dismissed EB-1A Case: Arts

(b)(6)
. DATE: 
MAR 2 6 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
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 inappropriately applied the law in ,reaching its decision , or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found ar 8 C.F.R. § 103.5. Do not tile any motion 
directly with the AAO. Please be. aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to re!Wnside~ or reopen. 
Thank you, 
~(~ 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
Wll'W.us:cts.gov 
(b)(6)
Page2 
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, pursuant to section 
203(b){l){A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1){A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary to 
qualify 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)(1){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 petitioner~s priority date established by the petition filing date is June. 4, 2012. On June 11, 2012, 
the director served the petitioner with a request for evidence (RFE). After receiving the petitioner's 
response to the RFE, the director issued his decision on September 26, 2012. On appeal, the petitioner 
submits counsel's brief with new documentary evidence . For the reasons discussed below, the AAO 
upholds the director's ultimate determination that the petitioner has not established her eligibility for the 
classification sought. 
I . . LAW 
Section 203(b) of the Act states, ill 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 
(b)(6)
Page3 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
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 101st Cong:, 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small perCentage who have risen to the very top of the field of endeavor. /d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and 
the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 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 r 
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, KazariG.n 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 st~ted that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set foi:th in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
(b)(6)
Page4 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's r.eceipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
This criterion contains several evidentiary elements the petitioner must satisfy. Accordmg to the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i), the evidence must establish that the alien is the 
recipient of the prizes or the awards (in the plural). The clear regulatory language requires that the 
prizes or the awards are nationally or internationally recognized. The plain language of the regulation 
also requires the petitioner to submit evidence that each prize or award is one for excellence in the field 
of endeavor rather than simply for participating in or contributing to an event or to a group. The 
petitioner must satisfy all of these elements to meet the plain language requirements of this criterion. 
The petitioner provided a self-generated list of her prizes or awards, a letter from ' 
a photograph of three awards, a letter from 
the biography of a _ _ and a 
The director determined 
that the petitioner failed to 
meet the requirements of this criterion. Counsel's appellate brief indicated that the director incorrectly 
concluded that the two letters from simply summarized and listed the petitioner's 
personal achievements. A review of the letters does reveal that also briefly discussed the 
focus of the award criteria and the significance of receiving awards from the 
However, merely indicated ,that the petitioner had received first place recognition 
Within the appellate brief, counsel claims that the director completely overlooked letter. 
However, a review ofthe director's decision reveals that he did discuss this letter, although he utilized 
rather than stating her name. As the petitioner did not 
submit evidence of' the national dr international recognition of her awards, such as national or 
widespread coverage of the accolades, she has not established that the field at the national level 
recognizes her awards. The plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(i) specifically 
requires that the petitioner's awards be nationally or internationally recognized in the field of endeavor 
and it is her burden to establish every element of this criterion. In this instance, there is no documentary 
evidence demonstrating that the preceding awards were recognized beyond the presenting 
organizations, nor are the awards commensurate with nationally or internationally recognized prizes or 
awards for excellence in the field. Accordingly, the-petitimier has not established that she meets this 
criterion. 
2 The petitioner does not claim .to meet or submit evidence relating to the regulatory categories -of evidence not 
discussed in this decision. 
(b)(6)
PageS 
On appeal the petitioner submits a new article from Within the RFE the director 
requested evidence demonstrating "[t]he significance of the prizes or awards, to include the national or 
international recognition that the prizes or awards share." The purpose of the RFE is to elicit further 
information that clarifies whether the petitioner has established eligibility for the benefit sought as of the 
filing date of the petition. See 8 C.F.R. §§ 103.2(b)(8) and (12). The petitioner's failure to submit 
requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 
8 C.F.R. § 103.2(b)(14). As in the present matter, where the director put the petitioner on notice of a 
deficiency in the evidence and gave the petitioner an opportunity to respond to that deficiency, the 
AAO 
will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764, 
766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the 
director to consider the submitted evidence, she should have submitted the documents in response to the 
director's RFE. /d. Under the circumstances, the AAO will not consider the sufficiency of the evidence 
submitted on appeal. Regardless, the article does not establish any recognition of the petitioner's 
awards outside of 
As such, the petitioner has not submitted evidence that meets the plain language requirements of this 
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. 
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 she 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 fm~l requirement is that the petitioner provide each published 
item's title, date, and author and if the published item is in a foreign language, the petitioner must 
provide a translation that coni plies with the requirements found at 8 C.P.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 provided the foreign language original and translation of an article titled, 
Also related to this article is a 
letter from 
The petitioner also provided a foreign language article fror The director determined 
that the petitioner failed to meet the requirements of this criterion. 
Regarding the article titled, _ _ 
although the petitioner asserted that the article appeared in 
, the translation also does not bear the. publication name in which the article 
(b)(6)
Page6 
appeared. Additionally, the translation does not bear the date of publication nor does it bear the author's 
name; both of which are required under the regulation at 8 C.P.R. § 204.5(h)(3)(iii), and in tum each of 
these is also required within the translation as the regulation at 8 C.P.R. § 103.2(b)(3) requires "a full 
English language translation." The letter from appears to be related to this article and 
I aimed that an article about the petitioner appeared in edition number 88 of his publication. 
letter provided information about the distribution of the publication. The evidence relating to 
this journal's national or international reach is in the form of a letter from the publication itself rather 
than published circulation statisticS from an official or independent website or other publicly available 
source. USCIS need not rely ori the self-promotional material of the publisher. See Braga v. Poulos, 
No. CV 06 5105 SJO (C. D. CA July 6, 2007) a.ff'd 317 F. App'x 680 (9th Cir. 2009) (concluding that 
the AAO did not have to rely on self~serving assertions on the cover of a magazine as to the magazine's 
status as major media). 
Regarding the article _ the article is about the 
petitioner and relating to her work in the field. The translation also contains the title, date, and author 
required by the regulation. However, the petitioner failed to provide independent documentary 
evidence relating to the circulation data of this publication to compare with similar newspapers, and she 
has consequently failed to establish the is a form of major media. See Noroozi v. 
Napolitano, 11 CIV. 8333 PAE, 2012 WL 5510934 *-9.(S.D.N.Y. Nov. 14, 2012). The petitioner also 
provided no documentary evidence related to the distribution data of the to establish 
this published material has a national rather than a regional reach. Publications with only a regional 
reach are not considered to be major media and the petitioner has not established this publication is a 
professional or major trade publication as required by the regulation. Within counsel's initial filing 
statement, he put forth several claims relatirig to this publication's popularity. The director's RFE 
requested "documentary evidence" of circulation information to support the petitioner's claims under 
this criterion, yet in response to the RFE, the petitioner, through counsel only made additional 
unsupported claims within the RFE response statement. The unsupported assertions of counsel do not 
constitute evidence. Matter ofObaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. 
1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The unsupported 
assertions of counsel in a brief are not evidence and thus are not entitled to any evidentiary weight. See · 
INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). On appeal, the petitioner failed to offer any 
additional evidence relating to this publication. 
In view of the foregoing, the petitioner has not submitted evidence that meets the plain language 
requirements of this criterion. · ·· 
Evidence· of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same or an allied field of specification for ..Jhich classification is sought. · 
This criterion requires not only that the petitioner was selected to serve as a judge, but also that the 
petitioner is able to produce evidence that she actually partiCipated as a judge. The phrase "a judge" 
implies a formal designation in a judging capacity, either on a panel or individually as specified at 
8 C.P.R. § 204.5(h)(3)(iv). Additionally, these duties must have been directly judging the work of 
(b)(6)
. I 
Page7 
others in the same or an allied field in which the petitioner seeks an immigrant classification within the 
present petition. The petitioner must submit evidence satisfying all of these elements to meet the plain 
language requirementS of this criterion. 
The petitioner provided three letters in support of her claim under this criterion. The director 
,, determined that the petitioner met the requirements of this criterion. The AAO does not concur with the 
director's determination as it relates to this criterion. 
The letter from owner of the alluded that the petitioner was a 
"savvy judge of art," but did not state that the petitioner had performed in a formal 
capacity as a judge of the work of others. Therefore, this evidence will not serve to satisfy the 
regulatory requirements for the petitioner. 
Regarding the letter from although implied that the 
petitioner served as a judge, he failed to state that the petitioner has actually served in a formal judging 
capacity. stated: "It was very difficult to fmd a ·person that could be such an important 
collaborator for this level of school; not only as a judge of exhibitions, but also as a selector of new 
students and determining their individual talents. [The petitioner] is the artist that since that moment 
has been in charge of that very important help for me, the school and the selection of students for the 
school." This letter's author did not state that the petitioner served as a judge of the work of others in 
the same or an allied field, and as such, letter will not serve to meet the plain language 
requirements of this criterion. · 
The final letter from owner of the indicated that he invited the 
petitioner to participate in an exhibition and that he was honored to include the petitioner as a current 
representative. did not, however, · indicate that the petitioner served in any capacity as a 
judge of the work of others, and as such, his letter will not satisfy this criterion's requirements. 
Based on the above analysis, the AAO does not affirm, and withdraws the director's affirmative 
determination as it relates to this criterion. Therefore, the petitioner has not submitted evidence that 
meets the plain language requirements of this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The plain language of this regulatory criterion contains multiple evidentiary elements that the petitioner 
must satisfy. The first is evidence of the petitioner's contributions (in the plural) in her field. These 
contributions must have already been realized rather than being potential, future contributions. The 
petitioner must also demo~strate that her cOntributions are original. The evidence must establish that 
the contributions are scientific, scholarly, 
artistic, athletic, or business-related in nature. The final 
requirement is 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. Eastrich Multiple Investor Fund, L.P., 51 F:· 3d 28,31 (3rd Cir. 1995) 
(b)(6)
PageS 
quoted in APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 2003). Contributions of 'major 
significance connotes that the petitioner's work has significantly impacted the field. The petitioner 
must submit evidence satisfying all of these elements to meet the plain language requireme~ts of this 
criterion. 
The petitioner provided several letters from experts in her field. The director determined that the 
petitioner failed to meet the requirements of this criterion. 
A review of the letters reveals that all of the authors hold a high respect for the petitioner's work and her 
abilities. Yet, none of the authors identified what was original about her work or her techniques, and 
more importantly, none described how her originality has impacted the field through any means. On 
appeal counsel references the letter from and asserts that the director "callously 
brushed off the fact that · . .. regards the benenciary in the highest esteem in her field of 
endeavor." Counsel also provided a quote from letter. The quote does not address the 
requirement of this criterion that the petitioner must have made original contributions in her field, and 
that these contributions were of major significance. The remaining letters bear the same shortcoming of 
in that fail to identify specific original contributions in the petitioner's field, in addition 
to providing a description 'of the impact of the contribution. 
Vague, solicited letters from local colleagues that do not specifically identify contributions or provide 
specific examples of how those contributions influenced the field are insufficient. Kazarian v. USCIS, 
580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010). In 2010, the Kazarian 
court reiterated that the AAO's conclusion that "letters from physics professors attesting to [the alien's] 
contributions in the field" was insufficient was "consistent with the relevant regulatory language." 596 
F.3d at 1122. The opinions of experts in the field are not without weight and have been considered. 
While such letters can provide important details about the petitioner's skills, they cannot form the 
cornerstone of a successful extraordinary ability claim. USCIS may, in its discretion, use as advisory 
opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 
791, 795 (Comm'r 1988). However, USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. /d. ·The submission of letters from . 
experts supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate the 
content of those letters as to whether they support the alien's eligibility. See id. at 795; see also Matter 
of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be 
evidence as to "fact" but rather is admissible only if it will assist the trier of fact to understand the 
evidence or to determine a fact in issue). 
Based on the noted shortcomings within the expert letters, the petitioner has not submitted evidence that 
satisfies the requirements of this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The director determined that the petitioner met the requirements of this criterion. The AAO affirms 
with the director's determination as it relates to this criterion. 
(b)(6)
Page9 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
r-
This criterion anticipate's that a leading role should be apparent by its position in the overall 
organizational hierarchy and that it be accompanied by the role's matching duties. A critical role should 
be apparent from the petitioner's impact on the organization or the establishment's activities. The 
petitioner's performance in this role should establish whether the role was critical for organizations or 
establishments as a whole. The petitioner must demonstrate that the organizations or· establishments (in 
the plural) have a distinguished reputation. While neither the regulation nor precedent speak to what 
constitutes a distinguished reputation; Merriam- Webster's online dictionary defmes distinguished as, 
"marked by eminence, distinction, or excellence. "3 Dictionaries are not of themselves evidence, but 
they may be referred to as aids to the memory and understanding of the court. Nix v. Hedden, 149 U.S. 
304, 306 (1893). Therefore; it is the petitioner's burden to demonstrate that the organizations or 
establishments claimed under this criterion are marked by eminence, distinction, excellence, or an 
equivalent reputation. The petitioner 
must submit evidence satisfying all of these elements to meet the 
plain language requirements of this criterion. 
The petitioner requested that her activities in the art communit be considered as comparable evidence. 
She also provided a letter from The 
· director determined that the petitioner failed to meet the requirements of this criterion. On appeal, 
counsel asserts that the petitioner's participation as a judge and at cultural events as well as her 
donations to several organizations serve to meet this criterion. Participation as a judge, however, falls 
under its own criterion, 8 C.F.R. § 204.5(h)(3)(iv), and USCIS will not presume that evidence relating 
to that criterion is also presumptive evidence to meet this separate criterion. · · 
Regarding the petitioner's activities in the art community qualifying as comparable evidence, the 
regulation at 8 C.F.R. § 204.5(h)(4) allows an alien to submit comparable evidence if the alien is able to 
demonstrate that he or she is unable to qualify for this classification because the regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x) do not readily apply to the alien's occupation. Where an alien is simply 
unable to meet or submit documentary evidence of at least three of these criteria, the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. As 
the petitioner has not even attempted to demonstrate that the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) do not readily apply to her occupation, the petitioner may not claim her activities in 
the art community as comparable evidence to qualify for this immigrant classification. As such, no 
evidence that the petitioner submitted will be considered as comparable evidence. 
Regarding the letter from. she discussed the critical role that the petitioner "has played in 
the development of the arts as '' This assertion is insufficient to meet the plain 
language requirements of this criterion, which requires the petitioner to have performed in a leading or 
3 See http://www.merriam-webster.com/dictionary/distinguished, accessed on March 5, 2013, a copy of which is 
incorporated into the record of proceeding. 
(b)(6)
Page 10 
critical role for organizations or establishments. The organization or establishment in this instance 
would be rather than the . art department. also indicated that the 
. petitioner "helped the develop its Painting and Drawing Curriculum. 
By introducing stained glass workshops in early 2010; she has created increased enthusiasm among the 
art students. The result has been an increase in enrollment." did not indicate that the 
increase 
in enrollment occurred at the university level or provide any statistical support for the claimed 
increase in enrollment iri the department, and an increase in enrollment within the art program at the 
university is not sufficient to be considered a leading or a critical role for the university as a whole. 
Finally, the record lacks evidence that 
the petitioner is responsible for any increase, such as promotional 
material prominently featuring the petitioner and her curriculum. 
The remrcl is also lacking any actual evidence relating to the distinguished reputation of 
The only reference to the university's reputation is asserted throughout the proceedings 
within counsel's statements or appellate brief. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; 
Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. The unsupported assertions of counsel in a brief are 
not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 
188-89 n.6 (1984). Moreover, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) also 
requires performance in a leading or critical role for "organizations or establishments" in the plural, 
which is consistent with the statutory requirement for extensive evidence. Section 203(b)(1)(A)(i) of 
the Act. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Thus, 
the AAO can infer that the plural in the remaining regulatory criteria has meaning. As the petitioner 
only claimed one organization ·or. establishment under this criterion, even if she demonstrated her 
qualifying role at she would still have failed to satisfy the . plain language 
requirements of this criterion. 
Based on the foregoing, the petitioner has not submitted evidence that meets the plain language 
requirements of this criterion. 
Evidence of commercial successes in the perfonning arts, as shown by box office receipts ·or record, 
cassette, compact disk, or video sales. · 
This criterion anticipates a petitioner will establish eligibility through volume of sales or box office 
receipts as a measure of the petitioner's commercial success in the performing arts. 
While the petitioner did not initially claim to satisfy this criterion, the petitioner asserted eligibility 
under this criterion based on the siile of her paintings in response to the director's RFE. The director 
determined that the petitioner failed to meef the requirements of this criterion. 
'· On appe~l, coun~el states within the brief: 
Given that the beneficiary's field of endeavor is that of a Fine Artist, it is admittedly 
impossible to produce evidence of commercial success in the performing arts. However, 
(b)(6)
Page 11 
taking the former two sets of criteria together, namely, "commanding high 
remuneration" and evidence of "commercial success", we feel that the prices her works 
command on the market can comparably meet the final two prongs; therefore, this 
criterion can be said to have been met. 
(Bold in the original.) 
First, the petitioner failed to assert her eligibility for the high salary or other significantly high 
remuneration criterion at 8 C.F.R. § 204.5(h)(3)(ix) prior to the appellate brief. The director's RFE 
stated that no evidence was submitted under the significantly high remuneration criterion. Within the 
RFE response, neither counsel nor the petitioner refuted this declaration by the director. The petitioner 
must claim every criterion that the petitioner would like to be considered before the director. New 
eligibility claims will not be considered on appeal in instances when the petitioner was notified of the 
types of evidence that are required to demonstrate eligibility and was afforded the opportunity to 
provide the evidence prior to the issuance of an adverse decision. See Matter of Soriano, 19 I&N Dec. 
at 766. 
Additionally, counsel's an.alysis quoted above ignores the explicit regulatory requirement that all 
eligibility for the commercial success criterion must be demonstrated by evidence relating to the 
performing arts. Counsel acknowledges that the petitioner's occupation falls within the "Fine Arts," or 
more appropriately as a visual artist. It logically follows that as USCIS may not unilaterally impose 
novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5, as expressed in 
Kazarian, 596 F.3d at 1121, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir.2008), 
neither can USCIS ignore clearly stated regulatory requirements. Therefore, counsel's position is not 
persuasive. 
Furthermore, the regulatory language at 8 C.F.R. § 204.5(h)(4) precludes the consideration of 
comparable evidence in this case, as there is no indication that the standards specified by the regulation 
at 8 C.F.R. § 204.5(h)(3) do not readily apply to the petitioner's occupation. In fact, as indicated in this 
decision , counsel mentioned evidence at the time of the initial petition filing or in response to the RFE 
that specifically addressed seven of the ten criteria at the regulation at 8 C.P.R. § 204.5(h)(3). Where an 
alien is simply unable to meet or submit documentary evidence of at least three of these criteria, the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of 
comparable evidence. · As such, no evidence that the petitioner submitted will be considered as 
comparable evidence. 
As a result of the above noted deficiencies, the petitioner has not submitted evidence that meets the 
plain language requirements of this criterion. 
B:Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
(b)(6)
. . . .. 
Page 12 · 
IlL 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 have risen to the very top of the field of endeavor. 
Had the petitioner submitted the requi~ite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would . be a fmal 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 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits deterrnination.4 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent 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; Matter of Soriano, 19 I&N Dec. at 766 (citing Matter of Brantigan, 11 I&N Dec. 
493 (BIA 1966)). Here, the petitioner has not sustained that burqen. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed. 
4 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). In any future ·proceeding, the AAO maintains the jurisdiction to conduct a final merits determination 
as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of 
the· Act; section 204(b) of the Act; ~HS 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 Awelio, 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).