dismissed EB-1A Case: Arts

(b)(6)
DATE: JAN 1 4 2013 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary : 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts-Ave ., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been ~eturned 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, yo·u 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 at 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 reconsider or reopen. · 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner in this instance seeks to classify 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. 
§ 1153(b)(l)(A), specifically as an Artistic Director. The director determined the petitioner had not 
established the beneficiary's 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 demon~trate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 
8 C.P.R. § 204.5(h)(3). The implementing regulation at 8 .C.P.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.P.R.§ 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
On-appeal, counsel submits a brief and additional evidence. Counsel asserts for the first time on appeal 
that the petitioner demonstrated evidence of the beneficiary's lesser national or internationally 
recognized awards pursuant to 8 C.P.R. § 204.5(h)(3)(i). Counsel also maintains that the director's 
denial finding that the petitioner failed to establish qualifying evidence under three of the ten regulatory 
requirements was against the overwhelming evidence in support of the petition. Considering the 
evidence in the aggregate, the petitioner has not established the beneficiary's eligibility for the benefit 
sought by a preponderance of the evidence. 
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, 
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(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. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101
51 
Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. 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 e_yidehce 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 
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)." 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 cbunted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. !d. 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
. requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and· 8 C.F.R. 
§ 204.5(h)(3)(vi). · 
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II. ANALYSIS 
A Prior 0-1 Visa 
While U.S. Citizenship and Immigration Services (USCIS) has approved ·at least one 0-1 
nonimmigrant visa petition filed on behalf of the beneficiary, the prior approval does not pr~clude 
USCIS from denying an immigrant visa petition based on a different, if similarly phrased, 
standard. First, the regulatory requirements for an immigrant and non-immigrant alien of extraordinary 
ability in the arts are dramatically different. 8 C.F.R. § 214.2(o)(3)(ii) defines· extraordinary ability in 
the arts (including the performing 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-krlown 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(o)(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(o)(3)(iv). The distinction between these fields and the arts, 
which appears in 8 C.F.R. § 214(o) 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 his 
eligibility for the similarly titled immigrant visa. Regardless, each petition must be adjudicated on its 
own merits under the regulations which apply to the benefit sought. Thus, the beneficiary's eligibility 
will be evaluated under the ten regulatory criteria relating to the immigrant classification, discussed 
below. 
Moreover, 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); IKEA 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). Because USCIS spends less time reviewing 1-129 
nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are simply 
approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that prior 
approvals do not preclude USCIS from denying an extension of the original visa based on a 
reassessment of beneficiary's qualifications). 
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, 19 I&N Dec. 593, 597 (Comm'r. 1988). It would be absurd to 
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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 had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service c~nter. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
28278.5 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied,l22 S.Ct. 51 (2001). 
B. Evidentiary Criteria 2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of e~deavor. 8 C.F.R. § 204.5(h)(3)(i). 
The petitioner did not previously assert that the beneficiary meets this criterion. In fact, in response to 
the director's request fer evidence, counsel stated that there "are no awards, as such, in the field." On 
appeal, the petitioner submitted documentary evidence for the first time relating to eligibility for this 
regulatory criterion. The methods vary by which a petitioner can be notified of evidenti;.uy 
requirements. For example, a petitioner is considered to be on notice through the specific 
requirements outlined within the regulations, or through various forms of communication from 
USCIS to a petitioner or applicant noting an evidentiary deficiency or requesting more evidence. 
See Ma'tter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988). The regulation at 8 C.F.R. § 204.5(h)(3) 
notified the petitioner of the )specific filing requirements to demonstrate eligibility under the 
extraordinary ability classification. In addition, the instructions to the Form I-140 petition state that 
the petitioner "must attach evidence with [the] petition showing that the alien has sustained national 
or international acclaim" and then lists the ten regulatory critecia. Finally, the director issued a 
request for evidence listing all of the regulatory criteria. Therefore, the petitioner must claim every 
criterion that the petitioner would like to be considered before the director. 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, new 
eligibility claims will not be considered on appeal. See Matter of Soriano, 19 I&N Dec. at 766. 
If the petitioner would like for USCIS to consider claims to additional eligibility criteria, this must 
be accomplished through the filing of a new petition. See id. at 766. Cf. Matter of Jimenez, 21 I&N 
Dec. 567, 570 n.2 (BIA 1996) (finding that claims of eligibility for a waiver presented for the first 
time on appeal are not properly before the Board of Immigration Appeals and that the Board will not 
issue a determination on the matter.) Although the AAO maintains de novo review of appellate 
cases and a petitioner may supplement the record in regards to previous claims, a petitioner may not 
raise a previously unclaimed eligibility criterion on appeal. Matter of Soriano, 19 I&N Dec. at 766. 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. · 
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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. 8 C.F.R. § 204.5(h)(3)(ii). . 
The director concluded that the petitioner did not satisfy this criterion. In support of this criterion, 
counsel asserted that the beneficiary is a member of the The 
unsupported assertions of counsel do not constitute evidence. Matter ofObaigbena, 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). The director found that the petitioner failed to establish 
that outstanding achievement is an essential element for membership. In addition, the director found 
that the petitioner did not establish that membership to the is judged by 
recognized national or international experts within their field. On appeal, counsel essentially concedes 
that the membership to the is insufficient to meet the regulatory 
language of 8 C.F.R. § 8 C.F.R. § 204.5(h)(3)(ii). In the statement accompanying new evidence, 
counsel states that membership in the is more general, in contrast to 
membership in the . 
Counsel implies on appeal that the beneficiary is a member of the The 
petitioner, however, failed to support that claim with any evidence. AS stated above, the unsupported 
assertions of c6unsel do not constitute evidence. Matter ofObaigbena, 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 Dee; at 506. 
Counsel also provided background information on the bv submitting 
copies of pages from the club's website. Finally, counsel submits a letter from the 
Executive Chairman of the that discusses the distinctions awarded by 
the club, as well as the requirements for membership. The website pages that counsel submits are in 
German and while the contents are presented in English in the margins, counsel has failed to submit a 
translation that complies with the terms of 8 C.F.R. § 103.2(b )(3):· 
Translations. Any document containing foreign language submitted to [USCIS] shall be 
accompanied by a full English language translation which the translator has certified as 
complete and accurate, and by the translator's certification that he or she is competent to 
translate from the foreign language into English. 
Therefore, USCIS cannot give weight to- the website pages as evidence for this criterion due to the 
translation deficiencies. 
As for letter, only a small portion of the letter is devoted to describing the 
membership requirements of the club. Specifically,- states that membership is by 
. invitation and is open to those "who have an established track record" and must have produced 
"exemplary work over an extended period of time." USCIS finds that an established track record and 
exemplary work, while indicative of success in the field, does not rise to the level of "outstanding 
achievements," as required by the regulatory language. Consequently, the petitioner has failed to 
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establish that membership in the 
of the regulatory language. 
meets the plain meaning requirements 
Moreover , even if it was assumed arguendo, that the beneficiary's alleged membership in the 
was sufficient to show membership in an association in the field for which 
classification is ·sought, which require outstanding achievements of their members, the petitioner still 
would fail to satisfy the criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) 
requires evidence of membership in qualifying associations in the plural, .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)(i) are word~d in the plural. For instance, the regulations at 8 C.F.R. 
§§ 204.5(h)(3)(iv) and (ix) only require service on a singular 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, USCIS. can infer that 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? 
Accordingly, the petitioner has failed to satisfy 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 which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
Counsel initiallv claimed that the beneficiary served as a judge in connection with his membership of 
the However, as not~cl earli~ ther~ is. no ~viclence in the record 
indicating that the beneficiary is a member of the apart from 
counsel's assertion that he is a member. Such an assertion does not co.nstitute as 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 record also lacks evidence of judging duties the beneficiary ever 
performed. On appeal, the petitioner does not raise any assertions or legal arguments relating to this 
. criterion. Consequently, USCIS concludes that the petitioner abandoned this claim. See Hristov v. 
Roark, No. 09-CV-27312011 , 2011 WL 4711885 at *1, *9 (E.D.N.Y . Sept. 30, 2011) (plaintiffs 
'claims were abandoned as he failed to raise them on appeal to the AAO). 
3 See Maramjaya v. US(,:IS, 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, 2006) (upholding an interpretation that the 
regulatory r~quirement 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). 
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Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The director found that the petitioner satisfied this criterion. The evidence of record, however, does not 
support such a finding. The petitioner submitted numerous letters to demonstrate that the beneficiary 
met the regulatory language. However, US CIS determines the truth not by. the quantity of evidence· 
alone but by its quality. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) citing Matter of 
E-M-, 20 I&N Dec. 77, 80 (Cornm'r 1989). 
As an initial matter, the letters submitted by President of 
Art Director of: Editor-in-Chief of : 
Vice President of , all discuss their experience of 
working with the beneficiary over 10 years ago as a designer or a graphic designer, instead of as an 
Artistic 
Director_ th~ ioh titl~ nrovicl~cl on th~ T-140 visa petition. As for the letter from ~.the 
Head of the while she comments on the volunteer work that the 
beneficiary performed for her school, as an educator she is not qualified to assess the beneficiary's 
contributions in the field of advertising. This group of letters, therefore, lacks probative value as 
evidence for this criterion. ' 
In evaluating the reference letters, USCIS notes that letters containing mere assertions of widespread 
acclaim and vague claims of contributions are less persuasive than letters that specifically identify 
contributions and provide specific examples of how those contributions have influenced the field. 
Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden of 
proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 
(2d, Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
One group of letters focuses on the beneficiary's skills and abilities and is comprised of letters from: 
Managing Director for President of 
and Founder and CEO of For instance, 
writes: "[the beneficiary] is a gifted artist and designer ... [t]his versatility makes him a valued partner 
for agencies worldwide and a prized colleague who knows how to guide and oversee the work." While 
the letters are very complimentary and discuss his success in the industry, they do not discuss specific 
contributions of major significance that impact the field. Creative Director of 
describes the beneficiary's work ~s innovative. The platn language of the regulation at 
8 C.F.R. § 204.5(h)(3)(v), however, requires not only that the beneficiary's work be original but also of 
major significance in the field. · 
In the RFE response, counsel asserts that the focus on "major significance" in the field is problematic 
because it is unclear how to define the significance of the beneficiary's work beyond the companies and 
brands for whom he works. The companies and brands represent individual clients, however, and do 
not represent the field. The beneficiary's role for distinguished companies falls under 8 C.F.R. 
§ 204.5(h)(3)(viii) and cannot create a presumption that the beneficiary also meets· this criterion. To 
hold otherwise would render meaningless the requirement that the beneficiary meet three separate 
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criteria. While the petitioner finds it a challenge to define "contributions of major significance in the 
field," the phrase is part of the plain language of the regulations, and as such, the petitioner must comply 
with the plain language requirement. 
The remaining letters are vague and conclusory, comprised of letters from: 
Dirrrtm nf 
the 
CEO of 
Agent at 
Advertising for 
, Senior Director of 
CEO of 
Global Marketing Director with 
Associate 
Curator for 
Founder and 
. Photographic 
Director of 
Fashion Director at and Account Director at 
For example, writes: "[The beneficiary] is highly respected by advertising and fashion 
executives around the world. His work is constantly evolving and influencing culture and society 
through freshness and creativity." Similarly, states: "[The beneficiary] is an 
extraordinary Art Director providing the innovation for some of the world's biggest companies and 
brands, a fact that places him at the very forefront of the industry." Founder and CEO 
of characterizes the beneficiary's work as "groundbreaking" and asserts that 
extraordinary professio·nals like the beneficiary are ."revolutionizing what we consider to be 'art."' 
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). 
The above discussion shows that the supporting letters the petitioner submitted as documentary 
evidence are insufficient because the content is either too vague, fails to discuss contributions, or fails to 
articulate how a contribution made an impact in the field. Consequently, the MO withdraws the 
director's previous finding with regard to this criterion and concludes that the petitioner failed to satisfy 
the regulatory requirements. 
Evidence that the alien has performed in a Leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)_(viii). 
This criterion anticipates that a leading role should be apparent by its position m the overall 
organizational hierarchy and that it be accompanied by the role's matching duties. A critical role 
should be apparent from the beneficiary's impact on the organization or the establishment's 
activities. The beneficiary'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), upon which the beneficiary has performed a leading 
or critical role, have a distinguished reputation. While neither the regulation nor precedent speak to 
what constitutes a distinguished reputation,· Merriam- Webster's · online dictionary defines 
distinguished as, "marked by eminence, distinction, or excellence." 4 Dictionaries are not of 
4 See hltp://www.mcrriam-wcbstcr.com/dictionary/distinguishcd, accessed on January 3, 2013. 
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themselves evidence, but they may be referred to as aids to the memory and understanding of the 
court. Nix v. Hedden, 149 U.S. at 306. 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 a similar reputation. The petitioner must submit evidence satisfying all of these 
elements to .meet the plain language requirements of this criterion. The director, in this instance, 
concluded that the petitioner satisfied the plain meaning. requirements of the regulation. The 
evidence of the_ record supports this finding. Consequently, the AAO affirms the director's 
conclusions in this regard. 
B. Summary 
The petitioner has failed to submit sufficient relevant, probative evidence to satisfy the regulatory 
requirement of three types of evidence. In fact, other than advertisements alleged to be the beneficiary's 
work product, the record almost in its entirety consists of letters attesting to the beneficiary's role for 
distinguished employers pursuant to 8 C.F.R. §204.5(h)(3)(viii). This evidence does not fall under the 
definition of a one-time achievem!!nt, a major internationally recognized award, and, thu~, must be 
accompanied by evidence relating to two other criteria. 8 C.F.R. § 204.5(h)(3). Counsel implies that 
USCIS should presume eligibility under other criteria from this evidence by suggesting these employers 
would only hire someone extraordinary, but nothing in the regulations implies that evidence sufficient 
to meet 8 C.F.R. § 204.5(h)(3)(viii) is presumptive evidence of meeting any other criterion. 
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 Iield 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[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. 5 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. !d. at 1122. 
5 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 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; DHS Delegation Number 0150.1 (effective March 1, 2003); 
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The petitioner has not established eligibility pursuant to section 203(b)(l)(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. 
8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I~&-N~ Dec. 458, 460 (BIA 
1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa 
petitions). .