dismissed EB-1A Case: Art

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-A-R-1-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 19,2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a center for painting and calligraphy exhibitions. seeks to classify the Beneficiary as an 
individual of extraordinary ability in the arts. See Immigration and Nationality Act (the Act) 
section 203(b )(1 )(A). 8 U.S.C. § 1153(b )(1 )(A). This classification makes visas available to foreign 
nationals who can demonstrate their extraordinary ability through sustained national or international 
acclaim and whose achievements have been recognized in their field through extensive documentation. 
The Director, Nebraska Service Center, denied the petition. The Director determined that the 
Petitioner had not provided documentation satisfying the initial evidence requirements set forth at 
8 C.F.R § 204.5(h)(3). which requires documentation of a one-time achievement or evidence that 
meets at least three of the ten regulatory criteria. 
The matter is now before us on appeal. In his appeal, the Petitioner submits no new evidence. but 
argues that the Director erred in concluding that the Beneficiary did not meet the nationally or 
internationally recognized prizes or awards, , membership . and published material criteria. 
Additionally, although the Director did not render a determination regarding the original artistic 
contributions of major significance and the commercial success criteria, the Petitioner argues that the 
Beneficiary meets those criteria. Further. the Petitioner states that the Director erred in not 
considering comparable evidence. 
Upon de nom revielt'. we will dismiss the appeal. 
I. LAW 
By statute, the extraordinary ability immigrant visa classification requires that foreign nationals 
demonstrate sustained national or international acclaim and present extensive documentation of their 
achievements. Specifically. section 203(b )( 1 )(A) of the Act explains that a foreign national is described 
as an individual with extraordinary ability 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. 
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(ii) the alien seeks to enter the United States to continue work m the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
The term ''extraordinary ability" refers only to those individuals in that small percentage who has 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) sets t(.lfth a multi-pat1 analysis. First. a petitioner can demonstrate a beneficiary" s 
sustained acclaim and the recognition of his achievements in the field through a one-time achievement 
(that is a mqjor, internationally recognized award). If a petitioner does not submit this documentation. 
then it must provide sufficient qualifying evidence indicating that the beneficiary meets at least three of 
the ten criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
Satisfaction of at least three criteria. however. does not in and of itself~ establish eligibility for this 
classification. See Kazarian v. USCIS. 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review 
where the documentation is first counted and then. if fulfilling the required number of criteria. 
considered in the context of a final merits determination). ,C..,'ee also R!jal v. USCIS, 772 F. Supp. 2d 
1339 (W.D. Wash. 2011) (affirming U.S. Citizenship and Immigration Services' (USCIS) proper 
application of Kazarian). affd, 683 F.3d. 1030 (9th Cir. 2012): Visinscaia v. Beers. 4 F. Supp. 3d 126. 
131-32 (D.D.C. 2013) (finding that USCIS appropriately applied the two-step review): i\4aller t~f 
Chawathe, 25 l&N Dec. 369. 376 (AAO 2010) (holding that the ·'truth is to be determined not by the 
quantity of evidence alone but by its quality'' and that USCIS examines .. each piece of evidence for 
relevance. probative value, and credibility, both individually and within the context of the totality of 
the evidence. to determine whether the fact to be proven is probably true"). 
II. ANALYSIS 
A. Evidentiary Criteria 
The Petitioner provided evidence of the Beneficiary's achievements and expertise as an oil painter. 
However, in Part 6 of Form 1-140, Immigrant Petition for Alien Worker. the Petitioner identified the 
proffered position as ''Art Director... Further, the Petitioner submitted an Offer of Employment, 
dated October 10. 2014, stating that it intends to employ the Beneficiary as an Art Director at an 
annual salary of $36.000. The Offer of Employment includes a description of the proffered position: 
The duties of this art director position include the job of examining and evaluating 
art exhibitions and artwork. appraise them for quality and artistic merit, ascertain 
economic value through various different practices specific to the art appraisal 
world, identify the most optimal markets for selling various tonns of at1work. and 
determining the best venues for publication and marketing. The art director is also 
responsible tor organizing and arranging the artwork submitted by various artists to 
participate in art exhibition activities and provide seminars or conferences for 
specific art events. 
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The duties associated with the proffered positon include m1 appraisal, marketing. advet1ising. and 
arranging exhibitions. However, the evidence the Petitioner submitted with the instant petition 
pertains to the Beneficiary's work as an oil painter. The Petitioner provided no documentary 
evidence demonstrating that the Beneficiary has sustained acclaim as an art director. appraiser. 
marketer, seller, organizer, arranger, or curator. 
In Lee v. Ziglar, 237 F. Supp. 2d 914 (N.D. Ill. 2002), the court stated: 
It is reasonable to interpret continuing to work in one's ·'area of extraordinary ability" 
as working in the same profession in which one has extraordinary ability, not 
necessarily in any profession in that field. For example, Lee's extraordinary ability as 
a baseball player does not imply that he also has extraordinary ability in all positions 
or professions in the baseball industry such as a manager, umpire or coach. 
/d. at 918. The court noted a consistent history in this area. The Petitioner has not offered any 
documentary evidence of the Beneficiary 's expertise as an art director or of his performance of the 
duties associated with the proffered position. Rather. the evidence in the record relates to the 
Beneficiary's achievements as an oil painter. 
The information provided in Part 6 of Form 1-140 and the Offer of Employment is clear that the 
Petitioner intends to employ the Beneficiary as an art director. Accordingly, the Petitioner must 
demonstrate that the Beneficiary satisfies the statutory requirement at section 203(b)(1)(A)(i) of the 
Act as well as the regulatory requirements at 8 C.F.R. § 204.5(h)(2) and (3) through his 
achievements as an art director. 
Under the regulation at 8 C.F.R. § 204.5(h)(3 ), the Petitioner, as initial evidence, may present the 
Beneficiary's one-time achievement that is a major, internationally recognized award. In this case, 
the Petitioner has not claimed or shown that the Beneficiary is the recipient of a qualifying award at 
a level similar to that of the Nobel Prize. As such, the Petitioner must provide at least three of the 
ten types of documentation listed under 8 C.F.R. § 204.5(h)(3)(i)-(x) to meet the basic eligibility 
requirements. 
The Director concluded that the Petitioner met the criterion pertammg to the display of the 
Beneficiary's work in the field at artistic exhibitions or showcases under 8 C.F.R. § 204.5(h)(3)(vii). 
The Petitioner displayed several oil paintings at the m Germany as well as at 
the and 
The record is supported by brochures from the which contain the 
Beneficiary's named works as well as an excerpt from the 
and brochure which also contains 
photographs of the Beneficiary's named oil paintings. While the aforementioned displays of the 
Beneficiary's work reflect his achievements as an oil painter, they do not necessarily demonstrat e his 
extraordinary ability as an art director. The statute and regulations require that the Beneficiary seeks 
to continue work in his area of expertise in the United States, and there is no indication that 
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Matter (?f A-A-R-1-
performing the functions of an at1 director is within his area of extraordinary ability. See section 
203(b)(l )(A)(ii) of the Act; 8 C.F.R. § 204.5(h)(5). See also Lee v. I.N.S.. 237 F. Supp. 2d at 914. 
In his decision , the Director did not address the Petitioner's initial claim to high salary or other 
significantly high remuneration under 8 C.F.R. § 204.5(h)(3)(ix). However. the Petitioner did not 
raise this as an issue either in its response to the Director's RFE or on appeal. Instead. the Petitioner 
claims commercial success under 8 C.F.R. § 204.5(h)(3)(x). Accordingly. the issue regarding the 
Beneficiary"s salary or remuneration is not before us and will not be further addressed in this 
decision. 
We now turn to the criteria at issue on appeal. For the reasons discussed below, the Petitioner has 
not demonstrated that the Beneficiary meets any of those criteria. 
Documentation of the alien ·s receipt of lesser nationally or internationall y 
recognized prizes or award\'for excellence in the .field o.lendeavor. 
Under this criterion, not only must the petitioner demonstrate the beneficiary's receipt of prizes and 
awards , but it must also demonstrate that those prizes and awards are nationally or internationally 
recognized for excellence in the field of endeavor, which. by definition, means that they are 
recognized beyond the awarding entity. 
In the instant case, the Director determined that the Petitioner did not establish the Beneticiary·s 
eligibility for this criterion. We concur with the Director's finding. 
With its initial petition submission, the Petitioner claimed that the Beneficiary meets this criterion by 
vit1ue of having '·been awarded a tor his work, at the established 
on October [sic] 20 II.'' According to the Petitioner . the Beneficiary 
also "'received a for his oil painting. from the on 
July 10, 2011." Additionally, the Petitioner stated that the Beneficiary received the ··great honor of 
having his oil painting, collected and displayed at the [in] 
July 20 I 0.'' In support of its claims, the Petitioner submitted three certificates in the Chinese 
language reflecting the aforementioned and honor. The English language translations 
accompanying the certificates, however. were 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 English language translation which the translator has certified 
as complete and accurate, and by the translator's certification that he or she is competent to translate 
from the foreign language into English. /d. Because the Petitioner did not submit properly certified 
translations of the certificates, we cannot determine whether the evidence supports the Petitioner's 
claims. 
The Director found that the enumerated prizes did not meet the plain language of this regulatory 
criterion because it appeared that the prizes were ''local or regional in nature." In his April 22. 2015, 
RFE, the Director afforded the Petitioner an opportunity to submit evidence demonstrating the 
criteria used to grant the prizes or awards; the significance of the prizes or awards, to include 
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Matter of A-A-R-1-
national or international recognition which the prizes have received: the reputation of the awarding 
organizations; the pool of candidates from which recipients were considered for the awards, 
including their geographic dispersion: the number of prizes which are granted each year: and the 
identities of previous recipients of the awards. 
The Petitioner responded to the Director's RFE on July 17. 2015, and submitted a brief with no 
additional evidence. In its response, the Petitioner stated .. The evidence previously submitted to 
satisfy factor (i), documentation of the beneficiary's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field or endeavor, should be sufficient in light of 
the Petitioner's careful selection of the Beneficiary in employment screening procedures."' The 
Petitioner then makes reference to the three certificates mentioned above and states ... The Petitioner 
has judged that these achievements are sufficiently distinguishing, ensuring that he commands 
sufticient respect to perform the proposed job duties." On appeaL the Petitioner submits the same 
brief and makes the same assertion providing no new evidence in support of its claim. 
The Petitioner contends that the aforementioned documentation establishes the Beneficiary's renown 
as a painter. Each of the three certificates supplied to satisfy the instant criterion represents some 
form of recognition for a specific oil painting produced by the Beneficiary. However. as noted 
above, the Petitioner intends to employ the Beneficiary as an art director, performing duties such as 
art appraising, marketing, advertising, and making selections for and arranging exhibitions. The 
evidence offered for the instant criterion pertains to none of those areas of expertise. Awards 
resulting from the Beneficiary's success as a painter are not indicative of his national or international 
recognition as an art director. Again, the statute and regulations require that the Beneficiary seeks to 
continue work in his area of expertise in the United States. See section 203(b)(l)(A)(ii) of the Act: 
8 C.F.R. § 204.5(h)(5). See also Lee v. I.N.S., 237 F. Supp. 2d at 914. 
Furthermore, even if the documentation pertained to the Beneficiary's field of expertise, we would still 
find that it does not meet the requirements of this criterion. In this case, there is no documentary 
evidence demonstrating that the Beneficiary's awards were recognized at a level commensurate with 
nationally or internationally recognized awards for excellence in the field. In addition, with respect 
to the Beneficiary's '' the evidence does 
not reflect the Beneficiary's receipt of an actual prize or award. While having one's painting 
displayed at the might constitute an honor, the Petitioner has not 
demonstrated that the same constitutes a specific prize or award. 
As there is no evidence demonstrating that the Beneficiary has received nationally or internationally 
recognized prizes or awards for excellence in art directing, the Petitioner has not established that the 
Beneficiary meets this regulatory criterion. 
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Matter (?f A-A-R-1-
Documentation qf the alien's membership in assoczatwns in the field for which 
class(fication is sought. which require outstanding achievements (?lfheir members. as 
judged by recognized national or international experts in their disciplines orfield\·. 
In order to demonstrate that membership in an association meets this criterion, a petitioner must 
show that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, minimum 
education or experience, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues do not satisfy this criterion as such requirements 
do not constitute outstanding achievements. Further, the overall prestige of a given association is 
not determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
In the instant case, the Director determined that the Petitioner did not establish the Beneficiary's 
eligibility for this criterion. We concur with the Director's finding. 
With the initial petition submission. the Petitioner claimed that the Beneficiary met this criterion by 
virtue of his membership in the As evidence of the 
Beneficiary's membership in the 
the Petitioner submitted a letter from 
professor of and a translation bearing the title 
As the submitted translation was not certified by the translator as 
required by the regulation at 8 C.F.R. § 103.2(b)(3), we cannot determine whether the evidence 
suppm1s the Petitioner's claims. 
The Director concluded that the evidence did not meet this criterion because it did not demonstrate 
that membership in the is based upon outstanding achievements in the field of endeavor as 
judged by recognized national or international experts in the field. In his April 22. 2015. RFE. the 
Director afforded the Petitioner an opportunity to provide evidence demonstrating 
that outstanding 
achievements were required to become a member. The Director also requested documentation 
establishing that those individuals who are responsible for judging prospective members are either 
national or international experts in their disciplines or fields. 
The Petitioner's response consisted solely of a statement, unsupported by documentary evidence, 
arguing: '·The Beneficiary's involvement in the artistic world has similarly been judged by the 
Petitioner to be enough for the Art Director position, showing that the evidence previously submitted 
to satisfy factor (ii), documentation of the alien ' s membership in associations in the field for which 
classification is sought which require outstanding achievements of their members, is satisfied... In 
addressing the Beneficiary's membership in the the Petitioner stated ·•[T]he Beneficiary's 
membership in the is further supported by his many contacts in 
the at1istic field.,. The Petitioner also mentioned that the Beneficiary is ·•eminent enough·· to "be 
able to perform his duties as Art Director." 
Although the Director specifically requested evidence which would demonstrate the membership 
criteria tor the as well as the requirements for those judges who are responsible for 
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determining a prospective member"s qualifications for membership. the submitted no additional 
evidence and, thus has neither demonstrated that the association in question requires outstanding 
achievements of its members, nor demonstrated that those individuals who are responsible for 
reviewing prospective members are national or international experts in their disciplines or fields. 
Further, the Petitioner has not identified the field of endeavor that formed the basis for the 
Beneficiary's membership in the In other words, the Petitioner has not shown whether the 
Beneficiary was granted membership in the association due to his achievement as an art director or 
as an artist. However, the name of the association suggests that membership is open to artists. as 
opposed to other individuals working in the broad field of art. Membership based upon the 
Beneficiary's success as an artist cannot be considered evidence of his outstanding achievement as an 
art director. 
As there is no evidence demonstrating that the Beneficiary is a member of an association in the field 
of art directing which requires outstanding achievements of its members as judged by recognized 
national or international experts in their disciplines or fields. the Petitioner has not established that 
the Beneficiary meets this regulatory criterion. 
Published material about the alien in pr<?fessional or major trade publications or other 
major media. relating to the alien's work in the fieldfhr lVhich c/ass[fication is sought. 
Such evidence shall include the title. date. and awhor l!lthe material. and any necessWJ1 
translation. 
In general, in order for published material to meet this criterion, it must be about the beneficiary and. 
as stated in the regulations, be printed in professional or major trade publications or other major 
media. To qualify as major media. the publication should have significant national or international 
distribution. Some newspapers, such as the NeH' York Times, nominally serve a particular locality 
but would qualify as major media because of significant national distribution. unlike small local 
community papers. Furthermore, this criterion requires that "[s]uch evidence shall include the title. 
date, and author of the material, and any necessary translation.'' 
The Director determined that the Petitioner did not establish the Beneficiary's eligibility for this 
criterion. We concur with the Director's finding. 
In its initial petition submission. the Petitioner claimed that the Beneficiary satisfied this regulatory 
criterion by virtue of having been the topic of works which were published in a number of magazines 
and newspapers. The Petitioner provided a dual language article, entitled ' 
1 in (November 2008); a dual language a1iicle. entitled 
in (October 2008); images of paintings and an untranslated foreign language article. 
entitled ' in (September 
200 I); a foreign language article with an uncertified abstract of a translation bearing the title 
m (September 2008): a foreign 
1 The quoted language is the translation as it appears on the document. 
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Matter of A-A-R-1-
language article with an uncertified abstract of a translation bearing the title · 
(Hometown)" in 
(August 2011 ); a copy of a foreign language article with an uncertified abstract of a 
translation bearing the title · in 
(February 2012); and a foreign language article with an uncertified abstract of a translation 
bearing the title ' m (February 2012). 
The aforementioned foreign language articles and their accompanying translations are not complete 
and have not been certified by the translator as required by the regulation at 8 C.F.R. § l03 .2(b)(3). 
As the Petitioner did not submit properly certified translations of the documents. we cannot 
determine whether the evidence supports the Petitioner· s claims. 
The Director found that the evidence did not meet the instant criterion because the Petitioner did not 
demonstrate that the named publications qualified as professional or major trade publications or other 
major media. 
The Petitioner's response to the Director's RFE consisted solely of a statement, unaccompanied by any 
additional evidence. The Petitioner's statement referenced the evidence already submined and argued 
that "[t]he Petitioner has determined that this level of activity in the art world is sufficient tor the job of 
art director, and that the Beneficiary was otlered the job of art director tor an mt center as preeminent as 
the Petitioner further demonstrates that the Beneficiary satisfies the requirements for EB-1 A 
immigration ... 
According to the uncertified translations accompanying the foreign language articles, the documentation 
submitted to meet this criterion pertains to the Beneficiary's activities as an oil painter. The Petitioner 
has provided no evidence reflecting the Beneficiary's work in art direction, marketing , advertising , or 
curating. Moreover, there is no indication that the Beneficiary's relation to any of the aforementioned 
fields formed the subject of any of the atticles provided as evidence. Articles written about the 
Beneficiary's work as an artist cannot be considered evidence ofhis standing as an att director. Again. 
the statute and regulations require that the Beneficiary seeks to continue work in his area of expertise 
in the United States. See section 203(b)(l )(A)(ii) of the Act; 8 C.F.R. § 204.5(h)(5). See also l_ee v. 
I.N.S., 237 F. Supp. 2d at 914. 
Regardless. the published materials provided do not meet the requirements of this regulatory criterion. 
The two articles in appear to be about the Beneficiary and his work as an oil painter; however, 
there is no documentary evidence reflecting the circulation of to establish that the magazine is a 
major trade publication or other form of major media. The material in includes images of 
paintings as well as an untranslated foreign language article, but none of the paintings contain 
discemable signatures or names. Moreover. as the article in is untranslated . the name of the 
author is unknown as is the content of the article. In addition, the Petitioner provided no circulation 
information for Furthermore. the cover of is dated September 2001 and the 
Petitioner's November 12, 2014, letter accompanying the petition specifically stated that the 
Beneficiary has "been featured in on [sic] September of 2001.'' Pages 32-40 of the 
publication, however, include multiple images of paintings that are dated 2006-2008 and a biography of 
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Matter of A-A-R-1-
the Beneficiary listing events that occurred through 2009. The date of publication claimed by the 
Petitioner and appearing on the magazine· s cover is not consistent with the dates appearing on pages 
32-40. The Petitioner has not resolved this discrepancy with independent, objective evidence. See 
Matter ofHo, 19 I&N Dec. 582, 591-592 (BIA 1988). 
The articles in and 
appear to be about the Beneficiary. However, the Petitioner has not demonstrated that any of the tour 
publications qualifies as professional or m~jor trade publications or other major media, as the Petitioner 
has provided no documentation regarding the circulation for or recognition of these publications. 
Additionally, the majority of the Petitioner's documentary evidence does not comply with the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii) requiring '·the title, date. and author ofthe material. and any 
necessary translation:' While the Petitioner submitted a few articles reflecting published material 
about the Beneficiary and his artwork, the Petitioner did not establish that the material was published 
in professional or major trade publications or other major media. Submitting published material 
about the Beneficiary and his work is insufficient to meet the plain language of the regulation at 
8 C.F.R. § 204.5(h)(3 )(iii) without establishing that the material was published in professional or 
major trade publications or other major media. 
In light of the above, the Petitioner has not established that the Beneficiary meets this criterion. 
Evidence of the alien's original scient(fic. scholarly, artistic. athletic. or husiness­
rela!ed contributions (~lmajor sign(ficance in thefield. 
To meet this criterion. the evidence must establish that the contributions rise to the level of major 
significance in the field as a whole, rather than to a project or to an organization. The phrase •·major 
significance" is not superfluous and, thus. it has some meaning. Silverman v. Eastric/1 Multiple 
Investor Fund. L.P., 51 F. 3d 28, 31 (3d Cir. 1995). quoted in APWU v. Pol!er, 343 F.3d 619. 626 
(2d Cir. 2003). Contributions of major significance connotes that the Petitioner's work has 
significantly impacted the field. See 8 C.F.R. § 204.5(h)(3)(v); see also Visinscaia. 4 F. Supp. 3d at 
135-36. The Director did not address this issue either in his RFE or in his tinal decision. However. 
we find that the Beneficiary does not meet this criterion. 
With its initial petition submission, the Petitioner claimed that the Beneficiary meets this criterion 
because his "[w]ork has been praised for its originality by Professor of 
as well as by the The Petitioner also 
states that the Beneficiary's ''lo]il paintings contributed greatly to the field of Chinese 
expressionism;·· and that the Beneficiary "[r]eceived three awards in recognition of his great 
accomplishments.'' In support of its claims, the Petitioner referenced the evidence supplied to 
establish the Beneficiary's membership in associations which require outstanding achievements of 
their members (e.g. a letter from and a letter from the as well as evidence 
supplied to demonstrate that the Beneficiary received lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor (e.g. and a letter 
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acknowledging that the Beneficiary's oil painting is being displayed at the 
With regard to the Beneficiary's awards and membership, the regulations include separate 
criteria for those categories of evidence. See 8 C.F.R. § 204.5(h)(3)(i) and (ii). Documentati on 
relating to or even meeting the awards and membership criteria is not presumptive evidence that the 
Beneficiary also satisfies this critetion. To hold otherwise would render meaningless the regulatory 
requirement that a beneficiary meet at least three separate criteria. Both of the aforementioned 
criteria and the reasons why the Beneficiary did not satisfy them have already been addressed abo ve. 
Regardless, as we will explain below, the documents submitted under 8 C.F.R. § 204.5(h)(3 )(i) and 
(ii) do not show that the Beneficiary's work rises to the level of contributions of major significance 
in the field. 
On appeal, the Petitioner states that the "Beneficiary's oil paintings have been favorably reviewed," 
and, therefore, are indicative of contributions of major significance in the field. The Petitioner refers 
to the letter from in which he lauded the Beneficiary"s work in the field of oil 
painting. As the translation accompanying his letter was not certified by the translator as requir ed by 
the regulation at 8 C.F.R. § 103.2(b)(3), we cannot determine whether the letter suppmt s the 
Petitioner's claims. Notwithstanding the limited evidentiary value of the letter. did 
not otTer any specific examples of the Beneficiary's work in oil painting that are of major 
significance in the field . The letter from the dated June 12. 2012. is also written in a foreign 
language and is accompanied by an uncertified translation. This letter. which bears no authorial 
identification. also noted the Beneficiary's work in the field of oil painting and indicated that he has 
won awards for his painting as well as having had his work displayed at unnamed exhibitions. The 
letter did not identify any specific contribution that has widely influenced other oil painter s or 
otherwise constitutes a contribution of major significance in the field. 
Again. the evidence referenced for this criterion relates to the Beneficiary's work as an oil painter. 
The Petitioner neither claims nor demonstrates that the Beneficiary is responsible for origin al 
contributions of major significance in the field as an art director. The statute and regulations requir e 
that the Beneficiary seeks to continue work in his area of expertise in the United States. See section 
203(b)(1)(A)(ii) of the Act; 8 C.F.R. § 204.5(h)(5). See also Lee v. I. N. S., 237 F. Supp . 2d at 914. 
Without additionaL specific evidence showing that the Beneficiary's work as an art director has been 
unusually influential , has substantially affected the field, or has otherwise risen to the level of 
contributions of major significance, the Petitioner has not established that the Beneficiary meet s this 
criterion. 
Evidence that the alien has commanded a high salary or other sign(ficantly high 
remunerationfor services. in relation to others in the .field. 
The Petitioner initially submitted an ·'Offer of Employment" stating that the Beneficiar y would 
receive '·an annual salary of $36,000.00'' as art director, but the Petitioner provided no basis for 
comparison showing that the Beneficiary's salary was high relative to that of others in the field of at1 
direction. 
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In addition, the Petitioner claimed that the Beneficiary met this evidentiary criterion by virtue of the 
values assigned to his paintings at art sales. The Director did not address this issue in his RFE and in 
its response, the Petitioner no longer claimed that the Beneficiary met the criterion. Rather, the 
Petitioner argued that the Beneficiary enjoyed commercial success under 8 C.F.R. § 204.5(h)(3)(x). 
The documents reflecting the values assigned to the Beneficiary's paintings, however, are more 
relevant to the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(ix) and will be addressed here. 
In response to the RFE, the Petitioner stated that the Beneficiary's work has been valued for as much 
as 160,000 RMB ($26,000 USD).2 In support of its claim, the Petitioner referenced a copy of a 
foreign language certificate with an uncertified English language translation, bearing the title 
The Petitioner also referred to the 
document as representing the sale of one of the _Beneficiary's works at the 
The Petitioner's evidence also included a document which refers to the 
on December 4, 2008. The cover page with the auction name 
is attached to a second page that includes a painting attributed to the Beneficiary, entitled 
Beneath the representation of the painting is what appears to be a price in the amount of RMB: 
140,000- 160,000. This, however, has not been demonstrated since the numerical indicator f()llows 
a foreign language description that was not properly translated. As the aforementioned documents 
were not accompanied by certified English language translations as required by the regulation at 8 
C.F.R. § 103.2(b)(3), we cannot determine whether they support the Petitioner's claims. Thus, there 
is no indication as to the significance of the preceding amount. 
Nevertheless, the documentation provided does not demonstrate eligibility in this instance. The 
Petitioner claims that the Beneficiary's work has sold for as much as 160,000 RMB ($26,000 USD) 
at the on December 4, 2008, 
and refers to a certificate from the as evidence of this sale. 
However, the document identified does not substantiate the sale of the Beneficiary's work. Rather, 
the certificate states through our professional artist evaluation 
committee has decided to collect and treasure your 2008 original oil painting The 
document does not indicate whether the purchased the Beneficiary's 
painting or, if so, how much it paid for the work. There is no indication on this certiticate that the 
Beneficiary received any remuneration for the painting. Further. the Petitioner submitted no other 
documentary evidence demonstrating that the Beneficiary has ever sold or been offered money for 
any of his works. 
2 As of April 5, 2016, 160,000 RMB (or CNY) is worth $24.697.07 USD. Sl!e http: //wwv.:.xe.comlcurrencyconvcrter / 
convcrt/?Amount = 160000&From = CNY&To ~ uso (accessed AprilS. 2016). 
' It appears either that the exhibit to which the Petitioner referred was erroneously labelled or that the Petitioner made an 
erroneous reference. Exhibit 7 relates to a certificate from the Exhibit 19 relates to 
the 
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Without evidence demonstrating that the Beneficiary has commanded a high salary or significantly 
high remuneration for his work relative to others in the field of art direction, the Petitioner has not 
established that the Beneficiary meets this criterion. 
Evidence of commercial successes in the pe1:(orminR arts, as sh(nrn by box qfflce 
receipts or record, cassette. compact disk. or video sales. 
The Petitioner did not claim this criterion in its initial submission. However, in response to the 
Director's RFE. the Petitioner argued that the Beneficiary satisfies this criterion. The Director did 
not address this issue in his final decision. On appeaL the Petitioner maintains that the ''Beneficiary 
has enjoyed commercial success as an artist:· The plain language of this criterion requires 
''[e]vidence of the commercial successes in the performing arts.'' In the instant case. the Beneficiary 
has experience as an oil painter and is presently seeking employment as an art director. The 
Beneficiary's field is not in the performing arts. The evidence offered for this criterion (documents 
pertaining to the value of the Beneficiary's paintings) is more relevant to the remuneration criterion 
at 8 C.F.R. § 204.5(h)(3)(ix) and has already been addressed there. There is no documentary 
evidence demonstrating that the Beneficiary has achieved commercial successes "in the performing 
arts:' Accordingly, the Petitioner has not established that the Beneficiary meets this criterion. 
B. Comparable Evidence 
At the time of tiling the petition, in response to the Director's RFE, and again on appeal, the 
Petitioner argues that its "otTer of employment" should be considered as comparable evidence under 
the regulation at 8 C .F .R. § 204.5(h )( 4 ). The Petitioner states. "fT]he fact that the Petitioner 
supports the Beneficiary is thus a significant achievement in and of itself." The Petitioner explains 
that it holds a prominent reputation within the art world and that its offer of employment constitutes 
comparable evidence under 8 C.F.R. § 204.5(h)(4), "[i]ndicating that the Beneficiary fulfills the 
requirements for immigration under EB-1 A.'' 
The regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of"comparable evidence" if the 
ten categories of evidence ''do not readily apply to the beneficiary's occupation.'' !d. 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 beneficiary's occupation and how the documentation submitted is "comparable" to the 
specific objective evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In this instance. the regulatory language precludes the consideration of comparable evidence. 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 ). The Petitioner has 
not demonstrated that the regulatory criteria do not readily apply to art directors. In addition. the 
Petitioner has not shown that its offer of employment is comparable to the caliber of documentation 
required under the categories of evidence at 8 C.F.R. § 204.5(h)(3). For instance, the Petitioner has 
provided no documentary evidence from national or international experts in the field of art. attesting 
to its reputation in the field and no other documentary evidence demonstrating that the Petitioner is 
renowned within the field. Therefore. the Petitioner has not shown that its job otTer would set the 
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Matter of A-A-R-1-
Beneficiary apart as extraordinary. Furthermore. the Petitioner's offer of employment was already 
considered under the salary criterion at 8 C.F.R. § 204.5(h)(3 )(ix). 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. 
C. Continuing Work in Area of Expertise 
The Petitioner seeks to employ the Beneficiary as an art director. Under the regulation at 8 C .F.R. 
§ 204.5(h)(5). the petitioner is not required to submit an offer of employment. However. the 
petitioner must submit clear evidence that the beneficiary is coming to the United States to continue 
work in the area of expertise. /d. In the present matter, the Petitioner did not provide documentation 
demonstrating that the Beneficiary will continue to work as an oil painter, the field in which the 
Beneficiary demonstrated a measure of expertise, and has indicated its intention to employ the 
Beneficiary in the role of art director. There is no indication that the Beneficiary intends to continue 
working in his area of expertise (oil painting) in the United States pursuant to section 
203(b)(1)(A)(ii) ofthe Act and the regulation at 8 C.F.R. § 204.5(h)(5). 
III. CONCLUSION 
The documents submitted in support of extraordinary ability must show that the individual has achieved 
sustained national or international acclaim and is one of the small percentage \Vho has risen to the very 
top of his or her field of endeavor. Had the Petitioner provided evidence for the Beneficiary 
satisfying at least three evidentiary categories. the next step would be a final merits determination 
that considers all of the filings 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 individual '·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), (3); see also Kazarian, 596 F.3d at 1119-20 (discussing a two-part review where the 
evidence is first counted and then. if satisfying the required number of criteria, considered in the 
context of a final merits determination). Although we need not provide the type of final merits 
determination referenced in Kazarian. a review of the record in the aggregate supports a finding that 
the Petitioner has not established the level of expertise required for the classification sought. 
The appeal will be dismissed for the above stated reasons. with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings. it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act. 8 U.S.C. § 1361; 
Malter l?(Otiende. 26 I&N Dec. 127. 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter (dA-A-R-1-, ID# 16594 (AAO May 19, 2016) 
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