dismissed EB-1A Case: Art Publishing And Writing

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I 
DATE: fEB 2 7 2013 Office: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusells Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 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 that 
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 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to recqnsider or. reopen. 
Thank you, 
Ron Rosenberg 
ACtingChief, Administrative Appeals Office 
www.uscis.gov 
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. . . 
DISCUSSION: The director, Texas Service Center, denied the employment-based immigrant visa 
petition on April 27, 2012. The petitioner, who is also the beneficiary, appealed the decision to the 
Administrative Appeals Office (AAO) on May 29, 2012. 1 The appeal will be dismissed. 
According to parts 2 and 5 of the petition, filed on May 10, 2011, the petitioner seeks classification 
as an alien of extraordinary ability, as an art publisher and writer, pursuant to section 203(b)(1)(A) of 
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined 
that the petitioner has not established the sustained national or international acclaim necessary to 
qualify for classification as an alien of extraordinary ability as an art publisher and writer. 
Congress set a very high benchmark ~or 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)(1)(A)(i) of the 
Act; 8 C.F.R. § 204.5(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 
achiev{!ment of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i)-(x). The 
petitioner must submit qualifying evidence under at least three of the ten. regulatory categories of 
evidence to establish the basic eligibility requirements. 
On appeal, counsel files an eight-page statement, dated January 22, 2013, and additional supporting 
documents. Counsel asserts that the petitioner meets the nationally or internationally recognized 
prizes or awards criterion under the regulation at 8 C.F.R. § 204.5(h)(3)(i), the participation as a 
judge of the work of others criterion under the regulation at 8 C.F.R. § 204.5(h)(3)(iv), and the 
original contributions of major significance criterion under the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v). Couns~l has not specifically challenged the director's adverse findings as relating 
to any other criteria. 
For the reasons discussed below, the petitioner has not established his eligibility for the exclusive 
classification sought. Specifically, the petitioner has not submitted qualifying evidence under at 
least three of the ten regulatory criteria set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
As such, the petitioner has not demonstrated that he is one of the small percentage who are at the 
very top in the field of endeavor, and he has not sustained national or international acclaim. 
See 8 C.F.R. §§ 204.5(h) (2), (3). Accordingly, the AAO must dismiss the petitioner's appeal. 
1 On July 14, 2012, the director adjudicated the petitioner's May 29, 2012, Notice of Appeal and Motion, Fonn 1-2908, 
which counsel marked as an appeal, as a motion and denied the motion. On November 8, 2012, the director withdrew 
his July 14, 2012 decision, and forwarded the record to the AAO-for consideration of the petitioner's appeal. 
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I. THE LAW 
Section 203(b) of the Act states, in pertinent part, 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 field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
United States Citizenship and Immigration Services (USCIS) and legacy Immigration and 
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 
101st 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. 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, internationally 
recognized award, or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed under the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed the denial of a petition filed under 
this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld 
the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of the 
evidence submitted to meet a given· evidentiary criterion.~ 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." Kazarian, 596 F.3d at 1121-
22. 
2 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and (vi). 
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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)." Kazarian, 
596 F.3d at 1122-(citing to 8 C.F.R. § 204.5(h)(3)). 
-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. In this case, the AAO affirms the 
director's finding that the petitioner' has not satisfied the antecedent regulatory requirement of 
presenting three types of evidence under the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x), and has not 
demonstrated that he is one of the small percentage who are at the very top in the field of endeavor, 
or has achieved sustained national or international acclaim. See 8 C.F.R. §§ 204.5(h) (2), (3). 
II. ANALYSIS 
A. Prior 0-1 Visa Petitions 
While US CIS has approved at least one 0~ 1 nonimmigrant visa petition filed on behalf of the 
petitioner, the prior approval does not preclude USCIS from denying an immigrant visa petition 
based on a different, if similarly phrased, standard. The regulatory requirements for an immigrant and 
nonimmigrant alien of extraordinary ability in the arts are dramatically different. The regulation at 
8 C.F.R. § 214.2(o)(3)(ii) defines extraordinary ability in the arts (including the performing arts) as 
simply "distinction," which is further defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation rehtting to the immigrant classification, 8 C.F.R. § 204.5(h)(2), however, defines 
extraordinary ability in any field as "a level of expertise indicating that the individual is on of that small 
percentage · who have risen to the very top of the field of endeavor." While _the ten immigrant criteria set 
forth in the regulation at 8 C.F.R. § 204.5(h)(3) appear in nonimmigrant regulations, 
8 C.F.R. § 214.2(o)(3)(iii), they refer only to aliens who seek extraordinary ability in the fields of 
science, education, business or athletics. Separate criteria for nonimmigrant aliens of extraordinary 
ability in the arts are set forth in the regulation at 8 C.F.R. § 214.2(o)(3)(iv). The distinction between 
these fields and the arts, which appears in the regulation at 8 C.F.R. § 214(o), does not appear in the 
regulation at 8 C.F.R. § 204.5(h). As such, the petitioner's approval for a nonimmigrant visa under the 
lesser standard of "distinction" is not evidence of his eligibility for the similarly titled immigrant vi~a. 
Moreover, it must be noted that many 1-140 immigrant petitions are denied after USCIS approves 
prior ,nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
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2003); IKEA US v. Dep't of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. 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 simply 
approved in error. Q Data Consulting, Inc., 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v .. 
Upchurch, No. 03:.10832, 99 F. App'x 556, 2004 WL 1240482 (5th Cir. 2004) (finding that prior 
approvals do not preclude USCIS from denying an, extension of the original visa based on a 
reassessment of petitioner'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 Int 'I, 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 Engg. 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 had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, No. Civ. A. 
98-2855, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 534 U.S. 
819 (2001). 
B. Prior Form I-140A Visa Petition 
The record of proceeding does not contain a copy of the petitioner's previous Form I-140A Visa 
Petition or its supporting documents. The petitioner filed this earlier petition on October 13, 2004 
and USCIS approved it on February 27, 2006. The Department of State terminated the petition on 
April 25, 2009. It must be emphasized thai each petition filing is a separate proceeding with a 
separate record. See 8 C.P.R. § 103.8(d). In making a determination of statutory eligibility, USCIS 
is limited to the information contained in that individual record of proceeding. See 8 C.P.R. 
§ 103.2(b)(16)(ii). In this case, the record of proceeding pertains only to the petition and its 
supporting documents filed on May 10, 2011 and filed in subsequent related filings. The director's 
April 27, 2012 decision does not indicate whether he reviewed the prior Form I-140A Visa Petition 
approval or its subsequent termination. If the previous petition was approved based on the same 
unsupported and unsubstantiated assertions that are contained in the current record, the approval 
would constitute material and gross error on the part of the director. As noted, the AAO is not 
required to approve applications or petitions where eligibility has not been demonstrated, merely 
because of a petition may have previously been approved erroneously. See Matter of Church 
Scientology lnt'l, 19 I&N Dec. at 597. Moreover, 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 had approved a petition on behalf of the beneficiary, the AAO would not be bound to 
follow the contradictory decision of a service center. See Louisiana Philharmonic Orchestra, 2000 
WL 282785 at *3. Finally, contrary to counsel's implication that eligibility for this classification 
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necessarily increases rather than decreases over time, it is possible that an individual might enjoy 
national or international acclaim, but not sustain that.acclaimseveral years later. 
C. Evidentiary Criteria 3 · 
Under the regulation at 8 C.F.R. § 204.5(h)(3), the petitioner can establish sustained national or 
international acclaim and that his achievements . have been recognized in the field of endeavor by 
presenting evidence of a one-time achievement that is a major, internationally recognized award. In 
this case, the petitioner has. not asserted or shown through his evidence that he is the recipient of a 
major, internationally recognized award at a level similar to that of the Nobel Prize. As such, the 
petitioner must present ~t least three of the ten types of evidence under the regulations at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) to meet the basic eligibility requirements. 
Documentation of the alien 's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.P.R. § 204.5(h)(3)(i) . 
. In his April 27, 2012 decision, the director concluded that the petitioner failed to establish he met 
this criterion. On appeal, pointing only to the petitioner's receipt of a 
_ in 1988, counsel assets that the director erred. According to counsel, evidence in the 
record, including letters from and 
. establishes that the 1998 fellowship constitutes a lesser nationally or internationally recognized prize 
or award for excellence. 
In support qf this criterion, the petitioner has submitted a number of reference letters but not the · 
awards themselves. The regulation at 8 C.F.R: § 103.2(b)(2) provides that the non-existence or 
unavailability of required evidence creates a presumption of ineligibility. Affidavits are only 
acceptable where the petitioner demonstrates that both primary and secondary evidence are either 
non-existent or unavailable~ 
According to a December 8, 2011 letter from Ms. J , "Ng Director" of the 
the petitioner's "was a very 
prestigious award, intended to reward excellence in the beneficiary's field. At the time it was one of 
the nation's highest honors in the discipline of art writing, judged by a panel of senior figures in the 
[The petitioner] was chosen from among many applicants of the highest 
caliber." In response to the director's concerns relating to Ms. _ position in the 
counsel has submitted a May 17, 2012 email from Director of 
Human Resources at the , stating " was managing the 
Visual Arts Unit of for the period of 1 December2011 to 1 February 2012. 
· was undertaking higher duties during · this time .... " Mr. further confinns that the 
3 Counsel does not claim that the petitioner meets the regulatory categories of evidence not discussed in this decision. 
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. ' 
petitioner "was the recipient of a 
which received funding from the . 
in 1988 and was the editor of 
from 1985 - 1999. "4 
According to a September 20, 2000 letter from , Director of 
"[the petitioner] is undoubtedly one of the key critical figures of the international contemporary art 
scene of the last decade : ... fThe petitioner] is a highly respected figure in Australian intellectual 
life. In 1988 the Australia's chief arts funding body, awarded him the prestigious 
for his contributions to critical inquiry in th~ visual arts in Australia." 
Neither the abovementioned referenced letters 
nor ~my other evidence in the record establish that the 
constitutes a nationally or internationally recognized prize or 
award for excellence in the fielcl of endeavor. Specifically, although the reference letters refer to the 
fellowship as a "very prestigious" award that con~tituted "the nation's highest honors," the record 
lacks specific information relating tq the 1998 fellowship, such as _criteria the 
considered when awarding the fellowship, the individuals who considered the criteria, the 
number of individuals eligible or who applied for the fellowship, or the number of recipients of the 
fellowship. In addition, the evidence submitted to show the recognition of the petitioner's 1988 
fellowship is primarily from the ~ntity that issued the fellowship. Such self-promotional evidence 
has minimal evidentiary value. See Braga v. Poulos, No. CV 06-5105 SJO 10 (C.D. Cal. July 6, 
2007), aff'd, 2009 WL 604888 (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). The 
petitioner has not supported the self-promotional evidence with more independent evidence relating 
to the national or international recognition of the 1988 fellowship, such ·as, but not limited to, 
independent journalistic coverage relating to the 1988 fellowship in nationally or internationally 
circulated publications .. 
Moreover, although according to counsel's April 18, 2011 letter, initially filed in support of the 
petition, the petitioner's in 1988 also constitutes a lesser nationally or 
internationally recognized prize or award for excellence, on appeal, counsel has not specifically 
challenged the director's adverse finding. as relating to this grant. As such, the petitioner has 
abandoned this issue, as he did not timely raise it on appeal. Sepulveda v. United States Att y Gen., 
401 F.3d 1226, 1228 n,2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 20i1 WL 
4711885 at * 1, 9 (E.D.N.Y. Sept. 30, 2011) (the United States District Court found the plaintiffs 
. claims to be abandoned as he failed to raise them on appeal to the AAO). In addition, the 1988 grant 
is not listed as one of the petitioner's awards in his curriculum vitae, initially filed in support of the 
petition. 
Finally, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires evidence of 
qualifying prizes and awards in the plural, consistent with the statutory requirement for extensive 
4 The record contains evidence referring to the magazine in different name·s, including 
and The magazine itself lists its name as 
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documentation . . See section 203(b )(1 )(A)(i) of the Act. As such, even if the petitioner's 
constitutes a single example of a qualifying prize or award, the 
petitioner has not shown that he has received a second nationally or ·internationally recognized prize 
or award for excellence in the field of endeavor. 
Accordingly, the petitioner has not presented documentation of his receipt of lesser nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor. The petitioner 
has not met this criterion. See 8 C.F.R. § 204.5(h)(3)(i). 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which req~J.ire outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
In his April 27, 2012 decision, the director concluded that the petitioner failed to establish he met 
this criterion. On appeal, COl,.msel has not specifically challenged 'the director's adverse finding. As 
such, the petitioner has abandoned this issue, as he did not timely raise it on appeal. Sepulveda, 401 
F.3d at 1228 n.2; Hristov, 2011 WL 4711885 at *9. 
I 
Published material about the alien in professional or major trade puf?lications 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. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
In his April 27, 2012 decision, the director concluded that the petitioner failed to establish he met 
this criterion. On appeal, counsel has not specifiCally challenged the director's adverse finding. As 
such, the petitioner has abandoned this issue, as he did not timely raise it on appeal. Sepulveda, 401 
F.3d at 1228 n.2; Hristov, 2011 WL 4711885 at *9. 
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. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
In his April 27, 2012 decision, the director concluded that the petitioner met this criterion. The 
record contains evidence that the petitioner is/was the publisher and editor for art magazines, 
including , which was previously published under the name and he is an art critic who 
has authored and published art-related material. Accordingly, the petitioner has presented evidence 
of his 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 petitioner has met this 
criterion. See 8 C.F.R. § 204.5(h)(3)(iv). 
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Evidence of the alien's original scientific, scholarly, arttsttc, athletic, or business-related 
contributions of major significance in the field . . 8 C.F.R. § 204.5(h)(3)(v). 
In his April 27, 2012 decision, the director concluded that the petitioner failed to establish he met 
this criterion. On appeal, relying primarily on reference/expert letters, counsel asserts that the 
petitioner meets this criterion. · The AAO disagrees, because the reference/expert letters, along with 
other evidence in the record, fail to show that the petitioner's work constitutes original contributions 
of major significance in the field of endeavor, as required under the plan language of the criterion. 
First, although many reference/expert letters praise the petitioner's talents, they fail to provide 
specific examples of his work that is either original or that constitutes contributions of major 
significance in the field. For example, according to an April 19, 2003 ·tetter from 
an art critic, curator and educator based in I the petitioner "is recognized as among the 
most important figures in the field of art theory and criticism. [The petitioner] is widely recognized 
in [the] field as a writer, editor, translator, lecturer and publisher. In each of these roles, he is 
respected as among the very best." · · 
According to a November 14. 2011 letter from . and 
Senior Lecturer on History at "[the petitioner] is one of 
[the] seleCt, highly accomplished band internationally, and ... [the United States] is fortunate to 
benefit from his presence .... [The · petitioner's] contributions to theory and to art criticism [are] 
canonical in the sense that they are an integral part of the discourse that any other scholar or 
commentator must take into account when considering the topics he addresses." The petitioner, 
however, failed to support this statement with any scholarly treatises on art criticism or other art 
critiques that reference the petitioner's theories. The only citations the petitioner provided are to the 
work he translated, and those are not his original contributions to art criticism theory. 
According to the November 20, 2011 letter from Head of Museum Develo ment 
and Programing at the 
"[a]part from establishing the highest standards in his own work, whose longevity is unique in the 
history of art criticism, [the petitioner]'s extensive publications by influential U.S. university presses 
and his role as translator of the most important late-century European philosophers had a truly global 
impact .... In addition to his own singular achievements, [the petitioner] has always been a valued 
member of the international art community, especially in regard to fostering new ideas and academic 
research." According to a May 1, 2003 letter ·from the 
-
a corporation the petitioner founded and served as its president in 2000 - the petitioner "is 
an expert in the field, and ·is renowned for his vast experience and extensive special expertise in Art 
Publishing, Criticism, and Journalism for and about the art world's leading figures, personnel and 
projects." According to an April 30, 201lletter from Vice-President of . and 
Professor of Studio Art at "[a]s the publisher of revered 
publications and [the petitioner] is a major force in art publishing, and regarded 
throughout the international contemporary art, critical analysis, and art publishing fields as being on 
the so-called I comprised of only the very finest, best-known and highly sought publishers, 
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editors writers and critics leading the conversation in art today." Although these letters discuss the 
petitioner's role as a publisher of an art magazine, his involvement with the and his 
translation work and writing, the letters fail to specify what the petitioner has done that is either 
original, such that he is the first person, or one of the first people, to have done it, or that constitutes 
contributions of major significance in the field.- Moreover, the letters are conclusory with little 
support in the record. USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The 
Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Similarly, other reference/expert letters suffer the same deficiencies .. According to a September 29, 
2000 letter from Curator of Painting, Sculpture and Graphic Arts at 
"[the petitioner] has facilitated major exhibitions. and created a forum in publishing that 
uniquely addresses the visual culture. of the Pacific Rim .' ... [The petitioner] has built the magazine 
_ into an internationally respected journal of the first rank." According to a September 20, 
2004 letter from _ , Director of Undergraduate Programs at _ 
School of Education, Department of Art and Art Professions, the petitioner's "current magazine 
project, . is one of the most influential art magazine now being published. It has facilitated an 
important dialogue among artists and critics in urban centers across America .... In his role as a 
facilitator of· cross-cultural dialogue, [the .petitioner] makes an extraordinary contribution in 
publicizing and promoting the American art scene.'"· According to an October 2, 2000 letter from 
CPA, MBA," "is the premier global educatiomil jom:nal focusing on 
contemporary art .... Everyone involved in contemporary art, particularly [in] L.A., New York and 
Europe, knows the importance of 1 magazine, and recognizes the incredible prestige ttiat it has 
lent to the U.S.. through its relocation [to ." Although these letters discuss the petitioner 
accomplishment as an art magazine publisher and editor, they fail to show that the petitioner's 
accomplishment is original, such that he is the first person or one of the first people to have 
published or edited art magazines, or that his work with the art magazine, which th~ reference/expert 
letters claim to be reputable and respected, constitutes evidence of the petitioner's contributions of 
major significance in the field. Specifically, although the reference/expert letters state that the 
petitioner's art magazine is an "influential art magazine," "comparable to other outstanding 
international publications," and constitutes a "major international forum[] on contemporary art," the 
petitioner has failed to show that the magazine's claimed status establishes that his work with the 
magazine constitutes contributions of major significance in the field. 
Moreover, neither. the petitioner nor any of the reference/expert letters point to specific, objective 
and independent evidence corroborating the claim that the petitioner's magazine is one of the top art 
magazines. in the United States or in the world. For exampie,. according to a September 29, 2000 
letter from ________ _ 7 __ .. , Chair of the History and Theory of Art at 
and Director of the Program in Art History and Theoretical Studies at the 
the petitioner "established a level of discussion [in his publication that was sharper and more 
sophisticated than anything to be found in the United States at th~t time. When [the petitioner] 
moved the magazine to , its appearance brought a new standard to arts discussion 
nationally, and, remains one of the two or three most significant arts publications in - . 
the country.". According to a January 22, 2009 letter from 
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Professor at "[the petitioner] is editor of 
, a highly distinguished journal, which provides unique coverage of the American art world, 
high quality critical commentary not found in any other publication. [The petitioner] is well known 
in this country for his distinctive editing; his publication is widely read .... " According to an 
undated letter from __ ~.- ___ --, a curator at the L is internationally 
recognized for covering exhibitions all over the world and maintaining an editorial distance from its 
advertising base: two features directly attributable to its publisher [the petitioner], who travels 
relentlessly to uncover the artworld's hidden accomplishments .... " According to Ms. 
second letter, dated November 28, 2011, "[t]here are a handful of influential New York art 
magazines, for some of which [the petitioner] is a regular contributor, but the high quality of the 
intellectual work promoted by on the West Coast is unique in this country." According to a 
September 14, 2004 letter from a New York-based art critic, the petitioner's 
"contribution to the understanding of contemporary visual art, and to current culture more broadly 
speaking, is outstanding. As Editor and Publisher for nearly 20 years of which was based 
first in and then in he established a crucially important vehicle for 
independent thinking in the field .... The publication that has succeeded it, l is even more 
ambitious in reach, and more urgently needed." Although these letters discuss the status of the 
petitioner's art magazine, they fail to point to specific, objective and independent evidence, such as 
readership reach or subscription figures, to corroborate the magazine's alleged status in the art 
world. 
Second, although the record includes evidence that soine of what the petitioner has done constitutes 
original contributions, the record fails to include evidence showing that the original contributions 
constitute contributions of major significance in the field. For example, according to a September 
19, 2000 letter from , Director of the petitioner "was one of 
the first people to help organize a semiotics conference in the English-speaking world, which took 
place in . . . neither the letter nor any other evidence in the record 
establishes that the conference constitutes a contribution of major significance in the field. · 
According to one of two November 13, 2011 letters from M.A., J.D., of 
_ _ arid the petitioner's 
"experience as a writer, translator, and publisher of and , both ground-breaking and 
distinguished journals in the field of art criticism and theory, have made him the most-qualified 
editor and publisher to lead [The petitioner's] contributions to contemporary theory and art 
criticism are widely respected. His original contributions to the field include books ... , as well as 
dozen of essays that are part of a publishing career also recognized for translations of key texts in 
contemporary philosophy and post-structuralism theory .... " 
According to an undated letter from Senior Lecturer at 
Department of Art History, "it was [the petitioner] who made possible 
- - . 
one of the most important books on aboriginal art; and [the petitioner] has written the 
foundatio"nal text for the 'appropriation' art that marked Australian artistic practice in the 1980s and 
(b)(6)
Page 12 
,, This letter, however, is unsigned and, thus, has no 
probative value. 
According to an October 16, 2000 letter from , a curator at for 
Contemporary Art, the petiti.oner ''has been a leading contributor to the debate of contemporary art in 
Australia for many years: as a writer on many areas of art and culture, several of his essays and 
publications occupying seminal status on University reading lists, and forming the basis of the 
discussion of contemporary art in Australia; and as an editor and publisher having developed the 
magazine from a small independent into one of the major 
international forums on contemporary art, the magazme now certainly comparable to other 
outstanding international publications such as " 
Although the letters discussed in the preceding paragraphs provide .some evidence that the 
petitioner's work is original, they fail to establish that his work also constitutes contributions of 
major significance iri the field. solicited letters from colleagues that do not specifically 
identify contributions or provide specific examples of how those contributions influenced the field 
are insufficient. 5 Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009), aff'd in part, 596 F.3d 
1115 (9th Cir. 2010). The opinions of experts in the field are not without weight and have been 
considered above. USCIS may, in its discretion, use as advisory opinions statements submitted as 
expert testimony. See Matter of Caron Int'l, 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 letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may, as this decision has done above, evaluate the 
content of those letters as to whether they support the alien's eligibility. See id. at 795; 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"). USCIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. /d. at 795; see also 
Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The reference/expert letters in the record, including those not specifically mentioned above, 
primarily contain bare assertions of acclaim and vague claims of contributions without providing 
speCific examples of how those contributions rise to a level consistent with major significance in the 
field. Merely repeating the language of the statute Qr regulations does not satisfy the petitioner's 
burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), a.ff'd, 
905 F. 2d 41 (2d Cir. 1990); Aryr Associates, Inc. v. Meissner, No. 95 Civ. 10729, 1997 WL 188942 
at *5 (S.D.N.Y. Apr. 18, 1997). Similarly, USCIS need not accept primarily conclusory assertions. 
See 1756, Inc., 745 F. Supp. at 15. 
5 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. 
(b)(6)
Page 13 ' ; 
Significantly, at least seven of the reference/expert letters contain very similar or virtually the same 
language when discussing the petitioner's accomplishments as an art critic and art magazine 
publisher and editor; suggesting that the language in the reference/expert letters is not the authors' 
own. Cf Surinder Singh v. Board of Immigration Appeals, 438 F.3d 145, 148 (2d Cir. 2006) 
(upholding an immigration judge's adverse credibility determination in asylum proceedings based in 
part on the similarity of some of the affidavits); Mei Chai Ye v. United States Dep 't of Justice, 489 
F.3d 517,519 (2d Cir. 2007) (concluding that an immigrationjudge may reasonably infer that when 
an asylum applicant submits strikingly similar aft;'idavits, the applicant is the common source). 
, Director of the , stated 
in his October 7, 2000 letter, the petitioner "has established important links between the art 
communities in the US, Australia and the rest of the world." , Director of the 
_ , stated in his September 26, 2000 letter, the petitioner has "established important links 
· between Australian art and the United States art, acting as an intermediary for major museums in the 
US and in Australia and Europe, facilitating international exhibitions and publishing or writing about 
these. His continued presence in the United States would ensure that many of these projects come to 
fruition and be of great benefit to this significant and enduring program of cultural exchange." 
at the 
stated in his September 26, 2000 letter, the petitioner "has. established important 
links between Australia and U.S., acting as a go-between for major museums and artists here and in 
Australia and Europe, facilitating international exhibitions and publishing or writing about them. 
His continued stay in the U.S. is essential to ensure that theseprojects come to fruition and extend 
the significant cultural exchange that he has helped to build over many years of outstanding 
professional work." Curator. at the stated in his 
September 19,. 2000 letter, · has provided an invaluable point of contact between the 
American, European and Australian . . acting as a go-between 
for major museums in all 
three regions. very much hope that [the petitioner] is able to stay in the US, in order to 
develop these important cultural exchanges." an associate professor in at the 
Film Studies Program, stated in an undated letter, the petitioner "has 
established important links between Australian art and US art, acting as a facilitator and go-between 
for museums here and in Australia and Europe. His continued stay in the US would ensure these 
important projects continue, aiding cultural exchange and continuing to enrich US culture." · 
. 
a professor of fine arts and film at the 
stated in his October 2, 2000 letter, the petitioner "has served as an international mentor in the 
establishment of links for major museums here and in Australia and Europe. His continued stay in 
the U.S. would ensure that many of these international collaborations would be realized and be a 
great benefit to this cultural exchange." , a lecturer in the History of Art at the 
College of Fine Arts, stated in an undated letter, the petitioner has 
"established important links between Australian art and U;S. art, acting as a go-between for major 
museums here and in ~ustralia and Europe, facilitating international exhibitions and publishing or 
writing about these. His continued stay in the U.S. would ensure that many of these projects come to 
(b)(6)
-Page 14 
fruition and be of great benefit to this significant cultural exchange, which he is single-handedly 
responsible for." Ms. stated in her September 20, 2000 letter, "[the petitioner's] continued 
stay in the U.S. would ensure that this important work will come to fruition and be of enormous 
benefit to this significant cultural exchange." In short, the record contains evidence suggesting the 
language in the referenc~/expert letters is not the author$' own. See Surinder Singh, 438 F.3d at 148; 
Mei Chai Ye, 489 F.3d at 519. 
Accordingly, for all of the reasons discussed above, the petitioner has not presented sufficiently 
probative evidence of his original .scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in tile field of exercise and sport psychology. The petitioner has 
not met this criterion. See 8 C.F.R. § 204.5(h)(3)(v). 
. . 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major 
trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
In his April 27, 2012 decision, the director concluded that the petitioner failed to establish he met 
this criterion. On appeal, although counsel points to material thatthe petitioner has authored or co­
authored, counsel has not specifically challenged the director's adverse finding as relating to this 
criterion. As such, the petitioner has abandoned this issue, as he did not timely raise it on appeal. 
Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885 at *9. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
In his April 27, 2012 decision, the director concluded that the petitioner failed to establish he met 
this criterion. On appeal, .counsel has not specifically challenged the director's finding. As such, the 
petitioner has abandoned this issue, as h-e did not timely raise it on appeal. Sepulveda, 401 F.3d at 
1228 n.2; Hristov, 2011 WL 4711885 at *9. 
Evidence that the alien hqs 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). 
In his April 27, 2012 de'cision, the director concluded that the petitioner failed to establish he met 
this criterion. On appeal, counsel has not specifically challenged the director's finding. As such, the 
petitioner has abandoned this issue, as he did not timely raise it on appeal. Sepulveda, 401 F.3d at 
1228 n.2; Hristov, 2011 WL4711885 at *9. 
_ Evidence of commercial successes in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x). 
In his April 27, 2012 decision, the director concluded that the petitioner failed to establish he met 
· this criterion. On appeal, counsel has not specifically challenged the director's finding. As such, the 
(b)(6)
' . 
Page 15 
petitioner has abandoned ·this issue, as he did not timely raise it on appeal. Sepulveda, 401 F.3d at 
1228 n.2; Hristov, 2011 WL 4711885 at *9. · 
III. CONCLUSION 
r . 
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 have risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all 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 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. 6 Rather, the proper conclusion is that the petitioner has failed to 
satisfy the antecedent regulatory requirement of presenting three types of evidence. Kazarian, 
596 F.3d at 1122. · 
The petitioner has not estab~ished eligibility pursuant to section 203(b )(1 )(A) of the Act and the 
petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. 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. 
6 The AAO maintains de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 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 INA 
§§ 103(a)(l), 204(b); DHS Delegation Number 0150.1 (effective March 1, 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).