dismissed EB-1A Case: Art

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-S-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY17,2018 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an artist, seeks classification as an individual of extraordinary ability in the arts. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This 
first preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements 
have been recognized in their field through extensive documentation. 
The Director of the Texas Service Center denied the Form I-140, Immigrant Petition for Alien 
Worker, concluding that the Petitioner had only shown that he met two of the ten initial evidentiary 
criteria, of which he must meet at least three. The Director also concluded that the Petitioner 
willfully misrepresented facts in support of the petition. 
On appeal, the Petitioner submits additional evidence and contends that he meets five criteria. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes visas available to immigrants with extraordinary ability 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 m the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will-substantially benefit prospectively the 
United States. 
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." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
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Matter of L-S-
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is a major, 
internationally recognized award). Alternatively, he or she must provide documentation that meets 
at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items 
such as awards, memberships, and published material in certain media). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 201 0) 
(discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.O. Wash. 2011 ). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter l~(Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Petitioner is an artist. As he has not established that he has received a major, internationally 
recognized award, he must satisfy at least three of the ten criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The Director found that the Petitioner had only met two- of these criteria:_ published material at 
8 C.F.R. § 204.5(h)(3)(iii) and display at 8 C.F.R. § 204.5(h)(3)(vii). We agree with the Director's 
conclusions regarding these two criteria. On appeal, the Petitioner asserts that he meets three other 
criteria which we will discuss below. Upon review, we conclude that the evidence in the record does 
not support a finding that the Petitioner meets the plain language requirements of at least three 
criteria. 
A. Evidentiary Criteria 
Evidence of the alien's original scientific, scholarly, artzstzc, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v) . 
The Director discussed the Petitioner's book 
the 
works was selected to be in the 
. which showcases his artwork and a letter from 
informing the Petitioner that one of his 
While we find that this evidence 
demonstrates that the Petitioner meets the published material and display criteria under 8 C.F.R. 
§ 204.5(h)(3)(iii) and (vii), as the Director concluded, we find that under this criterion, the Petitioner 
has not shown how his original contributions are of major significance in the field. 
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Matter of L-S-
The Petitioner highlights the fact that the letter inviting him to participate in the 
Exhibition states that this is "the most authoritative exhibition of the world" and that it is "a lifelong 
honor for artists to attend" bringing "more than 600 pieces of works of painting and sculpture 
together." The record does not contain evidence establishing the relationship between this art 
exhibit and the museum. On appeal, the Petitioner references the book 
which contains the Petitioner's painting but the record 
does not demonstrate the significance of this art exhibit or its sponsor, 
In addition, we do not find evidence of the impact 
the Petitioner's work has had on the field resulting from this exhibition to constitute contributions of 
major significance. 
The Petitioner contends that his foundation of the 
original contribution of major significance. 
movement constitutes an 
director and curator at 
and m states: 
[The Petitioner] introduces an original artistic idea that brings Chinese art towards an 
independent and new artistic language. With the birth of we 
have a breeze of fresh air, an albeit novel but definite path and direction, another 
room, another voice, and something that the Chinese and many other Asian artists can 
relate to and build on. 
In another letter, , president of the , states that "this original 
theory could potentially lead the Chinese modem artists to a new and exciting 
path." A letter from . the Executive Curator of 1 states that 
after Petitioner introduced , "the Chinese and even the Asian art community had 
their eyes open to an original panorama, a new horizon, a fresh canvas." An agency "may, in its 
discretion, use as advisory opinions statements ... submitted in evidence as expert testimony," but is 
ultimately responsible for making the final determination regarding an individual's eligibility for the 
benefit sought). Matter of Caron lnt 'I, Inc., 19 I&N Dec. 791, 795 (Comm' r 1988). Even though 
these letters describe the Petitioner's work in positiv~ ways, they are prospective in nature and do 
not describe how had impacted the field at the time of filing. Thus, while the 
Petitioner's new artistic movement appears to have been an original contribution, the record does not 
establish that is has been of major significance. 
The Petitioner also asserts that he founded the 
contribution of major significance. chief secretary of the 
. constituting an original 
states that 
the Petitioner founded the and that he organized the 
states that the Petitioner attracted many artists to the art district. In his decision, 
the Director cited articles published in magazine and the indicating that a 
1 
We note that the evidence in the record does not establish the existence of the 
its relationship to the 
3 
or demonstrate 
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Matter of L-S-
different artist, was the founder of the When the record 
contains conflicting information, the Petitioner must resolve the inconsistency with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988). Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency 
of other evidence submitted in support of the requested immigration benefit. !d. Here, the Petitioner 
reiterates his claim but provides no new evidence in support of his assertion. Furthermore, the 
record does not establish why the foundation of the constitutes an original 
contribution of major significance. 
The Director addressed numerous other issues that the Petitioner has not addressed on appeal. For 
example, the Director noted several discrepancies in the submission of a 
from a that call into question whether the Petitioner 
received such an award.2 He also noted that the for [the Petitioner's] Works 
did not contain a proper translation as required by 8 C.F.R. § 103.2(b)(3). The Petitioner provided a 
Certificate of Appraisal of the Petitioner's abstract oil painting appraised by 
Director of the The record also contains a 
photograph of this painting with a caption stating that the Petitioner won a gold medal from the 2009 
The Director noted that the record did not contain any evidence showing the 
Petitioner exhibited this painting or received this award. The Petitioner has not resolved these issues 
on appeal. 
In addition, the record contains a letter purportedly from , from the 
attesting to the Petitioner's expertise as an artist, stating that he 
"has explored and reinvented the eastern art form of painting." The Director called into question the 
authenticity of this letter, noting that there is no evidence 'of this entity's existence on the New York 
Department of State Division of Corporations website or the Internal Revenue Service's Exempt 
Organizations Select Check website. The Petitioner has not provided evidence on appeal to rebut 
these findings. This letter, together with other discrepancies in the record, diminishes the 
persuasiveness of the evidence submitted in support of this criterion. Doubt cast on any aspect of the 
petitioner's evidence may lead to a reevaluation of the reliability and sufficiency of the remaining 
evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. 591-592.· It is. incumbent 
upon the Petitioner to resolve any inconsistencies in the record by independent objective evidence. 
!d. Here, he has not done so, and, therefore, has not established that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major 
trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
The Director noted the submission of the books· and and held that the Petitioner 
had not demonstrated that these were published in professional or major trade publications or major 
2 The Director noted that the Petitioner submitted a copy of a proclamation purportedly from the mayor of to 
corroborate this award, but this proclamation contained dates that did not match the timing of the alleged 
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Matter of L-S-
media and the record did not contain evidence of the circulation details of these publishers. On 
appeal , the Petitioner only addresses and states that is a 
professional publisher in China. However, the Petitioner has not submitted evidence to support this 
fact. We note that in addition to the Director's focus on whether these are professional or major 
trade publications or major media, the Petitioner has not established that his writings constitute 
scholarly articles. A scholarly article should be written for "learned" persons in the field. "Learned" 
is defined as having or demonstrating profound knowledge or scholarship. Learned persons include 
all persons having profound knowledge of a field.3 transcribes conversations the Petitioner 
has had, though the record does explain the identity and significance of his interlocutors. Similarly, 
the Petitioner's publication, provides details of his conversations and interviews, while also 
showcasing his artwork. The record does not establish that the Petitioner's publications were 
intended for learned persons in the field of art, and thus do not qualify as scholarly articles. 
Additionally, the Director noted that a two-page document accompanying a 2008 cover of the 
magazine did not demonstrate that it had been published in the magazine or that the 
Petitioner had authored it. Furthermore, he found that the record did not establish that 
was a professional or major trade publication or other major media. The Petitioner has not 
addressed this issue on appeal. Accordingly, that the record does not establish that the Petitioner 
meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinglfished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
The Director found that the Petitioner's role as the honorable chairman of 
and as founder of the did not constitute a leading or critical role in an 
organization with a distinguished reputation to meet this criterion. 4 A leading role should be apparent 
by its position in the overall organizational hierarchy and through the role's matching duties. A critical 
role should be apparent from the Petitioner's impact on the organization or the establishment's 
activities. 
On appeal, the Petitioner states that the evidence in the record demonstrates that he was appointed as art 
director and honorable chairman of the The Petitioner states that the was registered in 
and funded through donations from the conununity. The Petitioner references the website, 
specifically the "About page, but the information there does establish that the has a 
distinguished reputation. 
3 See USCIS Policy Memorandum PM-602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 
Petitions: Revisions to the Adjudicator Field Manual (AFM) Chapter 22.2, A FM Update AD 11-14 9 (Dec. 22, 20 I 0), 
https:/ /www. uscis.gov /sites /defau lt!fi les/U SCI S/Laws/Memoranda/i-140-evidence-pm-6002-005-l.pdf. 
4 
The Petitioner had previously sought to establish eligibility for this criterion through his position as a senior advisor to 
the The Director noted several discrepancies with the evidence·regarding this position. On appeal, 
the Petitioner has not provided additional evidence to rebut the Director's concerns. 
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Matter of L-S-
While the Petitioner claims to have started the as indicated above , the 
record contains conflicting evidence over the identity of its founder, which he has not resolved. In 
addition, he has not established that the art district, a geographic location, constitutes an organization 
or establishment, or possesses a distinguished reputation. The Petitioner has not demonstrated he 
meets the plain language of this criterion. 
B. Willful Misrepresentation 
Willful misrepresentation involves willfully making a false representation to a U.S. government 
official about a material fact while attempting to obtain an immigration benefit. 5 The term 
"willfully" means knowing and intentionally, as distinguished from accidentally, inadvertently, or in 
an honest belief that the facts are otherwise. See Matter of Tijam, 22 I&N Dec. 408, 425 (BIA 
1998); Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). To be considered material , 
the misrepresentation must be one which "tends to shut off a line of inquiry which is relevant to the 
alien's eligibility, and which might well have resulted in a proper determination that he be 
excluded." Matter ofNg, 17 I&N Dec. 536, 537 (BIA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa 
petition proceedings, the officer must determine that the petitioner or beneficiary made a false 
representation to a United States government official; that the misrepresentation was willfully made; 
and that the misrepresented fact was material. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); 
Maller of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975). 
The Director held that the Petitioner willfully misrepresented a material fact: (1) by submitting 
documentation with the Form I-140 petition regarding certain roles for various entities that 
conflicted with his nonimmigrant visa applications, and (2) by the fact that none of the 
documentation submitted with the Form 1-140 contained references to the Petitioner's employment 
by as an artist/performer and by 
as a general manager. The Director noted that the 
Petitioner submitted letters from entities that did not exist at the time of issuance, including 
and concluding that this documentation was fraudulent. 
On appeal, counsel for the Petitioner states that the inconsistencies in the record pertaining to the 
business data of some state systems are not per se willful misrepresentation and asserts that his client 
lacked fluency in English and thus had no knowledge of the falsity of submitted documents. 
Assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(BIA 1988) (citing Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). Counsel's 
statements must be substantiated in the record with independent evidence, which may include 
affidavits and declarations. When signing the form, the Petitioner attested, under penalty of perjury, 
to the veracity of evidence submitted in support of the petition. Regardless, counsel has not 
5 Matter ofY-G-, 20 l&N Dec. 794 (BJA 1994); Matter ofD-L- & A-M-, 20 I&N Dec. 409 (BIA 1991); Matter ofL-L- , 9 
I&N Dec. 324 (BIA 1961 ); Matter ofTijam, 22 I&N Dec. 408, 424 (BIA 1998). 
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Matter of L-S-
supported its assertions with evidence. The Petitioner has not rebutted the Director's finding of 
willful misrepresentation, which the record supports. 
III. CONCLUSION 
The Petitioner is not eligible because he has not submitted the required initial evidence of either a 
qualifying one-time achievement or documents that meet at least three of the ten criteria listed at 
8 C.F.R. § 204.5(h)(3)(i)-(x). Thus, we do not need to fully address the totality of the materials in a 
final merits determination. Kazarian, 596 F.3d at 119-20. Nevertheless, we advise that we have 
reviewed the record in the aggregate, concluding that it does not support a finding that the Petitioner 
has the level of expertise required for the classification sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of L-S-, ID# 1142734 (AAO May 17, 2018) 
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