dismissed EB-1A Case: Art

mLIc COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
l" 
%"l, 'a 
EAC 05 006 50705 
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. 5 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. 
u 
2~obet-t P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont 
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)(l)(A) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A), as an alien of extraordinary 
ability in the arts. The director determined that the petitioner had not established the sustained national 
or international acclaim requisite to classification as an alien of extraordinary ability. On appeal, 
counsel submits a brief and additional evidence, which do not overcome the deficiencies of the petition. 
The appeal will be dismissed for the following reasons. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
Specific supporting evidence must accompany the petition to document the "sustained national or 
international acclaim" that the statute requires. 
 8 C.F.R. €j 204.5(h)(3). 
 An alien can establish 
sustained national or international acclaim through evidence of a "one-time achievement (that is, a 
major, international recognized award)." Id. Absent such an award, an alien can establish the 
necessary sustained acclaim by meeting at least three of ten other regulatory criteria. Id. However, the 
weight given to evidence submitted to fulfill the criteria at 8 C.F.R. 5 204.5(h)(3), or under 8 C.F.R. 
€j 204.5(h)(4), must depend on the extent to which such evidence demonstrates, reflects, or is 
consistent with sustained national or international acclaim at the very top of the alien's field of 
endeavor. A lower evidentiary standard would not be consistent with the regulatory definition of 
"extraordinary ability" as "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. 5 204.5(h)(2). 
We address the evidence submitted and counsel's contentions in the following discussion of the 
regulatory criteria relevant to the petitioner's case. Counsel does not claim that the petitioner is eligible 
under any criteria not discussed below. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in theJield of endeavor. 
The petitioner submitted a copy of a "Certificate of Honor" for the selection of one of her pieces to be 
included in "'Selected Works of Chinese Calligraphers,' to be jointly published by the China 
Nationalities Photographic Art Publishers and the Han Tang International Art Publishers. The 
certificate is dated 2002 and also informs the petitioner that she has been "awarded the title of honor of 
'Outstanding Artist Collected in the 'Selected Works of Chinese Calligraphers."' The petitioner 
submitted no evidence of the actual publication of her work in this book. On appeal, the petitioner 
submits copies of excerpts purportedly from the "Selected Works of Chinese Calligraphers," but the 
excerpts were submitted with only partial, handwritten notations in English. Because the petitioner 
failed to submit certified translations of the documents, we cannot determine whether the evidence 
supports the petitioner's claim. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence is not probative 
and will not be accorded any weight in this proceeding. In addition, the petitioner submitted no 
evidence regarding the selection criteria for, or the national significance of, inclusion in this 
publication. Consequently, the record does not persuasively establish that the petitioner's "Certificate 
of Honor" is a nationally recognized prize or award for excellence in her field. 
The petitioner submitted copies of two certificates stating that her calligraphic work won an 
"Outstanding Prize" and a "Bronze Prize" in the First Huachen Cup National Elementary and 
Secondary School Outstanding Art Competition. The China Education Press Training Center issued 
these certificates on October 15, 2001. The petitioner also submitted copies of two "Certificates of 
Merit" dated May 1, 2003 and stating that her Traditional Chinese Style painting entitled "Lotus 
Flowers" won "Third Prize" and her Xing style Chinese calligraphy won "Second Prize" in the 2003 
National Teachers Art and Calligraphy Competition sponsored by the Art Education Institute of the 
China Education Society. The record contains no explanation or documentation of the significance of 
these four prizes. Although the competitions are titled "national," the record is devoid of any 
evidence that the petitioner's prizes in this competition were consistent with national acclaim as a 
professional artist at the top of her field, rather than as an outstanding elementary or secondary 
school art teacher. In addition, the petitioner submitted no evidence, for example, that artists at the 
top of their fields in China enter these competitions. Accordingly, these certificates do not meet this 
criterion. 
The record contains a partial translation of an article published in the Changning Times (identified by 
the translator as a newspaper from Shanghai) on May 6, 2004, which purportedly reports the 
petitioner's receipt of these prizes and notes the collection of her work in the "Selected Works of 
Chinese Calligraphy" and her receipt of the "Second Prize" at the "2003 National Han Writing 
Standardization Contest." Neither counsel nor the petitioner clarify whether the "2003 National Han 
Page 4 
Writing Standardization Contest" is the same competition or was part of the event translated as the 
"2003 National Teachers Art and Calligraphy Competition" on her "Second Prize" certificate. 
Regardless of this apparent discrepancy, the English translation of the Changning Times article is 
incomplete and the attached "certification of accuracy" is unsigned by the translator. Documents in a 
foreign language that are submitted to CIS must be accompanied by a "full English language translation 
which 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." 8 C.F.R. 5 103.2(b)(3). Even 
if the article had been submitted with a complete and properly certified translation, the record does not 
indicate that the Changning Times is a nationally circulated newspaper in China and the petitioner 
submitted no other evidence that the brief mention of her achievements in one article in this newspaper 
is consistent with sustained national acclaim in China. 
The petitioner also submitted copies of three letters inviting her to enter her work in an art exhibition, 
art competition, and a collection of contemporary poetry. As the petitioner claims to be a painter and 
calligrapher, not a poet, the latter invitation is irrelevant to her case. The first two invitations reflect her 
recognition as an artist, but the record contains no evidence that the petitioner actually entered her work 
and won nationally recognized prizes or awards for excellence in her field at the referenced exhibition 
and competition. 
On appeal, counsel claims that most of the petitioner's awards meet this criterion because "[tlhey speak 
for themselves - either from their title, or from the nature of the award." To the contrary, the mere 
appellation of an award as "national" or "international" does not mean that the award is nationally or 
internationally recognized in an alien's field. As discussed above, the record is devoid of any 
corroborative evidence regarding the purported national recognition of the petitioner's honors. 
The petitioner did not initially submit evidence of her receipt of any international prizes or awards. On 
appeal, the petitioner submits a copy of an "Honorable Award Certificate" issued to the petitioner on 
July 26, 2000 and stating that the petitioner's Chinese Brush Painting, "Peony," was selected for 
exhibition in the 2000 World Chinese Art Exhibition and won the "Gold Award." Again, the record 
contains no evidence regarding the selection criteria for this exhibition or corroborative evidence of the 
national or international recognition of the petitioner's "Gold Award." Even if the certificate alone 
were sufficient to show the national or international recognition of the petitioner's award, her receipt of 
this single honor over four years before this petition was filed does not demonstrate the requisite 
sustained acclaim. 
On appeal, the petitioner submits additional evidence of her more recent achievements, including her 
appointment as an "Honorary Director of the Board of Directors" of China Arts magazine. We cannot 
consider this evidence because it arose after the petition was filed. The petitioner must establish 
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. See 8 C.F.R. @ 103.2(b)(12), Matter of Katigbak, 14 I&N 
Dec. 45,49 (Comm. 1971). Accordingly, the petitioner does not meet this criterion. 

that one would expect of an alien who has sustained national or international acclaim. Accordingly, we 
review the letters as they relate to other evidence of the petitioner's contributions. 
a senior painter of the Shanghai Academy of Traditional Chinese Painting and President 
of the Shanghai Huangpu Academy of Art, states that the petitioner was his student and that her bird- 
and-flower paintings and calligraphy have won many unspecified prizes in national contests. 
describes the petitioner's artistic accomplishments as follows: 
 Mr. 
She is adept at portraiture and pays attention to the spirit rather than the form, [hler lines are 
vigorous and refined, her inking elegant. She paints with a calligraphic brush, giving her 
brushstrokes character and a simple dignity, a naturalness that aptly brings out the best in the 
ink and brush combination used in Chinese painting. She is able to integrate "love of nature" 
and "the spirit of the brush and ink" at a high plane. 
Principal of the Shanghai Number Three Girls Middle School, known as the National 
Calligraphy Education Base School in Shanghai, China, states that the petitioner was an art and 
calligraphy teacher at his school from 1988 to 2003, when she retired with distinction. ~r.lstates that 
--. 
the petitioner was one of the few teachers at the school "who won top prizes in major categories in 
ional contests" and lists some of the petitioner's prizes addressed above under the first criterion. Mr. 
lira lso notes that many of the petitioner's works are displayed at the school and that many "famous 
artists" came to listen to the petitioner's lectures. 
an artist and fashion designer in Shanghai, China, states that she and the petitioner were 
colleagues. ~s.ex~lains that the petition as won many unspecified prizes at national 
competitions, particularly for her calligraphy. Ms. etitioner's students, "now rising 
calligraphers or artists, can be found throughout the petitioner's artistic 
style as "keeping a harmonious balance between emotion and reason and integrating gentleness and 
sincerity, compassion and dignity. Her works reflect her upright and serene personality with a dash of 
the debonair." 
Senior Art Professor in the Changning District of Shanghai, China, states that the 
petitloner was one of his students. Mr. 
 explains that the petitioner created her own unique style and 
describes her work as follows: 
 I 
Her calligraphy is at the same time vigorous and pliant, elegant and refreshing. Her landscape 
paintings reflect a rare depth of conception beyond the commonplace, taking the viewer into a 
relaxed, carefree world where one is loath to leave. Her bird-and-flower paintings combine the 
gongbi and xieyi styles of traditional Chinese painting and emphasize nature, where the objects 
depicted are not mere physical objects but artistic representations of the spirit. Her works 
overwhelm by their sensitivity and emotional content. She infuses the art of painting into her 
calligraphy, and the art of calligraphy into her paintings. Her talent ranges from the bird-and- 
flower genre to landscapes to calligraphy, making her an outstanding artist among artists. 
Page 7 
While they all praise the petitioner's artistic talent and skills, ~r.. MrlMsH and Mr.mdo not 
discuss any specific accomplishments of the ner that have made original contributions of major 
significance to her field. While Mr. d ention the petitioner's "national" prizes or awards, 
the record does not establish the national recognition of her honors (as discussed above under the first 
criterion) or indicate that her prize-winning work had a major 
 act on her field consistent with 
sustained national or international acclaim. Similarly, while Ms. mi states that the petitioner's former 
students are now "rising calligraphers or artists" across China, the record contains no documentation of 
significant achievements by any of the petitioner's students or other evidence that the petitioner has 
made original, major contributions to the field of art education in China. 
The petitioner submitted black and white printouts of images purported to be her paintings and 
calligraphy, but the record contains no evidence that these images were published or that they are 
attributable to her. The calligraphy and the inscriptions on some of the paintings are untranslated. On 
appeal, the petitioner submits an untranslated excerpt of her work purportedly published in the 
"Collection of Selected Works of Chinese Famous Calligraphers." As explained above under the third 
criterion, without a certified translation of the document, we cannot determine whether the evidence 
supports the petitioner's claim. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence is not probative 
and will not be accorded any weight in this proceeding. On appeal, the petitioner submits 
documentation of her recent achievements, but we cannot consider this evidence because it arose after 
the petition was filed. The petitioner must establish eligibility at the time of filing; a petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. See 8 C.F.R. 5 
103.2(b)(12), Katigbak, 14 I&N Dec. at 49. The record is devoid of any other evidence that the 
petitioner has, for example, received critical acclaim for her work, influenced other leading artists in 
China or abroad, or otherwise made original artistic contributions of major significance to her field in a 
manner consistent with sustained national or international acclaim. Accordingly, the petitioner does not 
meet this criterion. 
(vii) Evidence of the display ofthe alien's work in theJield at artistic exhibitions or showcases. 
The record indicates that the petitioner's work won prizes at the 2003 National Teachers Art and 
Calligraphy Competition and the First Huachen Cup National Elementary and Secondary School 
Outstanding Art Competition in 2001. The petitioner did not submit evidence that these competitions 
included exhibitions of the submitted or prize-winning works, the petitioner's inclusion in which might 
demonstrate sustained national acclaim. 
On appeal, the petitioner submitted a certificate stating that one of her paintings had "been selected to 
be exhibited in the 2000 World Chinese Art Exhibition," but did not submit evidence of the actual 
exhibition. The petitioner also submitted invitations for her to enter her work in various competitive 
exhibitions, but submitted no evidence of her actual participation in any of these shows. We cannot 
consider the three additional invitations submitted on appeal because they arose after the petition was 
filed. Again, the petitioner must establish eligibility at the time of filing. See 8 C.F.R. 4 103.2(b)(12), 
Katigbak, 14 I&N Dec. at 49. 
On appeal, counsel contends 
Petitioner submitted more than enough evidence in regard to her works being displayed at 
various exhibitions throughout China. Most of the exhibitions are "notable artistic venues." 
Further, numerous works, particularly her calligraphic creations, have entered the collection of 
institutions and private individuals. These collections typically took place at or after public 
exhibitions; and are themselves displays of Petitioner's works to some degree. 
The record does not support counsel's statements. The record contains no evidence of the actual 
display of the petitioner's work at any venue. The petitioner's four certificates for prizes awarded at the 
2003 National Teachers Art and Calligraphy Competition and the First Huachen Cup National 
Elementary and Secondary School Outstanding Art Competition in 2001 do not state that any 
exhibitions were conducted in connection with the competitions. Similarly, despite the petitioner's 
"2000 World Chinese Art Exhibition Honorable Award Certificate," the record is devoid of any 
documentation of this exhibition. The record also fails to document the collection of the petitioner's 
work by any institutions or private individuals. Counsel's claims are entirely unsupported by the 
record. Again, without documentary evidence to support the claim, the assertions of counsel will not 
satis@ the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Obaigbena, 19 I&N Dec. at 534; Laureano, 19 I&N Dec. 1; Ramirez-Sanchez, 17 I&N Dec. 
at 506. Accordingly, the petitioner does not meet this criterion. 
The Petitioner's Intention to Continue Working in Her Area of Expertise in the United States 
Beyond the director's decision, the record does not establish that the petitioner intends to continue 
working as a traditional Chinese painter and calligrapher in the United States. Section 203(b)(l)(A)(ii) 
of the Act requires the alien to demonstrate that he or she "seeks to enter the United States to continue 
work in the area of extraordinary ability." Although neither an offer for employment in the United 
States nor a labor certification is required for immigrant classification as an alien with extraordinary 
ability, 
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. 
8 C.F.R. 204.5(h)(5). The petitioner submitted no such evidence. The record contains no letters from 
prospective employers, prearranged commitments or a detailed statement from the petitioner. On 
appeal, the petitioner submitted a letter dated September 12, 2005, in which she explains, "I only 
wanted to admit [sic] students to teach the Chinese painting and calligraphy for them in America. 
Because I thought the children of the overseas Chinese and the retirees of the overseas Chinese would 
learn the Chinese arts. But that's not the case. There are many troubles." The petitioner does not 
explain how she nonetheless intends to continue working in her field in the United States. Accordingly, 
she has not demonstrated her eligibility pursuant to section 203(b)(l)(A)(ii) of the Act. 
Request for Evidence 
On appeal, counsel claims that the director's decision was improper because he failed to issue a 
Request for Evidence (RFE). Pursuant to CIS policy, an application or petition may be denied without 
issuance of an WE when the record contains evidence of clear ineligibility or the record is complete 
and the case is approvable. Memo. of William R. Yates, Assoc. Dir. of Operations, CIS, Requests for 
Evidence (RFE) and Notices of Intent to Deny (NOID), 2-3 (Feb. 16, 2005). In all other situations, 
"such as when the evidence raises underlying questions regarding eligibility or does not hlly establish 
eligibility, issuance of a RFE or NOID is usually discretionary but strongly recommended." Id. at 3. 
However, CIS policy and the regulation at 8 C.F.R. 5 103.2(b)(8) do not require the director to issue an 
WE in every potentially deniable case. 
Moreover, even if the director had committed a procedural error by failing to solicit further evidence, it 
is not clear what remedy would be appropriate beyond the appeal process itself. The petitioner has in 
fact supplemented the record on appeal, and therefore it would serve no usehl purpose to remand the 
case simply to afford the petitioner the opportunity to supplement the record with new evidence. 
Regardless of whether or not an RFE should have been issued in this case, the burden of proof in these 
proceedings lies solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Counsel states 
various reasons why certain evidence was not submitted', but none of his explanations absolve the 
petitioner's burden of proof. 
Director's Comments Concerning "Some Chinese Cultural Companies" in Flushing, New York 
In his decision, the director stated: 
[Tlhis service has also discerned that some Chinese cultural companies, many located in the 
borough of Flushing in New York City and claiming to do business in the United States, 
I 
 For example, in his cover letter accompanying the petition, counsel stated, "There are some other 
supporting materials. However, since the are all in Chinese, and we don't have the manpower to help 
translate, we have returned them to Ms. On appeal, counsel states, "Since those who best qualify 
to comment upon Petitioner's works happen to be Chinese-speaking authorities in Chinese painting, 
material about these critics and commentators, although abundant, are also in Chinese, making 
translation too voluminous, time-consuming and cost-prohibitive." 
abandoned both immigrant and nonimmigrant petitions when questioned about the bona fides 
of their businesses. Therefore, this casts your alleged chosen profession in a dubious light 
owing to your address in the United States. 
With her Form 1-140, the petitioner submitted no evidence that she was associated with any Chinese 
cultural company located in Flushin , New York. On appeal, she submitted documents from the World 
Culture Alliance at 
P 
n Flushing, New York, but we have not considered this 
evidence because it arose a r e p ion as filed. Denial of this petition cannot be based upon the 
serious allegations of the director without evidence offered in support of those conclusions. Just as 
the unproven assertions of counsel are not evidence, neither are the unsupported conclusions of the 
director. CJ: 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)). The director's comments were inappropriate and are 
hereby withdrawn. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 
5 1 153(b)(l)(A), only if the alien can establish extraordinary ability through extensive documentation 
of sustained national or intemational acclaim demonstrating that the alien has risen to the very top of 
his or her field. The record in this case does not establish that the petitioner has achieved sustained 
national or intemational acclaim as an artist placing her at the very top of her field. The record also 
does not demonstrate that the petitioner seeks to enter the United States to continue working in her area 
of expertise. She is thus ineligible for classification as an alien with extraordinary ability pursuant to 
section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1 153(b)(l)(A), and her petition may not be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden 
has not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.