Date of Decision: April 18, 2017
Service Center: Texas Service Center
Form Type: Form I-140
Case Type: EB-2 National Interest Waiver (NIW)
Field of Expertise: Culinary Arts
Petitioner Information
Profession: Executive Head Pastry Chef
Field: French Baking
Nationality: [Not specified]
Summary of Decision
Initial Decision: Denied
Appeal Outcome: Denied
Evidentiary Criteria Analysis
Criteria Met:
Vocational Training Certificates: The beneficiary’s vocational training certificates from renowned institutes satisfied the criterion of having a degree, diploma, certificate, or similar award from a college, university, or institute of learning.
Recognition for Achievements: The beneficiary received recognition for achievements and significant contributions to the industry, as evidenced by reference letters and reviews of the café where he works.
Criteria Not Met:
Ten Years of Experience: The petitioner did not provide sufficient evidence showing that the beneficiary has at least ten years of full-time experience in the occupation.
Commanded Salary: The petitioner failed to demonstrate that the beneficiary commanded a salary indicative of exceptional ability prior to the priority date.
Key Points from the Decision
Proposed Endeavor:
The petitioner sought to employ the beneficiary as an executive head pastry chef, leveraging his expertise in French baking to enhance the quality and reputation of the bakery.
Substantial Merit and National Importance:
The decision emphasized that the petitioner did not meet the requirement to prove that the job required an individual of exceptional ability.
Key Quote: “The Petitioner has not demonstrated either that the Beneficiary is an individual of exceptional ability or that the job requires someone with that level of skill.”
Supporting Evidence:
The petitioner submitted reference letters, the beneficiary’s resume, vocational training certificates, and pay stubs. However, this evidence was not sufficient to meet all the required criteria.
Key Quote: “The Petitioner has not documented the Beneficiary’s 10 years of experience as of June 2015.”
Inconsistencies in Proposed Endeavor:
The primary inconsistency noted was the lack of evidence to substantiate the beneficiary’s ten years of experience and the commanded salary prior to the priority date.
Supporting Documentation
Letters of Intent: Not specifically mentioned.
Business Plan: Not applicable.
Advisory Letter: Included reference letters from previous employers and café reviews.
Other Supporting Documentation:
Vocational training certificates
Beneficiary’s resume
Pay stubs
Conclusion
Final Determination: The appeal was dismissed, and the initial decision was upheld.
Reasoning:
The petitioner failed to provide the required initial evidence to support the claim of the beneficiary’s exceptional ability. Additionally, the job requirements listed in the labor certification did not reflect the need for an individual with exceptional ability. Therefore, the petition for an EB-2 National Interest Waiver was denied.
