dismissed EB-1A Case: Art Illustration

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Ofticc. (AAO) 
20 Massachusetts Ave:, N.W., MS 2090 
Washim!ton. DC 20529-2090 
·U.S. Citizenship 
·and Immigration 
Services 
DATE: FEB 2 6 2013 Office: TEXAS SERVICE CENTER Fll...E: 
INRE: Petitioner: 
Beneficiary: 
P~TITION: 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)(l )(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 -th~t 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 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 CF.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 CF.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
JJOwdn~ 
(Ron Rosenberg · 
4 Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
7 
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 is a soccer instructional schooL It seeks to classify the benefici~ry as an "alien of 
extraordinary ability" in the arts, pursuant to . section 203(b)(l)(A) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A) as an art illustrator. The director determined 
that the petitioner had not . established the requisite extraordinary ability for the beneficiary and 
failed to submit extensive documentation of his 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)(l)(A)(i) of the 
Act and 8 C.F.R. § 204:S(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 recejpt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through 
I . . 
(x). The petitioner must submit qualifying evidence for the alien under at least three of the ten 
regulatory categories nf evidence to establish the basic eligibility. requirements. 
On appeal, counsel asserts that the beneficiary meets all ten of the regulatory categories of evidence 
at 8 C.F.R. §§ 204.5(h)(3)(i)- (x). Counsel requests that, if not approved, the petition be held .in 
abeyance for further guidance and clarification in the extraordinary ability context. For the 
reasons discussed below, the AAO will uphold the director's decision. 
I. LAW 
Section 203(b) of the Act states, in pertinent .P~· 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 fieid through extensive documentation, 
(ii) the alien seeks to enter the United States to continue 
work in the area of extraordinary ability, and 
(b)(6)
.7 
Page 3 
(iii) the alien's eritry into the United States will 
· substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and. legacy Immigration arid 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
51 
Cong., 2d 
Sess. 59 (1990); 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. /d.; 8 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 8 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, 580 F.3d 1030 (9th Cit'. 2009) qff'd in 
part 596 F.3d 1115 (9th Cir. 2010). Couilsel argues that the ruling does not require a "two-pmt 
review" and "has resulted in an unclear adjudication." . Counsel's arguments are not persuasive. 
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. 1 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." /d. at 
·1121-22. . 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations . 
Instead of parsing the significance 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)." /d. at 1122 
(citing to 8 C.F.R. § 204.5(h)(3)). ' 
The court's multiple references to a fmal merits determination make clear that the court assumed an 
inquiry into the final merits would occur after the initial evidence stage. 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. As the court was interpreting the statute and regulations as they currently exist, 
any guidance would be purely proceduraland would merely change when in the adjudication USCIS 
would review the evidence under the statutory standard. 
I Specifically, the co.urt stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth _in the regul<itio.ns at 8 C.f.R § 204 .5(h)(3)(iv) and 8 C.F.R § 204.5(h)(3)(vi). 
(b)(6)Page4 
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. /d. . · · 
II. ANALYSIS 
. A. Evidentiary Criteria 
Documentation of the alien's receipt of Lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The AAO withdraws the director ;s finding that the beneficiary meets this regulatory criterio~. 
The petitioner submitted a partially illegible color photocopy of a certificate from the " 
· " stating that the beneficiary received a ": 
" The English language translation accompanying the preceding certificate 
was 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 
Englis~ 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, there is no documentary evidence showing that this certificate is a 
nationally or internationally recognized prize or award for excellence in the field of endeavor. 
The petitioner submitted a June 2, 2010 " 
presented to the beneficiary "for outstanding 
performance and lasting contribution as Speaker to the The · 
petitioner also submitted a February 17, 2011 ''Certificate of Appreciation" from the President of 
the presented to the beneficiary "for outstanding performance and lasting contribution to 
the ''2 . The beneficiary's Certificates of Appreciation reflect local or 
regional recognition by the Brazilian business community in rather than nationally 
or internationally recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted an "Excellence Award" (2010) from (a 
published in focusing on the Brazilian 
Community) recognizing the beneficiary for his outstanding work as the newspaper's cartoonist. 
The petitioner also submitted a photograph of the beneficiary receiving his award from Mr. 
2 According to Its website, " is an independent, secular organization, founded in 2006 with the objective of 
uniting and strengthening the Brazilian business community in especially 
where a large part of the community is concentrated." [Emphasis added.] . See 
accessed on January II , 2013, copy 
incorporated into the record of proceeding. 
(b)(6)
Page 5 
.~ 
Publisher of 3 According to the benefiCiary:s resume 
that was submitted by the petitioner (initial exhibit 4), the beneficiary has worked as Art Director 
for since June 2009. Therefore, the beneficiary's 
"Excellence Award" reflects · institutional recognition from the newspaper that he works for 
rather than a nationally or internationally recognized prize or award for excellence in the field of 
endeavor. 
The petitioner submitted the following certificates: 
1. Certificate stating: 
·[the beneficiary] For the Creation of the Winner Artwork in 
Design Your outstanding contribution 
to the Brazilian Community in th.e U.S . was recognized by the 
2. Certificate stating: ' 
. [the beneficiary] For the Creation of the Winner Artwork in 
Direct Marketing · ·- Your 
outstanding contribution to the Brazilian Community in .the U.S. was recognized by 
the 1and 
3. Certificate stating: 
: fthe beneficiarvl For the Creation of the Winner ·Artwork in 
External Media Your outstanding contribution to the 
Brazilian Community in the U.S. was recognized by the 
In response to the director's request for evidence, the petitioner submitted a November 28, 2011 
letter from Mr. in his capacity as "President of the 
" Mr. states: 
[The beneficiary] has received from our institution the following awards: 
The certificates numbered as items 2 and 3 above correspond to two of the awards listed by Mr. 
However, the " (Best Design -
---
3 The petitioner's evidence includes copies of listing the beneficiary among the newspaper's 
staff as the "Art Director" and Mr. as the newspaper's "Publisher;" 
(b)(6)Page 6 · 
2008)" listed by Mr. · contradicts information on the . certificate (item 1) recognizing the 
beneficiary "For the Creation of · the Winner Artwork in Design 
Specifically, Mr. states the beneficiary won Best Design for 
in 2008 at the program while the 
beneficiary's certificate as winner of Artwork in Design for (item l) is from 
the ____ _ __ program. .It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Further, while the petitioner submitted the 
'.'Official Catalog" for the event listing 
the beneficiary as ' the. catalogue does not identify the benefiCiary as the winner 
of the and . awards from 2011. Therefore, the second 
. and third awards listed · by Mr. above are undocumented. 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 (Comrn'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comrn'r 1972)). A petition must be filed 
with any initial evidence required by the regulation . . 8 C.F.R. § 103.2(b)(1 ). Further, the 
regulation at 8 C.F.R. § 103.2(b)(2)(i) provides that the non-,existence or unavailability of · 
required evidence creates a pr~sumption of ineligibility. According to the same regulation, orily . 
where the petitioner demonstrates that primary evidence does not exist or cannot be obtained 
may -the petitioner rely on secondary evidence and only where secondary. evidence is 
demonstrated to be unavailable may the petitioner rely on affidavits. /d . . In this instance, the 
petitioner has not demonstrated that primary evidence of the beneficiary's _ 
and awards from 2011 does not exist or cannot be obtained. Accordingly, 
the November 28, 2011 letter from Mr. asserting that the beneficiary received those two , 
awards does not comply with the preceding regulatory requirements. 
Mr. asserts that the "has as its members more 
than 200 institutions, press, and broadcasting companies from around the world" and that the 
association's ''of 6 judges receives hundreds of submissions for 
consideration from individuals worldwide." Mr. states that there are 
L __ ~ 
and four Mr. does not 
indicate how many individuals submitted entries in the specific categories won by the 
beneficiary. Mr. also states that the "has 
gained its place as a reputable ·and internationally recognized institution, due to its membership 
profile and its involvement in promoting a form wl)ere exchange of creativity can occur." In 
addition to Mr. comments, . the "Official Catalog" for the " ·· ' 
and copy of the DVD from the 2008 
event, the petitioner submitted online material from the presenting 
association's website identifying the listing the participating organizations, and 
posting videos from the award program. The self-serving nature of the information submitted 
from the website, provide<f in the letter from Mr. 
and contained in the other material from the event's organizers fails to demonstrate that the 
(b)(6)
.,,, 
Page 7 
benefiCiary's particular awards are nationally or internationally recognized awards for excellence 
in the field of endeavor. USCIS need not rely on self-promotional material. See Braga v. Poulos, 
No. CV 06 5105 SJO (C. D. CA July 6, 2007) aff' d 317 Fed. Appx. 680 (9th Cir. 2009) (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). Moreover, a contest may be open to entries from throughout a 
particular country or countries, but this factor alone is not adequate to establish that a specific 
prize from the contest is "nationally or internationally recognized." 
The petitioner submitted an article about the posted at 
a website that focuses on the Brazilian community in the United States. 
The · petitioner also · submitted an article entitled " 
'' posted at a ' 
=="'""""- ' In addition, the petitioner submitted an article posted on the 
website of stating that one of the university's faculty, 
Professor , was recognized "for her 'outstanding performance and contribution' in the 
" None of the preceding online materials mention the 
beneficiary or his specific · awards. The plain language ·of . the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) specifically requires that the beneficiary's awards be nationally or internationally 
recognized in the field of endeavor and it is the petitioner's burden to establish every element of this 
criterion. There is no documentary evidence showing that the beneficiary's specific . 
were reco.gnized beyond the presenting· association and therefore 
commensurate with nationally or internationally recognized prizes or awards for excellence . in 
the field. · 
In light of the above, the petitioner has not established that the beneficiary 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 
members, as judged by recognized national or international experts in their 
disciplines or fields. 
The petitioner submitted documentation of the beneficiary's · membership in the Brazilian 
International Press Association and the . There is no documentary evidence (such as bylaws 
or rules of admission) showing that the 
require outstanding achievements of their members, as judged by recognized national or 
international experts in the field. 
The petitioner submitted two December 6, 2011 letters from President, 
The first letter from Ms. states: 
"Among our fine· c~liber members we are happy to have [the beneficiary] as signature member 
and one of our fine visual artists." Ms. second letter states: 
are working and professional fine artists whose artwork is of a high 
caliber and have been juried into the · Only Signature 
(b)(6)
,, J, 
Page 8 
Members may enter shows at the 
with full benefits, enter the 
and participate in the 
members also may display .their art on the 
the gallery. 
The petitioner also submitted a blank ' 
at 
at the 
program. 
and on the large screen TV in 
form from the 
In addition, the petitioner submitted an online 
biography for and a December 24, 2010 article entitled ' at 
show" stating that Ms. . "a former local museum curator, juried the 
submissions." The petitioner also submitted a 
stating: 
I. 
AssoCiate Membership · . 
members automatically ·become Associate Members. ·Membership is open to 
ali' members of 
* * * 
After being an Associate member for a minimum of 90 days, a member may submit their 
work to be juried to · 
. ) 
* * * 
-
Once an AssoCiate member has . successfully been juried, · they become 
* * * 
For 
New member are [sic] juried. Jurying requires a presentation of a body of four (4) pieces 
of artist work, completed within the past 2 years and professiomilly presented for display, 
and information about the candidate's artistic background. All jurying is done by outs'ide 
* * * 
are chosen by their solid reputation in U.S. as professional artist, art instructors, 
. gallery directors, or curators. must represent a wide range of knowledge of fine 
arts and crafts. 
The AAO cannot conclude that being a working and professional fine artist, fulfilling 90 days as 
an submitting four pieces of artwork that have been completed within a two 
year period and professionally presented for display, providing . information about one's artistic 
(b)(6),, .... .-----------, 
Page 9 
background, and having been juried into the by an outside juror equates to "outstanding 
achievements" in the arts. For instance; creating pieces of artwork that ·were ·displayed 
professionally is inherent · to the visual arts rather than an indication of "outstanding 
. achievements" relative to other working artists. Furthermore, the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3 )(ii). requires "membership in associations" in. the plural. The 
use of the plural is consistent with the statutory requirement for extensive evidence. Section 
203(b)(l)(A)(i) of the Act. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are 
worded in the plural. · Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only 
require service on a single judging panel or a single high salary. When a regulatory criterion 
wishes to include the singular within the plural, it expressly does so as when it states .at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) that evidence of ·experience must be in the form of "letter(s)." Thus, the 
AAO can infer that the plural in the remaining regulatory criteria has meaning. In a different 
context, federal courts have upheld USCIS' ability to interpret significance from whether the 
singular or plural is used in a regulation. See Maramjaya v. USCIS, Civ. Act. No. 06-2158 
(RCL) at *1, *12 (D.C. Cir. March 26, 2008); Snapnaines.com Inc. v. Chertoff, 2006 WL 
3491005 at *1, *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory 
requirement for "a" bachelor's degree or "a" · foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) 
requires a single degree rather than a combination ofacademic credentials). Therefore, even if 
the petitioner were to establish that the beneficiary's in the 
meets the elements of this regulatory criterion, which . the 
petitioner has not, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires 
evidence of the beneficiary's qualifying membership in more than one association requiring 
outstanding achievements of its members, as judged by recognized national or international 
experts.· 
In light of the above, the petitioner has not established that the beneficiary meets this regulatory 
criterion. 
Published material about the alien in professional or major trade publica~ions 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 translation. 
· The director concluded that the materials submitted by the petitioner were either not about the 
beneficiary or did not appear in professional or major trade publications or other major media. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the published· 
material be "about the alien ... relating to. the alien's work in the field." Thus, an article that 
mentions the beneficiary but is "about" someone or something else cannot qualify under the plain 
I 
language of this regulation. See Noroozi v. Napolitano, 11 CV 8333 PAE, 2012 WL 5510934 at 
* 1, *9 (S.D.N.Y; Nov. 14, 2012); also see generally 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 or a character 
within a show are not about the performer). 
The petitioner 
submitted pages of the newspaper with cartoons created by 
the beneficiary. The plain language of this regulatory criterion requires the submission of 
(b)(6)Page 10 
"[p ]ublished material about the alien in professional ·or major trade 'publications or other major . 
media" including "the title, date, and author of the material." The newspaper cartoons submitted 
by the petitioner do not meet the preceding requirements.-· For instance, they are not about the 
beneficiary and the petitioner has failed to demonstrate . qualifies as a 
, form of major media in the United States or in any other country. 
The petitioner submitted an article entitled ' ' appearing in an 
unidentified publication "produced by the , The article was 
unaccompanied by an English language translation as required by the regulation at 8 ·c.F.R. 
§ 103.2(b)(3). In addition, the date and author of the material were not identified as required by 
the plain language of the regulation at regulation at 8 C.F.R. § 204.5(h)(3)(iii). While the article 
includes a brief caption stating .that the Academy's logo was created by the beneficiary, the article 
is not about the beneficiary and there is no documentary evidence showing the material was· in a 
professional or major trade publication or some other form of major media. 
The petitioner submitted two articles in entitled " ' (July 2007) and 
" _ " (December 2005), but the articles were 
unaccompanied by a full. English language translation as required by the regulation at· 8 C.F.R. 
§ 103.2(b)(3). In addition, the author of the material was not identified as required by the plain 
language of the regulation at regulation ·at 8 C.F.R. § 204.5(h)(3)(iii). Although the two articles 
purportedly include one sentence thanking the beneficiary for his artistic contribution and 
participati~n. the articles are not about the beneficiary and there is no documentary evidence 
showing that is a professional. or major trade publication or some other form of major 
media. 
The petitioner submitted a September 2006 article in A newspaper entitled 
· '' " but the article was unaccompanied by an English language 
translation as required by ·the regulation at 8 C.F.R. § 103.2(b)(3). This article constitutes . 
material written by the beneficiary rather than published material about himself. Moreover, there 
is no evidence showing that newspaper qualifies as a form of major media in 
Brazil or in any other country. Thus, the article does ·not meet the plain language requirements of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii). · 
In response to the director's request for evidence, the etitioner submitted an October 20, 20 II 
article in _ newspaper entitled' ----~-------- 0 -----r--0 -- ------ 0 
" that includes five sentences specifically mentioning the 
beneficiary. This article was published subsequent to the petition's May 12, 2011 filing date. 
Eligibility, however, must bt: established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. 45,.49 (Reg'l Comm'r 1971). A petition cannot be approved at 
a future date after the petitioner becomes eligible under a new set of facts. Matter of /zummi. 22 
I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter of Bardouille, 
18 I&N Dec.l14 (BIA 1981), that USCIS cannot "consider facts-that come into being only 
subsequent to the filing of a petition." !d. at 176. Accordingly, the AAO will not consider 
articles published after May 12, 2011 asr evidence to establish the beneficiary's eligibility. 
(b)(6)
. ,, 4, 
Page II 
Regardless, the author ·of the material was not identified as required by the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
The petitioner also submitted a December 24, 2010 article entitled " 
. _ " in Florida 's newspaper, but the article is about th~ art 
show in general and does not even mention the beneficiary. As previously discussed, the plain 
language of the regulation at" 8 C.F.R. § 204_.5(h)(3)(iii) requires that the publishe.d material be· 
"about the alien." 
The petitioner's response included a December 2010 four-sentence article in 
promoting the 
exhibition. The article and an accompanying photograph identify the beneficiary and another 
individual as participants in the exhibition, but the author of the material was not identified as 
required by the plain language of. the regulation at 8 C.F.R. § 204.5(h)(3)(iii). ln addition, the 
-\ . petitioner submitted a November ~010 artide in entitled" 
" but the article is not about the beneficiary . Instead, the article is about 
the High School Soccer Team and only briefly mentions the beneficiary as 
having designed the team's logo and. mascot. Further, the author of the material was not 
identified as required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). The 
petitioner also submitted an August 2010 article in entitled " 
' discussing the beneficiary's work for the newspaper, 
but the author of the material was not identified as required by the plain language of this 
regulatory criterion. The petitioner's submission also included inforniation from 
' media kit stating that the based newspaper has '.' . 
' and reaches '' As previously 
discussed, USCIS.need not rely on self-promotional material. See Braga v. Poulos, at 680. There 
i's no documentary evidence (such as objective circulation information from an independent source) · 
showing the distribution of ' relative to other newspapers to demonstrate that 
the submitted articles were published in a form of "major" media. For instance, the petitioner 
submitted information indicating that the has a readership of while 
.claims a readership of only Accordingly, the petitioner has not 
established that is a form of "major" media in the United States or .in any 
other country. 
The petitioner's response included additional material in 
' in. conservation advertisements by -
, in public awareness campaigns 
and newsletters prepared by 
' promotional and technical documentation, and in Diagraphic 
Editoria's anatomical · diagrams and imagery . None of these addi~ional items rrieets all of the 
requirements of the regulation at ,8 C.F.R. · § 204.5(h)(3)(iii). For example, the submitted 
materials were deficient in that they did not include a date or an author, they were not about the 
beneficiary, they lacked the necessary English language translation, or they lacked evidence that 
they were published in professional or major trade publications or other major media. 
(b)(6)
• . 4, 
Page 12 
On appeal, the petitioner submits an October 2007 article in entitled ' 
. j' This multi-page 
article is primarily about how good illustrations play a crucial rore in product sales and only 
briefly mentions the beneficiary. Further, the author Of .the material was not identified as 
required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). The petitioner also 
submits information about from the publis~er stating that the magazine's 
circulation is 40,000 copies. As previously discussed, USCIS need not rely on self-promotional 
material. See Braga v. Poulos, at 680. There is no documentary evidence showing the distribution 
of Marketing e Negocios relative to other industry publications -to demonstrate that the magazine 
qualifies as a "major" trade publication. Regardless, as the petitioner ha·d the opportunity to 
submit the October 2007 article in in response to the director's request for 
evidence, the AAO will not consider this evidence offered for the first time on appeal. See 
Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 
533 (BIA 1988). 
On pages 30 and 31 of the appellate brief, COl,lflSel asserts that the materials submitted for this 
criterion "must be considered as comparable evidence to corroborate his occupation because. they 
' illustrate that beneficiary's work is intrinsically conriected to his employers or his 1affiliation with . . 
organizations." The regulation at 8 C.F.R: § 204.5(h)(4) allows for the submission of 
"comparable evidence" only if the ten categories of evidence "do not readily apply to the 
beneficiary's occupation." Thus, it is the petitioner's burden to demonstrate why the regulatory 
criteria at 8 C.F.R. § 204.5(h)(3) are not readily applicable to the alien's occupation and how the 
evidence submitted is "comparable" to the specific objective evidence required at 8 C.F.R. 
§§ 204.5(h)(3)(i) - (x). The regulatory language precludes the consideration of comparable 
evidence in this case, as there is no indication that eligibility for visa preference in the 
beneficiary's occupation cannot be established by the ten criteria specified by the regulation at 
8 C.F.R. § 204.5(h)(3). In fact, as indicated in this decision, the petitioner submitted evidence 
· that specifically addresses all ten of the categories of evidence set forth in the regulation at 
8 C.F.R. § 204.5(h)(3). Where an alien is· simply unable to satisfy the plain language 
requirements of at least three categories of evidence at 8 C.F.R. § 204.5(h)(3), the regulation at 
8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. 
In light of the above, the petitioner has not established that the beneficiary meets this regulatory 
criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specification for · which 
classification is sought. -
The AAO withdraws the director'.s finding that the beneficiary meets this regulatory criterion. _ 
The aforementioned December 6, 2011 letter from 
states: 
, President of the ___ _ 
(b)(6)
.. •. 
. ,, 
Page 13 
[The beneficiary] ... has performed as in other exhibitions sponsored in 
_ located on ___ in ~ A 
works with the as the artwork is selected: they cannot have work 
entered in the exhibition; they work from a roster ·of art work entered; they make sure the 
determined number of accepted artwork is correct; indicates which pieces of artwork are . · 
eligible for awards and notes the winners on the "award: sheet" with titles and names. 
The letter from Ms. fails to establish that perfo~ing in the subordinate role of 
' equates to participating as "a judge" of the work of others in the field. There 
is no evjdence demonstrating that a·' ; actually judges the artwork and makes final 
selections for the exhibition, rather than merely assisting the with general administrative 
·functions of the exhibition. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) 
requires evidence demonstrating that the beneficiary has participated as "a Judge of the work of 
others." The phrase "a· judge" implies a formal designation in a judging capacity, either on a 
panel or individually as specified at 8 C.F.R. § 204.5(h)(3)(iv). The regulation cannot be read to 
include instances of providing only administrative support to an actual _____ (such as 
_ who formally participates as a judge of the work of others. ·Moreover, there is no 
documentary evidence showing the specific exhibitions judged by the beneficiary at the 
the dates of his participation, and the names of the artists whose work he 
specifically selected~ Merely submitting documentary evidence reflecting that the beneficiary 
has served as. a without evidence demonstrating who he judged is insufficient to 
establish eligibility for this regulatory criterion . 
The petitioner submitted a November 28, 2011 "Statement" from 
stating: 
I was the Resident Vice President for in a period of 10 years .... 
In the year 2000, had sponsor [sic] an Art Contest in partnership with 
a non-profit organization committed with 
education and industrial production. [The-beneficiary] was invited tp participate as a Judge 
in a panel composed of three to evaluates [sic] the candidate's work. The main idea was 
invites [sic] artists to present new ideas about the new milleru1ium with a sort of innovative 
art resource. 
The petitioner also submitted a December 5, 2011 "Statement" from stating: 
I hereby certify that [the beneficiary] served as judge in a promotional campaign developed 
by • in 2006. I was co-owner of ' 
in the period 2002 to 2007. 
In one of these actions we have developed contest of cartoons with sportive subject aimed 
on promoting the new site of 1 magazine, a magazine aimed to the Brazilian Soccer 
and sports in general. Basically the participant would a.ccess the customer's site and send 
(b)(6)
.. 
Page 14 
his cartoon; he could send a maximum of three images. The winner would receive 1 year · 
subscription of the printed version of the magazine and a cash value. 
The artistic reputation' of [the beneficiary] in sports universe as cartoonist gave great · 
importance to the project, where his decisi<:m 'determined .the winner. 
Merely submitting statements asserting that the beneficiary has served as a judged the work of 
others without evidence showing who he judge~ and their field of specification is insufficient to 
establish eligibility for this criterion. Rather . than submitting contemporaneous documentary 
evidence of the beneficiary's aiticipation as a judge in the art contest co-sponsored by 
and the in 2005-2006 and in the magazine cartoon contest in 
2006, the petitioner instead submitted brief statements from Mr. · · and Mr. 
issued in 2012 attesting to the beneficiary's involvement. The AAO notes that neither 
statement bears the letterhead of the contests' company sponsors or the companies' contact 
information. Further, there is no documentary evidence showing the beneficiary's specific 
assessments and the names of the artists whose work he evaluated; 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 Craft of California, 14 I&N Dec.· 190 (Reg'l Comm'r 1972)). Moreover , if testimonial 
evidence lacks specificity, detail, or credibility , there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998), In this instance, the 
record does not include ·primary evidence demonstrating the beneficiary's participation as a 
judge for either contest. A petition must be filed with any initial evidence required by the 
regulation. 8 C.F.R. § 103.2(b)(1). The n~:mexistence or other unavailability of required 
evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i) . When relying on 
secondary evidence, the petitioner must provide documentary evidence that the primary evidence 
is either unavailable or does not exist. /d. When relying on an affidavit, the petitioner must 
demonstrate that both primary and secondary evidence are unavailable. /d. In this instance, the 
petitioner has not demonstrated that primary evidence of the beneficiary's participation as a 
judge does not exist or cannot be obtained . . Accordingly, the November 28, 2011 and December 
5, 2011 statements from Mr. and Mr. do not comply with the preceding 
regulatory requirements. 
In light of the above, the petitioner has. not established that the beneficiary meets this regulatory 
criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
In the director's decision, he determined that the petitioner failed to establish the beneficiary's 
eligibility for this regulatory criterion. The · plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v) requires "[e]vidence of the alien's original scientific, scholarly, artistic, athletic, 
or business-related contributions of major significance in the field." [Emphasis added.] Here, 
the evidence must be reviewed to see whether it rises to the level of original artistic or business­
related contributions "of major sigr:tificance in the field." The phrase "major significance" is not 
(b)(6).. 
Page 15 
superfluous and, thus, it has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 
51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. _Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 
- 2003). . 
The petitioner submitted letters of support discussing the beneficiary's work and documentary 
evidence of the beneficiary's artwork for various clients. 
Dr. ----~- Medi.cal Department Manager, 
, states: 
Since our mainstream is medicines manufacturing, our advertising campaigns demand 
state-of-the-art support irt fields such'. as 'technical_ advisory (provided by myself), . 
specialized marketing planning, computer graphics, and scientific artistic illustrations -
remarkably provided by [the beneficiary]. In this latter case, [the beneficiary] was able 
to demonstrate a high capacity· in c~mprehending the complexities of biopharmacology­
and expressing it in marvelous artistic illustrations. After [the beneficiary's] cooperation 
in our ·Marketing initiate~. we were able to notice a· significant increase in our -
company's revenue along the next two years time span. Due to our clients' positive 
reaction to our advertising · m·aterial - mainly physicians - we were able to link [the 
beneficiary's] works to this profitable economic response. We can surely state that his 
works did - and still do - contribute to our commercial performance in the field, and that 
a different 
graphic artist could hardly repro~uce the same brilliant results. 
* * - * 
I would recommend his professional services to any person or company demanding high 
quality and high complexity artistic illustrations. 
Dr. comments that the beneficiary's artistic illustrations helped increase 
revenue, but Dr. does not -provide specific examples of how 
the original illustrations by the beneficiary have significantly impacted others in his field or 
otherwise constitute original artistic contributions of "major significance" in pharmaceutical 
marketing. 
____ ------ ~----------.Senior Art Director, states: 
As an Art Director I consider that [the beneficiary] is by far one of the greatest artists we 
. ever worked. He has an elite-level technique that differs from all medical illustrators. 
His achievements by using a combination of styles and media, brings a rare beauty mixed 
with strong reality . [The beneficiary's] artworkcan add significantly to any Organization, 
Advertising Agency, Art Gallery or Institution. - -
Mr. comments on the beneficiary's skillful illustration technique, but he does not 
specify which of the beneficiary's illustrations equate to original scientific; artistic, or business­
related contributions of major significance in the field. Assuming the beneficiary's . skills are 
(b)(6)
.. 
Pag~ 16 
unique, the classification sought was not designed merely to alleviate skill shortages in a given 
field. In faCt, that issue properly falls under the jurisdiction of the Dep.artment of Labor through 
the alien employment ·certification process. See Matter of New York State Department of 
Transportation, 22 l&N Dec. 215, 221 (Comm'r 1998). The petitioner's appellate submission 
includes an ·October 2007 article in entitled " . 
J that quotes Mr. . In the article, 
Mr. states that the sales revenue of the campaign containing the beneficiarY's illustrations 
for the product " " represented "an inqease of 45% over the initial revenue in a period 
of two years." While the beneficiary's illustrations helped increase ' 
revenue, there is no evidence demonstrating that his original work for the company constitutes 
original contributions of major significance in the field. The plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(v) requires that the beneficiary's contributions be "of major significance 
in the field" rather than limited to a single client or company. 
Dr. _ Medical Editor, ." a scientific editorial company 
specializing in medical education, states: 
We are a publishing company engaged in three strategic pillars: Art and Design, 
Communication and Targeted Editorial Content. 
* * * 
[The beneficiary] is part of our team since 2001 .... He is an expert not only because he 
does biological art and is able to illustrate anatomical charts with singular beauty, but 
because he does in a [sic] extraordinary way. His illustrations comes [sic] with an 
exquisite technique that can be noted at the very moment of the briefing .... Normally a 
talented illustrator is more than enough to translate visually what I nee~. But in very rare 
cases, and really important · ones, we need to illustrate an entire description of 
. biomechanisms in articles with scientific precision; ·those· articles are edited to highly 
qualified 
audience. This is not a regular .task This requires a deep understanding of 
science an [sic] art and [the beneficiary] can make this looks [sic] rea]Jy .easy. 
In addition, [the beneficiary] has achieved the position of training qur art professional 
team. . 
. . The off-set printing process is a crucial moment of any publication, 
representing a million dollars loss if something goes wrong and harm our reputation as 
well. By using his multidisciplinary Jmowledge of colors in different media [the 
beneficiary] had · developed a technical list of steps and set ups witch [sic l are been [sic] 
used for all of our team since then in order to grant the best printing result. · : 
Dr. praises the beneficiary for his expertise in biological art, his anatomic illustrations, 
and training others in the company, but Dr. fails to provide specific exarilples of how the 
beneficiary's original illustrations and training methodologies have significantly influenced the 
field at large or otherwise constitute original artistic contributions of major significance in the 
medical ublishing · industry. While the beneficiary's work. helped . ensure the quality of 
illustrations and its ·off-set printing process, there is no evidence 
(b)(6)
l o I ' · 
Page 17 
demonstrating that the beneficiary's orig.inal work for the company equates to original 
contributions of major significance in the field. 
President of the 
1, states: 
The _ ~ the highest power of guidance and 
supervision of the profession of Phonoaudiology in the state of comes, 
through this letter, to attest the essential contribution of [the beneficiaryl. artist of 
incomparable cre.ative ability, to the repercussion a_nd success ofcampaign ' 
The visual identity of the socio-educational actions, for nine years, has been growing 
rapidly and · spreading throughout Brazil, through the character ' " that was 
entirely designed and developed by this brilliant · artist who is conquering children, youth, 
adults, pregnant women, mothers, professionals and managers at all levels with his 
creativity. 
o[The benefi-~iary] is undoubtedly the secret of the success of this beloved character . . . 
who ·is a "Trademark" of which 
for two y~ars, has rights of use granted also to all the other seven _ 
- expanding at a range almost 180 million people in Brazil, 
equivalent to the c;:urrent total population of this country. 
We can say with certainty thar the character " _ " has been changing health 
habits of a nation, improving the living conditions of Brazilian society, bringing health 
informat.ion, wellness, prevention and best . practice in breastfeeding. This remarkable 
transformation was only possible due to the extraordinary ability that this artist has to 
give life to an idea and make dreams come true. 
' 
[The beneficiary] has an amazing talent and an amazing level of knowledge in various 
fields, through art, health, marketing , psychology and education .. .. All these qualitie~. 
combined no doubt resulted in the incredible impact the character " _ _ ," with 
its popularity is becoming ·' . _ '' becoming a national icon, unanimity 
among families and institutions, young and old, businessmen and workers. 
" has appeared massively in the mainstream media across the country, 
newspapers, television, magazines, and panels on public transport stations. Also 
investments have been made by the renowned public and 
private institutions to large~scale publications and nonprofit, the image of " __ 
'in flyers, brochures, promotional items, educational materials, among others . 
In addition to Ms. letter of support, the petitioner submitted campaign material and 
publications showing that the " __ · " logo and a T -shirt design of the beneficiary were 
utilized by for its campaign to promote breast feeding. Ms. does not cite to 
(b)(6)
t ' \ ·I • 
Page 18 
any specific national health studies to support her assertion that "th~ character ' ' has 
been changing health habits of a nation, improving the living conditions of Brazilian society, 
bringing health infonnation, well ness, prevention and best practice in breastfeeding." The mere 
fact that · the beneficiary has designed a logo or T -shirt graphics that were utilized by 
does not demonstrate that his work has had major significance in the field. In 
response to the director's request for evidence, the petitioner submitted an October 20, 2011 
article in newspaper entitled •· _ 
" that includes five sentences mentioning the beneficiary's 
visual arts background and his ·graphic ,design work for health campaigns. As 
previously discussed, this article was published subsequent to the -petition's May 12, 2011 filing 
date. Eligibility, however, must be established at ·the time of filing. 8 C.F.R. §§ 103.2(b)(l), 
(12); Matter of Katigbak, 14 I&N Dec. at 49 (Reg'l Comm'r 1971). Accordingly, the AAO will 
not consider this article as evidence to establish the beneficiary's eligibility. Regardl.ess, the 
petitioner has not submitted evidence demonstrating that the beneficiary's design of the ' 
" logo or of T -shirt graphics equates to artistic contributions of major significance in the 
field. · 
Technology, 
Senior Specialist/Customer Relationship Management, Office of Infonnation 
states: 
[The beneficiary's] work is a composition between two classical schools, Impressionism 
and Realism. The. artistic composition between these· different artistic styles provides a 
unique touch of personality and originality. The vivid colors when integrated into the 
central element of the work brings attention in anywhere they are displayed. 
[The beneficiary's] animal portraits are reminiscent of the works of 
who chronicled the fimmi of the Americas for future generations .. [The beneficiary] has 
_also a strong scientifiC basis in his artistic representations and ·his sense of observation 
and reproduction of nature, are extremely important concerning academic subject. 
Mr. does not explain how his working in the " 
translates to expertise in the benefiCiary's field: Regardless, Mr. does not provide 
specific examples ofhow the beneficiary's animal portraits have impacted the field in the same 
manner as Mr. , the individual to whom Mr. -compares the bem'!ficiary, or were 
otherwise majorly significant to the field. 
; an artist-residing in Florida who exhibits his paintings internationally, states: 
I have ·met Mr. at one·ofmy exhibits at the year o(2001 in and I had the 
opp6rt4nity ·to look at his work. I've seen illustrations for book covers, magazines, 
advertising and all sort ofmaterial where an artist can lend his talent. · 
I could easily notice that [the beneficiary] can master pencil drawing, charcoal, 
watercolor, pointillism, color penCil, oil paint, acrylic paint and digital art anq, he often 
combines them to reach his objectives. He has a strong presence of realism in his pieces 
(b)(6)
. '' 
Page 19 
that allows achieving results that a photo cannot. A photographer can barely "stop" a 
humming bird wing when it is flying, or, a kit cat will never "poses" [sic] to a picture, 
holding something in its pawns [sic]. Illustration is a discipline that requires a very 
specific ability and I consider [the beneficiary] one of the greatestillustrators I ever met. 
In addition, he is an outstanding Art Director, not only because he has what it takes for 
this discipline, but for he integrates a marketing knowledge that allows costumers . [sic] 
and, costumers [sic] of his costumers [sic] to succeed, 
Mr. asserts that the beneficiary has' mastered various artistic mediums, has a strong 
presence of realism in his work, and is an out~ tanding art director, but Mr. does not. 
provide specific examples · of how the beneficiary's original work has already significantly 
impacted the field or otherwise constitutes an original contribution of major significance in the 
visual arts or marketing. 
Chair of the Bachelor of 
. states: 
. . 
I affirm that [the beneficiary] is an exceptional artist. His talent was easily identified thru 
the period, July 1995, I. was teaching the workshop at Which was an sic] 
knowledge exchange between this school of visual arts in Brazil and the 
in the USA. 
The quality of [the beneficiary's] work .was beyond the expectation when compared with 
other classmates. It's wonderful to see that not only does he creates fast, but he has the 
ability of producing the pieces in a very professional and organized manner. 
Definite! y, [the beneficiary] is professional of great value and his " 
made for the workshop, had huge prominence. . 
," piece 
While the beneficiary's " " piece stood out when compared with the work of "other 
classmates" in Mr. workshop, there is no documentary evidence showing that the 
beneficiary's artwork had a majorly significant impact in the visual arts field, has significantly 
influenced the work of other artists, or otherwise equates to an original artistic contribution of 
major significance in the field. 
, owner of states: 
I have been a graphic designer since 1989. In the search for perfection I p~icipated in 
innumerous classes, workshops and events. 
I met [the beneficiary] ... at an exhibit in organized by 
and directed by an Art and Illustration Professor and 
very prominent artist in .the world of illustration. · [The beneficiary] was still young in 
that time but . with a very mature and exquisite treat in his art and between all present 
(b)(6)
.,, (' 
Page 20 
artists in that exhibit, [the beneficiary's l was conside~e~ . with · 1st appreciatiOn 
certification, given ~y personally, which was a 'great achievement. 
* * * 
[The beneficiary] was blessed with a rare talent-and I believe that he brings to anywhere 
he is the gift of art. 
Ms. comments that the beneficiary received an appreciation certificate for his work in 
Mr. workshop, but there is no documentary evidence showing that the beneficiary's 
artwork from that workshop has impacted the field at level indicative of an original artistic 
contribution of "major significance" in the visual arts. 
, an artist, and a watercolor teacher at the 
states: 
[The beneficiary] asked me to make a review of his work and I was really impressed with 
the quality of .the work he presented 'me. It is easy for me to. recognize the 
professionalism and competency that [the beneficiary] shows. He is a natural artist with 
ability that stands out. He is so creative that he can use different mediums and techniques 
to achieve the results he desires. The characters he makes are really imaginative and 
professionally done well. 
While Mr. compliments the beneficiary on the quality of his work, Mr. fails to 
provide specific examples of how the beneficiary's work is majorly significant to the field at 
large. 
Producer, 
, states: · 
____ . , an entertainment company working out of 
This letter testifies [the beneficiary 's] ongoing contribution to our Animation Project .. 
* * * 
[The beneficiary] has been the main key to make this project real. We invited him to 
accept the challenge of developing all characters concerning ·their profiles according to 
our script. 
* * * 
I am the author of' ' and I been closely working with [the 
beneficiary]. I am truly impressed on how. fast he can draw and his perception to details, 
despite his actives [sic] contribution with ideas about the characters ·profile and story 
board. We are glad to have ch9sen [the beneficiary], his versatility on creating different 
(b)(6)
... '' 
Page 21 
styles brought to ' 
own visual style. 
_ " to reality and gave her the exact personality we expect, and our 
[The beneficiary] will be developing every single character on this movie, presenting the 
scenes to our team trough story boards and participating as Creative Director of the 
promotional material. He is an [sic] crucial asset to out project and we highly 
recommend his work. Due the confidential aspect of this project I present attached a 
summarized booklet targeted to potential investors, studios and producers in the U.S., 
Canada, and Europe. · 
Mr. comments that the beneficiary is currently developing characters for the' 
- ' animation project, but there is no documentary evidence showing that the 
· production has been successfully released in theaters or broadcast on television. As previously 
discussed, ,eligibility .·must be established at the time of filing. 8 C.F.R. §§ l03.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. Therefore, the AAO will not consider the beneficiary's 
ongoing work for this unreleased animation project as evidence to establish his eligibility. There 
is no evidence showing that the beneficiary' .s work for the project had already attracted a 
substantial. audience or otherwise qualified . as an original artistic contribution of major 
significance in th~ field at the tim~ of filing. 
an employee of 
a non-profit entity created to promote Art, Culture, Sports and Social Work, states: 
[The beneficiary's] work for the writer one ihe 
most important personality of Brazilian Literature, brought to our service the excellent 
quality of his work. We've organized a commemorative exhibition about the author, 
bringing together his books, archive photos, historic facts and other documentation about 
his contribution to culture and Portuguese language. 
[The beneficiary] has made the main illustration for the exhibit, used in our publications 
and material to promote the event. Also, this illustration, a monochrome 
figure about was hanged during the exhibit and· represented the amount of 
$5000 dollars in our art auction at the end of the event. 
I affirm that [the beneficiary] is an exceptional artist, well known by the. quality, 
creativity and expressiveness of his work. He is a singular talent of the art which he 
represents ~nd it confirms itself by creation o~ his artwork. 
Ms. stat~s that the beneficiary created an illustration for an exhibition honoring 
the work of Brazilian writer but there is no dqcumentary evidence showing that 
the beneficiary's artwork was majorly significant to the field of visual art. · The mere fact that the 
beneficiary has secured projects as an illustrator does hot demonstrate that his work has had 
major significance in the field. 
(b)(6)
.... t' 
Page 22 
Dr. Assistant Professor of Biogeography in the Department of Geosciences and 
the Environmental Sciences Program at , states: 
[The beneficiary's] work concerning endar:tgered Brazilian wildlife is very realistic and 
anatomically/physiologically accurate in a manner that is useful for taxonomiC illustration 
in scientific texts. ln addition, his art evokes an immediate connection between the 
species and the gerieral public. This connection through his art, the painstaking care of a 
human hand to reproduce the characteristics and personality of species on the edge of 
existence, touches an important cord in the hearts and minds of citizens in a manner that 
spurs their support for the often long-term, expensive, and difficult choices required to 
restore species' habitats and pull species back from the brink of extinction. · 
Dr. asserts that the beneficiary has accurately depicted endangered Brazilian wildlife 
in illustrations for a conservation campaign sponsored by . but Dr. 
does not provide specific examples of how the beneficiary wildlife illustrations have 
significantly impacted the field or otherwise constitute original artistic contributions of major 
significance in the field. 
Art Specialist, states: 
I believe [the beneficiary's] work is very special; he brings out a pictoric essence. His. 
pencil drawings are precise, with an impressive use of the chiaro-escuro technique (light 
. and dark to create an impression of shade and, therefore, volume). The drawings 
concerning American culture are clever and very particular, due ·to the fact that only a 
few people have this profound knowledge of different cultures. This artistic expression 
would be achieved by acclaimed artists like Norman Rockwell (1894-1978) .... As [the 
beneficiary], Norman Rockwell had worked as cartoonist, illustrator and art director for 
several magazines. 
[The beneficiary's] watercolors are rich, especially on the use of bright colors to depict 
the rich color palette of tropical scenery. This is not easy to obtain using this technique. 
The macaws, calls my attention .... The richness of the colors and the perfection of the 
lines are outstanding.· [The beneficiary] had shown different kinds of techniques that 
exceed the ability of others . 
The artistic versatility of [the beneficiary] is impressive; it is compared to great masters 
from the past l~ke Goya (1746~1828); who painted cartoons (designs) for the royal 
tapestry factory in As a tapestry designer, Goya did his first genre paintings or 
scenes from everyday life and was appointed first Spanish court 
painter in 17~9. 
Another acclaimed artist who had combined art and design was Andy Warhol, an 
American painter, printmaker, and filmmaker who was a leading figure in the visual art 
movement known ·as pop art. After a successful career as a commercial ' illustrator, 
Warhol became famous . worldwide for his work as a painter and he removed the 
(b)(6)
:t, .. ' 
Page 23 
difference between fine arts and commercial ·arts used in- magazines and advertising 
campaigns. 
Mr. asserts that the beneficiary's "work is very special," but Mr. does not 
provide specific examples of how the beneficiary's drawings, watercolors, cartoons and other 
works of art have impacted the field in the same manner as those of Norman Rockwell, Goya, or 
Andy Warhol, the influential·artists to whom Mr. specifically compares the beneficiary, 
or of how the beneficiary's works were otherwise majorly significant to the field. For example, 
there is no documentary evidence showinR the extent of the beneficiary's influence on other 
artists in the field or that the field has somehow changed as a result of his original work. · 
_____ , President of states: 
We've been hiring [the beneficiary] for every special job 
that needs more expertise ·than 
is available from our team. [The beneficiary] does have a special talent and his work was 
extremely ri'ecessary to the·success of the jobs he was involved in. 
-
March, 2008 
fThe beneficiary] was hired as Art director for 200 years of " . 
Special Exhibit of 200 years of the bank including, but not limited 
to the following:· 
• Design of the exhibition as a whole. 
• Creation of 17 panels with all of the pictures and· their history for exhibition. 
• Artistic Restoration of all the pictures, including one of their first building. 
• Artwork for the stage scenery - Conception, digital art for the mega prints and 
coordination of the Installation at the location. The stage was used for a concert of 
one of the most represent~tive' "musicians .of all times: 
• Design and production of all the pieces, including CD and DVD covers, for the 
commemorative gift package for the VIP guests. 
.. 
September, 2008 
The client was 
the _ who hir,ed to develop artwork for the invitation. 
[The beneficiary] made a digital painting and the whole concept of this piece, 
bringing it to a completely different . level of beauty and artistic sublimation. 
Mr. describes two of the beneficiary's projects for and the 
on behalf of _ . but Mr. does not provide specific examples 
of how the beneficiary's original contrib~tions to these projects were majorly significant to the 
field . . The mere fact that the beneficiary ' has designed an exhibition and promotional material 
depicting the history of and created the digital artwork for an invitation to a 
municipal celebratory event does not demonstrate that his work has had rnajor significance in the 
field. 
(b)(6)
• < ·• I 
Page 24 
states that she was Marketing Manager of 
further states: 
from 2003 - 2006. Ms. 
I had the pleasure of working with [the beneficiary] during the years 2004 to 2005, in the 
drafting work as creative consultant and I could see his high level of competence. 
* * * 
[The beneficiary] had performed as specialist on elaborating, newspapers to the consumer 
awareness, Visual Identity to our work projects, and so on. [The beneficiary] has 
developed several panels of illustrations, each aimed at specific subject of the project 
with great detail, efficiency and speed, but also toward the creation of all parts concerned 
and institutional advertising as well. As expected, our project was a great success at that 
time, being recognized and acclaimed by all branches of the in the world. 
We were very happy and grateful for the beautiful artistic work of [the beneficiary], that 
when targeted to a corporative language brings the unique approach needed. He is 
extraordinarily, competent and his illustrations have an incredible perspective. [The 
beneficiary] was an important asset to our Company and I would recommend his work to 
anyone. 
While the beneficiary's illustrations helped promote the brand image, there is no 
documentary evidence demonstrating that his specific work for the company equates to original 
contributions of major significance in the field. As previously discussed, the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires that the beneficiary's contributions be "of 
major significance in the field" rather than limited to a single client or company. 
, founder of a company aimed to promotion and merchandising, 
states: 
The was the world's largest political summit; it was officially 
known as or 
Held in ·- · -- brought together 172 countries 
for 2 weeks discussing global issues were they signed a package of agreements 
concerning biodiversity, climate changes among others. 
I met [the beneficiary] at the UNCED preparation .... 
* * * 
[The beneficiary] was the artist responsible for illustrating all perspective pictures of the 
convention park, creating and designing the publications and visual conceptions for all 
park stands. [The beneficiary's] art skills were extremely important; his speed on 
drawing and illustrating made possible get everything done in time. It is important 
considering that in 1992, computers for graphic art weren't useful as today, and art 
(b)(6)
• •• f • • 
Page 25 · 
department still manage its creations in old school style, using · actual painting and 
drawing materials. Only a few artists would be able to work in an event as _, and 
only [the beneficiary] could perform so brilliant. 
Mr. comments · on the beneficiary's work for the 
but he fails to provide specific examples of how the beneficiary's drawings and 
paintings from the event have significantly impacted the field at large or otherwise constitute 
original artistic contributions of major significance in the field. 
The opinions of the beneficiary's references are not without weight and have been considered 
above. The preceding references discuss their collaborations with the beneficiary and his ski1ls 
as an illustrator and artist, but they fail to provide specific examples of how the beneficiarY's 
original work equates to original contributions of "major significance" in the field. Vague, 
solicited letters from one's colleagues that do· not specifically identify contributions or provide 
speGific examples of how thos.e contributions influenced the field are insufficient. Kazarian, 580 
F.3d 1030 at 1036. In 2010, the Kazarian court reiterated that the AAO's conclusion that "letters 
from physics professors attesting to [the alien's] contributions in the field" were insufficient was 
"consistent with the relevant regulatory language." 596 F.3d at 1122. 'Furthermore, USCIS may, in 
its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of 
. Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit 
sought. /d. The · submission of reference letters supporting .the petition is not.presumptive 
evidence of eligibility; USCIS Ihay evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 
(BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to"fact''). 
Thus, the content ·of the references' statements and how .they became aware of the beneficiary's 
reputation are important considerations. Even when written by independent experts, letters 
solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidence that one would expect of an illustrator or artist who has made original 
contributions of major significance in the field. Without additional, specific evidence showing 
that the beneficiary's original work has been unusually influential, has substantially impacted his 
field, or has otherwise risen to the level of artistic or business-related contributions of major 
significance, the AAO cannot conclude that he meets this regulatory criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The petitioner submitted an article by the beneficiary entitled ' ====== ' that was 
distributed to the audience at a ·"workshop" at The 
petitioner also submitted a monograph written by the beneficiary entitled " _ 
th.at was submitted as a partial requirement for the 
beneficiary's master's degree in Global Marketing at There is no 
documentary evidence showing that' the preceding articles appeared "in professional or major 
trade publications or other major media." Accordingly, the petitioner has not established that the 
beneficiary meets this r~gulatory criterion. · · . 
(b)(6)
. . ' 
Page 26 
Evidence ofthe display of the alien 's work in the field at artistic exhibitions or 
showcases. 
The petitioner submitted evidence showing thai the. beneficiary -attended " 
' taught by at the beneficiary's alma mater, and that 
the beneficiary exhibited his work along with his classmates at _ in 
The petitioner also submitted evidence showing that the beneficiary displayed 
his work at the . ~ -·~- ~ ---- __ ____ _ _ __ _ ______ _ - -~ ___ • _ · ·- exhibition in 
2010. Accordingly, the petitio~er has established that the beneficiary 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 letters of su 
an art director and designer for 
ort and artwork indicating that the beneficiary worked as 
and its 
the' 
project, as a visual art developer for the 
as an artist for the 
'of the 
as a medical illustrator .for 
project of the 
as an illtistrator for 
===-' as a biological illustrator for 
, as an illustrator ·for 
_ s marketing campaigns, as a crea.tor and speaker for the 
program, and as a graphic designer and artist for . The AAO acknowledges the 
petitioner's submission of letters of support and marketing material from the preceding 
organizations, ·but the self-serving nature of . the submitted information is not sufficient to 
demonstrate that they have earned a distinguished reputation. As previously discussed , USCIS 
need not rely on self-promotional material. SeeBraga v. Poulos, at 680. 
The next issue is .whether the beneficiary has performed in a leading or critical role for the 
the 
. and . Not every. employee or capable service 
provider working for an organization meets the elements of this criterion. In general, a leading role 
is evidenced from the role itself, .and a critical tole is one in which the alien is responsible for the 
success or standing of the organization. The petitioner submitted documentation showing that the 
· beneficiary worked on various artistic projects · and marketing campaigns for the preceding 
organizations, but the submitted evidence does not establish that the beneficiary's role was leading 
or critical to the organizations as a whole. · For instance, the petitioner failed to submit 
organizationaf charts or similar documerttary. evidence to demonstrate where the beneficiary's 
artistic positions fit within the, overall hierarchy of the preceding organizations. ·The AAO notes that 
while .the beneficiary provided illustrations for. advertising material that helped increase sales 
revenue for product, there is no evidence showing that his 
role as an "illustrator" was leading or. critical to the pharmaceutical company's overall operations. 
The documentation submitted by the petitioner indicates that was the Senior 
Art Director and President of the Art Committee at Moreover, although 
the petitioner submitted documentation indicating that the beneficiary created the " " 
(b)(6)
~: ' • I • 
.Page 27 
character and provided other graphic. design services to for its health awareness 
campaigns, the submitted evidence does not establish that the beneficiary was responsible for 
success or standing to a degree consistent with the meaning of "critical role." The 
aforementioned letter from submitted on appeal also fails to explain how . 
the beneficiary's role was leading for relative to that of the organization's numerous 
council members and board of directors (comprised of the president, vice-president, director­
secretary and director-treasurer). While the beneficiary has performed admirably on the specific 
artistic projects to which he was assigned, the petitioner has failed to submit documentary 
evidence demonstrating that the bet:teficiary's roles were leading or critical for the preceding 
organizations as a whole. 
· In light of the above, the petitioner has not establis~ed that the beneficiary meds this regulator~ ­
criterion . 
. Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The petitioner submitted the beneficiary's 2010 Form 1040, U.S. Individual Income Tax Return, 
reflecting "total income" of $33,661. The beneficiary's tax return also included his 2010 Fonn 
1040, Schedule C, Profit or Loss From Business (Sole Proprietorship), reflecting that his "Art 
Director" business generated $73,175 in "Gross receipts or sales" and a "net profit" of $33,661 
(which appears as "business income"-on the first page of his Form 1040). The petitioner must 
present evidence of opjective earnings data showing that the beneficiary has earned a "high 
salary" or "signifi_cantly high remuneration" in comparison with those performing similar work. 
See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering professional 
golfer's earnings versus other PGA Tour golfers); see also Skokos v. U.S. Dept. of Homeland 
Sec., 420 F. App'x 712, 713-14 (9th Cir: 2011) (finding averag<r salary information for those 
performing lesser duties is not a comparison to others in the field); Grimson v. INS, 934 F. Supp . . 
965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers); Munt 
v. INS, 891 F. Supp. 440, 444-45 (N.D. Ill. 1995) (comparing salary of NHL defensive player to 
salary of other NHL defensemen) . . 
While the petitioner indicated on the Form I~ 140 that the beneficiary's occupation is that of an 
art illustrator, the above U.S. income tax return specifically identifies the beneficiary as the sole 
proprietor of an "Art Director" business. Thus, the petitioner has submitted conflicting 
information regarding the beneficiary's specific occupation. A~ noted by the 'director, the 
petitioner failed to submit evidence showing that the · beneficiary has earned a high salary or 
significantly high remuneration relative to that .of other Art Directors or business owners in the 
art illustration field. 
The petitioner submitted salary information from CareerOneStop.org indicating that the top ten 
percent of "Fine Artists, Inclu~ing Painters, Sculptors, and lllustrators" in the United States earn 
more than $89,700. The preceding top ten percent amount exceeds both the beneficiary's total 
income for 2010 of $33,661 and the gross sales or receipts from his business amounting to 
$73,175. In addition, the petitioner submitted information from www.simplyhired.com stating 
(b)(6). Page 28 
that the "average" salary for illustra:tor jobs is . $46,000 per year. The petitioner also submitted 
information from www.salatycom stating · that the "median expected salary for a typical 
'Painter/Illustrator' in the United States .is $37,558." 
Therefore, even if the AAO were to rely on the beneficiary's occupation as claimed on the Form 
I-140, according to the information submitted by the petitioner, the beneficiary's 2010 "total 
income" of $33,661 is below average for an illustrator and below the median for· a 
Painter/Illustrator. The plain 
language or' this regulatory criterion requires the petitioner to 
submit evidence showing. that the beneficiary has earned a "high salary" or other "significantly 
high remuneration" in relation to others in the field, not simply a salary that is above "average" or 
a salary that places the. beneficiary in the top half of his field. · 
The petitioner also submitted various contracts and invoices from the beneficiary's company, but 
there is no documentary evidence showing that the beneficiary's remuneration was "significantly 
high" relative to others in his particular field. 
In light of the above, the petitioner has not established that rbe beneficiary meets this regulatory 
criterion. 
Evidence ofcommercial successes in the perfonning arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. . I 
On appeal, counsel asserts that the beneficiary meets this regulatory through his 'artistic illustrations 
·that helped increase ' revenue and through the public health campaign 
material that the beneficiary created for The beneficiary's field, however, is not 
"in the performing arts." The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) . \ 
focuses on the volume of sales or box office receipts as a measure of the beneficiary's 
"commercial successes in the performing arts.·~ The petitioner failed to submit "box office 
receipts or record, cassette, compact disk, or video sales" showing that the beneficiary has 
achieved commercial successes in the performing arts. ' Accordingly; the petitioner has not 
established that the beneficiary meets ·the plain language requirements of this regulatory 
criterion. 
B. Summary 
The petitioner has failed to submit evidence for the beneficiary satisfying the antecedent regulatory 
requirement of three categories of evidence. 
C. Prior 0-1 Nonimmigrant Visa Status 
The record reflects that the alien· is the beneficiary of an approved 0-1 nonimmigrant visa 
petition for an alien of extraordinary ability in the arts. Although the words "extraordinary 
ability" are used in the Act for classification of artists under both the nonimmigrant 0-1 and the first 
·preference employment-based immigrant categories, the statute and regulations define the term 
differently for each classification. Section 101(a)(46) of the Act states, "The term 'extraordinary 
(b)(6)
•.. , . · ~ . 
Page 29 
ability' means, for purposes of section 101(a)(15)(0)(i); in the case of the arts, distinction." The 
0-1 regulation reiterates that "[e]xtraordinary ability in the field of arts means distincti9n." 8 C.F.R. 
§ 2142(o)(3)(ii). "Distinction" is a lower standard than that required for the immigrant 
classification, which defines 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. § 204.5(h)(2). The evidentiary criteria for thes~ two classifications also differ in several 
respects, for example, nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 
8 C.F.R. § 214.2(o)(3.)(iv)(A), but the immigrant classification requires actual receipt of nationally 
or internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear statutory 
and regulatory distinction between these two classifications, the beneficiary's receipt of 0-1 
nonimmigrant classification is not evidence of his eligibility for immigrant classification as an alien · 
with extraordinary ability. Further, the AAO does not find th~n an approval of a nonimmigrantvisa 
mandates the approval of a similar immigrant visa. Each petition must be decided on a case-by-case 
basis upon review of the evidence o(record. . 
It must be noted that many 1-:140 immigrant petitions are denied after US CIS approves prior 
nonimmigrant petitions, See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. of Justice, 4R F. Supp. 2d 22 (O.D,C. 1999); Fedin Brothers Co. 
Ltd. v: Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 1~ 
129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are 
s~mply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 
Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556 (5th Cir. 2004) (finding that prior approvals do 
not preclude USCIS from denying an extension Of the original visa based on a reassessment of 
the alien's qualifications). 
The AAO is not required to approve applications or petitions · where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Eng'g Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 
(1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a. district court, Even if a service center director has approved a · · 
nonimmigrant petition on behalf of the alien, the AAO would not be bound . to follow the 
contradictory decision of a service center~ Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 
2000 WL 282785, *1, *3 (E.D. La:), affd, 248 F.3d1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(2001) . . 
III.. 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. 
(b)(6)
Page 30 
Even if the petitioner had submitted the requisite evidence for the beneficiary under at least three 
· evidentiary categories, in accordance with the Kazarian opinion, the next step would be a fmal merits 
determination that considers al\ of the evidence in the context .of whether or not the petitioner has 
demonstrated: (1) 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 
beneficiary has failed to satisfy the antecedent regulatory requirement of three categories of evidence. 
/d. at 1122. 
The petitioner has not established th·e beneficiary's eligibility pursuant to section 203(b)(l)(A) of the 
Act ar:td the petition may not be approved. 
The· burden of proof in visa petiti9ri proceedings remains entirely with the ~titioner. 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 office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(l )(ii). See also section 103(a)(l) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March l, 2003); 8 C.F.R. § 2.1 (2003); 8 C .F.R. 
§ 103.1 (f)(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) .