dismissed EB-1A Case: Art History

U.S. Citizenship 
and Immigration 
Services. 
MATTER OF A-T-A-
Non-Precedent Decision of the 
Administrative Appeals Otlice 
DATE: JULY 11, 2018 
MOTlON ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner seeks classification of the Beneficiary, a curator and historian of expressive realism 
art, 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 Nebraska Service Center denied the petition, concluding that the Petitioner had 
not satisfied the initial evidence requirements set forth at 8 C.F.R. § 204.5(h)(3), which require 
documentation of a one-time achievement or evidence that meets at least three of the 10 regulatory 
criteria at 8 C.F.R. § 204.5(h)(3)(i)(-(x). We dismissed the appeal, concluding that the Beneficiary 
had only met one of the required criteria. 1 
The matter is now before us on a motion to reopen our previous decision. On motion, the Petitioner 
submits new evidence asserting that the Beneficiary meets four criteria at 8 C.F.R. § 204.5(h)(3) in 
addition to the judging criterion that had previously been established. 
Upon de novo review, we will deny the motion to reopen. 
I. LAW 
Section 203(b)(l)(A) of the Act makes visas available to immigrants with extraordinary ability. 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). A petitioner can demonstrate a 
beneficiary's 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). Where a petitioner submits qualifying 
evidence that a beneficiary meets at least three criteria, we will determine whether the totality of the 
1 Our most recent decision in this mall er is Matter ofA-T-A-, ID# 73793 7 (AAO Dec. 19, 2017). 
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Maller of A-T-A-
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. 
Where a petitioner establishes that the beneficiary 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. 2010) ( 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). 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). The regulation at 8 C.F .R. § 103.5(a)(2) does not define what constitutes a "new" 
fact, nor does it mirror the Board of Immigration Appeals' (the Board) definition of "new" at 
8 C.F.R. § 1003.23(b )(3) (stating that a motion to reopen will not be granted unless the evidence 
"was not available and could not have been discovered or presented at the former hearing") . Unlike 
the Board regulation, we do not require the evidence of a "new fact" to have been previously 
unavailab,Ic or undiscoverable. Instead, we interpret "new facts" to mean facts that are relevant to 
the issue(s) raised on motion and that have not been previously submitted in the proceeding, which 
includes the original petition. Reasserting previously stated facts or resubmitting previously 
provided evidence does not constitute "new facts." We may grant a motion that satisfies these 
requirements and demonstrates eligibility for the.requested immigration benefit. 
II. ANALYSIS 
The Beneficiary is a curator and historian of expressive realism art. In our previous decision, we 
held that the Beneficiary only met the judging criterion under 8 C.F.R. § 204.5(h)(3)(iv). The 
Petitioner has filed a motion to reopen our previous decision. On motion, the Petitioner submits new 
evidence regarding the following criteria: membership at 8 C.F .R. * 204.5(h)(3)(ii), contributions of 
major significance at 8 C.F.R. § 204.5(h)(3)(v), display at 8 C.F.R. * 204.5(h)(3)(vii), and leading or 
critical role al 8 C.F.R. § 204.5(h)(3)(viii), which we will discuss below. 
Documentation <?f the alien ·s membership in associations in the.field.for which class{fication 
is sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their Uisciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
In our previous decision we held that the Petitioner had not established that the Beneficiary ' s 
membership in the required outstanding 
achievements of its members as shown through documentation such as bylaws or admission 
standards. On motion, the Petitioner submits a translation of the Statutes of Association from 
which begins by stating that its purpose is "the promotion of the visual art of expressive 
realism in Germany and Austria." Section four of this document, pertaining to membership in the 
association, states, "Admission is requested by written application for membership" and that "[t]he 
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board decides on the admission" and "can appoint honorary members." This document does not 
stipulate that the association requires outstanding achievements of its members. 
The Petitioner states that the selected the Beneficiary "to lead its 
effort to disseminate Expressive Realism paintings from Mr. Heirling's personal collection." The 
Petitioner states that "this constitutes a merit-based association of very small membership," but has 
not established that this meets the requirements of the regulation, which refers to an association in 
the field which requires outstanding achievements of its members. The record does not demonstrate 
that the selection of the Beneficiary to disseminate paintings from the Hierling Foundation equates to 
membership in an association or that such membership requires outstanding achievements to join the 
association. Therefore, the Beneficiary does not meet this criterion. 
Evidence of the alien ·s original scient[fic, scholarly, artistic, athletic, or business-related 
contriblltions of major significance in the-field. 8 C.F.R. § 204.5(h)(3)(v). 
/ 
The Petitioner asserts that the Beneficiary's contribution of filling the gap in expressive realism 
artwork in the United States is a contribution of major significance. On motion, the Petitioner 
submits several letters attesting to the gap of expressive realism in the United States from individuals 
who identify themselves as art experts, but the record does not contain additional evidence of their 
credentials to substantiate their level of expertise. 
The Petitioner also submits a printout of the exhibit text associated with the painting 
by from the website, written by to 
highlight what expressive realism is and to demonstrate that this artwork is largely underrepresented, 
stating that there is an "incomplete view on the creative work of the 20th century." The Petitioner 
claims that the Beneficiary's expertise in facilitating the donation of art from the collection 
to constitutes an original contribution of major significance in the field. The 
Petitioner contends that we misinterpreted a statement from from 
that the artists from the Hierling collection would "complement" the holdings of the 
museum, which we interpreted to mean that these museums already had expressive realism artwork. 
The Petitioner notes that the focus of this statem~nt that these paintings "would strongly complcnicnt 
[the museum's] holdings arid allow a more nuanced view of the art from the interwar period" meant 
that the donation will "cover a more nuanced view of the art," which "view presently is missing from 
the museum." The Petitioner asserts that even if museums had certain works of expressive 
realism, they do not have sufficient works to fully express this period in context, which it contends is 
of utmost significance for reputable museums .. Accordingly, the Petitioner states that filling the gap 
"between Expressionism, and the postwar period can't be anything else but of major 
significance to the field." Here, we find the Petitioner conflates the gift of the art from the 
collection with the Beneficiary's own contributipn of "facilitating" the transfer. The letter 
focuses on the importance of the gift, not the Beneficiary's role . Additionally, we find that this 
refers to prospective contributions that may be of major significance in the field. The regulation 
requires evidence of the Beneficiary's original contributions that already have occurred. 
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Matter ofA-T-A-
The Petitioner states that the Beneficiary already has donated underrepresented artwork in 2010. 
Specifically, the Petitioner submits a letter from the Mayor of stating that the 
Beneficiary has donated underrepresented art to the city of and the former Mayor of 
The Petitioner has not demonstrated how this donation equates to a contribution of major 
significance. 
The Petitioner further stales that the Beneficiary has already undertaken the selection of the artworks 
lo be donated and has become Head of the donation and founder of the as 
shown by the Letter of Appointment from submilled previously. However, the 
Petitioner has not provided any additional evidence on motion to establish that the Beneficiary's . 
contributions, rather than the gifted artworks from the collection, have been of major 
significance in the field. 
The Petitioner also states that the fact that the Beneficiary has not donated the artwork from the 
collection to other museums that have expressed interest in the artwork constitutes a 
contribution of major significance because the Beneficiary had to fight to save the works for 
donation to the United States to fill the gap in expressive realism here. The Petitioner has not 
provided any new evidence to support this assertion on motion. Therefore , the evidence in the 
record does not demonstrate that the Beneficiary meets this criterion. 
Evidence of the di.\play of the alien ·s work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
On motion, the Petitioner submits letters from two individuals who had their first shows at 
and state that this is the art gallery the Beneficiary founded and co-owns. These letters state 
that the Beneficiary curated and exhibited paintings in addition to mentoring young artists and that 
her gallery concept is innovative for young artists.2 We find that these letters demonstrate the 
Beneficiary's role as co-owner of an art gallery and of her ability to mentor young artists, but the 
Petitioner has not established how this constitutes a display of the Beneficiary's work in the field. 
The record does not contain evidence demonstrating what works the Beneficiary exhibited or that 
her work was on display. Therefore, the Beneficiary does not meet this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. ~ 204.5(h)(3)(viii). 
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 Beneficiary's impact on the 
organization or the establishment's activities. The Beneficiary's performance in this role should 
establish whether the role was critical for the organization or establishment as a whole. 
2 These tellers refer to gallerists, hut the record docs not· establish how that role relates to the Beneficiary's fields of 
curatorship and art history. 
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The Petitio·ner submits a translation from the website, indicating that the 
Beneficiary is one of the board members, and she also submitted the translation of the heading from 
an email to from an attorney, ·addressing the Beneficiary as a director. The record 
does not contain any documentation of the organizational hierarchy of these entities or evidence 
about the Beneficiary's duties as a member of the board for or as a director of 
Additionally, the record does not contain evidence regarding the reputation of 
these entities. We find that these letters are insufficient to demonstrate that the Beneficiary 
performed in a leading or critical role for an organization with a distinguished reputation. Therefore, 
the Beneficiary does not meet this criterion. 
" ,_ 
III. CONCLUSION 
The motion to reopen is denied because the evidence the Petitioner has submitted does not constitute 
the required initial evidence of either a qualifying one-time a,chievement 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 established the Beneficiary's acclaim and recognition 
required for the classification sought. 
ORDER: The motion to reopen is denied. 
Cite as Matter of A-T-A-, ID# 1383945 (AAO July 11, 2018) 
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