dismissed EB-1A Case: Arts

(b)(6)
DATE: ~AUG 
2 S 2014 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr ation Services 
Office of Administrative App eals 
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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration , you may file a motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:ljwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
iJL~L, 
~K :JUse~berg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office on appeal. We will dismiss the appeal. 
The petitioner, an illustrator, designer and painter, seeks classification as an employment-based 
immigrant pursuant to section 203(b )(l)(A) of the Immigration and Nationality Act (the Act) , 
8 U.S.C. § 1153(b)(l)(A), as an alien of extraordinary ability in the arts. The director determined that 
the petitioner had not met the requisite criteria for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 
8 C.F.R. § 204.5(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. The director determined that the petitioner's evidence had met the 
category of evidence at 8 C.F.R. § 204.5(h)(3)(vii). 
On appeal, the petitioner submits a brief and additional evidence. In the brief, the petitioner asserts 
that he meets the additional categories of evidence at 8 C.F.R. § 204.5(h)(3)(v) and (x). 
I. 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. 
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U.S. 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. 723 101
51 
Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897,60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. !d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, internationally recognized award) 
or through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court 
upheld our decision to deny the petition, the court took issue with our 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 our 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 we 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 we 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, we will review the evidence under the 
plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. !d. 
II. ANALYSIS 
A. Evidentiary Criteria2 
1 
Specifically, the court stated that we 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). 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. Therefore, no determination has been made regarding whether the petitioner meets the remaining categories of 
evidence. 
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NON-PRECEDENT DECISION 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, the petitioner does not contest the director's 
findings for this criterion or offer additional arguments. When an appellant fails to offer argument 
on an issue, that issue is abandoned. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th 
Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 
30, 2011) (plaintiff's claims abandoned when not raised on appeal). Accordingly, the petitioner has 
not established that he meets this regulatory criterion. 
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. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish his eligibility. In the appeal brief, the petitioner does not contest the director's findings for 
this criterion or offer additional arguments. The petitioner, therefore, has abandoned this issue. 
Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the petitioner has 
not established that he meets this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director determined that the petitioner failed to establish eligibility for this regulatory 
criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." [Emphasis added.] Here, the evidence must be reviewed to see whether it 
rises to the level of original artistic contributions "of major significance in the field." The phrase 
"major significance" is not superfluous and, thus, it has some meaning. Silverman v. Eastrich 
Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 
619, 626 (2nd Cir. Sep 15, 2003). 
In the appeal brief, the petitioner points to the reference letters, comic book titles, a 
nomination, contracts, a talent retreat invitation , and media articles as evidence for this regulatory 
criterion. 
In his initial letter dated October 26, 2012, 
states: 
Vice President, Business Affairs - Talent, 
[The petitioner] is engaged by as an independent contractor to render artistic 
services to our company on an ongoing freelance basis. 
[The petitioner] has been a fixture of the United States comic book industry for more than a 
decade, and is currently headlining our acclaimed monthly comic book title 
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Prior to this engagement , fthe 12etitioner has been a featured artist on many other of our 
flagship titles, including 
confidence in [the petitioner's] artistic talent and our desire to continue our working 
relationship with him is based upon the exceptional ability he has displayed in the work he 
has contributed to our comic book publications as well as those of our principal competitors. 
During his time working in the comic book industry, [the petitioner] has justifiably 
developed a following among our editorial staff, the professional community at large, and the 
many comic book readers worldwide who support his work. We a1 are certain that his 
following among industry insiders and fans alike will continue to grow. 
Mr. comments on the petitioner's work for illustrating titles such as 
_ but does not provide specific examples of 
how the petitioner's comics artwork has influenced the industry at a level indicative of original 
contributions of major significance in the field. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v) requires that the petitioner's contributions be "of major significance in the field" 
rather than limited to the companies that contracted his services. See Visinscaia v. Beers, --- F. 
Supp. 2d ---, 2013 WL 6571822 , at *4, *6 (D.D.C . Dec. 16, 2013) (upholding a finding that a 
ballroom dancer had not met this criterion because she did not demonstrate her impact in the field as a 
whole). In addition, Mr asserts that the petitioner's "following among industry insiders and 
fans alike will continue to grow." Speculation about the possible future impact of the petitioner's 
work is not evidence, and cannot establish eligibility for this regulatory criterion. Eligibility must be 
established at the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg 'l Comm 'r 1971). A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That 
decision further provides, adopting Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS 
cannot "consider facts that come into being only subsequent to the filing of a petition." /d. at 176. 
The petitioner submitted information from website showing that he illustrated 
volumes 13 - 18. In addition, the petitioner submitted a CORY of a September 8, 2012 
interview with that was posted at http:// and entitled "[The 
petitioner] Artist for The online interview introduces the petitioner as the new 
illustrator for but does not explain how his work has had a substantial impact in the 
comics market, has influenced the work of other illustrators, or otherwise constitutes original 
contributions of major significance in the field. 
In his second letter dated March 23, 2013 and submitted in response to the director's request for 
evidence, Mr. states: 
[The petitioner] is a premiere talent among pool of freelance artists. fThe 
petitioner] is currently the featured artist on monthly comic book title, 
Looking ahead, [the petitioner] will be a primary artist featured in 
event focusing upon the and follow that work with an 
engagement as artist on a weekly version of one of our flagship titles, 
Mr. points out that the petitioner "is currently the featured artist on monthly comic 
book title, " but there is no documentary evidence showing that his work on that title has 
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Page 6 
affected the industry in a major way, has topped comic book sales rankings for a substantial period of 
time, or has otherwise risen to the level of original contributions of maior significance in the field. In 
addition, Mr. mentions that the petitioner will be working on m 
the near future. The petitioner's appellate submission includes the cover pages of 
volume 22 (July 2013) and volume 23 (August 2013) that were illustrated by 
the petitioner. In addition, the petitioner submits July 2013 and August 2013 online reviews of 
volumes 22 and 23 that mention the petitioner's artwork. volumes 
illustrated by the petitioner in 2013 and the online reviews of those volumes were published 
subsequent to the petition ' s December 19, 2012 filing date. Again, eligibility must be established at 
the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49. 
Accordingly, volumes 22 and 23, the online reviews from July 2013 and 
August 2013, and the petitioner's future work on cannot be considered as evidence to 
establish his eligibility at the time of filing. 
Mr. further states: 
Our belief in [the petitioner ' s] overall contributions is so great that he was a member of a 
select group of talent invited to attend a company sponsored creative retreat on 
February 9 and 10 in . NC, held with the specific purpose to define our company ' s 
editorial vision moving forward into 2013 and beyond. This certainly means that [the 
petitioner] will be an essential part of coming editorial events at 
Mr. comments that the petitioner was invited to attend the February 9 - 10, 2013 
creative retreat in North Carolina. The February 2013 talent retreat post-dates the filing of 
the petition, however, and cannot be considered as evidence to establish the petitioner 's eligibilit y at 
the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49. 
Senior Vice President, Operations and Procurement , 
states: "[The petitioner] has achieved recognition and admiration for his work in the comics 
industry. Because of his talent and reliability, has assigned [the petitionerl to some of our 
most prestigious franchises. He is a true professional, and has been an asset to " Mr. 
comments briefly on the petitioner's recognition and admiration in the comics industry, his talent, 
reliability, profession alism, and value to , but fails to provide specific examples of how the 
petitioner's original work was of major significance in the field. Vague, solicited letters from 
colleagues that do not specifically identify original contributions or provide specific examples of 
how those contribution s influenced the field are insufficient. Kazarian , 580 F.3d at 1036. In 2010, 
the Kazarian court reiterated that conclusion was "consistent with the relevant regulatory language." 
596 F.3d at 1122. 
In the appeal brief, the petitioner points to "media articles showing that [the petitioner] was such an 
asset to that they signed him to an exclusive contract." The etitioner submitted articles in 
and 
mentioning his work under contract with There is no 
documentary evidence showing, however, that the petitioner's comic book illustrations for rise 
to the level of contributions of major significance in the field. In addition, the regulations include a 
separate criterion for published material about the alien in major trade publications or other major media 
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at 8 C.F.R. § 204.5(h)(3)(iii)? Furthermore, with regard to the amount of remuneration specified in the 
petitioner's contract, the regulations include a separate criterion for commanding a high salary 
or other significantly high remuneration for services at 8 C.F.R. § 204.5(h)(3)(ix).4 Evidence relating to 
or even meeting the published material about the alien and the significantly high remuneration criteria 
are not presumptive evidence that the petitioner also meets this criterion. The regulatory criteria are 
separate and distinct from one another. Because separate criteria exist for contributions of major 
significance , published material about the alien, and significantly high remuneration, USCIS clearly 
does not view those criteria as being interchangeable. To hold otherwise would render meaningless 
the statutory requirement for extensive evidence or the regulatory requirement that a petitioner meet at 
least three separate criteria. 
Editor , states: ---------' 
I worked with [the petitioner] on the important project here at 
where I work as an Editor. [The petitioner's] work was exceptional , 
often ahead of schedule, and included interior story pages as well as full-color cover 
illustrations. [The petitionerl was integral to the launch of our first series, as well as 
several other series f01 
Working with , our Senior Managing Editor, [the petitioner] has also contributed 
to the successful series. [The petitioner's] 
work on two acclaimed volumes in the , _ universe helped earned [sic] that series a 
nomination for a and has helped keep those books perennial best­
sellers for our company. 
I really do look forward to working with [the petitioner] again soon. His artwork is stunning, 
and he's a highly professional freelancer, often ahead of deadlines, as mentioned before. 
After working with me on the series, [the petitioner] has 
continued to excel in the comic-book industry, delivering great work for other editors here at 
-as well as marvelous work for other companies. He's becoming quite 
an inspiring force in the industry, and I hope ... he can continue to network in the industry 
and move on to produce more quality work within our market. 
Mr. points out that the petitioner worked "on two acclaimed volumes in the 
universe" and that those volumes earned a nomination for a in 2009. The petitioner 
submitted a list of "2009 J nominations showing that ("Written by 
art by rthe petitioner], color by cover by ') 
was nominated for' ' The regulations include a separate criterion for nationally or 
3 The submitted article s, however , did not meet the category of evidence at 8 C.F.R. § 204.5(h)(3)(iii). Specifically, the 
director stated that the petitioner had not submitted evidence showing that the articles were "published in professional or 
major trade publications or other major media." Moreover , the petitioner did not contest that finding on appeal. 
4 The petitioner , however, does not claim to meet the category of evidence at 8 C.F.R. § 204.5(h)(3)(ix). Even if the 
petitioner had made such a claim, the petitioner did not submit any evidence as a b asis for comparison showing that the 
remuneration specified in his contract was significantly high relative to that of others in the field. 
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Page 8 
internationally recognized prizes or awards for excellence at 8 C.F.R. § 204.5(h)(3)(i).5 In the appeal 
brief, the petitioner repeats Mr. assertion that the comic books are perennial best-
sellers for . but does not point to any specific documentary evidence (such as 
published sales rankings or other objective evidence) showing that the two volumes illustrated 
by the petitioner were best-sellers. users need not rely on unsubstantiated claims. See 1756, Inc. V. 
US Att'y Gen., 745 F. Supp. 9, 15 (D.D.C. 1990) (holding that an agency need not credit conclusory 
assertions in immigration benefits adjudications); see also Visinscaia, 2013 WL 6571822, at *4, *6 
(upholding US CIS' decision to give limited weight to uncorroborated assertions from practitioners in 
the field)_ Re!lardless, the petitioner has not established that his 
series illustr ations have influenced the comic book industry in a major way, or that his 
work was otherwise indicative of original contributions of major significance in the field. 
The petitioner submitted a ' 
agreement for producing "at least 22 pages penciled for each of the eight issues of a 
publication tentatively entitled The agreement was si!lned bv the 
petitioner on October 1, 2013, but the signature block for the President of 
was left blank. Regardless, the petitioner signed the preceding agreement subsequent to filing the 
petition on December 19, 2012. Again, eligibility must be established at the time of filing. 8 C.F.R. 
§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49. Accordingly, the October 2013 
agreement executed by the petitioner to produce artwork for the upcoming. 
cannot be considered as evidence to establish his eligibility at the time of filing. 
Creative Director, , states: 
I am writing on behalf of [the petitioner], the uber ta entecl :mel inereclihle arti. t .... I have 
worked with [the petitioner] on several projects for ~ Magazine and 
have found his work to be of utmost quality - in its creativity and execution. Truly , [the 
petitioner] is one in a million. [The petitioner] has the unique ability to take a germ of a story 
and miraculously bring it to life, entertaining and amazing our readers along the way. 
Not only is [the petitioner 's] work fabulous , but his professionalism is beyond reproach. He's 
extremely conscientious about deadlines, sensitive to budgets, and a true pleasure to work 
with. 
We have had such great response to [the petitioner's] work from kids across the country and I 
fully intend to work with him on future projects. 
Ms. points to the high quality of the petitioner's work, and his unique ability, talent, and 
professionalism. It is not enough to be a talented artist and to have others attest to that talent. An 
5 The petitioner 's 2009 nomination , however, did not meet the requirements of the category of evidence at 
8 C.F.R. § 204.5(h)(3)(i). The plain language of the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(i) specifically requires 
evidence of receipt of nationally or internationally recognized "prizes or awards ," not receipt of only a nomination. 
Earning a nomination does not equate to receipt of a prize or an award. On appeal, the petitioner does not contest the 
director's fmding that his nomination was not sufficient to meet the requirements of8 C.F.R. § 204.5(h)(3)(i). 
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individual must have demonstrably impacted his field in order to meet this regulatory criterion. 
There is no documentary evidence showing that the petitioner's work for has 
affected the field as a whole, has substantially influenced the work of other artists, or otherwise equates 
to original contributions of major significance in the field. 
, Entertainment Coordinator, .___ ___ _ states: 
I have been fortunate to work with [the petitioner] on c card game recently. [The 
petitioner 's] contribution to our product was invaluable , he was professional and on schedule . 
He is highly regarded in the comic industry as a top level talent and added credibility to our 
product. 
* * * 
I look forward to working with [the petitioner] on future projects. His art has become 
essential to the comic industrv: if it was possible I would have [the petitioner] work on 
everything related for As an art acquisition coordinator it can be hard to 
find a professional artist who you can trust to provide excellent work, on time or ahead of 
deadlines. I can trust [the petitioner]; I hope we can continue to create excellent products 
together. 
Mr comments on the petitioner ' s work with on a card game project for 
but does not provide specific examples of how his work has influenced the field as a whole or 
otherwise constitutes original contributions of major significance in the comic industry. Again, the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires that the petitioner's 
contributions be "of major significance in the field" rather than limited to the companies that 
contracted his services for various projects. 
, Chief Executive Officer, an agency that represents artists, 
states: 
[The petitioner] ... is a premier illustrator, designer, and painter working from Brazil under 
contract with our Agency for the past 14 years, earning his entire income from American 
clients. We'd [sic] thrilled and lucky to have him, and he adds significantly to our business 
success. 
As such, as a much sought-after artist, [the petitioner] has illustrated for 
For years, [!he petitioner] drew exclusively for top-selling books, including 
He currently illustrates and 
other books for owned by 
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At movie and ' 
movie writer/director 
NON-PRECEDENT DECISION 
he is best known as artist of 
series of graphic novels. 
Mr. _ comments on the petitioner's work for various clients in the United States, but does not 
provide specific examples of how the petitioner's artwork has influenced other illustrators, or has 
otherwise affected the comics industry at a level indicative of contributions of major significance in 
the field. 
, a comics illustrator with additional experience in graphic novels, video games, 
toy packaging , commercial illustration , and gallery shows, states: 
I consider [the petitioner] to be a peer and my contemporary. I've known him for more than 
a decade, and we've attended many conventions and events in the USA. Not only have we 
worked on several high-profile books together -- most notably -- he's 
followed in my footsteps at and other 
career-making series. 
Mr. mentions the petitioner's work on and 
but fails to provide specific examples of how his artwork was of major significance in the 
field. 
a comics illustrator, author, and painter, states: 
I consider it my very good fortune to have met [the petitioner], both through his published 
work, and also through ciur travels, at conventions and festivals in the USA and abroad. I 
consider him to be not only an incredibly talented artist and visual storyteller , but I'm also 
very fortunate to call him mv friend, as well as colleague . [The petitioner] and I are currently 
in discussions with to work together on an ongoing series. I believe [the 
petitioner] will not only continue to be in demand for his incredible commercial and artistic 
gifts, but also for his genuine warmth, decency and humor. 
Mr. asserts that the petitioner is "an incredibly talented artist and visual storyteller" and 
that he will "continue to be in demand for his incredible commercial and artistic gifts," but does not 
explain how the petitioner's artwork has specifically affected the comics industry or otherwise 
equates to original contributions of major significance in the field. There is no documentary 
evidence showing the extent of the petitioner 's influence on others in the field, or demonstrating that 
the field has specifically changed as a result of his original work, so as to establish the major 
significance of his contributions. 
The petitioner submitted letters of varying probative value. A number of the letters are generalized, 
without identifying specific contributions or their impact in the field, and thus have little probative 
value. See 1756, Inc. v. US Att 'y Gen., 745 F. Supp. at 17; see also Visinscaia, 2013 WL 6571822, 
at *6 (upholding USCIS' decision to give limited weight to uncorroborated assertions from practitioners 
in the field); Matter of Caron Int'l , Inc., 19 I&N Dec. 791, 795 (Comm'r 1988) (holding that an 
agency "may, in its discretion , use as advisory opinions statements ... submitted in evidence as 
expert testimony ," but is ultimately responsible for making the final determination regarding an 
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alien's eligibility for the benefit sought and "is not required to accept or may give less weight" to 
evidence that is "in any way questionable"). 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"). 
Furthermore, all of the letters of support are from individuals who have worked with the petitioner or 
whose companies have a business arrangement with the petitioner. Although such letters are 
important in providing details about the petitioner 's work, they cannot by themselves establish the 
influence of the petitioner's work beyond his immediate circle o.f professional acquaintances. 
The submission of reference letters supporting the petition is not presumptive evidence of eligibility; 
users may evaluate the content of those letters as to whether they support the alien's eligibility. !d. 
Without additional, specific evidence showing that the petitioner's work has been unusually 
influential, has substantially affected the field, or has otherwise risen to the level of original 
contributions of major significance, the petitioner has not established that he meets this regulatory 
criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The evidence supports the director's finding that the petitioner meets this regulatory criterion. 
Evidenc e of commer cial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
This regulatory criterion focuses on the volume of sales and box office receipts as a measure of the 
petitioner's "commercial successes in the performing arts." The petitioner's field, however , is not in 
the performing arts. None of the petitioner's documentary evidence demonstrates that he has 
achieved "commercial successes in the performing arts." 
The petitioner pointed to the aforementioned letters from Mr. Mr. Mr. Ms. 
Mr. , and Mr. _ as "comparable evidence" for this regulatory criterion. The 
regulation at 8 C.F.R. § 204.5(h)(4) provides the petitioner an opportunity to submit comparable 
evidence to establish eligibility if the ten categories of evidence at 8 C.P.R. § 204.5(h)(3)(i)- (x) do 
not readily apply to his occupation. The director's decision stated: "The petitioner did not declare 
and demonstrate why the standards do not readily apply to the [petitioner's] occupation." 
In the appeal brief, the petitioner states: "The Service blatantly ignores the arguments [the 
petitioner] put forth to show that [8 C.F.R. § 204.5(h)(3)(x)] does not readily apply to his profession as 
an illustrator, designer, and painter, because he cannot show record sales or box office receipts." The 
regulation at 8 C.F.R. § 204.5(h)(3) provides that evidence of sustained national or international 
acclaim "shall" include evidence of a one-time achievement or evidence of at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. The ten categories 
in the regulations are designed to cover different areas; not every criterion will apply to every 
occupation. For example, the criterion at 8 C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual 
arts, and the criterion at 8 C.F.R. § 204.5(h)(3)(x) expressly applies to the performing arts. The 
regulation at 8 C.F.R. § 204.5(h)( 4) provides "[i]f the above standards do not readily apply to the 
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Page 12 
[petitioner's] occupation, the petitiOner may submit comparable evidence to establish the 
[petitioner's] eligibility." It is clear from the use of the word "shall" in 8 C.P.R.§ 204.5(h)(3) that 
the rule, not the exception, is that the petitioner must submit evidence to meet at least three of the 
regulatory criteria. Thus, it is the petitioner's burden to explain why the regulatory criteria are not 
readily applicable to his occupation and how the evidence submitted is "comparable" to the objective 
evidence required at 8 C.P.R. § 204.5(h)(3)(i) - (x). In the present matter, there is no evidence that 
eligibility for visa preference in the petitioner's occupation cannot be established by the categories of 
evidence specified by the regulation at 8 C.P.R. § 204.5(h)(3). In fact, the petitioner has submitted 
evidence showing that multiple categories of evidence apply to his occupation such as 8 C.P.R. 
§ 204.5(h)(3)(i), (iii), (v), (vii), and (ix). Where an individual is simply unable to satisfy the plain 
language requirements of at least three categories of evidence at 8 C.P.R. § 204.5(h)(3), the 
regulation at 8 C.P.R.§ 204.5(h)(4) does not allow for the submission of comparable evidence. 
Even if the petitioner demonstrated that he was eligible for the provisions of the regulation at 
8 C.P.R. § 204.5(h )( 4 
), which he has not, the petitioner has failed to establish that submitting letters 
of support prepared specifically for his petition and attesting to his work for 
is comparable to the 
regulation at 8 C.P.R.§ 204.5(h)(3)(x) that requires "[e]vidence of commercial successes in the 
performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales." 
In his initial letter dated October 26, 2012, M 
. states that the petitioner headlined 
"acclaimed monthly comic book title, ' and was "a featured artist on many 
other of [its] flagship titles, includin~ ' In 
his second letter dated March 23, 2013, Mr. states that the petitioner "is currently the 
featured artist o monthly comic book . . ' "will be a primary artist featured in 
" and will "follow that work with an engagement as artist on a 
weekly version of ' As previously discussed , the petitioner's work on New 52 
and post-dates the filing of the petition on December 19, 2012. Eligibility, however, 
must be established at the time of filing. 8 C.P.R. § 103.2(b )(1), (12); Matter of Katigbak, 4 I&N 
Dec. 45, 
49. Accordingly, the petitioner's 2013 work on The New 52 and his future work on 
cannot be considered as evidence to establish his eligibility at the time of filing. 
In his letter, Mr. states that ' has assigned [the petitionerl to some of [its] most 
prestigious franchises ." The petitioner also submitted an article from entitled "Artist 
[the petitioner] ends exclusive contract with ' Although the article shows that the 
petitioner had an exclusive contract with "for about 5 years," it does not specify the sales 
figures for the comic books illustrated by the petitioner or the amount of his remuneration as stated 
in the contract. In addition, the petitioner submitted a letter from Mr. mentioning that the 
petitioner worked on ~ comic books. Mr. 
further states that his ag:encv was "thrilled and lucky to have [the petitioner]" and that the petitioner 
"adds significantly to business success." Mr. . however, did not 
specify the amount of revenue that the petitioner generated for 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
Mr. asserts that the petitioner's work on two volumes of the Serenity comic book series "helped 
keep those _ books perennial best-sellers" for but did not point to any 
specific sales figures. 
Ms. comments that has "had such great response to [the petitioner's] 
country" and that she "fully intend[s] to work with him on future 
states that "if it was possible [he] would have [the petitioner] work 
" 
work from kids across the 
projects." In addition, Mr. 
on everything ·--·--------------------
Rather than submitting evidence of comic book or product "sales" that is comparable to the 
regulation at 8 C.P.R. § 204.5(h)(3)(x), the petitioner instead submitted letters of support and other 
documentation showing only that the petitioner has secured work in his field. None of the preceding 
evidence provides specific sales figures for the comic book volumes illustrated by the petitioner. If 
testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner 
to submit corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). The record lacks 
objective documentary evidence (such as published comic book sales rankings or audited financial 
reports) showing the specific sales directly attributable to the petitioner's work. 6 As the quality of 
the submitted documentation is not of the same caliber of objective evidence required by the plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(x), we cannot conclude that the petitioner's 
evidence is comparable. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories 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 endeavor. 
Even if the petitioner had 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 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 P.3d at 1119-20. Although we conclude that the evidence 
6 For instance provides monthly sales data for comics obtained from comic book distributors who serve 
comics shops in North America. See http:// ~ · accessed on July 21, 2014, 
copy incorporated into the record of proceeding. 
(b)(6)
NON-PRECEDENT DECISION 
Pag e 14 
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, we need not explain that conclusion in a final merits 
determination? Rather, the proper conclusion is that the petitioner has failed to satisfy the antecedent 
regulatory requirement of three categories 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. 
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; Matter of Otiende , 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
7 The AAO conducts appellate review on a de novo basis. See Siddiqui v. Hold er, 670 F.3d 73{j, 741 (7th Cir. 2012); 
Soltane v. DO! , 381 F.3d 143, 145 (3d Cir. 2004); Dor v. INS , 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 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 0150.1 (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).