field of arts." 8 C.F.R. § 214.2(o)(3)(ii).

Next, DHS regulations set forth the evidentiary criteria for establishing a beneficiary's sustained acclaim and the recognition of achievements. A petitioner must submit evidence either of "significant national or international awards or prizes" such as "an Academy Award, an Emmy, a Grammy, or a Director's Guild Award," or of at least three of six listed categories of documents. 8 C.F .R. § 214.2( o )(3)(iv)(A)-(B). If the petitioner demonstrates that the listed criteria do not readily apply to the beneficiary's occupation, it may submit comparable evidence to establish eligibility. 8 C.F.R. § 214.2(o)(iv)(C). When a petitioner provides the requisite evidence. we then determine whether the record, viewed in its totality, shows sustained national or international acclaim such that the individual is prominent in the field of endeavor.

Additionally, the regulation at 8 C.F.R. § 214.2(o)(2)(ii), provides, in pertinent part that all petitions tor 0 classification must be accompanied by:

(B) Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed;

(C) An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary tor the events or activities: and

(D) A written advisory opinion(s) from the appropriate consulting entity or entities.

II. ANALYSIS

A. Introduction

The record indicates that the petitioning company intends to open a Japanese eel (unagi) restaurant in and seeks to temporarily hire the Beneficiary, who it claims is the best eel chef in Japan, as its executive chef at a monthly salary $15.000.2 The evidence shows that since June 1, 2016, the Beneficiary has been employed as Head Chef of the

(also referred to in the record as . a Japanese eel restaurant in the district of Japan.

1 We note that the evidence contains discrepancies regarding the dates of the Beneficiary's intended employment. The petition indicates that he will be employed for II months, while the contract between the parties indicates a 6-month period of employment. The Petitioner must resolve any discrepancies in the record with independent, objective evidence pointing to where the truth lies. Afatter ofHo, 19 J&N Dec. 582, 591-92 (BIA 1988). The Petitioner's evidence does not resolve this discrepancy.

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Matter l?[ B-S- LLC

B. The Beneficiary's Eligibility under the Evidentiary Criteria

Absent evidence of a significant national or international award or prize like the Academy Award, the Petitioner seeks to demonstrate the Beneficiary's sustained acclaim and recognition of achievements through evidence corresponding to the six regulatory criteria at 8 C.F.R § 214.2(o)(3)(iv)(B). The Director determined that the Petitioner did not satisfy any of the evidentiary criteria. The Petitioner does not specifically address the regulatory criteria on appeal. In an accompanying letter, however. the Beneficiary discusses evidence and achievements relating to four criteria. As discussed below. we tind that the exhibits satisfy only one of the evidentiary criteria, 8 C.F.R § 214.2(o)(3)(iv)(8)(6) (high salary).

Evidence that the alien has performed. and tvill perform. services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews. advertisements. publicity releases. publications contracts. or endorsements. 8 C.F.R. § 214.2( o )(3 )(iv)(B)( /).

The Petitioner states that the Beneficiary satisfies this criterion based on his role, since June 2016, as Head Chef of the In his initial letter in support of the petition, the Petitioner's president indicates that he visited the Beneficiary at that restaurant and saw him ··supervising all of the other chefs" and preparing to grill eel. It submitted a copy of the restaurant's review in the 2016

guide, published on the website http: /, and a 20 I 0 article describing the restaurant's cuisine and atmosphere. The article and

review, however, do not mention the Beneficiary. The record also contains pictures of the Petitioner's president and the Beneficiary together at a location claimed to be the

Upon review, the evidence submitted does not establish that the Beneficiary meets this criterion. The plain language of the regulation requires that the Petitioner identify with specificity the events or productions in which the beneficiary performed services in a lead or starring capacity, document the distinguished reputation of such events or productions. and provide evidence of the beneficiary's role in such events in the form of critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. While we acknowledge the distinguished reputation of

the Petitioner has neither identified, nor documented through submission of the evidence prescribed by regulation the Beneficiary' s lead or starring role in events with a distinguished reputation at that establishment. The evidence in the record does not include rev1cws. advertisements, publicity releases, or publications that mention the Beneficiary by name.

In addition, the record does not demonstrate that he will prospectively serve as such a participant. At the time of filing, the Petitioner indicated in 0 and 0 Classifications Supplement to Form 1-129 that his duties will be to "direct the launch of the first of a new type of Japanese restaurant in

an eel specialty restaurant." The Petitioner did not offer evidence that would distinguish his role as leading or starring within any upcoming events with a distinguished reputation.

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Matter of B-S- LLC

Evidence that the alien has achieved national or international recw~nition fhr achievements evidenced by critical revie·ws or other published materials by or about the individual in major ne.,v5,papers, trade journals. magazines. or other publications. 8 C.F.R. § 214.2(o)(3)(iv)(B)(2).

The Petitioner provided published materials about published in the 2016 guide on the website http:// and in 2010 in the

The submitted evidence does not satisfy this criterion. The plain language of the criterion requires submission of published materials by or about the Beneficiary in major newspapers, trade journals, magazines or other publications. The evidence submitted does not satisfy this criterion because it is not about the Beneficiary.

Evidence that the alien has performed and will perform. in a lead starring. or critical role for organizations and establishments thai have a distinguished reputation evidenced by articles in newspapers. trade journals. publications. or testimonials. 8 C.F.R. § 214.2(o)(3)(iv)(B)(3).

The Petitioner's evidence showing that the Beneficiary has worked as the Head Chef of establishes that he has held a lead or critical role for an organization ·with a distinguished

reputation. In addition, his proposed employment as Executive Chef satisfies the requirement that he will be performing in a lead role for the petitioning organization. HO\vever, the Petitioner has not specifically claimed or provided the required evidence to establish that its organization has a distinguished reputation by the submission of evidence in the form of published articles or testimonials in support of this criterion. While it has submitted testimonial evidence, the letters do not mention the Petitioner and thus do not establish its distinguished reputation.

Evidence that the alien has received sign{ficant recognition for achievements fi'mn organizations, critics. government agencies. or other recognized experts in the field in ·which the alien is engaged. Such testimonials must he in a fhrm H'hich clearly indicates the author's authori(v. expertise. and knowledge of the alien's achievements. 8 C.F.R. § 214.2(o)(3)(iv)(B)(5).

The Petitioner submitted several testimonial letters in support of the petition. We determine that the submitted testimonials and other documentary evidence do not satisfy this criterion. of the in Japan, a cooking association which operates to "find, develop, and introduce superior chefs to restaurants all over Japan,·· describes the Beneficiary as an executive chef with over 30 years of experience, distinguished among chefs in Japan as a chef of extraordinary skill, who has "mastered grilling eel.'' of a Japanese w·holesale eel distribution company, and of the Japanese eel restaurant

describes the Beneficiary as the best eel specialist in Japan. Further, a consultation letter from a owner of m confirms that he ''has significant experience ... as a head chef of restaurants specializing in live eel.''

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Matter of B-S- LLC

The submitted letters do not satisfy the regulatory standard, which states that aflidavits from experts "'shall specifically describe the alien·s recognition and ability or achievement in tllctual terms and set forth the expertise of tbe affiant and the manner in which the affiant acquired such information.'· 8 C.F.R. § 214.2( o )(2)(iii)(B). The Petitioner has not shown that the authors of the letters are recognized experts in the culinary field. Although they praise the Beneficiary's culinary skills, none of these individuals establish their credentials as recognized experts in that field. In addition, they do not explain the manner in which they acquired their information regarding his skills.

Without further information and evidence, the above-referenced letters are not sufficient to demonstrate that the Beneficiary's achievements have received significant recognition. U.S. Citizenship and Immigration Services (USCIS) may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter o.l Caron International, 19 I&N Dec. 791, 795 (Comm ·r. 1988). However, USCIS is ultimately responsible for making the final determination regarding a foreign national's eligibility for the benefit sought. In addition, such letters from experts supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support the foreign national ' s eligibility.

Finally, on appeal the Petitioner argues that the Beneficiary has achieved a level of recognition that is possessed by "only by a handful of chefs worldwide,'' as demonstrated by the tact that in 1993 he was given a pufferfish (fugu) cooking license, which it claims is only possessed by the most skilled chefs due to the fish's highly toxic nature. It provided a copy of the license. but has not corroborated its scope and significance in the culinary field. It is the Petitioner's burden to establish that such licensure would constitute evidence of"significant recognition for achievements ti·om organizations in the field," pursuant to the plain language of the criterion. 3

Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remunerationfor services in relation to others in the field. as evidenced by contracts or other reliable evidence. 8 C.F.R. § 214.2(o)(3)(iv)(B)(6).

The Petitioner did not submit material relating to the Beneficiary's past salary or remuneration. such as letters from former employers, income tax forms, or pay statements. Instead, it presented its contract with the Beneficiary and statement in the petition indicating it will pay him a monthly salary of $15,000, equivalent to an annual salary of $180,000, for the proffered position of executive cheL The Petitioner provided comparative wage data relating to average or median wages of "Chefs and Head Cooks," in Metropolitan Division from the Foreign Labor Certification (FLC) Data Center's Online Wage Library (www.flcdatacenter.com). shows that the Level 4 Wage is $61,901 per year. Therefore, it has established that the Beneficiary will command a high salary in the proflered position of executive chef in relation to others in the field. Accordingly, we withdraw the Director's unfavorable determination relating to this criterion.

3 The burden of proof is on the party seeking the benefit. Section 291 of the Act.

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Matter of B-S- LLC

C. Consultation Requirements

Title 8, Code of Federal Regulations § 214.2( o )(2)(ii)(D) provides that all 0 nonimmigrant petitions must be accompanied by a written advisory opinion(s) from the appropriate consulting entity or entities from a labor organization. Pursuant to 8 C.F.R. § 214.2(o)(5)(ii)(A), consultation with a peer group in the area of the individual's ability (which may include a labor organization) or a person or person with expertise in the area of the individual's ability, is required in an 0-l petition for an individual of extraordinary ability. If the advisory opinion is favorable to the petitioner, it should describe the individual's ability and achievements in the field and describe the nature of the duties to be performed. The Petitioner attempted to satisfy the written advisory opinion requirement by submitting the above-referenced letter from the owner of in

describes the Beneficiary as the best eel specialist in Japan and confirms his previous experience "as a head chef of restaurants specializing in live eel." The letter did not describe in any detail the Beneficiary's achievements in the field or the nature of the work to be done. Further, the letter is unsigned and does not appear on letterhead, thus it has limited probative value. We therefore agree with the Director that the letter is inadequate to satisfy the requirement for a written advisory opinion from a peer group or labor organization.

III. CONCLUSION

For the reasons discussed above, the Petitioner has not established that the Beneficiary is eligible for the 0-1 visa classification as a foreign national with extraordinary ability in the arts.

ORDER: The appeal is dismissed.

Cite as Malter olB-S- LLC, ID# 613754 (AAO Sept. 28, 2017)