dismissed EB-1A Case: Arts

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. A3042 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC Z10PV ,,-- T; 
FILE: EAC 03 238 54230 Office: VERMONT SERVICE CENTER Date: OCT 1 2005 
JN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petitlon for Allen Worker as an Allen of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Natlonal~ty Act, 8 U.S C. 9 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
, . 
INSTRUCTIONS: ., 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 238 54230 
Page 2 
. 
DISCUSSION: The employment-based immigrant .visa pet~tlon was denied by the Director, Vem~ont Semite 
Center, and is now before the Administrative Appeals Office 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. 5 1153(b)(l)(A), as an alien of extraordinary ability in tlle 
arts. The director determined that the petitioner had not established the sustained national or international 
acclaim requisite to classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(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, bus~ness, 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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 8 C.F.R. 5 204.5(h)(3). An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three often other regulatory criteria. Id. However, the weight given to evidence submitted to fulfill the criteria 
at 8 C.F.R. 9 204,5(h)(3), or under 8 C.F.R. 5 204.5(h)(4),'must depend on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained national or international acclaim at the very top of the 
alien's field of endeavor. A lower evidentiary standard would not be consistent with the regulatory definition 
of "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. fj 204.5(11)(2).. 
.- . , 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the arts. The petitioner 
initially submitted supporting evidence of her academic.credentials and scholarships,.seven certificates of merit 
and "winning notifications" for her work in various exhibitions, and six recommendation levers from artists and 
gallery owners in Japan. On appeal, the petitioner 'submits additional evidence including further information 
regarding her Rotary Fellowship, two articles from Japanese art and culture magazines, three copies of the 
Japanese edition of Artnews that contain a gallery advertisement with her name, documentation of nine 
exhibitions of her work, letters verifying the sale of three of her sculptures, and six additional support letters. 
EAC 03 238 54230 
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We first address counsel's contention (made in hkr Motion to Reconsider) that the director should have issued a 
Request for Evidence (RFE) before denying the pet;'tion pursuant to a Citizenship and Immigration Services 
(CIS) Policy Memorandum: William R. Yates, CIS Assoc. Dir., Operations, Reqzresls jor Evidence (RFE) and 
Notices oflntent to Deny (NOID);(Feb. 16, 2005). This memorandum was released after the director issued his 
decision. At that time, the director correctly applied the relevant regulation. Although 8 C.F.R. Ej 103.2(b)(8) 
requires the director to request additional evidence in instances "where there is no evidence of ineligibility, and 
initial evidence or eligibility information is missing," the regulation does not require issuance of an KFE in 
every potentially deniable case. If the director determines that the initial evidence supports a decision of denial, 
the regulation does not require solicitation of further documentation. 
Furthermore, even if the director committed a procedural error in this case by failing to solicit further evidence, 
it is not clear what remedy would be appropriate beyond the appeal process itself. The petitioner has in fact 
supplemented the record on appeal, and therefore it would serve no useful purpose to remand the case simply to 
afford the petitioner the opportunity to supplement the record with new evidence. 
We address counsel's remaining contentions and the evidence submitted in the following discussion of the 
regulatory criteria relevant to the petitioner's case. The petitioner does not claim eligibility under any criteria 
that are not discussed below. 
(i) Doctrrnentution of the alien's receipt of lesser nationally or a~ter?zalioncrll)/ recogriized pr~zes or awards 
for excellence in theJield of endeavor. 
The petitioner claims eligibility under this criterion by virtue of hcr receipt of three certificates of merit, four 
winning notifications, a Rotary fellowship and a scholarship from Nihon University The record ~ncludes copies 
of three certificates of merit presented to the petitioner for work exhibited in three exh~bitions in Korea in 1986 
when the petitioner was an undergraduate student. Catalogues and additional docun~ents accompany the 
certificates, but are printed in Korean and were submitted without certified English translations as required by 
the regulation at 8 C.F.R. tj 103.2(b)(3). The record is devoid of any evidence regarding the significance of the 
petitioner's certif cates or the selection criteria and scopetof these exhibitions. Hence, the evidence subnlitted 
does not establish that these certificates of merit constitute nationally recogn~zed prizes or awards. 
The record also fails to establish the signiticance of the pet~tloner's four "Annual Nlka-Ten Winning 
Notifications" from 1992 through 1995. In Hee Lee, a Korean artist worklng In Japan, explains that "[tlhis is an 
internationally recognized competition and winning it puts an artist in the forefront of the contemporary art 
arena. Ms. Kim won the Nika-Ten competition from 1992-1995 and received extensive favorable press." Yet 
the record contains no further documentation of these exhibitions or any ev~dence of medla coverage. 
Moreover, even if these awards were nationally recognized, they would only evidence the petitioner's past 
acclaim. The notifications do not demonstrate that the petitioner received any prizes or awards for her work in 
the eight years between her most recent Nika-Ten notification in 1995 and the filing of her petition in 2003. 
Finally, the petitioner submitted evidence that she received a Rotary Yoneyama Menlorial Foundation 
Fellowship to support her graduate studies at Tama Art University in Japan and a scholarship from Nihon 
University in Tokyo to pursue post-graduate studies. Scholarships, fellowships and other fomis of merit-based 
financial aid do not meet this criterion because they are awarded only to students to support their education. 
The petitioner's fellowship and scholarship evidence her achievements as an art student, but they are not prizes 
or awards granted to her as a professional artist. On appeal, counsel submits a printout from the website of 
EAC 03 238 54230 
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Rotary International to show that the "Rotary Cluk of Tokyo is an internationally recognized foundation." 
However, the club's international recognition does not render all their fellowships into internationally 
recognized prizes or awards for established artists or other professionals. The submitted printout does not 
contain any detailed information about Rotary fellowships, let alone demonstrate that the petitioner's specific 
fellowship was equivalent to a nationally or internationally recognized prize or award in the arts. Accordingly, 
the petitioner does not meet this criterion. 
fiii) Published nlaterial about the alien in proJessionul or rnajor trade publications or other triajor media, 
relating to the alien's work in thejeld for whkh classlJication is sought. Such e~idence shall include the 
title, date, and author of the material, and any necessaly translntiorr. 
The petitioner did not initially claim eligibility under this criterion. On appeal. she submits two articles from 
Japanese magazines and three copies of the Japanese edition of Artnews as evidence to satisfy this category. 
The first article was published in the April 1994 edition of Nikkei Art, contains a photograph of one of the 
petitioner's sculptures ayed in the "Sprout of Arts" ehibition at the Plus 
Minus Gallery owned by The article does not further discuss the petitioner's 
work, but rather displaying the work of emerging contemporary 
artists in their offices. The second article was published in the Janua 1996 edition of ~oiec& culture'. ~hk 
article is entitled "Memory 
C 
' and discusses the petitioner, her work 
and her solo exhibition at the in Ginza in 1 c petitioner also submitted the June, July and 
August 1994 Japanese an advertisement forthat simply includes 
the petitioner's name in a list of 22 artists represented by the gallery. Advertisements such as this or other paid 
publicity do not constitute published material about an alien. 
Even if the record included evidence that Korean Culture is a professional, major trade publication or other 
major media in Japan, the submitted article about the petitioner would not satisfy this criterion because it was 
published in 1996, seven years before this petition was filed, and does not demonstrate the requisite sustained 
acclaim. Accordingly, the petitioner does not meet this criterion. 
(v) Evidence ofthe alien S original scient@c, scholarly, artistic, athletic, or bus iness-re luted contribzrtions of 
major sign#icance in the field 
As evidence of the petitioner's eligibility under this criterion, counsel cites the recommendation letters 
submitted with the petition and on appeal. While such letters prov~de relevant information about an alien's 
experience and accomplishments, they cannot by themselves establish the alien's el~grbility ~~nder this criterion 
because they do not demonstrate that the alien's work is of major significance in his field beyond the limited 
number of individuals with whom he has worked directly. Even when written by independent experts, letters 
solicited by an alien in support of an Immigration petition carry less weight than preexisting, independent 
evidence of major contributions that one would expect of an alien who has sustained national or international 
acclaim. Accordingly, we review the letters as they relate to other evidence of the petitioner's contributions. 
in Tokyo, states that the petitioner's work "is 
ighly recognizable. Her work makes the viewer stop in his.tracks. She works with wood or stone, often against " 
an outdoor setting or a large indoor background. has a way of integrating the space in her exhibitions 
and she has received excellent reviews in Japan. Her work has been selected by the Tokyo Metropolitan Arts 
Museum on several occasions between 1992 and 1998. This is similar to having one's work at the Museum of 
I 
EAC 03 238 54230 
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Modern Art in New York. She is truly an exemplay artist who has made a huge contribution to contemporary 
art." The record does not fully corroborate these statements. The record contains only one review of the 
petitioner's work from the 1996 edition of Korean Culture and the petitioner submitted no docu~nentation from 
the Tokyo Metropolitan Arts Museum confirming that her work has been collected or exhibited by that 
institution. 
Associate Professor of ceramic? at the 
been aware of the petitioner's work since she was a young artis 
explains that the petitioner "has an ability to develop works that are based in the ancient artistic teachings of the 
East, while maintaining a modem perspective." ~rofessorfurther states that the petitioner's 
sculptures have been part of the contemporary a; arena in Japan since the 1990's. In 1995, she was 
selected to participate in the Lake Naguri International Open-Air Art Exhibition. . . . She integrated the 
beauty of the lake with the textures of the nearby forest. He work uses natural elements in an inventive 
way. She was also selected for an exhibition entitled, Three Asian Artists at the Korean Embassy in 
Japan in 1994. She is the premiere Korean artist working in Japan. Her sculpture emphasizes her 
superior skill in cawing wood, creating elegant shapes. 
oncludes that the petitioner "is one of the most unique and well-respected artists in Japan." 
the petitioner's inclusion in the Lake Naguri exhibition, but does not document the - 
display of the petitioner's work at the Korean Embassy in,Japan. 
explains that as a Korean artist working in Japan, he is "experientially close to 
We are both Korean nationals who chose Japan as the environment in which we would 
further states that the petitioner "has a fresh approach to usrng natural materials 
to be viewed from different angles and she infuses the a6 world with a keen perception about the environment. 
has contributed to artists in Japan, Korea and the United States and will continue to do so." Yet Mr. 
ription of the petitioner's work does not identify any specific, or~g~nal contributions that she has made 
to her field. 
in Tokyo, enplairis that the pctitioncr "prcscnts hcr works that - 
were made by natural material such as wood, soil, stone, and recently - cabbages. She mainly displayed her 
instillation [sic] works between the show room. For example, some planks are curled to make the curved 
surfaces, some electric light bulbs are put on stones, and the ringed monuments are made from cabbages. These 
works show us the existence of nature. Her unique images appear as the new shapes in show room, while 
remaining the original forms [sic]." However, m does not state that the petitioner's work has 
substantially impacted other contemporary sculptors, installation artists or art critics in Japan or abroad; or that 
she has otherwise made original and major contributions to her field. 
- states that the petitioner is "one of the elite of the art 
world in Tokyo.' petitioner's work has been "selected" by the Tokyo 
Metropolitan Arts Museum in 1992, 1993, 1994, 1995 and 1998. As mentioned above, the record contains no 
corroborative evidence from this museum regarding its collection or display of the petitloner's work. Director 
fllrther explains that the petitioner "has an ability to integrate traditional concepts with modem 
techniques to arrive at astonishingly tactile works of art. She infuses natural elements with a new veneer and is 
highly regarded as an extraordinary artist. . . . I can confirm thatwork is apprec~ated by artists and 
EAC 03 238 54230 
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art critics internationally." Yet ~irect-does not give any examples of critical reviews of the 
petitioner's work in Japan or other countries and the record contains only one article about her work from 
Korean Culture magazine. 
an art critic and journalist in Japan, states that the petitioner's work "has been displayed in 
e ibitions in Japan, Korea and France. . . . She is one'of the most highly regarded contenlporary artists. Ms. v 
work has demonstrated sustained international acclaim in the field. She uses natural material as well as 
metals and often places her pieces outside in a field or in an outdoor exhibition. . . . No artist produces 
sculptures with her imaginative flair and sense of connection to the environment. is clearly an 
extraordinary artist." The record documents the petitioner's exhibition of her work in Japan and Korea, but 
contains no evidence that her work has been displayed in France. 
nd the petitioner's former teacher at Tama Art University in Tokyo, 
states that the petitioner's "artistic style combines an ancient oriental feeling with a contemporary approach in a . . 
to connect oriental 
and western art." in New York City, 
anese and Korean 
craftsmanship and sense of aesthetic. The artist's hand in creating the work is very evident and felt by the 
viewer and creates proximity between the viewer, piece, and artist. Her works have received critical acclaim in 
Korea, Japan, and the United States." Accompanyin-letter is a copy of a postcard from the 
petitioner's solo exhibition at the Korean American Art Center in October 2003. We cannot consider this 
evidence because it arose after the petition was filed.. The petitioner must establish eligibility at the time of 
filing; a petition cannot be approved at a future date after, the petitioner becomes eligible under a new set of 
facts. See 8 C.F.R. 3 103.2(b)(12), Mutter of Katigbuk, 14 I&N Dec. 45, 49 (Comm. 1971). Again, the record 
contains only one article about the petitioner's work in Japan and she submitted no evidence that her work has 
been critically acclaimed in the United States. is 
powerful sense of displacement within landscapes. The forms from nature and urban life are calmly reassuring 
in their beauty, but question and provoke spatially and ttieriiatically the viewer's recognition and perception of 
their materiality. Her work is highly.original and skilled, both in concept and execution. I consider her and [sic] 
extraordinary artist who's [sic] work will make significant contribution to art in the United States." The record 
includes documentation of the petitioner's exhibition at NYCoo Gallery in ~~ril2002. - 
explains that the gallery "exhibits the work of American and International emerging artists," thus indicating that 
the petitioner was considered an emerging artist (at least in the United States) at the time her petition wasfiled. 
Indeed, states that NYCoo Gallery will be exhibiting the petitioner's work again in 2005. 
suggesting that the petitioner is still considered an emerging artist. 
composition and sensitive in taste. Her art works remind,as [sic] Oriental images. She always keeps asking 
himself [sic] 'relation between herself and nature,' and 'relation between real~st~c and abstract.' 
has accom lished all she can in her native Korea, Japan. Sbi [sic] is one of the greatest artir 
ever met." P qge 
an art journalist and critic based,in Tokyo, fi~rther expla~ns that the petitioner's work 
makes an "~mportant comment on popular culture. She uses Images from nature and works them into a 
landscape situation. Her manipulations of imagery are magnificent in their ablllty to project social meaning. 
EAF 03 238 54230 
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is interested in the environmental"dilemma of commercial culture, imposing itself in various 
situitions." ~othand-provide perceptive interpretations of the petitioner's 
war$ but they do not state that her work or aesthetic have made original contributions of major significance to 
her field. 
Finally, Professor of A? History a in Japan, states that the petitioner has 
1 "received n~~merous great reviews. Her works continuously. It has proven of 
[sicllher ability and energy.'' devotes the rest of his letter to explaining the petitioner's 
motibations to work in the United States and identifies no original artistic contributions made by the petitioner 
to he; field. 
We have examined the numerous exhibition postcards, catalogues, critlcal reviews, and other evidence 
subditted to establish the credentials of the authors of these recommendation letters and we acknowledge their 
expeke in the petitioner's field. However, the record provides i~ttle evidence to corroborate their assessments 
of the petitioner's work and her alleged contributions to contemporary art in Korea, Japan and other countries. 
As di$cussed above under the third criterion, the record contains only one critical revlew of the petitioner's work 
from Forean Culture magazine printed in 1996. The record indicates that the petltloner pursued ilndergtaduate 
art st~idies in Korea from 1983 to 1987; graduate studies in Japan from 1993 to 1995, and post-graduate studies 
in ~aian from 1996 to 2002. During this period she won three certificates of merit In exhibitions in Korea and 
honois from the annual Nika-Ten competition from 1992-1 995 in Japan. As further d~scussed below under the 
i 
sevenJh criterion, the record documents just two solo exhibitions and seven group exh~b~tions of the petitioner's 
work between 1994 and 2002. On appeal, the petitioner documents her presentation to a class at the Tokyo 
~atioba~ University of Fine Arts and Music, but we cannot consider this evldence because it occurred after the 
petitidn was filed. Again, the petitioner must establish eligibility at the time of filing. See 8 C.F.R. 
9 103:2(b)(12), Katigbak, 14 I&N Dec. at 49. In sum, the evidence ~ndlcates that the petitloner gamed limited 
recogr!ition of her work in Korea and Japan and that her work is well regarded by the authors of her 
recommendation letters. However, these letters mainly descr~be and interpret the petitioner's work, but do not 
identify specific, original contributions of major significance that she has made to her field. Accordingly, the 
petitioner does not meet this criterion. 
(vil) Evidence of the displq of the alien's work in the fieid at artlsnc erhrbrrrons or rhowcmes 
The rebord documents two solo exhibitions of the petitioner's work. rlie first exh~bition war held in April 1994 
at the Morris Gallery in Tokyo. The article printed in 1996 in Korean Culfz/~e favorably discusses this 
exhibition, but the record contains no catalogue, brochure or other evidence from the Morris Gallery 
documknting this show. As discussed above under the fifth criterion, the record includes ev~dence that the 
petitioner had a solo exhibition of her work in New York City in 2002 at the NYCoo Gallery, which "exhibits 
the work of American and International emerglng artists." as stated in Ke~co Watanabe's letter 
In addition to the Nika-Ten Exhibitions and the shows in which the petitroner won certificates of merit in Korea, 
the record documents the inclusion of the petitioner's work in the following seven group exhibitions the 1997 
Lake N,aguri International Open-Air Art Exhibition in Saitama, Japan; the Sh~bayama lntematlonal Open-Air 
Art Eqibition 1997; the 1999 Abiko Open Air Exhibition in Abiko, Japan; "Water, F~re, Earth and Wind," the 
Korea-Japan Contemporary Art Show at the Pusan National Culture Center in Korea in 1999; "Today, Asia - 
from ~brea" at the Civic Gallery in Yokohama, Japan in 1999, the Vietnam, Tha~la~~d. Japan Contemporary A* 
Exchange Exhibition in Funabashi, Chiba, Japan ,in 2000; and "What's Your Story?", the Funabashi 
EA$ 03 238 54230 
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~0n;emporary Art International Exchange ~xhibition with the Creative Growth An Center and Creativity 
Explored of San Francisco at the Funabashi Civic ~aTlery in Japan in 2001 
I 
I 
Three of the seven catalogues submitted to document these exhibitions are printed in Japanese and Korean and r were submitted without certified English translations of their text as required by the regulation at 8 C.F.R. 
5 103.2(b)(3). Without translations of these catalogues or other evidence regard~ng the significance of these 
shods, we cannot determine whether the petitioner's inclusion in these exh~bitions reflects the requisite 
sustained acclaim. The remaining four catalogues contain English translat~ons of their text. but do not indicate 
that the exhibitions were highly selective. For example, the catalogue for the 1997 Lake Naguri International 
~~eh-~ir An Exhibition states, "We have received more than 100 entries. Solne participants are those who are 
familiar to us, and there were new artists in addition to amateurs, without whose promising entry such an I exhibition could not happen at all." The catalogue includes photographs of over 100 works, th~~s indicating that 
all artists who applied were included in the exhibition. T~e record contains no critical reviews, medla coverage 
or other evidence that the petitioner's work in these exhibitions was significantly recognized in her field. 
I 
The petitioner's resume submitted on appeal lists 29 other exhibitions, of which she submitted 110 corroborative 
'I evidence. Simply going on record without supporting documentary evidence is not sufficient to meet the burden 
of pbof in these proceedings. Matter of So~ci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing. Matter of 
~reaibre Crnff of Cali$ornia, 14 I&N Dec. 190 (Reg. Comm. 1972)). The petitioner's resume also states that 
the Nika-Ten Exhibitions were held at the Tokyo Metropolitan Arts Museum, but the record contains no 
documentation from these exhibitions or this museum to verify this statement. 
On appeal, the petitioner also submits evidence of her solo exhibition at the Korean American Art Center in 
New York City, which we cannot consider because it occurred after the petition was filed. The petitioner must 
establish eligibility at the time of filing. See 8 C.F.R. Q: 103.2(b)(12), Kcrtlgbak, 14 I&N Dec at 49. In sum. the 
record'shows that the petitioner displayed her work in two solo and seven group exhlbltions between 1994 and 
2002. (yet the evidence does not establish that her work was exhibited in a niarlner consistent with the requisite 
sustaiAed acclaim. Accordingly, she does not meet this criterion. 
(i$' Evidence that the alien has commanded a high salaiy or other srgn,licarrtly hrgh renn~lerolion /or 
services, in relation to ofhers in theJield. , r 
The petitioner did not init~ally claim eligibility under this criterion. On appeal, she submits ev~dence that she 
has sold three of her sculptures to three individuals in Japan and Korea for prices between $3,500 and $9,400 
between 2001 and 2002. However, the record contains no evidence of the prices paid for the work of other 
contemporary sculptors in Japan and Korea during this time period. Thc record thus does not establish that the 
petiti~n~er's work was sold at prices significantly higher than those of other contemporary sculptors in Japan and 
Korea or comparable to the prices paid for the work of such artists at the very top of their field. Accordingly, 
the petitioner does not meet this criterion. 
An immigrant visa will be granted to an alien under section 203(b)(I)(A) of the Act, 8 U.S.C. $ 1 153(b)(I)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of hls or her field The evidence in 1 this case indicates that the petitloner is a successful artist whose work is well regarded by several artists, gallery 
11 directors and art critics in Japan. However, the record does not establish that the petitioner had achieved I( sustained national or international acclaim as an artist placing her at the very top of her field at the time of filing. 
I 
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EAC 03 238 54230 
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* She is thus ineligible for classification as an alien with extraordinary ability pursi~ant to section 203(b)(l)(A) of 
the Act, 8 U.S.C. 4 1 153(b)(l)(A), and her petition miy not be approved. 
1 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 3 1361. Here, the petitioner has not .sustained that burden. Accordingly, the appeal will be 
dismissed. 
OWER: The appeal is dismissed.