This appeal was not successful at this stage
The AAO dismissed the appeal because the petitioner failed to establish the beneficiary met at least three of the six required evidentiary criteria for O-1B extraordinary ability in the arts. The petitioner relied heavily on testimonial letters that do not satisfy the regulatory evidentiary requirements.
3 more criteria would trigger a full merits review.
A food and beverage market petitioned for O-1B status for a sous chef, claiming extraordinary ability in the culinary arts. The California Service Center denied the petition, and the AAO affirmed on appeal. Across three criteria examined — lead/starring participation, national/international recognition through publications, and commercially acclaimed successes — the petitioner submitted only testimonial letters and unverified publication statistics, none of which met the specific regulatory evidentiary requirements. The AAO also rejected the petitioner's comparable evidence argument, finding the commercial successes criterion (8 C.F.R. § 214.2(o)(3)(iv)(B)(4)) readily applies to chefs and therefore could not be bypassed. Because the petitioner failed to meet the threshold of three criteria, the AAO did not reach a totality-of-the-evidence analysis.
What failed: 1. Testimonial letters cannot substitute for the regulatory forms of evidence (critical reviews, advertisements, publicity releases, contracts, endorsements, or qualifying publications) required by the O-1B criteria. 2. Circulation and readership claims for online publications must be corroborated by independent third-party data, not just letters from the publications' own staff. 3. The comparable evidence provision cannot be used to avoid a criterion that plainly applies to the beneficiary's occupation; unsupported assertions that a criterion doesn't apply are insufficient.
Takeaway: For O-1B culinary petitions, petitioners must gather actual press coverage, critical reviews, or advertisements from verifiably major publications, and must not rely on recommendation letters as a substitute for the specific evidentiary forms listed in the regulations. Where comparable evidence is invoked, detailed, specific, and credible explanations — supported by evidence — are required to show why the listed criterion cannot apply.
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
- See summary above for details.
● Evidence that wasn't enough alone
- Testimonial letters cannot substitute for the regulatory forms of evidence (critical reviews, advertisements, publicity releases, contracts, endorsements, or qualifying publications) required by the O-1B criteria
- Circulation and readership claims for online publications must be corroborated by independent third-party data, not just letters from the publications' own staff
- The comparable evidence provision cannot be used to avoid a criterion that plainly applies to the beneficiary's occupation
- unsupported assertions that a criterion doesn't apply are insufficient.
Testimonial/recommendation letters offered as evidence of lead or starring participation — not among the regulatory forms (critical reviews, advertisements, publicity releases, publication contracts, or endorsements)
YouTube video links without screenshots or transcripts to corroborate claims of lead chef role at culinary demonstrations
Letters from journalists asserting publication circulation figures for elhorizonte.com and del0.com.mx without independent corroborating evidence (e.g., ComScore data)
Testimonial letters offered as evidence of major commercial or critically acclaimed successes — not qualifying publications (trade journals, major newspapers, or other publications)
Articles from elhorizonte.com and del0.com.mx whose major status was not independently established
The petitioner incorrectly claimed the Director had already accepted the beneficiary met the past performance requirement under 8 C.F.R. § 214.2(o)(3)(iv)(B)(1); the Director's decision made no such finding.
The petitioner incorrectly argued that 8 C.F.R. § 214.2(o)(3)(iv)(B)(4) applies only to the motion picture industry; the AAO found the criterion broadly applies to all arts occupations.
Completed
I-129 filed
Sous chef at a food and beverage market
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2024-12-18
AAO decision — Dismissed
The AAO dismissed the appeal because the petitioner failed to establish the beneficiary met at least three of the six required evidentiary criteria for O-1B extraordinary ability in the arts. The petitioner relied heavily on testimonial letters that do not satisfy the regulatory evidentiary requirements.
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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