dismissed EB-1A Case: Advertising

PUBLlCCOPY 
DATjUN 1 ~ 2012 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Irnmigration Service", 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)( 1)(A) of the Immigration and Nationality Act; 8 U.S.c. § 1153(b)( 1 )(A) 
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 helieve the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The speciEc requirements f(" filing such a request can he t()und at H C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fcc of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on December 23, 2010, and is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(I)(A) of the hnmigration and Nationality Act (the Act), 8 U.S.C § 1153(b)(l)(A), as an 
alien of extraordinary ability. The director determined that the petitioner had not established the 
requisite extraordinary ability, failed to submit extensive documentation of his sustained national or 
international acclaim, and failed to establish his intention to continue to work in the United States in 
his area of expertise. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203(b )(1 )(A)(i) of the Act and 8 
CF.R. § 204.5(h)(3). The implementing regulation at 8 CF.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement, 
specifically a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific evidence. 8 CF.R. §§ 204.5(h)(3)(i) through (x). The 
petitioner must submit qualifying evidence under at least three of the ten regulatory categories of 
evidence to establish the basic eligibility requirements. 
On appeal, counsel claims that the petitioner meets at least three of the regulatory criteria at 8 CF.R. 
§ 204.5(h)(3). 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
Page 3 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States, 
U.S. Citizenship and Immigration Services (USerS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 lUI" Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. Id.; 8 CF.R. § 204.5(h)(2). 
The regulation at 8 CF.R. § 204.5(h)(3) requires that the petitIOner demonstrate the alien's 
sustained acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed at 8 CF.R. § 204.5(h)(3)(i)-(x). 
In 20lU, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USc/S, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion 1 With respect to the criteria 
at 8 CF.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USC IS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." Id. at l121-
22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did),"' and if the 
petitioner failed to submit suflicient evidence. "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 CF.R. § 204.5(h)(3». 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this matter, the AAO will review the 
evidence under the plain language requirements of each criterion claimed. As the petitioner did not 
submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requirement of three types of evidence. Id. 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria" 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
In the director's decision, he detennined that the petitioner failed to establish eligibility for this 
criterion. On appeal, counsel claims that the petitioner established eligibility for this criterion based 
on the petitioner's receipt of a bronze at the 2009 CLIO Awards and 2009 One Show Interactive 
Award from The One Club. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) 
requires "[d]ocumentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards tor excellence in the field of endeavor." Moreover, it is the petitioner's burden to 
establish eligibility for every element of this criterion, Not only must the petitioner demonstrate his 
receipt of prizes and awards, he must also demonstrate that those prizes and awards are nationally or 
internationally recognized for excellence in the field of endeavor. In other words, the petitioner 
must establish that his prizes and awards are recognized nationally or internationally for excellence 
in the field beyond the awarding entities. 
the petitioner submitted a letter from ••••••••••••• 
who stated that "CLIO remains the largest and most well-known advertising awards 
program in the world." Moreover, the petitioner submitted screenshots from •• lIIIIi11 ....... 
and an entry form for the However, the petitioner failed to submit 
independent, objective evidence reflecting that the are nationally or internationally 
recognized for excellence in the field. See Braga v, Poulos, No. CV 06 5105 SJO (C. D. CA July 6, 
2(07) aff'd 2009 WL 604888 (9th Cir. 2009) (concluding that the AAO did not have to rely on sc1f­
serving assertions or promotional material), The petitioner also submitted screenshots from 
Wikipedia regarding the CLIO Awards. However, as there are no assurances about the reliability of 
the content from this open, user-edited Internet site, the MO will not assign weight to information 
from Wikipedia. See Laamilem Badasa v, Michael Mlikasey, 540 F.3d 909 (8th Cir. 2(08).) While 
, On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not 
discussed in this decision. 
-, See also the online content from http;l/cn.v,..jkipedia.orgiwiki/\.Yikipedia: General disclaimer, accessed on June 5, 
2012, and copy incorporated into the record of proceeding is subject to the following general disclaimer: 
WlKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipcdia is an online open-conlent 
collaborative encyclopedia, that is, a voluntary assodation of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone 
with an Internet connection to alter its content. Please be advised that nothing found here has 
necessarily been reviewed by people with the expertise required to provide you with complete, 
accurate or reliable information. . .. Wikipedia cannot guarantee the validity of the information 
found here. The content of any given article may recently have been changed, vandalized or 
Page 5 
the petitioner demonstrated his receipt of a bronze at the he failed to establish 
that the CLIO Awards are nationally or internationally recognized for excellence in the field of 
endeavor. 
Similarly, regarding the petitioner's the 
petitioner submitted a letter 
that _ is the premier association of on'JPrticin" ~~:::;. 
While _ provided some background information about. 
indicate if the is nationally or internationally recognized prize or 
award for excellence. Moreover, while the petItIoner submitted screenshots from 
and Wikipedia, he failed to submit any independent, objective 
evidence reflecting that the is nationally or internationally recognized 
for excellence in the field. See Braga v. Poulos, No. CY 06 5105 S10 a/I'd 2009 WL 604888 
(concluding that the AAO did not have to rely on self-serving assertions or promotional material); 
see Laamilem Badasa v. Michael Mukasey, 540 F.3d at 909 (concluding that there are no assurances 
about the reliability of open, user-edited Internet sites). 
As discussed, the plain language of this regulatory criterion specifically requires that the petitioner's 
prizes or awards be nationally or internationally recognized for excellence in his field. In this case, 
the petitioner failed to demonstrate that his awards are tantamount to nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien '.1' work in thefieldfor which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The director determined that the petItIOner failed to establish eligibility for this criterion. In 
counsel's brie1~ he did not contest the findings of the director for this criterion or offer additional 
arguments. The AAO, therefore, considers this issue to be abandoned. See Sepulveda v. U.S. Att'y 
Gen., 401 F.3d 1226,1228 n. 2 (11th Cir. 20(5); Hristov v. Roark, No. 09-CY-27312011, 2011 WL 
4711885 at * 1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned 
as he failed to raise them on appeal to the AAO). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence oj'the alien's original scientific. scholarly, artistic. athletic, or business­
related contributions of major significance in the field. 
altered hy someone whose opinion does not correspond with the state of knowledge in the relevant 
fields. 
Page 6 
In the director's decision, he determined that the petitioner established eligibility for this criterion. 
The plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(v) requires "[e]vidence of the alien's 
original scientific, scholarly, artistic, athletic, or business-related contributions of major significance 
in the field." Based on a review of the record of proceeding, the petitioner demonstrated that he 
minimally meets the plain language of the regulation for this criterion. 
Accordingly, the petitioner established that he meets this criterion. 
Evidence of the alien's authorship of scholarly arlicles in thefield. in professional or 
major trade publicatiolJs or other major media. 
On appeal, counsel claims: 
Concerning evidence submitted to satisfy this criteria [sic], the Petitioner simply 
does not understand why the Center Director should have concluded with a single 
sentence as follows: 
"[The petitioner] did not provide any evidence regarding this criterion, so the 
criterion has not been met." 
This is entirely incorrect. The fact is that the Petitioner submitted six articles he 
authored from May 2007 to October 2007 in a series of lectures explaining in detail 
about every aspect of Adobe Flash Lite technology. These six articles are published 
in the WE.B. magazine. . .. It is therefore hard to understand why the Center 
Director should have dismissed these documents with a single sentence as being 
nonexistent. 
A review of the record of proceeding fails to reflect that the petitioner claimed eligibility for this 
criterion at the time of the original filing of the petition or in response to the director's notice of 
intent to deny pursuant to the regulation at 8 C.F.R. § 103.2(b)(8). Therefore, the AAO finds no 
error in the findings of the director for this criterion and is not persuaded by counsel's claims. It is 
noted that counsel originally claimed the petitioner's eligibility for the published material criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) based on the six aforementioned self­
authored articles rather than for this criterion. 
Notwithstanding the above, the AAO will review the documentary evidence to determine if the 
petitioner meets the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) that requires 
"[ e ]vidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media." The petitioner submitted documentary evidence reflecting that 
he authored six informative articles regarding Adobe Flash Lite for W.E.B. However, a review of 
the material fails to reflect the petitioner's authorship of "scholarly articles [emphasis added]." In 
general, scholarly articles are generally written by and for experts in a particular field of study, are 
peer-reviewed, and contain references to sources used in the articles. However, the articles fail to 
reflect that they were peer-reviewed, contained any references to sources, or are otherwise 
Page 7 
considered ··scholarly." As the regulation at 8 C.F.R. § 204.5(h)(3)(vi) specifically requires the 
articles to be scholarly, the submission of non-scholarly articles is insufficient to meet the plain 
language of this regulatory criterion. 
Moreover, even if the petitioner were to submit supporting documentary evidence showing that he 
meets the elements of this criterion, which he has not, section 203(b)( 1 )(A)(i) of the Act requires the 
submission of extensive evidence. Consistent with that statutory requirement, the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires the authorship of scholarly articles in more than 
one publication. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the 
plural. Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only require service on a 
single judging panel or a single high salary. When a regulatory criterion wishes to include the 
singular within the plural, it expressly does so as when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that 
evidence of experience must be in the form of"letter(s)." Thus, the AAO can infer that the plural in 
the remaining regulatory criteria has meaning. In a different context, federal courts have upheld 
USClS' ability to interpret significance from whether the singular or plural is used in a regulation. 
See Maramjaya v. USC/S, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26, 20(8); 
Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2(06) (upholding an 
interpretation that the regulatory requirement for "a" bachelor's degree or "a" foreign equivalent 
degree at 8 C.F.R. § 204.5(1)(2) requires a single degree rather than a combination of academic 
credentials). In the case here, the petitioner submitted documentary evidence reflecting that his 
articles were published in only one publication - WE.B. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires "[eJvidence of the 
alien's authorship of scholarly articles in the field, in professional or major trade publications or 
other major media." The documentary evidence submitted by the petitioner fails to reflect that the 
petitioner has authored scholarly articles in his field in professional or major trade publications or 
other major media. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or estahlishments that have a distinguished reputation. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. On appeal, counsel claims the petitioner's eligibility for this criterion based on his role 
with _ Counsel further claims that the petitioner's under the 
awards criterion pursuant to the regulation at 8 C.F.R. § recommendation letters 
that were submitted for the original contributions criterion pursuant to the regulation at 8 c.F.R. 
§ 204.5(h)(3)(v) demonstrate eligibility for this criterion. The AAO will not presume that evidence 
relating to or even meeting the awards criterion and original contributions criterion is presumptive 
evidence that the petitioner also meets this criterion. To hold otherwise would render meaningless 
the regulatory requirement that a petitioner meet at least three separate criteria. 
The plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(viii) requires "[e]vidence that the 
alien has perfonned in a leading or critical role for organizations or establishments that have a 
distinguished reputation [emphasis added]." In general, a leading role is evidenced Irom the role 
itself, and a critical role is one in which the alien was responsible for the success or standing of the 
organization or establishment. 
[The petitioner] has worked at our company on several important projects that 
required a Flashlite mobile designer and developer who is at the absolute top of their 
profession. His work was of the highest quality and he exhibited a solid 
understanding of Adobe Flashlite development and design. His creative 
contributions played an instrumental role in the success of the ects to which he 
was assigned. [The has created client 
and has worked on 
Moreover stated: 
[The petitioner] is a remarkably talented artist/programmer who has executed 
design/programming concepts for several of our most pn!stilgi()us 
[The petitioner] played an important role on my team as our 
designer - a skill-set that not many programmers in the USA have. His 
contributions greatly impressed both our internal teams and the which 
lead to additional work for_. His work complimented our ideas and brought 
these ideas to life in the mobile space. We were extremely impressed with his 
craftsmanship and quality of work. [The petitioner] has been an invaluable asset to 
the success of our projects and we were thrilled with the results of our collaboration 
with him. 
Although the letters indicated that the petitioner was "instrumental" and "important" to _ thcy 
fail to reflect that the petitioner has performed in a leading or critical role consistent with the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). Vague, solicited letters that do not 
specifically identify the petitioner's roles or provide specific, detailed examples of how his role was 
leading or critical are insufficient. It appears from their job titles that these individuals who wrote 
recommendation letters on behalf of the petitioner performed in a far more leading or critical role. 
The petitioner failed to submit any organizational charts, for example, to demonstrate that the 
petitioner's roles were leading or critical when compared to other employees at the organization. 
N . described the petitioner's role to the roles of the other employees 
of the "internal teams," so as to reflect that the petitioner's role was leading or critical. 
The letters considered above primarily contain bare assertions of the petitioner's role at ••• 
without specifically identifying the roles and explaining how they were leading or critical. Merely 
repeating the language of the statute or regulations does not satisfy the petitioner'S burden of proof. 
-Page 9 
See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. 
Cir. 1990); Al'Yr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The lack of 
supporting evidence gives the AAO no basis to gauge the petitioner's role at RG/A. 
Regarding the references to the petitioner's talents, merely having a diverse skill set is not reflective 
of performing in a leading or critical role. Rather, the record must be supported by evidence that the 
petitioner has already used those unique skills to perform in a leading or critical role. Furthermore, 
assuming the petitioner's skills are unique, the classification sought was not designed merely to 
alleviate skill shortages in a given field. In fact, that issue properly falls under the jurisdiction of the 
Department of Labor through the alien employment labor certification process. See Matter oj'New 
York State Department oj'Transportation, 22 I&N Dec. 215, 221 (Comm'r 1998). 
Even if the petitioner established that he performed a leading or critical role at RIGA, which he 
clearly did not, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires the 
petitioner's leading or critical be for more than one organization or establishment. In the case here. 
the petitioner only claimed eligibility for this criterion based on his role with RIGA. 
Again, the plain language of the regulation at 8 C.F .R. § 204.5(h)(3)(viii) requires "[ e ]vidence that 
the alien ha~ performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." The burden is on the petitioner to establish that he meets every element 
of this criterion. Without documentary evidence demonstrating that the petitioner has performed in 
a leading or critical role for organizations or establishments that have a distinguished reputation, the 
AAO cannot conclude that the petitioner meets this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
Ill. INTENT TO CONTINUE TO WORK IN THE UNITED STATES 
The regulation at 8 C.F.R. § 204.5(h)(5) states: 
Neither an offer for employment in the United States nor a labor certification is 
required for this classification; however, the petition must be accompanied by clear 
evidence that the alien is coming to the United States to continue work in the area of 
expertise. Such evidence may include letter(s) from prospective employcr(s), 
evidence of prearranged commitments such as contracts, or a statement from the 
beneficiary detailing plans on how he or she intends to continue his or her work in 
the United States. 
[n the director's decision, he determined: 
Page 10 
[Y]ou have not established you are coming to the United States to work as a User 
Interface Designer. Although, no offer of employment is required for this 
classification, it must be established that you are coming to the United States to 
continue work in your [field] of expertise. C.F.R. Section 204(h)(5). There are no 
contracts or job offer evidence in the record to demonstrate you will continue to 
work in your field of endeavor. 
In counsel's brief on appeal, counsel claims that "[i]t is also noted that the Center Director has not 
disputed evidence that the [petitioner] seeks to enter the United States to continue to work in the 
area of his extraordinary ability .... " On the contrary, as evidenced by the director's decision 
indicated above, the director specifically determined that the petitioner failed to establish that he 
intended to come to the United States to work in his field of expertise. 
The AAO concurs with the director regarding this issue. The record contains no evidence of letters 
from prospective employers, contracts, or a statement from the petitioner detailing plans on how he 
intends to continue his work in the United States. As such, the petitioner failed to establish by clear 
evidence that he intends to come to the United States to continue in his area of expertise pursuant to 
section 203(b)( 1 )(A)(ii) of the Act and the regulation at 8 C.F.R. § 204.5(h)(5). 
IV. 0-1 NONIMMIGRANT 
The AAO notes that the petitioner indicated on his petition that he was last admitted to the United 
States on February 23, 2010, on an 0-1 nonimmigrant visa. However, while USCIS has approved 
at least one 0-1 nonimmigrant visa petition filed on behalf of the petitioner, the prior approval does 
not preclude USCIS from denying an immigrant visa petition based on a different, if similarly 
phrased, standard. It must be noted that many 1-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant petitions. See, e.g, Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 
25 (D.D.C. 2(03); lKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedill 
Brothers Cu. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time 
reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant 
petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; 
see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2(04) 
(finding that prior approvals do not preclude USCIS from denying an extension of the original visa 
based on a reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church SciellfoloK}' International, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
Page 11 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.C!. 51 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprise.l; Inc. v. United States, 229 F. Supp. 2d at 1043, affd, 345 
F.3d at 683; see also Sollane v. DOl, 381 F.3d at 145 (noting that the AAO conducts appellate 
review on a de novo basis). 
V. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of the 
small percentage who has risen to the very top of the field of endeavor. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (I) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field 
of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
not explain that conclusion in a final merits determination. 4 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. 
at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(I)(A) of the Act and the 
petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.c. § 1361. Here, the petitioner bas not sustained tbat burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
4 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d at 145. 
In any ruture proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the 
office that made the last decision in this maller. 8 C.F.R. § 103.5(a)(I)(ii). See also section 100(a)(I) of the 
Act; section 204(h) of the Act; DHS Delegation Number 0150.1 (effective March 1,2003); 8 C.F.R. § 2.1 
(2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding 
that legacy INS, now USClS, is the sole authority with the jurisdiction to decide visa petitions).