dismissed EB-1A Case: Arts

(b)(6)
DATE: 
IN RE: 
JAN 2 3 2015 Office: NEBRASKA SERVICE CENTER 
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 (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://www.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, 
Ql�berg 
trehief, �dministrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska 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 (the Act), 8 U. S.C. § 11 53(b)(l)(A), which makes 
visas available to aliens who can demonstrate their extraordinary ability through sustained national or 
international acclaim and whose achievements have been recognized in their field through extensive 
documentation. The director determined that the petitioner had not satisfied the initial evidence 
requirements set forth at 8 C.F. R § 204. 5(h)(3), which requires documentation of a one-time 
achievement or evidence that meets at least three of the ten regulatory criteria. 
On appeal, the petitioner submits a brief and additional documentation. The petitioner claims that the 
director erred in not finding that he meets at least three of the regulatory categories of evidence set forth 
in the regulations at 8 C.F.R. § 204. 5(h)(3)(i)-(x). For the reasons discussed below, we agree that the 
petitioner has not established his eligibility for the exclusive classification sought. Specifically, the 
petitioner has not submitted qualifying evidence of a one-time achievement pursuant to 8 C.F.R. 
§ 204. 5(h)(3), or evidence that satisfies at least three of the ten regulatory criteria set forth in the 
regulations at 8 C.F.R. § 204. 5(h)(3)(i)-(x). As such, the petitioner has not demonstrated that he is one 
of the small percentage who is at the very top in the field of endeavor, and that he has sustained 
national or international acclaim. See 8 C.F.R. § 204. 5(h)(2), (3). Accordingly, we will dismiss the 
petitioner's appeal. 
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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Page 3 
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 st 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) sets forth a multi-part analysis. First, a petitiOner can 
demonstrate the alien's sustained acclaim and the recognition of the alien's achievements in the field 
through evidence of a one-time achievement (that is, a major, internationally recognized award). If the 
petitioner does not submit this evidence, then a petitioner must submit sufficient qualifying evidence 
that meets at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (91h Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination). See also Rijal v. USCIS, 
772 F.Supp.2d 1339 (W.D. Wash. 2011) (affirming USCrS' proper application of Kazarian), aff'd, 
683 F.3d. 1030 (91h Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) (finding 
that USCrS appropriately applied the two-step review); Matter of Chawathe, 25 r&N Dec. 369, 376 
(AAO 2010) (holding that the "truth is to be determined not by the quantity of evidence alone but by 
its quality" and that users examines "each piece of evidence for relevance, probative value, and 
credibility, both individually and within the context of the totality of the evidence, to determine 
whether the fact to be proven is probably true"). 
II. ANAL YSrS 
A. Evidentiary Criteria 1 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The director determined that the petitioner established eligibility for this criterion. The plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[ d]ocumentation of the alien's receipt of lesser 
nationally or internationally recognized prizes or awards for excellence in the field of endeavor." 
However, for the reasons outlined below, a review of the record of proceeding does not reflect that the 
petitioner submitted sufficient documentary evidence establishing that he meets the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(i). 
1 We have reviewed all of the evidence the petitioner has submitted and will address those criteria the 
petitioner claims to meet or for which the petitioner has submitted relevant and probative evidence. 
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Page 4 
The etitioner claimed eligibility for this criterion based on his receipt of the 
from the 
and the 
The director found 
that the did not qualify as a lesser nationally or internationally 
recognized prize or award for excellence. The director, however, determined that the petitioner's receipt 
of the met the plain language of this regulatory criterion. Based on the petitioner's single 
receipt of a nationally or internationally recognized prize or award for excellence, the director found 
that the petitioner established eligibility for this criterion. 
Regarding the 
. 
__, at the initial filing of the petition, the petitioner, through counsel, 
claimed that he received "the prestigious and notable 
The petitioner, however, submitted no documentation to establish that the 
is, in fact, an or that it is awarded by the The 
petitioner submitted a photograph of the award and screenshots from www The 
screenshots claim that the . "is the premier award" and "is one of the most sought-after 
awards by industry leaders, from large international films to local production companies and ad 
agencies." In his decision, the director cited the screenshots as the basis for his favorable 
determination. The petitioner, however, did not submit any independent, objective evidence 
demonstrating that the are nationally or internationally recognized for excellence 
consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i). There is no evidence 
beyond the awarding entity's claims that the awards are nationally or internationally recognized for 
excellence. USCIS 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, 4 F.Supp.3d at 134-35 (upholding USCIS' decision to give 
limited weight to uncorroborated assertions from practitioners in the field). Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft 
of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 
1988); 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). As such, the petitioner did not establish that his receipt of the 2008 Telly Award 
meets the plain language of this regulatory criterion. 
Regarding the the petitioner submitted a certificate from 
reflecting that he received the achievement award as an employee with 
The petitioner did not submit any other documentation regarding the 
so as to demonstrate that the achievement award is nationally or 
internationally recognized for excellence in the field. There is no evidence establishing that the 
achievement award qualifies as a nationally or internationally award for excellence consistent with the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i). Therefore, we agree with the director that 
the does not meet the plain language of this regulatory criterion. 
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Although not discussed in the director's decision, at the initial filing of the petition, the petitioner also 
claimed eligibility for this criterion based on Specifically, the 
petitioner, through counsel, claimed: 
Although the identif[ies] [the petitioner's] current 
employer as the recipients of the award the actual recipient of the awards is [the 
petitioner], since his innovative and exceptional 3D Imagery Design works on the 
clients' projects were the basis of the company receiving the awards and the awards 
were given for [the petitioner's] 3D Imagery Design work. 
The petitioner also submitted a letter from Managing Director for who 
claimed that the petitioner directly contributed to the number of awards and recognitions that· 
_ 
received including the In addition, the petitioner submitted 
screenshots from www regarding award reflecting: 
Each year, places a strong emphasis on recogniZmg supplier erformance 
excellence through the Supplier of the Year award, which is prem1er 
recognition for our global supply chain partners who demonstrate distinguished 
performance in quality, affordability and reliability in 16 different categories. 
Further, the petitioner submitted a news release reflecting that recognizes 
"organizations' exceptional performance and contributions to success" and listed numerous 
organizations, including that received awards. Moreover, the etitioner submitted an email 
with an attached photo claiming it to be the 
According to the news release, the was awarded to rather than to 
the petitioner. Further, the award is granted to "organizations" rather than to individuals. An award 
that was not specifically presented to the petitioner is not tantamount to his receipt of a nationally or 
internationally recognized award for excellence. It cannot suffice that the petitioner was one member 
of a large group or an organization that earned collective recognition. Regardless, the petitioner did not 
submit any documentation establishing that the Supplier of the Year award is recognized beyond 
as a nationally or internationally recognized award for excellence pursuant to the plain language 
of the regulation at 8 C.P.R. § 204.5(h)(3)(i). Therefore, the Supplier of the Year award does not meet 
the plain language of this regulatory criterion. 
Finally, had the petitioner submitted supporting documentary evidence showing that his . 
met the elements of this criterion, which he has not, section 203(b )(l)(A)(i) of the Act requires 
the submission of extensive evidence. Consistent with that statutory requirement, the plain language of 
the regulation at 8 C.P.R. § 204.5(h)(3)(i) requires receipt of more than one nationally or internationally 
recognized prize or award for excellence. Significantly, not all of the criteria at 8 C.P.R. § 204.5(h)(3) 
are worded in the plural. Specifically, the regulations at 8 C.P.R. §§ 204.5(h)(3)(iv) and (ix) only 
require a single instance of service as a judge or a single high salary. When a regulatory criterion 
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Page 6 
wishes to include the singular within the plural, it expressly does so as when it states at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." Thus, the plural in 
the remaining regulatory criteria has meaning. In a different context, federal courts have upheld 
US CIS' ability to interpret significance from whether the singular or plural is used in a regulation. Cf 
Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at *1, *12 (D.C. Cir. March 26, 2008); 
Snapnames.com Inc. v. Chertoff, 2006 WL 3491005, at *1, *10 (D. Or. Nov. 30, 2006) (upholding an 
interpretation that the regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree 
at 8 C.F.R. § 204.5(1)(2) requires a single degree rather than a combination of academic credentials). 
For the reasons stated above, we withdraw the decision of the director for this criterion. Accordingly, 
the petitioner did not establish that he meets 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. 
The director determined that the petitioner did not establish eligibility for this criterion. In the 
petitioner's brief submitted on appeal, he did not contest the findings of the director for this criterion or 
offer additional arguments. Therefore, the petitioner has abandoned this issue. See 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) (the court found the plaintiffs claims to be 
abandoned as he failed to raise them on appeal). 
Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
At the initial filing of the petition, the petitioner, through counsel, did not specifically request eligibility 
for this criterion in his cover letter. Rather, the petitioner claimed: 
Because of [the petitioner's] extraordinary work and skills in 3D imagery design, [the 
petitioner] and his 3D imagery design work on the ' have been 
published nationally and internationally in major aviation and entertainment media such 
as 
* * * 
[The petitioner's] 3D images and animations are currently being shown on 
websites and is 
published in 
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Page 7 
The petitioner also submitted several articles from the October edition of a letter 
from Senior Marketing Manager for stating that the petitioner has worked on the 
marketing campaign that was "published in our brochures, in-flight magazine, 
internal communications, point of sale material in our retail estate, emails and on our website"; 
screenshots from www and a sworn statement from Publishing 
Director, and .....�Audience Development Director, stating that has a paid 
average circulation of 550,000. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires "[e]vidence of the alien's 
authorship of scholarly articles in the field, in professional or major trade publications or other major 
media." In general, scholarly articles are written by and for experts in a particular field of study, are 
peer-reviewed, and contain references to sources used in the articles. In this instance, the petitioner's 
documentary evidence reflected images of the petitioner's work in promotional materials; none of the 
material was authored by the petitioner, and the material did not contain the characteristics of scholarly 
articles. Further, the director concluded that did not constitute 
professional publications in the petitioner's field of 3D imagery design. As such, the director issued a 
request for evidence (RFE) pursuant to the regulation at 8 C.F.R. § 103.2(b )(8) and explained how the 
evidence did not meet this regulatory criterion. In response to the director's RFE, the petitioner did not 
contest the preliminary findings of the director for this criterion, offer additional arguments, or 
otherwise submit evidence establishing that he has authored scholarly articles in professional or major 
trade publications or other major media. In the director's decision, the director indicated that the 
petitioner "did not address the insufficiencies relating to this criterion." 
On appeal, the petitioner contends that the director "failed to consider 'comparable evidence' for the 
field and industry in assessing satisfaction of the criterion" and claims: 
The postings of [the petitioner's] articles in popular aviation industry leading 
publications and websites do constitute authored published materials in "professional 
major media" and evidence the widespread recognition of [the petitioner] as an 
outstanding 3D hnagery Designer and professional. Satisfaction of this regulatory 
criterion is not limited to the traditional "scholarly publications" that would be used in 
other traditional industries and professions; thus [the petitioner] has satisfied this 
criterion of the regulation in support of the EB-1 petition. 
Regarding the claim regarding the director's failure to consider comparable evidence pursuant to the 
regulation at 8 C.F.R. § 204.5(h)( 4), the petitioner did not specifically request at either the initial filing 
of the petition or in response to the director's RFE that the petitioner's documentary evidence should be 
considered comparable to the scholarly articles criterion. Rather, in response to the director's RFE, the 
petitioner claimed that comparable evidence can be used for the display criterion at the regulation at 8 
C.F.R. § 204.5(h)(3)(vii). Furthermore, the director did, in fact, address in his decision the claim of 
comparable evidence. Specifically, the director stated: 
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8 C.F.R. Section 204.5(h)(4) states that if the above standards do not readily apply to the 
[petitioner's] occupation, the petitioner may submit comparable evidence to establish 
the [petitioner's] eligibility. Counsel makes use of this regulation in her response to the 
RFE letter, however, she did not declare and demonstrate why the standards do not 
readily apply to the [petitioner'] occupation. The burden is on the petitioner to 
demonstrate this. As such, this evidence will not be considered in the context of 
"comparable" evidence. 
Regarding comparable evidence, 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. Moreover, the regulation at 8 C.F.R. § 204.5(h)(4) provides "[i]f the above 
standards do not readily apply to the [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.F.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, the petitioner must 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.F.R. § 204.5(h)(3)(i)-(x). 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). 
The regulatory language precludes the consideration of comparable evidence in this case, as there is no 
indication that eligibility for visa preference in the petitioner's occupation as a 3D graphic imagery 
designer cannot be established by the ten criteria specified by the regulation at 8 C.F.R. § 204.5(h)(3). 
In fact, as indicated in this decision, the petitioner's brief mentions evidence that specifically addresses 
three of the ten criteria at the regulation at 8 C.F.R. § 204.5(h)(3). An inability to meet a criterion, 
however, is not necessarily evidence that the criterion does not apply to the petitioner's occupation. 
Further, the petitioner did not provide any documentation establishing that the regulatory categories of 
evidence are not appropriate to the profession of a 3D graphic imagery designer. Where an alien is 
simply unable to meet or submit documentary evidence of 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. 
Finally, the petitioner did not explain and we are not persuaded that submitting images of the 
petitioner's work is comparable to authoring scholarly articles in professional or major trade 
publications or other major media. 
Accordingly, the petitioner did not establish that he meets this criterion. 
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Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires "[e]vidence of the display of the 
alien's work in the field at artistic exhibitions or showcases." The petitioner submitted documentary 
evidence reflecting that he designed a ' that was displayed on video boards 
during the games. The director determined: 
This criterion has not been met because the evidence does not indicate that the 
[petitio'ner's] works were displayed at artistic exhibitions or showcases (virtual or 
otherwise). football games cannot be considered as being artistic exhibitions or 
showcases, as they are athletic competitions. 
On appeal, the petitioner's brief claims: 
The USCIS limits application of the law by failing to recognize that the display of the 
[petitioner's] work at an football game is a "Showcase" in satisfaction of the 
regulation. The regulation requires a display of the [petitioner's] work at either "artistic 
exhibition" or "showcase", not an "artistic showcase"; thus, then venue of the display is 
not limited to an "artistic" forum. A plain meaning of the word conveys that the 
definition of a Showcase is "an event, occasion, etc. that shows the abilities or good 
qualities of someone or something in an attractive or removable way". Marriam­
Webster [sic] Online Dictionary, Showcase (Page 1). 
We are not persuaded by the petitioner's attempt to parse the regulation. The interpretation that 8 
C.F.R. § 204.5(h)(3)(vii) is applied to visual artists is longstanding and has been upheld by a federal 
district court. See Negro-Plumpe v. Okin, 2:07- CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) 
(upholding an interpretation that performances by a performing artist do not fall under 8 C.P.R. 
§ 204.5(h)(3)(vii)). Therefore, as this regulatory criterion applies to visual artists, the exhibitions or 
showcases must also be artistic in nature. Since the petitioner's work was displayed on the video board 
at an athletic event, it was not displayed at an artistic exhibition or showcase. As such, we concur with 
the director's conclusion for this criterion. 
Moreover, on appeal, the petitioner's brief claims that his "3D imagery design work was part of the 
artistic Washington." The petitioner 
submitted an unidentified document with an advertisement for' ' from February 
March (unidentified year). The petitioner also submitted six screenshots purportedly of the 
petitioner's work for the mask display. 
The petitioner's documentary evidence does not establish that his work was actually displayed at either ' The petitioner, for example, did not submit 
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any documentary evidence from the event confirming that the petitioner's work was displayed. 
Moreover, as the petitioner did not previously make this claim or submit documentary evidence and the 
evidence does not reflect the year the event took place, the petitioner did not demonstrate that the 
exhibition occurred prior to the filing of the petition. Eligibility must be established at the time of 
filing. 8 C.P.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, citing 
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. Had the petitioner submitted documentary 
evidence establishing that his work was actually displayed prior to the filing of the petition, which he 
did not, the plain language of this regulatory criterion also requires the petitioner's work to be displayed 
at more than one artistic exhibition or showcase. 
Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director determined that the petitioner established eligibility for this criterion. The plain language 
of the regulation at 8 C.P.R. § 204.5(h)(3)(viii) requires "[e]vidence that the alien has performed in a 
leading or critical role for organizations or establishments that have a distinguished reputation." In 
general, a leading role is evidenced from the role itself, and a critical role is one in which the alien 
contributed in a way that is of significant importance to the outcome of the organization or 
establishment's activities. 
A review of the record of proceeding reflects that the petitioner submitted reference letters detailing the 
petitioner's critical roles with _ _ for his work on the virtual tour and 
marketing campaign. The petitioner also submitted documentary evidence 
establishing that ' have distinguished reputations. For these reasons, we concur with 
the findings of the director for this criterion. 
Accordingly, the petitioner established that he meets this criterion. 
B. Summary 
For the reasons discussed above, we agree with the Director that the petitioner has not submitted the 
requisite initial evidence, in this case, evidence that satisfies three of the ten regulatory criteria. 
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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 has risen to the very top of his or her field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the field of endeavor," and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. As the petitioner has not done so, the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of 
presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) 
and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final 
merits determination referenced in Kazarian, a review of the evidence in the aggregate supports a 
finding that the petitioner has not demonstrated the level of expertise required for the classification 
sought. 2 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. at 128. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
2 We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 
381 P.3d 143, 145 (3d Cir. 2004). In any future proceeding, we maintain the jurisdiction to conduct a final 
merits determination as the office that made the last decision in this matter. 8 C.P.R. § 103.5(a)(1)(ii); see 
also INA §§ 103(a)(1), 204(b); DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.P.R. § 2.1 
(2003); 8 C.P.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).