dismissed EB-1A Case: Art

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-S-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: DEC. 14.2017 
PETITION: FORM I-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 petition. concluding that the record did not 
establish, as required, that the Petitioner met at least three of the ten regulatory criteria. 
On appeal, the Petitioner submits additional evidence, asserting that she meets the necessary number 
of criteria and that she has demonstrated her eligibility for the classification. 
Upon de novo review. we will dismiss the appeal. 
I. LAW 
Section 203(b)(l )(A) of the Act describes qualified immigrants for this classification as follows: 
(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 iield through 
extensive documentation. 
(ii) the alien seeks to enter the United States to continue work 111 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 ofthe field of endeavor." 8 C.F.R. ~ 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
Matter of'F-S-
requirements. First a petitiOner can demonstrate a one-time achievement that is a 1m~jor. 
internationally recognized award. Alternatively, he or she must provide documentation that meets at 
least three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as 
awards, published material in ceiiain media. and scholarly articles). 
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 r. [/,\'('IS. 596 F.3d 1115 (9th Cir. 20 I 0).
1 
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... Malter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0). 
Finally, the regulation at 8 C.F.R. § 204.5(h)(5) explains the prospective job requirements for this 
classification: 
No ofler of employment required 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 employer(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. 
II. ANALYSIS 
The Petitioner is an artist and representational painter who conducts collaborative shows with her 
twin sister. As the Petitioner has not indicated or established that she has received a major. 
internationally recognized award, she must satisfy at least three of the ten alternate regulatory 
criteria at 8 C .F.R. § 204.5(h)(3 )(i)-(x) to meet the initial evidence requirements. 
A. Evidentiary Criteria
2 
In denying the petition. the Director found that the Petitioner met two criteria: published material 
under 8 C.F.R. § 204.5(h)(3)(iii) and display under 8 C.F.R. § 204.5(h)(3 )(vii). On appeaL the 
Petitioner maintains that she also meets the original contributions criterion under 8 C.F.R. 
1 
This case discusses 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. S'ee also l'isinscaia r. Beers. 4 F. Supp. 3d 
126. 131-32 (D. D.C. 20 13): Rijal r. US'CIS, 772 F. Supp. 2d 1339 (W.O. Wash. 20 II). 
2 
We will discuss those criteria the Petitioner has raised and for which the record contains relevant evidence. 
2 
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Matter of F-S-
§ 204.5(h)(3)(v). Upon a review of all of the evidence in the record, we conclude that it docs not 
support a finding that the Petitioner satisfies at least three criteria. 
Published material about the alien in professional or major trade publications or other major 
media. relatinx to the alien ·s work in the fieldf(Jr which classification is sought. Such e\·idenc:e 
shall include the title, date. and author o{lh e material. and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
The Director determined that the Petitioner met this criterion. The record supports this conclusion. 
because it contains articles about the Petitioner published in the 
and that discuss her artistic work. as well as 
evidence indicating that the publications are major media. Thus. the Petitioner satisfies this 
regulatory criterion. 
Evidence of the alien ·s original scientific. scholarly, artistic. athletic. or business-related 
contributions <!lmajor significance in thefield. 8 C.F.R . § 204.5(h)(3)(v) . 
The Petitioner contends that she has made original contributions of major significance in the field 
through her video paintings and exhibitions. The Director acknowledged the relevant evidence, but 
found that it was not sufficient to demonstrate that her work constituted original contributions of 
major significance in the field. 
On appeal , the Petitioner maintains that a number of art professors , cnttcs . curators. and other 
professionals in the field have offered testimony regarding her contribution s of major significance . 
She maintains that the sheer volume of these testimonials , coupled with evidence of her artwork 
sales. exhibitions, and critical reviews of her work , satisfy the requirement s of this criterion . 
The documentation , however. is insufficient to demonstrate that she meets this criterion. For 
example. she has submitted copies of online reviews of her work. Although the reviews favorably 
describe her paintings and commend her unique style, they do not provide specific examples of how 
her work has substantially impacted the visual arts field. has influenced the work of other artists. or 
otherwise equates to original contributions of major significance in the field. 
A review by an art gallery owner and dealer. rank s the Petitioner and her sister as 
one of .r noting that their work "take s the 
viewer on a unique internal journey." While this acknowledgement of their work is commendable, it 
is not necessarily indicative of original contributions of major significance . The plain language of 
the criterion requires more than attestations of talent and originality: the Petitioner must have 
demonstrably impacted her field in order to establish eligibility. 
To establish her impact on the field . the Petitioner submits evidence of the successful sale of her 
ar1work, such as invoice s demonstrating the sale of her paintings to multipl e members of the public . 
The record also contains a letter from Director of the 111 
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Maller of F-S-
Massachusetts, who affirms that after exhibiting her work, the gallery experienced "a packed 
opening, sales, and wide-eyed intrigue by every visitor.'' Although the record indicates that the 
Petitioner sold numerous paintings, the Petitioner has not established that having one's artwork 
purchased by others equates to original contributions of major significance in the field. Rather , it 
demonstrates only that she has the ability to earn a living as an artist. 3 This criterion requires that the 
Petitioner's contributions be "of major significance in the field." which means that her impact must 
be beyond the galleries with which she is affiliated or her art buyers . See Visinscoia, 4 F. Supp. 3d at 
134-35 (upholding a finding that a ballroom dancer had not met this criterion because she did not 
demonstrate her impact in the field as a whole). 
The Petitioner has also provided over 20 reference letters from critics and colleagues in the field. 4 
These letters praise her talents as a video painter and complement her paintings. For example. the 
letter from of describes her work as "beatiful and 
arresting," whereas the letter from her colleague at 
describes her work as '·rich and multi-layered." Numerous letters also discuss the artistic restrictions 
in her native Iran and the manner in which her artistic expression has flouri shed in the United States. 
The reference letters briefly discuss her artistic skills and cultural activities, but they do not provide 
specific examples of how her work has significantly impacted the tielcl at large or otherwise 
constitutes original contributions of major significance. Vague, solicited letters from colleagues that 
do not specifically identify contributions or provide specific examples of how those contributions 
influenced the field are insufficient to satify this criterion. Kazarian v. USCIS. 580 F.3d 1030. I 036 
(9th Cir. 2009). offd in part, 596 F.3d at 1115. 
Numerous letters also attest to the Petitioner's growing acclaim in the ticld. and describe her as an 
aspiring artist. For example, a letter from indicates that the Petitioner "would be able 
to establish herself as a top artist here." A letter from publisher of 
describes her as an artist "who is rising to the top of her field." Similarly. 
professor at states that the Petitioner and her sister ·'are in the position of 
becoming super stars in the art world if they are given the chance.'' Although these letters discuss 
the impact of her artwork prospectively, they do not demonstrate the influence that the Petitioner's 
work has already had on the field. The plain meaning of the regulatory language requires the 
Petitioner to have already made her original contribution of m~jor signilicance prior to tiling her 
petition. 
On appeal, the Petitioner submits a new letter from which states that she ·'unequivocally 
believes·· that the Petitioner and her sister "are artists at the top of their field of endeavor" and that 
"they continue to have room to expand their influence and produce additional extraordinary work if 
given the chance." The Petitioner also submits evidence of sales and invitations to exhibitions that 
postdates her filing of the petition; however, we find this evidence unpersuasive. A petitioner must 
~ The record contains insufficient evidence to establish the Petitioner's eligibility under the criterion for high salary or 
other remuneration in relation to others in the field. 8 C.F. R. ~ 204.5(h)(3)(ix) . 
~ While we discuss only a sampling of these letters, we have reviewed and considered each one. 
4 
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Maller of F-S-
establish his or her eligibility at the time of filing. 8 C.F.R. ~ 103.2(b)(1) , (12). A petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of 
Jzummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). That decision, citing Matter o(Bardouil!e , 
18 I&N Dec. 114 (BIA 1981 ), further provides that U.S. Citizenship and Immigration Services 
cannot ·'consider facts that come into being only subsequent to the filing of a petition." Izummi. 
22 I&N Dec. at 176. For all of the reasons discussed above , the Petitioner has not established that her 
original artwork rises to the level of a contribution of major significance in the field. She has therefore 
not satisfied this criterion. 
Evidence ol the display ol the alien's work in the field at artisti c exhibitions or show cases. 
8 C.F.R. ~ 204.5(h)(3)(vii). 
Under this criterion, the Petitioner must establish that her work was on display, and that the venues 
were artistic exhibitions or showcases. The Director concluded that the Petitioner satisfied this 
criterion. The record supports this finding because it confirms that she has displayed her paintings at 
artistic exhibitions in the United States. Iran , and China, and she has disp layed her work in other 
artistic performance s. such as the inaugural performance of· · an interactive exhibition at 
the 111 Massachusetts. Accordingly, we agree with the Director 's 
determination. 
B. Intent upon Entry 
The Petitioner did not offer sufficient evidence to establish that she will continue to work in her area 
of extraordinary ability. See section 203(b)(1)(A)(ii) ofthe Act. Although she has submitted letters 
from and confirming that she is presently employed as an adjunct 
faculty member and a part-time after school teacher, respectively , s he has not shown that these 
positions are in the area of her claimed extraordinary ability. She has a lso not established that she 
will otherwise be working in the field of visual arts in the United States. Without additional 
corroboration, the Petitioner has not demonstrated her intent "to continue work in her area of 
expertise" pursuant to 8 C.F.R. ~ 204.5(h)(5). 
III. CONCLUSION 
The Petitioner has not shown her eligibility for the classification because she has not submitted the 
required initial evidence of either a one-time achieveme nt or document s that meet at least three of 
the ten criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). Thus, we need not fully address the totality of 
the materials in a tina! merits determination. Kazarian. 596 F.3d at 1119-20. Nevertheless, we have 
reviewed the record in the aggregate. concluding that it does not support a finding that the Petitioner 
has established the level of expertise required for the classification sought. In addition, she has not 
demonstrated her intent to continue working in her claimed area of expertise. 
Matter of F-S-
ORDER: The appeal is dismissed. 
Cite as Matter ofF-S-. ID# 715311 (AAO Dec. 14. 2017)