dismissed EB-1A Case: Arts

(b)(6)
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 
DATE: JAN 0 2 2~14 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please 
find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-
290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
;t?<??~ 
rP--Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
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 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. 
§ 1153(b)(l)(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)(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 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. For the reasons discussed below, the record supports the director's 
conclusion that the petitioner has not established 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 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
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NON-PRECEDENT DECISION 
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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 10151 Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. !d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) 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). 
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)." !d. 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 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. /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.P.R. § 204.5(h)(3)(iv) and 8 C.P.R. 
§ 204.5(h)(3)(vi). 
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NON-PRECEDENT DECISION 
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II. ANALYSIS 
A. Evidentiary Criteril 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The director thoroughly discussed the evidence submitted for this criterion and found that the petitioner 
failed to establish that the submitted awards/prizes are "lesser national or international prizes indicative 
of excellence in the field." Regarding the 
Award, the recipient was the _ not the beneficiary. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[ d]ocumentation of the alien's 
receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of 
endeavor [emphasis added]." USCIS may not utilize novel substantive or evidentiary requirements 
beyond those set forth at 8 C.F.R. § 204.5. See Kazarian, 596 F.3d at 1221, citing Love Korean Church 
v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008). 
Regarding the in response to 
the director's request for evidence (RFE), counsel acknowledges that the award "seem[s] geographically 
limited to ' but asserts that there are "no national awards ... for ' On 
appeal, counsel asserts that "the awards ... are indic[ative] of her influential role in the[e] growing 
movement" which "emphasize[s] the use of only historically accurate and effective methods and 
materials to preserve historically significant buildings." Without documentary evidence to support such 
claims, the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 
1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980). 
In addition, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "prizes or awards" 
in the plural, which is consistent with the statutory requirement for extensive evidence. Section 
203(b )(l)(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.P.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.P.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 users' ability to 
interpret significance from whether the singular or plural is used in a regulation. 3 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
3 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, 2006) (upholding an interpretation that the 
regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 C.P.R. § 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). 
(b)(6)
NON-PRECEDENT DECISION 
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As counsel fails to address the award, the petitioner has abandoned 
this claim. 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 Hristov v. Roark, No. 09-CV-
. 27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were 
abandoned as he failed to raise them on appeal to the AAO). 
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. 
The director thoroughly discussed the evidence submitted for this criterion and found that the petitioner 
failed to establish that membership in ' _ _ "requires outstanding 
achievement as an essential condition for membership," and that being "nominated ... does not imply 
outstanding achievements." On appeal, counsel states that "[t]o become a member, [the beneficiary] 
had to be nominated and seconded by existing members," but fails to address the regulatory 
requirement that 
that the association require outstanding achievements of its members. 
In addition, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(ii) requires "evidence of the 
alien's membership in associations" in the plural. As previously stated, the AAO can infer that the use 
of the plural in the regulatory criteria has meaning. 
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 director thoroughly discussed the evidence submitted for this criterion and found that the petitioner 
failed to establish that the submitted "publications are considered professional, major trade 
publications, or other major media," as required by the plain language of the regulation. In response to 
the director's RFE, counsel concedes that the articles were not published in major media. On appeal, 
counsel does not explain how the evidence meets the plain language requirements of the regulation. 
In light of the above, the petitioner has not established that the beneficiary meets the plain language 
requirements of this regulatory criterion. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
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. 
The director thoroughly discussed the evidence submitted for this criterion and found that "teaching 
others and providing services is not considered judging the work of others." In response to the 
director's RFE, counsel again relies upon the beneficiary's educating and training of others and requests 
that USCIS "consider [the beneficiary] to be the ultimate judge of the correct and incorrect ways to 
preserve historic buildings." On appeal, counsel asserts that the beneficiary "is clearly judging her 
industry and finding them lacking." The regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires evidence that 
the beneficiary has served as a judge of the work of others. The phrase "a judge" implies a formal 
designation in a judging capacity, either on a panel or individually, as specified in the regulation. The 
record does not contain evidence that the beneficiary has performed in such a capacity. 
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 alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The director thoroughly discussed the evidence submitted for this criterion, including letters praising 
the petitioner's expertise, and found that the petitioner failed to establish that the evidence was 
qualifying because the letters did not establish how the beneficiary has made original contributions of 
major significance. On appeal, counsel asserts that the beneficiary's "artistic contribution to the 
restoration field is to change the restoration industry's thinking about which materials to use when 
restoring old historical buildings" and that the beneficiary "is having an impact on her field, prompting 
a significant change toward the use of traditional methods and materials in old building historical 
restorations." 
While the record contains a number of letters praising the beneficiary's work, the letters fail to put the 
beneficiary's work in the necessary context to reach a conclusion that the beneficiary has made 
contributions that are both original and of major significance in the field. Rather the letters, while 
complimentary, affirm her training in traditional skills that are rare in the United States, 
and her willingness to share her knowledge. The issue of whether similarly-trained workers are 
available in the United States, however, is an issue under the jurisdiction of the Department of Labor. 
New York State Dep 't of Transp., 22 I&N Dec. 215, 221 (Assoc. Comm'r 1998).4 The letters and 
local award confirm that the beneficiary's local colleagues in Massachusetts and New Hampshire and 
an individual who collaborated with the beneficiary on a project in Virginia appreciate the 
beneficiary's education and training in traditional · methods. These letters do not 
demonstrate the originality of the beneficiary's contribution or her impact in the field at a level 
consistent with a contribution of major significance in the field as a whole. 
4 The beneficiary of this petition is also the beneficiary of an approved Form 1-140 petition based on an 
underlying alien employment certification that the Department of Labor approved. 
(b)(6) NON-PRECEDENT DECISION 
Page 7 
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." /d. 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. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010).5 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 benefit sought. 
/d. 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 2008) (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. /d. at 795; see also Matter of Soffici, 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. 
As stated in the director's decision, the interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the 
visual arts is longstanding and has been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07-
CV-820-ECR-RJJ at 7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a 
performing artist do not fall under 8 C.P.R. § 204.5(h)(3)(vii)). 
The petitioner has not demonstrated that the beneficiary is a visual artist and has created tangible pieces 
of art. Furthermore, the plain language of the regulation also requires display at artistic exhibitions or 
showcases. While the beneficiary is a talented who worked on a number of restorations for 
buildings which are open to the public, the record does not contain evidence that the restored buildings 
are artistic exhibitions or showcases of the beneficiary's work. 
5 In 2010, the 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 1122. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
In light of the above, the petitioner has not established that the beneficiary meets the plain language 
requirements of this regulatory criterion. 
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. 
ill. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of 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: (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.P.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.6 Rather, the proper conclusion is that the petitioner has 
failed to satisfy the antecedent regulatory requirement of three types of evidence. /d. at 1122. 
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 appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings , it is the petitioner 's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende , 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
6 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 Act; 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 
1987) (holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa 
petitions).