dismissed EB-1A Case: Artisan Glassblowing

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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 Massachusetts 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 inappropriateiy 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 fot 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 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 . 
. Tha_nk you, 
.cYJ~ 25r-
Ron Rosenberg ..,e-- · 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service· Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. · · · 
The petitioner seeks classification .as an "alien of extraordinary ability" in the arts, specifically as a 
master artisan glassblower, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(l)(A). The director determined the petitioner had not established the 
sustained national or international acchtim necessary to qualify for Classification as an alien of 
extraordinary ability.· 
Congress set a very high benchinark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate-the alien's "sustained national or intemational.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. § 204.5(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 achievement 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) through (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 asserts the director failed to consider and give proper weight to all the evidence of 
record in finding that the petitioner did riot have original contributions of major significance in the field 
of glassblowing. In addition, counsel states that the director erred by discrediting publications because 
they included references to the petitioner's partner. Counsel also asserts that the petitioner sufficiently 
established that he participated as a judge of others. Considering all of the evidence in the record, the 
petitioner has not established eligibility for the benefit sought by a pr~ponderance of the evidence. 
I. LAW 
Section Z03(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 a~hletics which has been demonstrated by sustained national or 
international acclaim and whose achievements have bee~ 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 
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(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) am~ legacy Immigration and Naturalization ~ervice 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking irrimigrant 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 o~ the field of endeavor. /d.; 
8 C.F:R. § 404.5(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 inust 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 at8 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. USC/S, 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 
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)). 
'• 
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 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. 
1 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 8 C.F.R. 
§ 204.5(h)(3)(vi). 
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II. ANALYSIS 
A. Evide~tiary Criteria2 
Published material about the alien' in professional or major trade publications 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). 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must be about the petitioner and the contents must relate to the petitioner's work in the field 
under which he seeks classification as an immigrant. The published material must also appear in 
professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or international distribution and be published in a 
, predominant national language. The final requirement is that the petitioner provide each published 
item's title, date, and author and· if the published item is in a foreign hinguage, the petitioner must 
provide a translation. that complies with the requirements found at 8 C.F.R. § 103.2(b )(3). The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
The petitioner submitted a group of newspaper clippings, as well as articles from magazines, The 
director determined that the petitioner failed to meet this criterion. On appeal, the petitioner alleges that 
the director erred by discounting any article that also mentioned the petitioner's former partner. The 
AAO conducts ap~ellate ·review on a de novo basis. AAO's de novo authority is well recognized by 
the federal courts. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. 
v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (91h Cir. 2003). 
After conside.ring the evidence submitted for this criterion, the AAO observes that much of the 
clippings only refer to the petitioner in a photograph and a caption, or the petitioner has only 
provided a partial translation of the article. Thus, most of the material is not "about" the petitioner. 
The petitioner, however, submitted ·two articles that are about him .. The magazine article titled, 
features the petitioner. Similarly, the newspaper article With the 
translated title, discusses the petitioner and his 
former partner and their joint exhibition. The AAO finds that the content of the article is about the 
petitioner. However, the petitioner hasfailed to submit documentation relating to the distribution of 
the newspaper indicating that the publicati?n constitutes major media. Similarly, the petitioner fails 
2 
The petitioner does not claim t~ meet or submit evidence relating to th~ regulatory categories of evidence 
not discussed in this decision. 
3 Counsel in the appeal brief repeatedly requests a remand to consider specific items of evidence. In light of 
the· AAO's de novo review, the AAO may consider all referenced evidence and a remand of the proceedings is 
not required. ; 
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to include information about the magazine in which the article about the petitioner appears. Thus, 
the petitioner has failed to show that the magazine is a professional or major trade publication. 
Consequently, the petitioner has failed to meet all of the plain language requirements for 8 C.F.R. 
§ 204.5(h)(3)(iii) .. 
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). 
The petitioner submitted a letter from _ , as 
evidence under this criterion. The director determined that the information failed . to sufficiently 
describe the petitioner's role at the 'to meet the requirements of the regulation. 
On appeal. the oetitioner submitted another letter from Executive Director 
of the which clarifies the jury process and the petitioner's role in the event. 
Upon review of all the evidence in the record for this criterion, the AAO observes that the petitioner 
Satisfied the plain language requirements. Accordingly, the AAO withdraws with the director's 
findings in this regard and concludes that the petitioner met this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The director determined that the petitione! failed to establish his eligibility under this criterion. The 
petitioner initially submitted a sales list of customers who purchased his glass work, letters of support 
attesting to his contributions, and an article about the candlestick. The director dismissed the 
sales list as persuasive evidence under this criterion, in part, because some of the purchases occurred 
after the filing date of the pet.ition. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971) 
(requiring eligibility at the time the applicatio or petition was filed). On appeal, the petititioner submits 
an updated· sales list that inc~udes the names of individuals who were existing customers on the date of 
filing and a declaration from the petitioner's former partner, attesting that the 
candlestick is the petitioner's original work. Counsel asserts that the director erred by failing to take 
into account the fact that the _ candlestickhas been copied by competitiors and was the subject 
of an intellectual property infringement action, which the petitioner initiated. 
At the outset, the updated sales list, as well as the article discussing the piagiarizing of the petitioner's 
candlestick and the subsequent legal action, relates to the commercial success of the 
petitioner's creations, both generally and more specifically to the popularity of the candle. 
· Even accepting that the candlestick is an original creation, the popularity or the commercial viability of 
·an artistic work is not necessarily indicative of its significance in the field. At issue is the impact of the 
petitioner's. work in the field. As for the petitioner's individual pursuit of legal action for intellectual 
property violations,. the petitioner's legal pursuit essentially constitutes an effort at pr.otecting his 
personal property rights and does not demonstrate that his work is a contribution of major significance 
in the field. Specifically, the existence of an imitator does not demonstrate-a wider impact in the field as· 
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a whole. Therefore, the sales list and the article describing the candlestick and associated plagiarism are 
not relevant, probative evidence relating to this criterion. 
The petitioner also submitted testimonial letters as evidence for this criterion. 
writes that the petitioner's candlestick has: "spawned 
numerous imitators, none of which can come close to the qulity of the original. The item continues to be 
a best seller among glass art." also comments that she has: "purchased many of these 
sculptures for myself and to give as gifts. They have been so well received in fact, that every single 
person to whom I have given these has subseauentlv visited our, shows and purchased 
additional .. " These two examples, according to , are specific, original works of 
maior significance in the field of artistic glassblowing. Similarly, - -=--=---
states that: "his collection of sculptures, was a stunning 
success during the time they were on display in our galler." then concludes that the 
petitioner is, "indeed one among a small number of present day individuals who have risen to the 
pinnace! of this ancient art form." Both authors make coriclusory remarks about the petitioner's impact 
on the field based on individual, local examples. 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). Moreover, merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sliva., 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). . 
writes: "Through your spontaneous help and support, 
you contributed· greatly to the · booth in which was able to offer a 
continuously changing program that was extremely interesting to the onlookers." 
states that: "[the petitioner's] work amounts to a significant 
contribution to the art of glassblowing. A collection of his sculpture entitled, which are on 
display in our museum, consistently· attract much praise from visitors." expresses that the 
petitioner's efforts helped in making a success of a one-time, city-wide exhibition. observes 
that the petitioner's collection in her muSeum has garnered praise from visitors. These testimonials do 
not attest to contributions that rise to the level of major significance. The plain language of the 
regulation requires both that the petitioner's contributions be original and of major significance in the 
field. USCIS ·must presume that the word "original" and the phrase "major significance" are not 
superfluous and, thus, that they have 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). Talent alone, without a demonstrated impact in the field as a whole, is not indicative of a 
contribution of major significance in the field. 
Accordingly, the petitioner has failed to meet this criterion. 
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\ 
Evidence ofthe-display ofthe alien's work in the field at artistic exhibitions or showcases. 8 C.F.R. 
§ 204.5(h)(3)(vii). 
The director determined that the petitione.r satisfied the· regulatory requirements for this criterion. After 
considering the evidence submitted relating to this criterion, the AAO affirms the decision of the 
director in this regard. 
B. Summary 
The petitioner has failed to· submit sufficient relevant, probative evidence to satisfy the regulatory 
requirement of three types of evidence. · · 
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 endeav~r. · 
\/ 
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[ir] field of endeavor" and (2) . "that the aliel). 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 concluqes that the 
evidence is not indicative of a levd (_)f 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 petitioner has failed to satisfy the 
regulatory requirement of three types of evidence.· /d. at 1122. 
The petitioner has not established 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. 
4 TheAAO maintains de n~vo r~view of all questions of fact and law. See Soltane v. DOJ, .381 F.3d at 145. 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)(1)(ii). See also section 103(a)(1) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.l(effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.l(f)(3)(iii) (2003); Matter of Aurelio; 19 1.,-&-N~ Dec. 458, 460 (BIA 1987) (holding that legacy INS, 
now USCIS, is the soleauthority with the jurisdiction to decide visa petitions). 
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ORDER: The appeal is dismissed.·