This appeal was not successful at this stage
The AAO dismissed the appeal because the Beneficiary failed to satisfy at least three of the six required evidentiary criteria for O-1B classification. The AAO also withdrew the Director's favorable finding on the published materials criterion for lack of evidence about the publications' standing.
2 more criteria would trigger a full merits review.
A restaurant petitioned for O-1B classification for its Beneficiary chef, claiming extraordinary ability in the culinary arts. The Director had denied the petition, finding only two criteria met (organizations and significant recognition), and the AAO affirmed the denial on appeal. The AAO also withdrew the Director's favorable finding on published materials because the Petitioner failed to establish the standing of the cited websites as major publications. The Petitioner's claims under the lead/starring, published materials, and high salary criteria each failed due to submission of wrong evidence types or insufficient comparative data. Because the threshold of three criteria was not met, the AAO did not conduct a final merits totality analysis.
What worked: The Director found the Beneficiary met the organizations/establishments criterion and the significant recognition criterion, though the AAO did not re-examine these findings because they were moot given the failure to reach three total criteria.
What failed: Appreciation letters and certificates were rejected as not being the enumerated evidence types (critical reviews, ads, publicity releases, etc.) for the lead/starring criterion. Online publications were rejected because the Petitioner submitted no circulation or readership data to show they were 'major' outlets. The high salary criterion failed because the Petitioner's own wage data showed the offered $60,000 salary was below the Level 4 and median figures for the relevant market.
Takeaway: Petitioners must match evidence precisely to the regulatory categories listed for each O-1B criterion — testimonial letters and internal certificates will not substitute for advertisements, contracts, or critical reviews. For the published materials and high salary criteria, affirmative comparative data (publication circulation figures; wage surveys showing the beneficiary is in a top tier) is essential.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating O-1B criteria.
● Evidence that moved the needle
- The Director found the Beneficiary met the organizations/establishments criterion and the significant recognition criterion, though the AAO did not re-examine these findings because they were moot given the failure to reach three total criteria.
● Evidence that wasn't enough alone
- Appreciation letters and certificates were rejected as not being the enumerated evidence types (critical reviews, ads, publicity releases, etc.) for the lead/starring criterion
- Online publications were rejected because the Petitioner submitted no circulation or readership data to show they were 'major' outlets
- The high salary criterion failed because the Petitioner's own wage data showed the offered $60,000 salary was below the Level 4 and median figures for the relevant market.
Organizations and establishments criterion (8 C.F.R. § 214.2(o)(3)(iv)(B)(3)) — upheld by Director (not re-examined by AAO due to insufficient total criteria)
Significant recognition criterion (8 C.F.R. § 214.2(o)(3)(iv)(B)(5)) — upheld by Director (not re-examined by AAO due to insufficient total criteria)
Postings on nepallive.com and bizshala.com found to contain sufficient content about the Beneficiary and his work, but failed on publication standing
Appreciation letters, certificates, and testimonial letters were not among the enumerated forms of evidence (critical reviews, advertisements, publicity releases, publications, contracts, or endorsements) required under the lead/starring criterion
Employment itinerary did not qualify as a critical review, advertisement, publicity release, publication, contract, or endorsement for the lead/starring criterion
Employment agreement did not establish lead or starring participation in distinguished events or productions
nepallive.com and bizshala.com: Petitioner failed to submit circulation, readership, or viewership figures establishing them as major publications
abudhabitalking.com, dubaitravelblog.com, and an unnamed site: briefly mentioned Beneficiary but lacked substantive discussion of achievements
YouTube claim was unsupported — no screenshots or transcripts provided
UAE salary letters: no comparable wage data for UAE chefs provided to establish high salary in that market
U.S. salary offer of $60,000/year: fell below the Level 4 Wage ($69,701) and median chef de cuisine salary ($64,832) shown in Petitioner's own evidence, only demonstrating above-average rather than high compensation
Glassdoor salary data noted as self-reported and unverified
Director granted the published materials criterion (8 C.F.R. § 214.2(o)(3)(iv)(B)(2)) without explanation or analysis; AAO withdrew this favorable finding because the Petitioner failed to establish the level of recognition of the cited online publications.
Completed
I-129 filed
Chef (culinary arts)
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2023-04-20
AAO decision — Dismissed
The AAO dismissed the appeal because the Beneficiary failed to satisfy at least three of the six required evidentiary criteria for O-1B classification. The AAO also withdrew the Director's favorable finding on the published materials criterion for lack of evidence about the publications' standing.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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