dismissed EB-1A Case: Art

Pt !DLIC COPY 
DATE: 
JUN 1 5 2012 
IN RE: 
Office: TEXAS SERVICE CENTER 
U.S. Oepartment of Homeland Sccurit}, 
U.S. Citi7enship and Immigration Scr\il.T~ 
Adrnini<,trativ..: Appe;lls Otfil"l' (/\AO) 
20 l\la~~al'husl.'tl~ Ave. 0_\\' .. t\-1:-. 2(1\)() 
VIi'(lshineton. DC '2():'i2()-.:,(11)() 
u.s. Citizenship 
and Immigration 
Services 
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)( I )(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 believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
with the field office or service center that originally decided your case by filing a Form J-290B, Notice of 
Appeal or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at 
8 C.F.R. § 103.5. Do not tile any motion directly with the AAO. Please be aware that 8 C.F.R. 
§ J03.5(a)(1)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
Thank you". 
"<c. ~f' 
~t'''\,,'' "::-!"~' .. . ~, .,,... , 
,~,l'I'-- , . 
.( 1 
Perry Rhe"w . • j 
Chief, Administrative Appeals Office 
www.uscis.go v 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center, 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)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(J)(A), as an 
alien of extraordinary as an artist. The director determined that the petitioner had not established 
the requisite extraordinary ability and failed to submit extensive documentation of her sustained 
national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the 
Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.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, the petitioner asserts that she meet~ the regulatory categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(i) - (iii), (vii), and (viii). For the reasons discussed below, the AAO will uphold 
the director's decision. 
1. 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 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
Page 3 
U.S. Citizenship and Immigration Services (USClS) 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. 723 101" Cong .• 2d 
Sess. 59 (I990); 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.; 1\ C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.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 1\ C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 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. I With respect to the criteria at 
8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS 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 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the signiiicance 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 sufficient 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 C.F.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. Jd. 
I Specifically, the court Slated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
heyond Ihose sci forth in the regulations at 8 C.F.R. § 204.S(h)(3)(iv) and H C.F.R. § 204.5(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criterii 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted a July 22, 2006 certificate from the Art & Artists Gallery in Miami Beach, 
Florida stating that she received an "Artexpresion Award of Honor" in the "Visual Emotions" art 
show for her work entitled "The Lily of the Valley." The petitioner did not submit evidence of the 
national or international recognition of her award, such as national or widespread local coverage 
of the award in arts publications or general media. The plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(i) specifically requires that the petitioner's awards be nationally or 
internationally recognized in the field of endeavor and it is her burden to establish every element 
of this criterion. Moreover, a competition may be open to contestants from throughout a 
particular country or countries, but this factor alone is not adequate to establish that an award or 
prize is "nationally or internationally recognized." In this case, there is no documentary 
evidence demonstrating that the petitioner's award was recognized beyond the presenting 
organization and therefore commensurate with nationally or internationally recognized prize or 
award for excellence in the field. 
On appeal, the petitioner submits an August 10, 2010 certificate stating that she was awarded a 
"Special Mention" at the Mumin Museum Art Show in Buenos Aires. The petitioner also 
submits a July 2010 certificate stating that she received an "Honorable Mention" at the 
International Art Show d'Estiu a Catalunya in Barcelona. The English language translations 
accompanying the preceding certificates were not certified by the translator as required by the 
regulation at 8 C.F.R. § 103.2(b)(3). Any document containing foreign language submitted to 
USCIS shall be accompanied by a full English language translation that the translator has 
certified as complete and accurate, and by the translator's certification that he or she is 
competent to translate from the foreign language into English. [d. Further, the submitted 
certificates from July 2010 and August 2010 post-date the petition's February 19, 2010 tiling 
date. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter 
ofKatigbak. 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Accordingly, the AAO will not consider 
these certificates as evidence to establish the petitioner's eligibility. Regardless, there is no 
documentary evidence showing that the petitioner's honors equate to nationally or internationally 
recognized prizes or awards for excellence in the field. 
In light of the above, the petitioner has not established that she meets this regulatory criterion. 
Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their 
2. On appeal, the petitioner docs not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
members, as judged by recognized national or international experts in their 
disciplines or fields. 
In order to demonstrate that membership in an association meets this criterion, a petitioner must 
show that the association requires outstanding achievement as an essential condition for 
admission to membership. Membership requirements based on employment or activity in a 
given field, minimum education or experience, standardized test scores, grade point average, 
recommendations by colleagues or current members, or payment of dues, do not satisfy this 
criterion as such requirements do not constitute outstanding achievements. Further, the overall 
prestige of a given association is not determinative; the issue here is membership requirements 
rather than the association's overall reputation. 
The petitioner submitted July 23, 2001 and July 14, 2010 letters from the Venezuelan 
Association of Visual Artists (V A V A) stating that she is a member. The petitioner also 
submitted a July 1, 2010 letter from the Beaufort Art Association (BAA) in South Carolina 
stating that she is a member. There is no documentary evidence (such as bylaws or rules of 
admission) showing that the VA VA and the BAA require outstanding achievements of their 
members, as judged by recognized national or international experts in the petitioner's field. 
Accordingly, the petitioner has not established that she meets this regulatory criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translatioll. 
In general, in order for published material to meet this criterion, it must be primarily about the 
petitioner and, as stated in the regulations, be printed in professional or major trade publications or 
other major media. To qualify as major media, the publication should have significant national or 
international distribution. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of significant national distribution, 
unlike small local community papers.3 
The petitioner submitted a February 2005 article about her in La Voz Latina entitled "'The Art of 
[the petitioner] Comes to Walterboro." The petitioner also submitted an October 2005 article in 
La Voz Latina entitled "Children's Painting Contest," but the article is not about the petitioner 
and only briefly mentions her once. The plain language of the regulation at 8 C.F.R. 
§ 204.S(h)(3)(iii) requires that the published material be "'about the alien." See, e.g., Accord Negro­
Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1,*7 (D. Nev. Sept. 8, 2008) (upholding a finding that 
articles about a show are not about the actor). In response to the director's request for evidence 
(RFE), the petitioner submitted a July 14, 2010 letter from the Editor of La Voz Latina stating: "'La 
Voz Latina is a monthly bilingual newspaper serving South Georgia and Coastal South Carolina. 
:; Even with nationally-circulated newspapers, consideration must he given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Page 6 
14,000 free copies are distributed throughout this region on the tirst Thursday of each month." 
USCIS need not rely on self-promotional material. See Braga v. Poulos, No. CV 06 5105 SJO (c. 
D. CA July 6, 2(07) ajrd 2009 WL 604888 (9
th 
Cir. 2(09) (concluding that the AAO did not have 
to rely on self-serving assertions on the cover of a magazine as to the magazine's status as major 
media). There is no evidence (such as objective circulation information from an independent 
source) showing the distribution of La Voz Latina relative to other U.S. publications to demonstrate 
that the newspaper qualifies as a form of "major" media. 
The petitioner submitted a November 4, 2004 article about her in Comunidad entitled 
"Venezuelan Art has gone beyond borders." The petitioner also submitted an article in 
Comunidad entitled "The Libre en Cristo Hispanic Church," but the article is not about the 
petitioner. Instead, the article is about the church and its activities. Further, the date of the 
article was not identified as required by the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). There is no documentary evidence showing that Comunidad qualifies as a form 
of major media. 
The petitioner submitted a March 2009 article about her in La Isla Magazine, but the author of the 
material was not identified as required by the plain language of this regulatory criterion. In 
response to the director's RFE, the petitioner submitted a letter from the President and Publisher of 
La Isla Magazine stating: "La Isla Magazine is the only free, general interest, bilingual monthly 
digest size magazine in the Low Country of South Carolina and Georgia" There is no circulation 
evidence showing that this regional magazine qualifies as a form of major media. 
The petitioner submitted an article entitled "At the Braulio Salazar Gallery XVIII A V AP Exposition 
in honor of Simon Guedez," but the author of the article, its date of publication, and the name of the 
publication in which the article appeared were not identified as required by this regulatory 
criterion. Further, the article is not about the petitioner and only briefly mentions her among 
numerous artists who participated in the exposition. Moreover, there is no documentary 
evidence showing that the article was in a professional or major trade publication or some other 
form of major media. 
On appeal, the petitioner submits a November 12, 2010 article about her in The Press and 
Standard (Waiterboro, South Carolina) and a November 18, 2010 article about her in The 
Dispatch (Lexington, South Carolina). These articles post-date the petition's February 19,2010 
filing date. As previously discussed, eligibility must be established at the time of filing. 
8 C.F.R. §§ 103.2(b)(I), (12); Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, the AAO 
will not consider the preceding articles as evidence to establish the petitioner's eligibility. 
Regardless, there is no documentary evidence showing that the preceding local newspapers 
qualify as major media. 
In light of the above, the petitioner has not established that she meets this regulatory criterion. 
Evidence of the di.lplay of the alien's work in the jield at artistic exhibitions or 
showcases. 
Pagc 7 
The petitioner submitted documentary evidence demonstrating that she has displayed her work at 
artistic exhibitions and showcases. Accordingly, the AAO affirms the director's linding that the 
petitioner meets the plain language requirements of this regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The petitioner submitted a July 1,2010 letter from Treasurer, BAA, stating: 
[The petitioner] is a member in good standing of the Beaufort Art Association. In this 
capacity she will further her art education with classes, lectures and workshops that are 
offered by the organization on a monthly basis. 
[The petitioner] has also been accepted as an exhibiting member where her work will be 
on display for sale and critique. As an exhibiting member, [the petitioner] is required to 
volunteer on a standing committee, show new work every 6 weeks, and work one day a 
month as a docent at the Beaufort Art Association Gallery where she will assist visitors in 
art appreciation. 
The petitioner submitted a July 14, 2010 from 
stating: "[The petitioner] is an active member of our institution 
developed as an instructor and promoter of the Visual Arts, 
institutional recognition." 
Irre;;JOelnI, V A V A, 
year 2000 and has 
having received important 
On appeal, the petitioner states: "My exhibiting membership and the fact that I serve on the 
standing committee of the Beaufort Art Association, together with my special role as an 
instructor and promoter of the arts in the Venezuelan Association of Visual Artists, should 
qualify me for this criterion," 
With regard to the BAA and the V AVA, there is no supporting evidence showing that these 
organizations have a distinguished reputation. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici. 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craji of 
California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Further, there is no documentary evidence 
showing that the petitioner's roles for the BAA and the VAVA were leading or critical. For 
example, there is no organizational chart or other evidence documenting where the petitioner's 
positions fell within the general hierarchy of the preceding organizations. The petitioner's evidence 
fails to demonstrate how her responsibilities for the BAA and the V A V A differentiated her from the 
other members holding similar appointments, let alone the organizations' elected officers and senior 
leadership. The documentation submitted by the petitioner does not establish that she was 
responsible for the preceding organizations' success or standing to a degree consistent with the 
meaning of "leading or critical role." Accordingly, the petitioner has not established that she meets 
this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
Ill. 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 categories of evidence. 
[d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(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. § 1361. Here, the petitioner has not sustained that 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 143, 145 (3d Cir. 
2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the atTice 
that made the last decision in this matter. 8 C.F.R. § t03.5(a)(I)(ii). See also section 100(a)(I) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1,2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103. t(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS. now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions).