dismissed EB-1A Case: Arts

LS. Dq>actment of Homeland Sn~urit~ 
[,:.S. Citircmhir dnd Illllm~~r:l1i\l11 Sen kr, 
Adl1llni~!rClti\'L '\prc~ll~ ()fficl' (c\AO" 
20 \ti\,,;r, hue-en" .'\1 C' .. 'J W._ \1-; ~()()(I 
\\ ,[\1l11H.:('lll, DC 2U:'i2l)-2(i90 
u.s. Citizenship 
and Immigration 
Services 
DATE: 
OCT 2 2 2012 
Office: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)( I )(A) of the Immigration and Nationality Act, 8 USc. § 1153(b)( I )(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed plcase find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
with the field office or service center that originally decided your case by filing a 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 file any motion directly with the AAO. Please be aware that 8 C.F.R. 
§ I 03.5(a)( I lei) requires any motion to be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
Thank you. 
JlfJ€L~dn&lc 
l~erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant vIsa petItIon was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal, 
The appeal will be dismissed, 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U,S,c' § 1153(b)(l)(A), as an 
alien of extraordinary ability in the arts, The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of his 
sustained national or international acclaim, 
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)( I )(A)(i) of the 
Act and 8 c'FR, § 204,5(h)(3), The implementing regulation at 8 C,FR § 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'FR, § 204,5(h)(3 lei) 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, the petitioner submits evidence of publ ished material about him in Korea Times San 
Francisco dated September 3, 2011 and documentation of additional exhibitions where his 
artwork was on display in 2010 and 2011. For the reasons discussed below, the AAO will uphold 
the director's decision. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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) Alicns 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 benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USClS) 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 100s
< 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 aeclaim 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 20lU, 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. 20lU). 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.] With respect to the criteria at 
8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USC[S 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." 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 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 counted and then considered 
in the context of a final merits detelmination. 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. Id. 
I Specifically. the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirement .... 
beyond those set tClfth in the regulations at X C.FR. * 204.5(h)(3)(iv) and 8 c.F.R. ~ 204.5(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria 2 
Documentation of the alien's receipt of lesser nationally or internationally 
recofi/lized prizes or awardsf()r excellence in thefield (i( endeavor. 
~titioner submitted a letter from 
_statmg: 
Thank you for submitting your application to 
Program, and congratulations on passing our portfolio review! We welcome you to join 
our residency program in the field of digital mediums. Our studio consists of a traditional 
printmaking studio, electronic media center, art gallery and print archive. 
* * * 
Our Studio and/or Electronic Media Center Manager will be in contact with you in 
March, 2006 to do an initial technical review via phone or email. This helps us to know 
what equipment and processes you will be using during your residency, and also 
identifies any classes or technical tutoring you may need prior to starting your residency. 
As an artist-in-residence, you would receive a 20% discount on our classes and tutoring. 
We would like you to know that every artist working at _ is substantially subsidized 
by donated and earned income, and that the artist-in-residence fees represent only a small 
portion of the actual cost of our facilities. Although we are unable to offer you any 
financial assistance at this time, we hope that you will accept our invitation. Also please 
note that we do not provide housing services. 
The petitioner also submitted "Artist-in-Residence Program" information from the _that 
states: 
Starting out with a dozen artists from seven countries in 197 
Program has steadily grown to reach its current annual population of approximately 
seventy-five artists from around the glohe. 
_encourages artists working in a variety of media that reflect a combination of artistic 
vision, conceptual creativity and technical skills. (Application guidelines for the Artist-in­
Residence Program are available on website.) Resident artists receive keys to the 
studio to allow 24-hour, 365-day access to the facilities and equipment in addition to dis­
counts on classes and tutoring. Works hy resident artists are featured in an annual 
exhibition at the 
2 On appeaL the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
Our electronic media center houses sound and video editing equipment, four large-format 
digital printers, still and video digital cameras, and an all-new photo shooting studio with 
4xS camera and Northlight lighting system. We also have a black and white darkroom 
and an exposure room with a photopolymer plate-maker. The printmaking studio includes 
etching, lithography, monoprinting, screenprint, aquatint, bookbinding, relief, and 
letterpress equipment. 
* * * 
Artists working in various printmaking techniques, photo-processes, book arts and digital 
media' sound/video production can apply to become an Artist-in-Residence at 
This is a studio residency; housing is not providcd._ provides 
clean rags. alcohol, some etching acid. litho supplies, and screenprint frames. Artists 
provide all other supplies, including paper and ink. 
Residency applications are accepted four times per year. Artists who apply for residency 
should be familiar with at least one of the media offered at _ Considerations for 
acceptance are conceptual creativity and technical knowledge. _ encourages 
experimental uses of both traditional and new technologies, and their admixture. 
On the Form 1-290B, the petitioner asserts that his acceptance to the _ Artist-in-Residence 
Program is a nationally recognized award. The AAO is not persuaded that the petitioner's 
acceptance to a "residency program in the field of digital mediums" constitutes his receipt of a 
nationally or internationally recognized "prize" or "award" for excellence in the field of 
endeavor. The AAO notes that competition for the _ Artist-in-Residence Program was 
limited to those who submitted applications to the residency program. Further, the plain 
language of the regulation at 8 C.F.R. § 204.S(h)(3)(i) requires evidence of nationally or 
internationally recognized prizes or awards "for excellence in the field of endeavor." There is no 
documentary evidence demonstrating that the petitioner's selection was contingent on his 
excellence in the visual arts field. Instead. the preceding information from the. indicates that 
"considerations for acceptance are conceptual creativity and technical knowledge." Moreover, 
the petitioner did not submit evidence of the national or international recognition of his acceptance 
to the _ program. The plain language o/" the regulation at 8 C.F.R. § 204.S(h)(3)(i) specifically 
requires that the petitioner's awards be nationally or internationally recognized in the field of 
endeavor and it is his burden to establish every element of this criterion. In this instance, there is no 
documentary evidence demonstrating that the petitioner's selection was recognized beyond the 
_ and therefore commensurate with a nationally or internationally recognized prize or award 
for excellence in the field. 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(i) requires "nationally 
or internationally recognized prizes or awards" in the plural. The use of the plural 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.S(h)(3) are worded in the plural. 
Page 6 
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 
in a regulation. See 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). Therefore, even if the petitioner were to establish that his 
acceptance to the. residency program meets the elements of this criterion, which he has not, the 
plain language of the regulation at S C.F.R. § 204.5(h)(3)(i) requires evidence of the petitioner's 
receipt of more than one qualifying prize or award. Accordingly, the petitioner has not 
established that he meets this regulatory criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in thefieldfor which classification is 
sought. Such evidence shall include the title, date, and author of'the material, and 
any necessary translation. 
The AAO withdraws the director's finding that the petitioner meets this regulatory criterion. In 
general, in order for published material to meet this criterion, it must be about tlie petitioner and, as 
stated in the regulations, be printed in 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 pm1icular locality 
but would qualify as major media because of significant national distribution, unlike small local . , commumty papers: 
The petitioner submitted a November 30, 2008 article in San Jose Mercury News entitled 
"HOLIDAY GIFT GUIDE, Happy Holidays from California, GIFTS THAT WILL MAKE 'EM 
WISH THEY WERE HERE." This article is about Califomia-inspired gift ideas and only briefly 
mentions the petitioner. The published material itself is not about the petitioner. The plain 
language of the regulation requires that the published material be "about the alien" and "relating 
to the alien's work in the field." It is insufficient that the petitioner be mentioned within 
published material appearing in one of the three regulatory required publication types. As the 
regulation does not provide that one may satisfy this criterion by relying on evidence that he or 
she was simply noted within published material, the published piece itself must be about the 
person and relating to his or her work in the field for which classification is sought. See 
generally Negro-Plumpe v. Okin, 2:07-CY-S20-ECR-RJJ at 7 (D. Nev. Sept. 8, 200S) (upholding 
a finding that articles about a show arc not about the actor). The petitioner also submitted a 
-' Even with nationally-circulated newspaper~, consideration must he given to the placement of the article. For 
example. an article that appears in the Washil1gtoll 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 7 
January 10, 2003 article in the Chicago SUIl-Times entitled " This 
article, which only briefly mentions the petitioner and incorrectly refers to him as a female 
("Her"), is not about the petitioner. Instead, the article is about the "Home Work/s" exhibition of 
the School of the Art Institute of Chicago at the _ Gallery, In response to the 
director's request for evidence, the petitioner submitted information from Wikipedia, an online 
encyclopedia, indicating that the Sail Jose Mercury News and the Chicago SUIl-Times rank eighth 
and seventeenth, respectively, for daily circulation among newspapers in the United States, With 
regard to information from Wikipedia, there are no assurances about the reliability of the content 
from this open, user-edited internet site. 4 See Lamilem Badasa v. Michael Mukasey, 540 F.3d 
909 (Slh Cir. 2008). Accordingly, the AAO will not assign weight to information for which 
Wikipedia is the source. Thus, the petitioner has failed to submit reliable documentary evidence 
establishing that the preceding newspapers qualify as major media. 
The petitioner submitted a September 12, 2003 article in the Naperville SUIl entitled "Home is 
where the art is," but the article does not even mention the petitioner. Further, there is no 
evidence showing that the Naperville SUIl newspaper is a form of major media. 
presented at the J. Paul 
Getty Museum Symposium, "From Content to Play: Family-Oriented Interactive Spaces in Art 
and History Museums," June 4-5, 2005. This six-page presentation, which includes only seven 
sentences relating to the petitioner's work, is not about the petitioner. Instead, the presentation is 
about issues that influence the DuPage Children's Museum's "choice of artworks, their 
interpretation and design of their installation." Further, the petitioner has not established that the 
aforementioned symposium "presentation" constitutes "published material" in a professional or 
major trade publication or some other form of major media. 
On appeal, the petitioner submits a September 3, 2011 article about himself in 
_ but there is no circulation evidence showing that this Korean 
~s a form of major media. Further, the September 3, 2011 article 
_was published subsequent to the petition's May 19,2010 filing date. Eligibility must 
1 Online content from Wikipcdi{l is suhject to the following general disclaimer: 
WIKIPEDlA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an onlioe open-cooteot 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to develop a 
common re:-:;ource of human knowledge. The structure of the project allows anyone with an Internet 
connection /0 alter its content. PJease be advised that nothing found here has necessarily been reviewed by 
people with the expertise required to provide you with complete, accurate or reliable information. 
Wikipedia cannot guarantee the validity of the information found here. The content of any given 
article may recently have been changed, vandalized or altered by someone whose opinion does not 
correspond with the state of knowledge in the relevant fields. 
Sa .hl.1.DJL~n. \vikipedia.org!wikiI\Vikircdia:General disclaimer, accessed on October 3, 2012, copy incorporated 
into the record or proceeding. 
Page 8 
be established at the time of filing. Therefore, the AAO will not consider this article as evidence 
to establish the petitioner's eligibility. 8 C.F.R. §§ 103.2(b)(I), (12); Matter of Katigbak, 14 
I&N Dec. 45, 49 (Reg' I 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 /zummi, 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 USC IS cannot "consider facts that come into being only subsequent to the filing 
of a petition." Id. at 176. 
In light of the above, the petitioner has not established dIat he meets this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions (if major significance in the field. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
regulatory criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires 
"Ielvidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field." [Emphasis added.] Here, the evidence must be 
reviewed to see whether it rises to the level of original artistic contributions "of major 
significance in the field." The phrase "major significance" is not superfluous and, thus, it has 
some meaning. Silverman v. Ea.l'trich Multiple Investor Fund, L.P., 5 I F. 3d 28, 31 (3'" Cir. 
1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Scp 15,2003). The director found 
that the submitted evidence "failed to establish that the petitioner's work has influenced, or been 
recognized by, others in his field to such a degree that it could be considered contributions of 
major significance." 
On appeal, the petitioner does not specifically claim eligibility for this regulatory criterion or 
point to specific examples of his original artistic contributions of major significance in the field. 
The AAO, therefore, considers this issue to be abandoned. Sepulveda v. U.S. Att'y Gen., 401 
F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-CY-27312011, 2011 WL 
4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be 
abandoned as he failed to raise them on appeal to the AAO). Accordingly, the petitioner has not 
cstabl ished that he meets this regulatory criterion. 
Evidence of' the di.lplav of the alien '05 work ill the field at artistic exhibitions or 
,\'hOHYOCl5,es. 
On appeal, the petitioner submits examples of the display of his work at artistic exhibitions that 
post-date the May 19,2010 filing date of the petition. As previously discussed, eligibility must 
be established at the time of filing. 8 C.F.R. §~ 103.2(b)(I), (12); Matter off(atigbak, 14 f&N 
Dec. at 49. Accordingly, the AAO will not consider the petitioner's exhibitions OCCUlTing after 
May 19.2010 as evidence to establish his eligibility. Regardless, the AAO affirms the director's 
finding that the petitioner's initial evidence meets the plain language requirements of the 
regulation at 8 C.F.R. § 204.S(h)(3)(vii). 
Page 9 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
C. Prior 0-1 Nonimmigrant Visa Status 
The record reflects that the petitioner is the beneficiary of an approved 0-1 nonimmigrant visa 
petition for an alien of extraordinary ability in the arts. Although the words "extraordinary 
ability" are used in the Act for classification of mtists under both the nonimmigrant 0-] and the first 
preference employment-based immigrant categories, the statute and regulations define the term 
differently for each classification. Section IOI(a)(46) of the Act states, "The term 'extraordinary 
ability' means, for purposes of section 101(a)(l5)(0)(i), in the case of the m1s, distinction." The 
0-1 regulation reiterates that "[ elxtraordinary ability in the field of arts means distinction." 8 C.F.R. 
§ 214.2(0)(3)(ii). "Distinction" is a lower standard than that required for the immigrant 
classification, which defines extraordinary ability as "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." 
8 C.F.R. § 204.5(h)(2). The evidentiary criteria for these two classifications also differ in several 
respects, for example, nominations for awards or prizes are acceptable evidence of 0-] eligibility, 
8 C.F.R. § 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of nationally 
or internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear statutory 
and regulatory distinction between these two classifications, the petitioner's receipt of 0-[ 
nonimmigrant classification is not evidence of his eligibility for immigrant classification as an alien 
with extraordinary ability. FUlther, the AAO does not fmd that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each petition must be decided on a case-by-case 
basis upon review of the evidence of record. 
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); IKIo'A US v. US Dept. of' Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. SaV[{, 724 F. Supp. [103 (E.D.N. Y. 1989). Because USCIS spends less time reviewing I-
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 Un;v. v. Upchurch, 99 Fed. Appx. 556 (5th Cir. 2004) (finding that prior approvals do 
not preclude use IS from denying an extension of the original visa based on a reassessment of 
the alien'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, 19I&N Dec. 593, 597 (Comm'r ]988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Eng. Ltd. ". Montgomery, 825 F.2d 1084, 1090 (6lh Cir. 1987), cerf. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a couIt of appeals and a district court. Even if a service center director has approved a 
Page IO 
nonimmigrant petition on behalf of the alien, !be AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Phi/harmonic Orchestra v. INS, No. 98-2855, 
2000 WL 282785, * I, *3 (E.D. La.), C!ffd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(200 I). 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of the 
small percentage who has risen to the very top of the field of endeavor. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (I) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of thc[irl field of endeavor" and (2) "that !be alien has sustained 
national or international acclaim and that his or her achievements have been recognized in !be field 
of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see a/so 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 !bat conclusion in a final merits determination 5 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence. 
Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(I )(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. 
, The AAO maintains de novo review of all questions of fact and law. See Soltllne v. DOl, 381 f .. ld 143, 145 (3d Cir. 
20(4). 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)(ll(ii). See also section 103(a)(I) of the Act: section 
204(b) of the Act: DHS Delegation Number 0150.1 (effective March I. 20(3): 8 C.F.R. § 2.1 (2003): 8 c.F.R. 
§ 103.I(f)(3)(iii) (2003): Maller 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).