dismissed EB-1A Case: Arts

ldentif)dng data deleted to 
prevent clearly unwarranted 
iDvssion of personal privacy 
PUBLlCCOPY 
DATE: 
JUL 1 3 2012 
Office: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeal~ Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
US. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.s.c. § lI53(b)(1)(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 believc 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 1-29013, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank YOlCYJ-' r 3 
A....._ - -. ,,- r-
"j'S,/ 
Perry Rhcw 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 for the beneficiary 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 
§ l1S3(b)(J)(A). The director determined the petitioner had not established the sustained national or 
international acclaim of the beneficiary 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 CF.R. § 204.5(h)(3). The implementing regulation at 8 CF.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 CF.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence on behalf of the beneficiary under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, upon 
review of the entire record, the AAO upholds the director's conclusion that the petitioner has not 
established the beneficiary'S eligibility for the exclusive classification sought. 
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 
Page 3 
(iii) the alien's entry into the United States will substantially benetit 
prospectively the United States, 
U.S. Citizenship and Immigration Services (USerS) 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 SI 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. Id.; 
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). 
[n 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USC/S, 596 F.3d 1115 (9th Cir. 2010). Although the 
court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation 
of evidence suhmitted to meet a given evidentiary criterion.l 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 
ahout the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has tailed to satisfY the 
regulatory requirement of three types of evidence (as the AAO concluded)." Id. 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 fioal 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 on behalf of the beneficiary under at least three criteria, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. 
I Specifically, the court stated that the AAO had unilaterally imposed novel suhstantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.S(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
--Page 4 
II. ANALYSIS 
A. Prior 0-1 
While USCIS has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the 
beneficiary, the prior approval does not preclude USCIS from denying an immigrant visa petition 
based on a different, if similarly phrased, classification. It must be noted that many 1-140 immigrant 
petitions are denied after USCIS approves prior nonimmigrant petitions. See, e.g, Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); lKEA US v. US Dept. of .Justice, 48 F. 
Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N. Y. 1989). 
The regulatory requirements for an immigrant and non-immigrant alien of extraordinary ability in the 
arts are dramatically different. The regulation at 8 C.F.R. § 214.2(0)(3)(ii) defines extraordinary ability 
in the arts as simply "distinction," which is further defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation relating to the immigrant classification, 8 C.F.R. § 204.5(h)(2), however, defines 
extraordinary ability in any field as "a level of expertise indicating that the individual is on of that small 
percentage who have risen to the very top of the field of endeavor." While the ten immigrant criteria 
set forth at 8 C.F.R. § 204.5(h)(3) appear in nonimmigrant regulations, 8 C.F.R. § 214.2(0)(3)(iii), they 
refer only to aliens who seek extraordinary ability in the fields of science, education, business or 
athletics. Rather. separate criteria for nonimmigrant aliens of extraordinary ability in the arts are set 
forth in the regulation at 8 C.F.R. § 214.2(0)(3)(iv). The distinction between these fields and the arts, 
which appears in 8 C.F.R. § 214(0) does not appear in 8 C.F.R. § 204.5(h). As such, the beneficiary's 
approval for a non-immigrant visa under the lesser standard of "distinction" is not evidence of her 
eligibility for the similarly titled immigrant visa. 
Moreover, the AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g, Matter of 
Church Scientology International, 19I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. 
Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of the alien, the AAO would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 
1139 (5th Cir. 20(n), cert. denied, 122 S.C!. 51 (2001). 
Page 5 
B. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor, 
The petitioner submitted evidence that the beneficiary received two diplomas from the International 
Trade Exhibition & Fashion Show "Crystal Dress" for Best Collection and the Grand Prize and a 
diploma from the "Philanthropic Fond [sic] Russian Silhouette," rewarding the petitioner for her 
participation and indicating that the petitioner was a semi-finalist While the petitioner and counsel 
assert that these awards are equivalent to two Emmy awards and a Cleo award respectively, no 
evidence was submitted to substantiate such claims, 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 (Comrn'r 1998) (citing Matter of Treasure Craft of California, 14 I&N 
Dec. 190 (Reg'l Comrn'r 1972)). The petitioner also failed to submit alternative evidence that the field, 
nationally or internationally, recognizes any of the beneficiary's awards. Rather, the petitioner 
submitted evidence about the organizers of the competition that does not relate to the awards 
themselves. It remains the petitioner's burden to submit evidence addressing every element of a given 
criterion, including that a prize or award is nationally or internationally recognized. 
In light of the above, the petitioner has not established that the beneficiary meets the plain language 
requirements of this regulatory criterion. 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
In response to the director's request for evidence, the petitioner submitted a letter from the Designers 
Union of Armenia, confirming the beneficiary's membership since April 2002. While the letter states 
vaguely that the union members "are professional and experienced designers ... and are highly 
recognized in Armenia and in the international community," the petitioner failed to submit any 
supporting documentary evidence, such as bylaws or the official, specific membership requirements, to 
support this claim. Further, as previously discussed, 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. at 165. 
As previously mentioned, it is the petitioner's burden to demonstrate that the beneficiary meets every 
element of a given criterion, including that membership in the association requires outstanding 
achievements of its members, as judged by recognized national or international experts. In addition, the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "evidence of the alien's 
, The petitioner docs not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 6 
membership in associations" 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. Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and 
(ix) only require service on a single judging panel or a single high salary. When a regulatory criterion 
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 AAO can 
infer that the plural in the remaining regulatory criteria has meaning. In a different context, federal 
courts have upheld USCIS' ability to interpret significance from whether the singular or plural is used 
. I' 1 m a regu allon. 
In light of the above, the petitioner has not established that the beneficiary meets the plain language 
requirements of 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 petitioner submitted two photographic spreads from the December 2001 and September 2002 
issues of the magazine Caravan (also known as Karavan) in which the beneficiary's name is listed 
under the credits as Costume Designer. Initially, counsel asserted that because the beneficiary is the 
only designer of faux tattoo clothing, any articles about her work as essentially about her. On appeal, 
counsel notes that the material appeared in a foreign publication, but does not explain how the foreign 
nature of the publication is relevant to whether the material is "about" the beneficiary. The plain 
language of this regulatory criterion requires "published material about the alien." Compare 8 C.F.R. 
§ 204.5(i)(3)(i)(C) (requiring published material about the alien's work rather than about the alien). 
The preceding articles do not meet the requirements at 8 C.F.R. § 204.5(h)(3)(iii) because they are not 
about the beneficiary relating to her work. 
In addition, the petitioner submitted an interview with the beneficiary from the magazine Natali 
(spelling according to the website mondotimes).4 The AAO acknowledges that the interview is "about" 
the beneficiary. In order for published material to meet this criterion, however, it must be printed in 
1 See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26, 2008); Snapnames.com 
Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2(06) (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). 
4 The AAO notes here that although the article states the beneficiary "was a member of the jury" for a 
"competition or young designers," the petitioner has never raised a claim under 8 C.F.R. § 204.5(h)(3)(iv) and 
has not submitted primary evidence of that role from the competition itself. The AAO, therefore, considers any 
potential claim under this criterion as effectively abandoned. See generally Sepulveda v. u.s. Att'y Gen., 401 
F.3d 1226, 1228 n. 2 (11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 
1998); see also liristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2(11) 
(plaintiffs claims were abandoned as he failed to raise them on appeal to the AAO). 
Pagc 7 
professional or major trade publications or other major media. To qualify as major media, the 
publication should have significant national or international distribution. Some newspapers, such as the 
New York Times, nominally serve a particular locality but would qualify as major media because of 
significant national distribution, unlike small local community papers.s 
The petitioner failed to submit evidence, such as distribution and circulation data, to demonstrate that 
either publication qualifies as major media. Instead, the petitioner submitted information from ebay 
reflecting that Caravan offers issues for sale on this website, information from the website 
mondotimes affirming only that Natali Magazine is a Ukraine magazine covering entertainment and 
untranslated material in a foreign language from Natali Magazine's website. This information does 
not document the circulation and distribution of either magazine. 
Furthermore, as previously discussed, the use of the plural is consistent with the statutory requirement 
for extensive evidence. Section 203(b)(1 )(A)(i) of the Act. Therefore, even if the AAO found that the 
interview of the beneficiary in Natali Magazine was qualifying, which it does not, the plain language of 
this regulatory criterion requires evidence of published material in publications or media in the plural. 
In light of the above, the petitioner has not established that the beneficiary meets the plain language 
requirements of this regulatory criterion. 
Evidence oj" the alien's original scientific. scholarly. artistic. athletic. or business-related 
contributions of major significance in the field. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish that the evidence was qualifying. While the record contains a number of letters praising the 
beneficiary's work, the letters fail to put this evidence in the necessary context to reach a conclusion 
that the beneficiary has made original contributions of major significance. 
states that • [iJt was due to her outstanding and inventive cutting-edge design 
",LILlc'n which resulted and produced our line of tattoo clothing." He also stated that "[ dJue to 
the input and efforts of [the beneficiary], I launched an apparel line which has received international 
acclaim and orders. The beneficiary's contribution to the author's own company is insufficient to 
meet all of the elements for this criterion, most importantly that it be an original contribution "of 
major significance in the field." Furthermore, Mr. Tinsley's letter fails to explain the beneficiary'S 
exact role and the specific contribution(s) made by the beneficiary. 
The remainder of the letters praise the beneficiary for her work, but do not claim that that the 
beneficiary has made original contributions of major significance in the field. Rather the letters, 
while complimentary, are evidence that the beneficiary has successfully completed the tasks she was 
, Even with nationally-circulatcd newspapers, consideration must be given to the placement of the article. 
For example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County. Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
-Page 8 
hired to perform. These letters affirm the originality of the beneficiary's work, but not its impact in 
the field of fashion design at a level consistent with a contribution of major significance in the field. 
The Board of Immigration Appeals (the Board) has held that testimony should not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board also held, however: "We not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available." Id. 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). 
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. USC/S, 580 F.3d 1030, 1036 (9th Cir. 20(9) aff'd in part 596 F.3d 1115 (9th Cir. 2010).6 The 
opinions of experts in the field are not without weight and have been considered above. 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 beneiit sought. 
Id. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may, as this decision has done above, 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 2(08) (noting that expert opinion testimony does not purport to be evidence as to 
·'fact"). USCIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. Id. at 795; see also Matter of So1fici, 22 I&N Dec. 
at 165. USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney General 
of the United States, 745 F. Supp. 9,15 (D.C. Dist. 1990). 
In light of the above, the petitioner has not established that the beneficiary meets the plain language 
requirements of this regulatory criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The director concluded that the pellttoner did not submit qualifying evidence on behalf of the 
beneficiary under 8 C.F.R. § 204.5(h)(3)(vii). The record does not support this conclusion. 
While the AAO does not agree with counsel's assertion that the publication of the beneficiary's work in 
a magazine satisfies this criterion, evidence of the display of the beneficiary's designs in two or more 
fashion shows and/or competitions is sufficient to determine that the beneficiary has satisfied the plain 
language requirements for this criterion. 
(, In 2010, thc Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting 
to [the alien's] contributions in the field" were insufficient was "consistent with the relevant regulatory 
language." 596 F.3d at I 122. 
-Page 9 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner submitted two letters one with the original filing and one in 
response to the director's request for evidence, with whom the beneficiary has worked. In the letter 
submitted in response to the director's request for evidence, _ states that the beneficiary has 
"contributed" to numerous Hollywood films and has "played a key leading role as a Lead 
Designer/Pattern Maker." He also states that "[i]t was due to [the beneficiary's] outstanding and 
inventive cutting-edge design contribution which r~oduced our line of tattoo clothing." In 
the letter submitted with the original petition, _ states that he "launched an apparel 
line ... which lJ had major input from [the beneficiary]" which he "could not have accomplished [] 
without [the beneficiary's] artistic efforts." The AAO notes that also submitted a 
memorandum regarding the beneficiary's terms of employment with his company which states that 
"[the beneficiary's] services will be required on a production by production basis." 
Any organization or establishment that retains the services of an individual requires someone 
competent to provide those services. In the case of a leading role, the petitioner must demonstrate 
how the bencliciary's role fits within the overall hierarchy of the organization or establishment. In 
the case of a critical role, the beneficiary must have contributed to the success of the establishment or 
organization beyond merely providing necessary services. 
The fact that has retained the beneficiary on an as needed basis is insufficient to 
demonstrate that the beneficiary has performed in a leading or critical role. For example, the record 
does not establish the total number of designers and makers or contain an organizational 
hierarchy. It is to be expected that companies like would routinely rely on qualified 
designers and pattern makers. 
While counsel has referenced the beneficiary's contributions to several films, the record contains no 
movie credits naming the beneficiary. The petitioner did submit 1m credits trom the 
International Movie Database (IMDb), but not the beneficiary's. not satistactorily 
resolve how the beneficiary could have played a leading or critical role for films for which she is not 
named in the credits. Moreover, an individual film is not an organization or establishment. 
Furthermore, as previously discussed, the use of the plural is consistent with the statutory requirement 
for extensive evidence. Section 203(b )(1 )(A)(i) of the Act. Therefore, even if the AAO found that the 
beneficiary performed in a leading or critical role, which it does not, the plain language of this 
regulatory criterion requires evidence of performing in a leading or critical role for more than one 
organization or establishment. The burden is on the petitioner to establish that the beneficiary meets 
every element of this criterion. Without documentary evidence demonstrating that the beneficiary 
has performed in a leading or critical role for more than one organization or establishment with a 
distinguished reputation, the AAO cannot conclude that the beneficiary meets this criterion. 
-Page 10 
In light of the above, the petitioner has not established that the beneficiary meets the plain language 
requirements of this regulatory criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be abandoned. 
Sepulveda v. U.S. Att'y Gen., 401 F.3d 1228 n. 2, Hristov v. Roark, 2011 WL 4711885 at *9 (plaintiffs 
claims were abandoned as he failed to raise them on appeal to the AAO). 
B. Summary 
As the petitioner did not submit qualifying evidence on behalf of the beneficiary under at least three 
criteria, the proper conclusion is that the petitioner has failed to demonstrate that the beneficiary 
satisfies the antecedent regulatory requirement of three types of evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence on behalf of the beneficiary 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: (I) 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 determination.' Rather, the proper conclusion is that the petitioner has 
7 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 Au; 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 
19S7) (holding that legacy INS, now USClS, is the sole authority with the jurisdiction to decide visa 
petitions). 
, . 
Page II 
failed to satisfy the antecedent regulatory requirement of three types of evidence. [d. at 1122. The 
AAO does note, however, that counsel's initial attempt to narrow the beneficiary's field to those 
fashion designers who design faux tattoo clothing is not persuasive. The petitioner may not narrow the 
beneficiary's field to include only the beneficiary and her assistants. 
The petitioner has not established the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the 
Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U .S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.