dismissed EB-1A Case: Advertising Art

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prevent dearly unwarranted 
invasion d pemal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationaliv Act (the Act), 8 U.S.C. § 1153(b)(l)(A). The director 
determined the petitioner had not established, fhe sustained national or intemational acclaim necessary 
to qualify for classification as an alien of extraordinary ability. Specifically, the director concluded 
without explanation that the petitioner had failed to submit evidence to meet any of the regulatory 
criteria, of which an alien must meet at least three. 
On appeal, counsel submits a brief and additional evidence. Ultimately, we concur with the director 
that the evidence submitted is not merely insu&cient; the petitioner did not submit the initial required 
documentation for the classification sought, Rather, the petitioner relies mostly on self-serving claims, 
purported examples of his work product and letters that do not qualifi as primary evidence. 
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): 
I 
(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 
intemational 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 
(iii) the alien's entry to the United States will substantially benefit 
prospectively the United States. 
As used in this section, the term "extraordinary ability" means a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of endeavor. 
8 C.F.R. § 204.5@)(2). The specific requirements for supporting documents to establish that an alien 
has sustained national or international acclaim and recognition in his or her field of expertise are set 
forth in the regulation at 8 C.F.R. 4 204,5(h)(3). The relevant criteria will be addressed below. It 
should be reiterated, however, that the petitioner must show that he has sustained national or 
international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a creative concept 
advertising artist.' The regulation at 8 C.F$. $204.5(h)(3) indicates that an alien can establish 
sustained national or international acclaim through evidence of a one-time achievement (that is, a 
major, international recognized award). ,Barring the alien's receipt of such an award, the regulation 
outlines ten criteria, at least three of which must be satisfied for an alien to establish the sustained 
acclaim necessary to qualify as an alien of extraordinary ability. The petitioner has submitted evidence 
that, he claims, meets the following crit~a.* 
Evidence of the alien's original cscientific, scholarly, artistic, athletic, or business-related 
contributions of major signiJicance in the field. 
Initially, counsel asserted that the petitioner vas submitting five letters as evidence to meet this 
criterion. Abby Wong, a creative consultant at, a Malaysian advertising company, asserts that the 
petitioner's expertise in his field is an artistic' contribution of major significance because his designs 
enable his clients "to better display and promote their products leading to iricrease[d] sales and 
visibility." Ms. Wong concludes that the petitioner's "creative concept advertising art transcends print 
media, visual media and the [Ilnternet." Thp letters from Suttinee Nanakornpanom, owner of a 
restaurant in North Miami Beach, and Shaq L;im Shao Hoong of Dynamic Revolution in Malaysia 
include identical language, suggesting that while these witnesses affirm the statements in their letters by 
their signatures, the language is not their own. Jeanny Chi-Lei, President of the Miami Overseas 
Chinese Association (MOCA), asserts that the petitioner's contributions to his field are evident from 
the "display" of his work on the pmmotional materials for a local MOCA festival. Ms. Chi-Lei does 
not explain the basis of her conclugion. 
In response to the director's notice of intent to deny, in which the director stated that the letters merely 
describe the petitioner's work, counsel reiterates the statements discussed above. In a new letter, Mr. 
Hoong asserts that the petitioner's work is "well received" by his clients and that he is "able to 
contribute fresh and brilliant advertising ideas to the art and design field." 
The director concluded that the petitioner had not submitted any "new" evidence relating to this 
criterion. On appeal, counsel asserts that the attestations in the reference letters are sufficient. Counsel 
cites non-precedent decisions from this office from 1998 and earlier, which are not binding. Counsel 
concludes that the petitioner's expertise alonf: is sufficient to meet this criterion. 
The opinions of experts in the field, while not without weight, cannot form the cornerstone of a 
successfU1 claim of sustained natiopal or international acclaim. Citizenship and Immigration 
1 
 The petitioner last entered the United States with an F-1 nonirnmigrant student visa for optional practical 
training through the Savannah College of Art and Design. His period of stay expired November 27, 2004. 
While student or training status does not preclude eligibility under this exclusive classification, the petitioner 
cannot narrow his field to those just completing their education and training. 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Services (CIS) may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 79 1,795 (Comm. 1988). However, CIS 
is ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of letters fiom experts supporting the petition is not presumptive 
evidence of eligibility; CIS may evaluate the content -of those letters as to whether they support the 
alien's eligibility. See id. at 795-796. CIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. Id. at 795; See also 
Matter of Sofld, 22 1&N Dec. 158, 165 (CO-. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In evaluating the reference letters, we note .that letters containing mere assertions of widespread 
acclaim and vague claims of contributions are less persuasive than letters that specifically identify 
contributions and provide specific examples of how those contributions have influenced the field. 
Ultimately, evidence in existence prior to the preparation of the petition carries greater weight than 
new materials prepared especially for s~bmission with the petition. An individual with sustained 
national or international acclaim should be able to produce unsolicited materials reflecting that 
acclaim. 
Most art is original. 
 According to the regulation at 8 C.F.R. 8 204.5(h)(3)(v), an alien's 
contributions must be not only original but of major significance. We must presume that the phrase 
"major significance" is not superfluous and, thus, that it has some meaning. To demonstrate a 
contribution of major significance-in the field of advertising art, the petitioner must show more than 
the mere satisfaction of clients. The'purpose of advertising is to contribute to the client's business; 
not all advertising is a contribution of major significance in the field of art. The petitioner must 
demonstrate an impact in his own field. The record lacks evidence that the petitioner's 
advertisements have attracted the attention of national trade journals in his field or that he is 
recognized for pioneering new artistic techniques currently being applied at the national level. 
In light of the above, while the director's decision should have included more discussion of this 
criterion, we concur with the director that the initial letters were unpersuasive and that the petitioner's 
response did not include any new evidence beyond another vague letter that fails to explain how the 
petitioner has impacted the field of art. Thus, the petitioner has not established that he meets this 
criterion. 
Evidence of the display of the alien 's work in thejeld at artistic exhibitions or showcases. 
Initially, counsel asserted that the reference letters and the petitioner's purported work product serve to 
meet this criterion. In response to the director's notice of intent to deny, counsel quotes from the 
reference letters. The director concluded that there was "no evidence submitted." 
On appeal, counsel cites Dragon v. RVS, 748 F. 2d 1304, 1306 (9th Cir. 1984), for the proposition that 
all relevant evidence must be considered. That case involved a decision by the Board of Immigration 
Appeals (E3IA) denying an application for permission to reapply nunc pro tunc for admission into the 
United States. The court stated: 
In deciding whether to grant such relief, the BIA must, as in other cases involving 
discretionary relief, consider expres31y all relevant factors presented and issue a 
reasoned decision reflecting such deliberation. This rule applies in the case of nunc 
pro tunc applications as well. Among the factors the BIA has found relevant in cases 
involving applications for permission to reapply are the following: (1) the applicant's 
ignorance of the need to reapply for admission because he was unaware that he had 
been deported; (2) the reason the alien was originally deported; (3) the length of time 
the applicant has legally resided in the United States; (4) his or her moral character; 
(5) his or her family responsibilities; and (6) hardships resulting from deportation. 
Id. at 1306-1307. While we agree that all of the documentation submitted must be considered, counsel 
does not explain how a decision requiring the BIA to weigh positive and negative factors in 
discretionary relief cases applies to a visa' petition seeking the highly exclusive extraordinary ability 
classification. 
Ms. Wong asserts: 
Moreover, displays of [the petitioner's] work in the creative concept advertising art are 
evident at artistic exhibitibns and ihowcases. [The petitioner's] works are showcased 
prominently at the 2004 Miami International Dragon Boat Festival and art exhibitions at 
Miami International University of Art & Design. [The petitioner's] works are also 
present at Nanyang.com, which is Malaysia's leading news outlet and at several well- 
established South Florida restaurants'such as Hiro Miami and Yakko-san. 
Mr. Nanakornpanom and Mr. Hoong provide near identical statements. I 
petitioner's work "was displayed on [MOCA's] annual Miami Hong Kong Dragon Boat Festival 
brochure and web page, which was viewed by all citizens of = 
Tachibana, an accountant in Miami, affirms that the petitioner's work is "displayed" at Miami 
restaurants. 
The record contains the brochure for the Miami Hong Kong Dragon Boat Festival, advertisements for 
Nanyang.com, pages fiom Form Factory's website, restaurant menus and promotions, corporate 
graphics, artwork allegedly exhibited at a student exhibit at the Malaysia Institute of Art Design, 
animation allegedly exhibited at Miami International University of Art and Design (where the petitioner 
obtained his Master of Fine Art) and photographs with no indication of where they were displayed. 
None of these materials officially credit the petitioner with the work. 
The director should have provided some discussion of this criterion given the counsel's explicit claim 
that the petitioner meets it. Nevertheless, the director was technically correct that no evidence was 
Page 6 
submitted relating to this criterion. While the brochures, promotional materials, menus and corporate 
website pages may result in a "display" of the petitioner's work, they are not artistic exhibitions or 
showcases, whose primary purpose is to present art for viewing. As the regulation at 8 C.F.R. 
8 204.5(h)(3)(vii) explicitly provides that the display must be at an artistic exhibit or showcase, the 
mere fact that the petitioner has clients who use the work they paid him to do is not evidence relating to 
this criterion. 
Even if we were to consider this evidence as relating to this criterion, none of it is explicitly credited to 
the petitioner as would be expected in an artistic exhibit or showcase designed to promote the 
petitioner's artwork. Without credit, the artwork can hardly be considered to garner the petitioner any 
national or international acclaim. 
While the petitioner's claim to have displayed his work at what appear to be student exhibitions would 
at least relate to this criterion, the petitioner submits only photographs of the works allegedly displayed. 
The photographs alone are not evidence that they were displayed at an exhibition or showcase. The 
record lacks exhibit or showcase programs crediting the petitioner as a contributing artist. Even if we 
were to accept the self-serving captions that this artwork was displayed as claimed, a student exhibition 
at one's own school is hardly indicative of national or international acclaim. 
In light of the above, the petitioner did not submit evidence that we can consider under this criterion. 
Even if we did consider the evidence; it demonstrates only his ability to work in the field. It is not 
indicative of national or international acclaim. Thus, the petitioner has not established that he meets 
this criterioh. 
Evidence that the alien has perjiormed in a leading or critical role for organizations or 
estabIishments that have a distinguished reputation. 
The petitioner's references afirm, using similar language, the petitioner's roles for Nanyang.com (Art 
Director) and Miami restaurants and festivals. The director concluded &at no evidence was submitted 
to meet this criterion. 
Once again, the director should have provided some discussion given counsel's explicit claim that the 
petitioner meets this criterion. Nevertheless, the regulation at 8 C.F.R. $204.5(g)(l) provides that 
evidence of employment experience "shall be in the form of letter(s) fiom current or former 
employer(s) . . . and shall include the n-me, address, and title of the writer, and a specific description of 
the duties performed by the alien." None of the letters are from individuals at the entities for which the 
petitioner allegedly played a leading or critical role, Nanyang.cdm, Hiro Miami or Yakko-san. Thus, 
technically, the director was correct in stating that the petitioner did not submit the evidence required to 
address this criterion. 
Even if we were to consider the evidence relating to the petitioner's work in Miami, none of the 
materials establishing the reputations of Hiro Miami or Yakko-san suggests that these restaurants are 
known because of their remarkable promotional art or menus. Thus, we are not persuaded that the 
petitioner, in designing these materials, performed a leading or critical role for these restaurants. We 
have similar concerns regarding his design of promotional materials for a local festival. Regardless, 
none of this evidence suggests that the petitionefhas any recognition outside of Miami. 
Without an organizational chart from Nanyang.com, we cannot determine whether the position of Art 
Director, assuming the petitioner actually held that position, is a leading or critical role. Regardless, the 
petitioner arrived in the United States in February 2004 as an art student. He filed the instant petition 
more than one year later. The petitioner must demonstrate sustained national or international acclaim 
as of the date of filing in May 2005. The petitioner's work in Malaysia, which appears to have ended 
by February 2004, cannot be considered evidence of his sustained acclaim as of that date. 
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. 
Review of the record, however, does not. establish that the petitioner has distinguished himself as a 
creative concept advertising artist to such an extent that he may be said to have achieved sustained 
national or international acclaim or to be within the small percentage at the very top of his field. The 
evidence indicates that the petitioner shows talent in graphic design, but is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field. Therefore, the 
petitioner has not established eligibility pursuant to section 203@)(1)(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. 8 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.