dismissed EB-1A Case: Arts And Business

(b)(6)
DATE: JAN 0 6 2015 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
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 (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:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank yo� 
� � � 
Ron Rosenberg 
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 seeks classification as an "alien of extraordinary ability" in the arts and business pursuant 
to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), 
which makes visas available to aliens who can demonstrate their extraordinary ability through sustained 
national or international acclaim and whose achievements have been recognized in their field through 
extensive documentation. The director determined that the petitioner had not satisfied the initial 
evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires documentation of a one-time 
achievement or evidence that meets at least three of the ten regulatory criteria. 
On appeal, the petitioner submits a brief and additional evidence. For the reasons discussed below, 
upon review of the entire record, the petitioner has not established that the beneficiary is eligible for 
the exclusive classification sought. Specifically, the petitioner has not submitted qualifying evidence 
of a one-time achievement pursuant to 8 C.P.R. § 204.5(h)(3), or evidence that the beneficiary 
satisfies at least three of the ten regulatory criteria set forth in the regulations at 8 C.F.R. § 
204.5(h)(3)(i)-(x). As such, the petitioner has not demonstrated that the beneficiary is one of the 
small percentage who are at the very top in the field of endeavor, and that he has sustained national 
or international acclaim. See 8 C.F.R. § 204.5(h)(2), (3). Accordingly, we will dismiss the 
petitioner's appeal. 
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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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) sets forth a multi-part analysis. First, a petitiOner can 
demonstrate the alien's sustained acclaim and the recognition of the alien's achievements in the field 
through evidence of a one-time achievement (that is, a major, internationally recognized award). If the 
petitioner does not submit this evidence, then a petitioner must submit sufficient qualifying evidence 
that meets at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination). See also Rijal v. USCJS, 
772 F.Supp.2d 1339 (W.D. Wash. 2011 ) (affirming USCIS' proper application of Kazarian), aff'd, 683 
F.3d. 1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) (finding that 
USCIS appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 201 0) (holding that the "truth is to be determined not by the quantity of evidence alone but by 
its quality" and that users examines "each piece of evidence for relevance, probative value, and 
credibility, both individually and within the context of the totality of the evidence, to determine 
whether the fact to be proven is probably true"). 
II. ANALYSIS 
A. The Beneficiary's Field 
We note that the petitioner did not limit the beneficiary's claimed field of endeavor to only one of the five 
areas enumerated in section 203(b)(1)(A)(i) of the Act. Rather, he claims he will work in both business 
and the arts. 
In Part 6 of Form I-140, Immigrant Petition for Alien Worker, the petitioner listed the beneficiary's 
occupation as an "Event Planner/Film Producer." In response to the director's request for evidence, 
however, the petitioner submitted a letter confirming that the beneficiary "will continue working in 
the U[nited] S[tates] in the claimed area of expertise, i.e., PR, Communication[s] and Event 
Planning." The record does not contain evidence that the beneficiary will be employed by the 
petitioner in the arts, including as a film producer, actor and/or singer, rather the petitioner will act as 
the beneficiary's agent for such endeavors. Nevertheless, we acknowledge that the petitioner 
submitted Memoranda of Agreement regarding roles as a producer and a letter from 
which states that the beneficiary "has entered into a 'pre-arranged commitment' with 
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whereby he will be Co-Producer in five (5) of our upcoming and highly anticipated independent 
films." 
The petitioner claims several different past and future fields of endeavor and occupations for the 
beneficiary including event planner, film producer, public relations, communications, singer and 
actor. While some of these fields may share common characteristics, each field is nevertheless a 
distinct and separate field of endeavor. The petitioner may not change its characterization of the 
beneficiary's field of endeavor depending on which field best fits a particular piece of evidence. To 
establish the beneficiary's eligibility, the petitioner must establish that the beneficiary meets three 
criteria in business or three criteria in the arts. 
Ultimately, the petitioner must demonstrate that the beneficiary satisfies the regulation at 8 C.P.R. 
§ 204.5(h)(3) through his achievements in event planning, communications and public relations or 
through his achievements as a film producer, the two areas in which he seeks to work. As the 
petitioner does not claim that the beneficiary will continue to perforill as a singer, the beneficiary's 
past accomplishments as a musician are not material evidence of his eligibility in public relations or 
film production. As such, the evidence submitted by the petitioner regarding his music achievements 
will not be considered here. 
· 
B. Prior 0-1 
While USCIS has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the 
beneficiary, the prior approval does not preclude USCIS from denying an immigrant visa petition 
based on a different, if similarly phrased, standard. USCIS denies many I-140 immigrant petitions 
after it 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). 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 petitioner's qualifications). 
Finally, the beneficiary is in the United States pursuant to 8 C.P.R. § 214.2( o )(3)(v)(B)(5), a 
regulatory criterion reserved for an alien of extraordinary ability as a nonimmigrant in the arts. The 
petitioner is seeking classification as an alien of extraordinary ability as an immigrant pursuant to 
section 203(b)(1)(A) of the Act and not as an alien of extraordinary ability as a nonimmigrant 
pursuant to section 101(a)(15)(o) of the Act. Therefore, the petitioner must demonstrate that the 
beneficiary meets the regulatory requirements pursuant to 8 C.P.R. § 204.5(h) and not 8 C.P.R. 
214.2( o ). Again, although the words "extraordinary ability" are used in the Act for classification 
under both the nonimmigrant 0-1 and the first preference employment-based immigrant categories, 
given the clear distinction between these two classifications, the beneficiary's receipt of 0-1B 
nonimmigrant classification is not evidence of the beneficiary's eligibility for immigrant 
classification as an alien with extraordinary ability. 
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C. Translations 
The director's request for evidence informed the petitioner "[a]ll non-English language documents 
must have an English translation." Specifically, the regulation at 8 C.P.R. § 103.2(b) provides in 
pertinent part: 
(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. 
While the petitioner submitted some certified translations of foreign language documents, the record 
contains a number of documents without certified English translations and thus, those documents have 
no probative value. 
D. Evidentiary Criteria1 
Documentation of the alien's membership in associations in the field for which class?fication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. We, therefore, consider this issue to be abandoned. Sepulveda 
v. US. 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). 
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 found that an article in 'qualifies as published material about the alien in major 
professional, trade publications or other major media," but did not indicate "the date of the article," 
and therefore, did not satisfy this criterion. In general, in order for published material to meet this 
criterion, it must be about the beneficiary, be printed in professional or major trade publications or 
other major media and be related to the alien's work in the field for which classification is sought. 
1 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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Although the petitioner submitted a copy of the article which indicates the date on appeal, it 
does not include the author's name and is not about the beneficiary. In fact, the beneficiary is not 
even mentioned in the article. Similarly, the record contains a number of additional articles which 
also do not mention the beneficiary. Articles that are not about the beneficiary do not meet this 
regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. 
Sept. 8, 2008) (upholding a finding that articles about a show are not about the actor). 
While the petitioner submitted an article about the beneficiary's collaboration with two other 
individuals in _ _ the petitioner has not established that this newspaper constitutes major 
media. The petitioner submits evidence that it enjoys a circulation of 30,000 daily and 60,000 on 
Sundays. The petitioner has not established that these numbers are indicative of major media. 
Moreover, the petitioner did not document the distribution of the newspaper such that the petitioner 
has established whether it has a local or national reach. 
The remaining evidence in support of this criterion includes articles in a foreign language without a 
certified English translation, screenshots, photographs of the beneficiary, and romotional 
materials. Regarding the article in , the article is about • and only 
briefly mentions the beneficiary's band. The beneficiary's singing career, as previously stated, is not 
related to the beneficiary's work in film production or public relations, the field he seeks to pursue, 
and thus, the articles related to his band cannot be considered here. The foreign language articles 
written are not accompanied by English translations as required by the regulation. We note that since 
the regulation at 8 C.P.R. § 204.5(h)(3)(iii) specifically requires the title, date, and author of the 
material, Screenshots and or video clips from do not meet the plain language of the 
regulation, as they are not "published material" and do not include the title, date and author of the 
material. Similarly, photographs with accompanying printed or handwritten captions identifying the 
beneficiary are not published material about the beneficiary relating to his work consistent with the 
plain language of the regulation. In addition, flyers, advertisements, posters, and other promotional 
material are not qualifying published material as they are not independent, journalistic coverage of 
the beneficiary relating to his work. 
In light of the above, the petitioner has not established that the beneficiary meets 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 specificatio n for which classification is so ught. 
The director discussed the submitted evidence and found thatt he petitioner failed to establish that the 
evidence was qualifying. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. We, therefore, consider this issue to be abandoned. Sepulveda, 
401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. 
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Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
According to the regulation at 8 C.F.R. § 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. The phrase "major significance" is not superfluous and, thus, it 
has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 
1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. 2003). Contributions must be 
documented and rise to the level of original business-related contributions "of major significance in 
the field." Recognition of the beneficiary's skills does not equate to contributions of major 
significance in the field. Furthermore, regardless of the field, the plain language of the phrase 
"contributions of major significance in the field" requites evidence of an impact beyond one's employer 
and clients or customers. See Visinscaia, 4 F.Supp.3d at 134 (upholding a finding that a ballroom 
dancer had not met this criterion because she did not demonstrate her impact in the field as a whole). 
The director determined that the submitted reference letters "describe the beneficiary's experience 
and accomplishments," but do "not establish that the beneficiary's work equates to original 
contributions of 'major significance' in the field of endeavor." On appeal, the petitioner asserts that 
the submitted letters demonstrate that the beneficiary "was able to apply his unique creativity and 
talent to bring 'out of the box' solutions leading to results that would not have been possible using 
tried and tested conventional approaches." The petitioner also attests to the beneficiary's "unique 
ability to organize and promote their events, attracting the creme de la creme of society, sports stars, 
music stars, Hollywood stars and the business world, to increase revenue and improve their 
popularity." Assuming the petitioner's skills are unique, the classification sought was not designed 
merely to alleviate skill shortages in a given field. In fact, that issue properly falls under the 
jurisdiction of the Department of Labor through the alien employment certification process. See 
Matter of New York State Department of Transportation, 22 I&N Dec. 215, 221 (Assoc. Comm'r 
1998). 
The record contains a number of additional letters of recommendation from colleagues and 
acquaintances. On appeal, the petitioner asserts that because the beneficiary's "contributions are of a 
creative nature, and the application of his contributions are to unique, one-off never to be replicated 
artistic projects, it is impossible and inappropriate to judge [the beneficiary]' s qualification[ s] against 
objective and independent standards." Therefore, the petitioner "conten[ds] that comparable 
evidence should be considered." The petitioner further asserts that "the letters of 
_ 
.. . are opinions of experts in the field in question and 
their evaluations of [the beneficiary]'s work as being original and of major significance should be taken 
at face value as expert opinions." Regarding the petitioner's request for consideration of comparable 
evidence, the petitioner does not explain what evidence, besides the letters, should be considered as 
comparable evidence. It is the petitioner's burden to explain why the regulatory criteria are not 
readily applicable to the beneficiary's occupation and how the evidence submitted is "comparable" to 
the objective evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). The petitioner does not explain how 
the letters are comparable evidence; rather, the petitioner asserts that they demonstrate how the 
beneficiary meets the plain language of this criterion. For the reasons discussed below, the letters do 
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establish that the beneficiary meets this criterion. Where an alien is simply unable to meet or submit 
documentary evidence of three of these criteria, the plain language of the regulation at 8 C.P.R. 
§ 204.5(h)(4) does not allow for the submission of comparable evidence. 
According to Executive Producer at the beneficiary's roles for the films 
the beneficiary's "personal connections, professional background and 
experience were of major significance as his role was essential, rather than marginal, to the making of 
both films." He further states that his work "is also undoubtedly original in that he adds an authentic 
and artistic layer and flare to a film." According to who worked with the beneficiary 
on _ and has known him for fifteen years, "there is an intrinsic quality to his work that is 
unique." According to Jeff Rice, an executive producer who worked with the beneficiary on 
_ 
and states that the beneficiary's "contribution to the production of these films is both 
'original' and 'of major significance."' He further states that "[i]t is 'original' since [the beneficiary]'s 
work gave both films an artistic flare that was authentically grounded in reality" and "[i]t is of 'major 
significance' since both films benefited greatly from [the beneficiary]'s VIP network in the 
entertainment and fashion worlds." who "first observed [the beneficiary]'s 
skills ... while ... onset of " states that the beneficiary's "contribution is 'original' because 
his work gave both films an artistic flare that was authentically grounded in reality" and "is of 'major 
significance' because both films benefited from his unique network of high profile clients." The letters 
also make general statements regarding the beneficiary in the area of public relations, communications 
and event planning. Mr. states that the beneficiary "attracts many high profile celebrities" 
and that this, "coupled with business acumen and unique interpersonal skills, make him a hot 
commodity in the film, fashion and entertainment worlds as a PR/Communication Specialist." Mr. 
states that the beneficiary is "at the top of his game" and that "[h]is skills are a very hot 
commodity in the fashion and entertainment industries." The letters, however, primarily contain bare 
assertions of acclaim and vague claims of contributions without specifically identifying contributions 
and providing specific examples of how those contributions rise to a level consistent with major 
significance in 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. 1997). Similarly, 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). Moreover, 
regardless ofthe field, the plain language of the phrase "contributions of major significance in the field" 
requires evidence of an impact beyond one's employer and clients or customers. See Visinscaia, 
4 F.Supp.3d at 134-35 (upholding a finding that a ballroom dancer had not met this criterion because 
she did not demonstrate her impact in the field as a whole). Accordingly, contributions to a film or an 
event that have no demonstrable impact on a field, are insufficient. 
USCIS may, in its discretion, use as advisory opinion 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 of support from the petitioner's personal contacts is not 
presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether 
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they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N Dec. at 500, 
n.2 (BIA 2008). Thus, the content of the writers' statements and how they became aware of the 
petitioner's reputation are important considerations. 
We note that the record contains additional letters from 
in support of the beneficiary's 
application for extraordinary ability. Counsel asserts on appeal that "[a] PR, Event Planning and 
Communications specialist who does not possess extraordinary ability and who has not made 
original contributions of major significance would be simply unable to assemble evaluations from 
such a high number of high profile industry gurus." While the letters attest to the beneficiary's 
talents, they do not claim that the beneficiary has made original contributions of major significance. 
Further, receipt of letters of recommendation that do not specify the beneficiary's original 
contributions of major significance do not meet the regulatory requirements of this criterion, 
regardless of the author. 
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. 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)? Even when written by 
independent experts, letters solicited by an alien in support of an immigration petition are of less 
weight than preexisting, independent evidence. See also Visinscaia, 4 F.Supp.3d at 134 (concluding 
that US CIS' decision to give little weight to uncorroborated assertions from professionals in the field 
was not arbitrary and capricious). 
As the letters do not affirm any contributions to either the field of film production or the field of 
public relations as a whole, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the display of the alien 's work in the field at artistic exhibitions or showcases 
Although the petitioner's initial submission did not indicate which evidence the petitioner claimed 
would satisfy this criterion, the petitioner asserts on appeal, and in response to the director's request 
for evidence, that it is the beneficiary's work on a video for The plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires "[ e ]vidence of the display of the alien's work in 
the field at artistic exhibitions or showcases." According to the petitioner, the "promotional video" 
is played whenever Mr. hits a three-pointer at the " Contrary to 
the petitioner's assertion on appeal that the director's decision "acknowledges that 
the ... video ... constitutes an artistic exhibition or showcase," the decision only found that the record 
2 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. 
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lacked evidence that the video "is the beneficiary's work." Further, the director specifically 
requested evidence "that the beneficiary's work has been displayed at artistic exhibitions or 
showcases," including "that the venue[s] (virtual or otherwise) where the beneficiary's work was 
displayed were artistic exhibitions or showcases." 
In response to the director's request for evidence, the petitioner states that "the video .. .is showcased 
at all games at and subsequently transmitted to TV viewers worldwide. 
This is truly [an] international showcase of his work." The petitioner, however, has not established 
that a basketball game is an artistic exhibition or showcase. In addition, the petitioner has not 
established that the beneficiary's performance in the video is on display in the same sense that a 
painter's or sculptor's work is on display in a gallery or museum. 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 and is not an abuse of discretion. See Negro-Plumpe v. Okin, 2:07-CV -820-ECR-RJJ at 
*1, *7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing artist 
do not fall under 8 C.F.R. § 204.5(h)(3)(vii)). The ten criteria in the regulations are designed to 
cover different areas; not every criterion will apply to every occupation. As the beneficiary is not a 
visual artist and has not created tangible pieces of art that were on display at artistic exhibitions or 
showcases, the petitioner has not established that the beneficiary meets this criterion. Finally, as 
discussed above, the beneficiary's achievements in music are not material to the field in which he 
seeks to work, public relations and film production. 
Accordingly, the petitioner has not submitted evidence relating to the occupations in which the 
beneficiary seeks to work that satisfies the plain language requirements of this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director determined that the petitioner established eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the alien has 
performed in a leading or critical role for organizations or establishments that have a distinguished 
reputation." A review of the record of proceeding, however, does not reflect that the petitioner 
submitted sufficient documentary evidence establishing that the beneficiary meets the plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) for the reasons outlined below. 
The director found that the beneficiary met this criterion based upon his September 12, 2008 contract 
with and the article from magazine about the March 3, 2008 
fashion show. As previously discussed the submitted article does not reference the 
beneficiary. In addition, the contract is dated six months after the fashion show and only generally 
states that the beneficiary will perform "promotional activities," but does not demonstrate that the 
beneficiary performed in a leading or critical role. We also note that the petitioner did not include a 
copy of the entire contract, but only the first and last pages. The regulation at 8 C.F.R. § 204.5(g)(1) 
requires that evidence of experience "shall" consist of letters from employers. The petitioner did not 
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submit any evidence from which states that the beneficiary was responsible for the 
March 2008 fashion show or that he performed in a leading or critical role for their organization. 
The petitioner asserts that the beneficiary also meets this criterion based upon his leading and/or 
critical role for the petitioner, Further, letters written 
by anyone other than the petitioner's current and former employers can only supplement the required 
evidence for this criterion. 
Regarding the beneficiary's role for a player in the the petitioner submitted a 
letter of recommendation written Mr. Gallinari for the beneficiary's nonimmigrant 0-1 visa. Mr. 
states that he "had the pleasure of working with [the beneficiary]. .. through starring in [the 
beneficiary's] video the hit single created by his band ' The 
fact that Mr. starred in a video for the beneficiary's band is not evidence that the 
beneficiary performed in a leading or critical role for Mr. who is an individual, not an 
organization or establishment. Contrary to counsel's assertions on appeal that the beneficiary "was 
retained by star to devise aP R project to promote Mr. ; image," Mr. 
does not claim to have ever hired the beneficiary and does not claim that the beneficiary 
played a leading or critical role for him. 
Regarding the beneficiary's role for the petitioner submitted paystubs without a certified 
English translation, as required by 8 C.F.R. § 103.2(b) that have the word Armani handwritten on 
them. The petitioner did not submit any evidence from Armani to demonstrate that the beneficiary 
played a leading or critical role for them. 
Although the record supports the petitioner's assertion that the beneficiary plays a critical role for the 
petitioner, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires evidence of the 
beneficiary's leading or critical role for organizations or establishments in the plural, consistent with 
the statutory requirement for extensive documentation. See section 203(b )(1 )(A)(i) of the Act. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field 
The director determined that the petitioner established the beneficiary's eligibility for this criterion. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires "[ e ]vidence that the alien 
has commanded a high salary or other significantly high remuneration for services, in relation to 
others in the field." A review of the record of proceeding, however, does not reflect that the 
petitioner submitted sufficient documentary evidence establishing that the beneficiary meets the 
plain language of the regulation for the reasons outlined below. 
The petitioner submitted pay vouchers, wage information for event planners and contracts. In 
response to the director's request for evidence, the petitioner submitted additional information, 
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including salary information for the fields of public relations and communications. The director 
found that the beneficiary satisfied this criterion based upon pay vouchers from the petitioner and the 
mean hourly wage for an event planner. 
The pay vouchers are in a foreign language. None of the submitted pay vouchers, however, 
including the ones from the petitioner, are accompanied by a certified translation, as required by 
8 C.P.R. § 103.2(b ), and therefore, have no probative value. Further, the submitted vouchers, which 
date back to 2005, are purported to be from a variety of sources, including the petitioner, but have a 
virtually identical format. It is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Any attempt to explain or reconcile such inconsistencies 
will not suffice unless the petitioner submits competent objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). In addition, contrary to counsel's 
claims in response to the director's request for evidence that "[r]ecent pay vouchers from [the 
petitioner] list [the beneficiary]'s current compensation (from [the petitioner] alone) as $5,950 per 
month," only one of the submitted paystubs indicates such a monthly payment. Other paystubs 
indicate a monthly payment of $1,250 and $1,450. Based upon the information in the record, the 
beneficiary's monthly payments vary widely. 
Even if the petitioner had established the beneficiary's earnings, and it has not, the petitioner must 
also submit documentary evidence of the earnings of those in the beneficiary's occupation 
performing similar work at the top level of the field. See Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Comm'r 1994) (considering professional golfer's earnings versus other PGA Tour golfers); 
see also Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary 
versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 1995) (comparing 
salary of NHL defensive player to salary of other NHL defensemen). The AAO notes that in Matter 
of Racine, 1995 WL 153319 at *1, *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is 
not a comparison of Racine's ability with that of all the hockey players at all levels of 
play; but rather, Racine's ability as a professional hockey player within the NHL. 
This interpretation is consistent with at least one other court in this district, Grimson 
v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 
8 C.P.R. § 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 
60898-99. 
Based on the above, the information the petitioner submitted regarding the mean and/or average 
salary for individuals in the public relations, communications and event planning fields is not 
sufficient to meet this criterion. Furthermore, based upon the information the petitioner submitted, 
at least some of the beneficiary's payments were per event. Without evidence of the per event 
earnings of others at the top of the field, the petitioner cannot establish that the beneficiary satisfies 
this criterion. 
Finally, the petitioner submitted evidence of his contract to receive a percentage of profits for the 
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movie The Confines. While the petitioner projects the amount of money the film may gross, the 
petitioner has not demonstrated that, as of the date of filing, the petitioner has not demonstrated that 
the beneficiary actually commanded any specific amount as of the date of filing. Without the actual 
profits of the film, the petitioner cannot demonstrate the amount that the beneficiary had commanded 
as of the date of filing, the date as of which the petitioner must demonstrate the beneficiary's 
eligibility. See 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971). 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
E. Summary 
For the reasons discussed above, we agree with the Director that the petitioner has not submitted the 
requisite initial evidence, in this case, evidence that the beneficiary satisfies three of the ten regulatory 
criteria. 
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 his or her field 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 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. As the petitioner has not done so, the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of 
presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) 
and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final 
merits determination referenced in Kazarian, a review of the evidence in the aggregate supports a 
finding that the petitioner has not demonstrated the level of expertise required for the classification 
sought.3 
3 We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 
381 P.3d 143, 145 (3d Cir. 2004). In any future proceeding, we maintain the jurisdiction to conduct a final 
merits determination as the office that made the last decision in this matter. 8 C.P.R. § 103.5(a)(1)(ii); see 
also INA§§ 103(a)(1), 204(b); DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.P.R. § 2.1 
(2003); 8 C.P.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). 
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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 the beneficiary's eligibility for the immigration benefit sought. Section 291 of the Act, 8 
U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not 
been met. 
ORDER: The appeal is dismissed.