dismissed EB-1A Case: Business

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udentifyingdatadeletedto
prevent clearlyunwarranted
invasionofpersonalprivacy
.PUBLICcopy
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship .
and Immigration
Services '
FILE:
SRC 06 03252644
Office: TEXAS SERVICE CENTER Date: APR 1 72007
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to
Section"203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § I I53(b)(1)(A)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
•~}:.C·;' '( "This is the decision of the Administrative Appeals Qffice in your case. All documents have been re~med to
the office that originally decided your case. Any further inquiry must be made to that office.
~~~.
In Robert P. Wiemann, Chief .
Administrative Appeals Office
www.uscis.gov
DISCUSSION: The Director, Texas Service Center, denied the employment~based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
dismissed.
The petitioner seeks to classify the beneficiary as an "alien of extraordinary ability" in business,
pursuan~ to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c.
§ 1I53(b)(1)(A). The director determined the petitioner had not established the beneficiary's sustained·
national or international acclaim necessary to qualify for classification as an alien of extraordinary
ability. Specifically, the director concluded that the beneficiary meets only two of the regulatory
criteria, of which an alien must meet at least three. Specifically, the director concluded that the
beneficiary has performed a leading or critical role for· an organization with a distinguished reputation
and has made contributions of major significance pursuant to the regulatory criteria set forth at 8 C.F.R.
§ 204.5(h)(3)(v),(viii).
On appeal, counsel submits a brief and additional evidence. Counsel continues to discuss the "national
interest" of the beneficiary's work. The national interest of the beneficiary's work in the United States,
however, is not a consideration for the classification sought, alien of extraordinary ability pursuant to
section 203(b)(I)(A) of the Act. Rather, aliens of exceptional ability or advanced degree professionals
pursuant to section 203(b)(2) of the Act may seek a waiver of the alien employment certification
process in the "national interest" if they establish their eligibility for the classification. See Matter of
New York State Dep't of Transp., 22 I&N Dec. 215 (Comm.1998). This petition was not filed under
that classification. Thus, we need not consider any of counsel's assertions relating to this issue.
More relevant t6 the classification sought, counsel asserts that the director failed to consider evidence
. submitted, such as the testimonials from other members· of the field. While the director did not
specifically discuss that evidence, it is, apparent that these testimonials, supported by other evidence,
formed the basis of the director's determination that the beneficiary has made contributions of major
significance to the field and has served in a leading or critical role for a distinguished organization.
While we will consider the letters in detail below, they are not persuasive. In fact, the letters are poorly
supported by the remaining evidence and, in some cases, are expressly contradicted by other evidence.
Counsel's specific assertions, some of which are raised for the first time on appeal, will be discussed
below. Ultimately, however, we affirm the director's ultimate decision, although we find that the
beneficiary, in fact, meets only one of the regulatory criteria. Specifically, we find that while the
beneficiary did play a leading or critical role for the Gallup Organization for just over one year, the
petitioner has not demonstrated that the beneficiary has. made any original contributions of major
significance.
Section 203(b) ofthe Act states, in pertinent part, that:
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who are
aliens described in any ofthe following subparagraphs (A) through (C): .
(A) Aliens with Extraordinary Ability. -- An,alien is described iIi this subparagraph if --
(i) the alien has extraordin'JIY 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 ar.ea of '
extraordinary ability, and
(iii) the alien's entry to the United States will substantially benefit
prospectively the United States.
Citizenship and Immigration Services (CIS) and legacy IIl1pligrationand 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 56 Fed. Reg. 60897, 60898-9 (November 29,
1991).. As used in this section, the term "extraordinary ability";means a level of expertise indicating
that the individual is one of that small percentage who have risen to the very top of the field of
endeavor. 8 C.F.R. § 204:5(h)(2). The specific requirements for supporting documents to establish that
an alien has sustained national or international acclaim and recognition in his or her field of expertise '
are set forth in the regulation at 8 C.F.R. § 204.5(h)(3). The relevant criteria will be addressed below. '
It should be reiterated, however, that the petitioner must show that the beneficiary has sustained
national or international acclaim at the very top level. We note that national or international acclaim
both imply notoriety beyond the State of Florida, where the beneficiary resides and works.'
This petition seeks to classify the b~neficiary as an alien with extraordinary ability as president of a real
estate development company, We note that, according to her diploma, the beneficiary receive~ her
Master's Degree in Physical Education. While she,claims on her curriculum vitae that the degree also '
included sports marketing and management, the petitioner did not submit the beneficiary's rviaster's
degree transcript confirming this specialty. Going on record without supporting documentary
evidence is not sufficient for purposes of meetip.g the burden ofproof in these proceedings. Matter
ofSoffici, 22 I&N Dec. 158,165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14
I&N Dec. 190 (Reg. Comm. 1972)). Thus, the petitioner has not established that the beneficiary has
any business or marketing education. The beneficiary gained' her initial experience in marketing
through fundraising for various charity athletic events and subsequently found employment in the
marketing and management field. The petition is primarily based on the beneficiary's proposed
development of a "signatUre community" in Florida predicted to be influential nationally. Not only is
the beneficiary not responsible for 'the design of this community, the community has yet to be built as of
the date of filing and the articles submitted on appeal'suggest that changes in eminent domain law may
at least result in a reduced version of the original plan. In fact, the relevant authority has yet to even
approve the project in its final form:
The regulation at 8 C.F.R. § 204.5(h)(3) indicates that an alien can establish sustained national or
intelJlational acclaim through evidence of a one-time achievement (that is, a major, international
recognized award). Barring the alien's receipt of such.an award, the regulation outlines ten criteria, at
least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify
as an alien of extraordinary ability. .
On appeal, counsel asserts that the director failed to acknowledge and discuss the reference letters
submitted. As noted.above, while the director did' not specifically quote from these letters, it would
appear that the director did consider them in reaching her conclusion that the beneficiary has made
contributions of major significan<:;eand has performed in a leading or critical role. Nevertheless, as the
letters provide a good background for the remaining evidence, we will address them prior to discussing
the evidence as it relates'to the regulatory criteria.
The beneficiary received her Master's degree in 1992.' The following employment information is taken
from the beneficiary's curriculum vitae. After 1992, she worked as a public relations consultant for
Pearson Associates through 1995: From 1995-1996, she worked as a consultant on the Deering Bay
Yacht & Country Club development. In 1996, she, promoted the South Florida Inner City Games as a
marketing consultant. From 1996 through 1997, the beneficiary worked as a sales and' marketing
consultant for American Invsco on development projects and for telecommunications. clients. From
1997 through 1998, the beneficiary worked as a Senior Sales & Marketing Consultant for Brookman
Fels/Avatar Holdings. From 1998 through 1999, the beneficiary worked as a charity fundraiser for
Aventura Marketing Counsel. From December 1999 through January2001, the beneficiary worked as
Vice President of Sales' and Marketing for The Gallup Organization in New Yark. ,Finally, the
beneficiary was working as Director of..Marketingfor Tessi GarCia& Associates as of the date of filing.
The last two positions are the only direct employment claimed on the beneficiary's curriculum vitae.
Published articles in the record also suggest that the. beneficiary is currently an officer of Intown
Development Group, a development company with little development experience attempting to obtain
permission to develop a portion of Boynton, Florida.
Before considering the letters, we note that the opinions of experts in the field, while not without
weight, cannot form the cornerstone of a successful claim of sustained national or international
acclaim. Citizenship and Immigration Services (CIS) may, in its discretion, use as advisory opinions
statements submitted as expert testimony. See Matter ofCaron International, 19 I&N Dec. 791, 795
(Comm. 1988).' However, CIS is ultimately responsible for making the final determination regarding
an alien's eligibIlity for the benefit sought. Id. The submission ofletters from experts supporting the
petition is not presumptive evidence of eligibility; CIS may evaluate the content of those letters as to
whether they support the alien's eligibility. See id. at 795-796. CIS may even give less weight to an
opinion that is not corroborated, in accord with other information or is in any way questionable. Id.
.at 795; See also Matter of Sofjici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure
'Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Corum. 1972)).
In evaluating the reference letters, we note that letters coritaining mere assertions of widespread
acclaim, talent in the field or vague claims of contributions are less persuasive than letters that
provide information relating to the regulatory criteria,. such as by specifically identifying
contributions and providing specific examples ofhow those contributions have influenced the field.
In addition, letters from independent' references who were previously aware of the beneficiary
through her reputation and who have been influenced by her work are far more persuasive than
letters from independent references who were not previously aware of the beneficiary and are merely
responding to a solicitation to review the beneficiary's curriculum vitae and work and provide an
opinion based solely on this review. Ultimately, evidence in existence prior to the preparation of the
petition carries greater weight than new materials prepared especially for submission' with the
petition. An individual with sustained national or international acclaim should be able to produce
unsoliCited materials reflecting that acclaim.
The petitioner submitted letters regarding the beneficiary's work in the mid-1990's raising funds for the
South FI0fida Inner City Games Foundation (ICGF). U.S. Senator Connie Mack, in a letter dated
August 13, 1998, writes in support of the beneficiary's previous petition under a different classification.
Senator Mack praises the beneficiary's charity fundraising abilities but does n~timply that the
beneficiary enjoys national acclaim in the marketing field. The letters from 'Brother Paul Johnson,
Chief Executive Officer of Camillus House in Miami; Vice President of Sales and
marketing f~)f g Company, South Florida Division; and _ owner
of an automotive consultancy company in Detroit, provide similar information. Mr. explains,
that he met the beneficiary while residing in Florida part-time. Brother 1 affirms that ICGF was,
at the time, offering the beneficiary the position of Director of Fundraising and Marketing. On·her
curriculum vitae, the beneficiary only indicates that she served as ICGF's marketing consultant in 1996.
Regardless, while fundraising is perhaps related to sales and marketing, we are not persuaded that it
demonstrates expertise in the beneficiary's current occupation, real estate marketing and development,
which would appear to require knowledge of the'real estate and development industry. .
, Mayor of Flonda, attests to the beneficiary's work on' Fisher Island,
Deering Bay' Yacht Club and Harbor Islands. He asserts that it is "a fact well-known in the field of '
marketing" that the beneficiary assisted in laUnching'Topp Telecom, Inc. Mr~rovides other
assertions regarding project in which he does not personally appear to have been involved. As Mr.
••• concludes that he has reviewed her "impressive work and credentials," he appears to base his
letter on this self-serving documentation rather than any prior knowledge of her through her reputation
in the field. Most sigriificantly, Mr. concludes only that the beneficiary is "renowned in
Florida." Such local notoriety is well below the national acclaim statutory standard for the
classification sought.
•••••• , President of . in Florida, explains that he has
worked with the beneficiary on several projects over eight years. Specifically, Mr. worked
with the beneficiary on the Deering Bay Yacht Club, Harbor Islands and Ocean Palms. Mr.
praises the beneficiary's professionalism and creativity,and predicts that her new project "can serve to
Page 6
inspire entrepreneurial developers across the U.S;" . He concludes that "if anyone has the exceptional
talents to set national standards in the industry, [the beneficiary] does." He does not assert, however,
that the beneficiary's past projects have changed the development industry nationwide or that she has·
already set industry standards. Moreover, he does not address the· ten criteria or affirm that the
beneficiary already enjoys a nationalteputation in the industry.
, Chairman and Chief Executive Officer (CEO) of and
. founder of •••••• asserts that the beneficiary was Director of Marketing and Acquisition at
Invsco in 1996 and increased sales at the Yacht Club 42 percent. While this increase demonstrates the
beneficiary's skill in her field, it is not clear how this accomplishment demonstrates any acclaim
beyond her employer.
, President o_and primary.architect and planner for , the
beneficiary's current project, first discusses the beneficiary's previous work. Specifically, Mr. 7 j I,
asserts that the beneficiary developed a "turnaround marketing plan" for Harbor Islands that increased
revenues by 400 percent. . , Associate Principal of , and Partners, indicates
that her evaluation of the beneficiary's abilities is based on a review of her credentials. Ms. 111•••
does not suggest that she previously knew of the beneficiary through the beneficiary's national
reputation in the field.. ·Significantly, Ms. discussion of the beneficiary's work vyith _
_ •••is· nearly verbatim to the same discussion in Mr. j ·letter. Such common verbiage
suggests that while the authors affirm the language, it is not their own. The record does not include
confirmation of the increase in sales directly from the developer, Avatar Holdings
. ,. . . '.
The ~ita le~President of the I i', ~d a c~-developer
with---,· Mr.~at he selected the beneficiary to perform their
marketing for Ocean Palms based on a recommendation from _, President of Avatar. Mr..
p' asserts that sales of residences at Harbor Islands increased 250 percent due to the beneficiary's
marketing. , Executive Vice President 0 . in Florida, claims,·
to have worked with the·beneficiary on the Harbor Islands project and also attests to the 250 percent
increase. While this still would be an impressive number, the record now provides two inconsistent
numbers for the increase in revenues, 400 and 250 percent. 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 ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). The
.record lacks official sales data demonstrating a correlation between the beneficiary's marketing and
increased revenues. .. .
'.:",
The record contains an October 1999 article in'the SOl;lthFloridaBusinessJournal asserting that
increased the sales of its Harbor Islands homes through a joint v.enture with after
which L President and Chief Operating Officer 7 "recognized the opportunity to
reposition the community as adesirable purchase for local buyers." The article does not mention the
beneficiary and the r~cord includes no letters from ,Mr. or Mr. 'onfirming the beneficiary's
4 • •
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Page 7
role in the increase in sales of Harbor Islands homes.. Rather, the petitioner submitted an advertising
and public relations budget and an advertising campaign, both prepared by the beneficiary in January
1997 as "Director of Marketing" for Harbor Islands. The record contains no evidence that the
beneficiary's January 1997 plans include the marketing plan referenced in the October 1999 article.
Regarding the beneficiary's current project, Vice President of the petitioning.
asserts that she met the beneficiary in New York and in Florida before recruiting the
as the eti' er's president. Ms. asserts that as Vice President of Sales and
, the beneficiary repositioned ' City Center
for As president of the petitioning company, the beneficiary has given
presentations before.government officials and is "working to make Seacrest Village into a 'signature
community' which will be endorsed at both a local and nationalJevel." Finally; Ms. _ asserts that
the petitioner is offering the beneficiary $125,000 annual remuneration and a 25 percent shareholder
position. The development proposal submitted on appeal reveals that is a joint
venture between the petitioner, an and Partners. The local
newspaper articles suggest that Ms. and the beneficiary jointly represent Intown Development
Group. It is not clear that the petitioner itself is a large development company with a prior history of
successful development.
•••••• Democratic Leader Pro Tempore in the Florida House of Representatives, asserts that
she represents the district in which the beneficiary is proposing mixed development. Ms. I
predicts that the development will revitalize a city struggling for an identity. Ms. I L praises the
beneficiary's commitment to community involvement and affordable housing. Ms. I fails,
however, to discuss any past projects that demonstrate the beneficiary's notoriety in the field. Nor does
she specifically address the ten regulatory criteria. Finally, Ms. does not profess any expertise
in the field of real estate investing or claim to have previously known the beneficiary' through her
national reputation.
••••••• , President of Criterium InspeCtionEngineers in Florida, asserts that he has worked in
real estate development for 20 years and compares the beneficiary favorably with others in her
profession. He affirms that her "work in leading Seacrest Village to be a 'signature community' in
Palm Beach County and the.City of Boynton Beach should stand as a role model to other developers in
the profession both locally, regionally and across the United States." Once again, while Mr......
speculates as to the future reputation of developments on which the beneficiary is working, he does not
identifYpast successful projects, specifically address the ten criteria, or claim to have learned of the
beneficiary through her national reputation.
Mr. .... in addition to his assertions regarding the beneficiary's previous work discussed above, also
asserts that he personally designed the plan for Seacrest Village and that he met the beneficiary at a City
Counsel meeting where she spearheaded a plan to implement Mr. j plan. While Mr. ..
discusses the significance of the plan for Seacrest Village, it remains that this plan has yet to be
completed. Thus, it has yet to influence the development industry nationwide. Moreover, as stated by
-Page 8
Mr. _ he is the architect of the plan itself. Thus, any credit for the significance of the plan itself
would seem to accrue to him. Moreover, while the record contains some references to the beneficiary
being "awarded" the Seacrest Village project, the plan itself indicates:
The Cjty of Boynton Beach received an Urban Infill and Redevelopment Grant from the
State of Florida to prepare a Neighborhood Master Plan for what is now referred to a
"the Heart of Boynton." The Master Plan is the second of five redevelopment plans for
the City's Community Redevelopment Agency (CRA) Redevelopment Area. The City
retained the services of and its sub consultants lEG
Associates an RMPK Group to prepare the Neighborhood Master Plan.
"Heart of Boynton Community Redevelopment Plan," p. 1.
beneficiary had any affiliation with
prior to the award of this grant. .
The record contains no evidence that the
Associates or
founder and president of Public Relations in Florida, asserts that the
beneficiary has played a critical role in the growth and sustained recognition of her employers and that
her accomplishments "have been chronicled in a wide range ofpublications that have positioned her as
an expert and a trend-setter in marketing, management and development." Mr. ; asserts that
"through [the beneficiary's] efforts, ' I was recently named the 'master
developer'" for Seacrest Village. The media coverage listed by Mr ; however, is all local to
South Florida.
Moreover the articles themselves, while demonstrating some popular support for the beneficiary's
project, do not suggest that the has gained any official approval. The
September 2005 article in the South Florida Business Journal indicates that the City of Boynton had
yet to agree to sell the necessary property. The September 14,2005 article in the Sun-Sentinel indicates
that the Community Redevelopment Agency (CRA) had yet to choose a developer. In fact, the CRA
was considering requesting proposals from several developers rather than let "Intown skirt the process."
A September 16, 2005 article indicates that the CRA was in the process of using eminent domain to
acquire 4.2 acres for a proposal it voted on in 2002 although "Intown has pending contracts on some of
those same properties." An October 19,2005 article in Boynton Beach's Neighborhood Post Indicates
that "Intown's vision, however, is not at all what the city and the Community Redevelopment Agency
had in mind when the Heart of Boynton redevelopment plan was approved in 2001." The article
continues:
the city's development director, said the folks at Intown appear to be
'marching to their own drummer.
'I don't know where they got the idea that they were somehow going to be the exclusive
entity in the Heart of Boynton,' he said. 'We know what we"re doing, I just don't know
what they are doing.'
'"
Page 9
Given the unambiguous language in these articles indicating that Intown had yet to gain official
.approval as of the date of Mr. letter, all of the infonnation in that letter lacks credibility. In
fact, the articles submitted on appeal reveal that no deal was ever reached with Intown and that a recent'
law on eminent domain is requiring IntoWn to compete with other developers. Doubt cast on any
aspect of the petitioner's proof may, of course, h~ad to a reevaluation of the reliability and sufficiency
of the remaining evidence offered in support of the visa petition. Matter ofHo, 19 I&N Dec. at 591., . ,
Mr. also states that the beneficiary has "held senior-level
'===I~:~:~ [sic], Blue Cross Blue Shield, and [sic]
I ' While the record contains evidence directly from The • Organization confinning
the beneficiary's role with that company, the record is absent evidence that the beneficiary has
worked for any of the other organizations. Moreover, these organizations are not listed on the
beneficiary's curriculum vitae. Rather, the CEO of lists these organizations as among
••• own clients recruited by the beneficiary. Recuiting a business as a client for one's own
employer is not the same thing as serving in an executive capacity for that client. Overall, the letter
from Mr. lacks credibility and has little evidentiary w~ight.
Given the above, background, we will now discuss the regulatory criteria, set forth at 8 C.F.R.
§ 204.5(h)(3)(i)-(x), as follows:
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or
awards for excellence in thefield ofendeavor.
,
The petitioner submitted a 1993 award from the .FloridaInternational University College of Education
. in recognition of academic excellence issued to the beneficiary. The beneficiary received her Master's
,Degree ·in Physical Education from that institution In 1992. The beneficiary is also included in the
1989-1990 edition of "The National Dean's List.", The director concluded that this evidence of
academic achievement was not indicative of an award in the beneficiary's field of endeavor..
Counsel does not directly challenge this conclusion on appeal. Rathe'r,counsel asserts, for the first time
in these proceedings, that the "award" as master developer for, Seacrest is an award· of national
significance. ,Going on record without supporting docUmentaryevidence is not sufficient for purposes
of meeting the bUrden of proof in these proceedings.' Matter of Soffici, 22 I&N Dec. at 165 (citing
Matter o/Treasure Craft ofCalifornia, 14 I&N Dec~ at 190). '
First, not only do we concur with the director that recognition for academic excellence at one's own, .
school is not a lesser nationally or internationally recognized prize or award for excellence, the
beneficiary's degree was in Physical Education, a completely different field. Thus,the recognition was
. clearly not in the beneficiary's current field of endeavor,real estate marketing and development.
Page 10
Second, an "award" to develop property is not an award issued in recognitioI).of past excellence.
Obviously the past achievements of the developer are a factor in the evaluation of development
proposals. ' The awarding entity has to be assured that the developer is capable of performing the
proposed development. Nevertheless, a development grant is principally designed to fund future
development, and not to honor or recognize past achievement. Moreover, it is presumed that a
development award recognizes the quality of the proposed development, not the marketing or executive
management for the project. While a ProposCl;1must be well presented, nothing in the record suggests
that the development award was issued in recognition of the beneficiary's excellence in the fields of
, marketing and management. In fact, as discussed above, the only development award affirmatively
, granted that is documented in the record is the grant to Strategic Planning, Group, Inc. The news
articles continue to indicate that the necessary authority has not reached a final agreement with I~town.
In light of the above, the petitioner has not established that the beneficiary,meets this criterion.'
Documentation of the alien's membership ,in associations in the field for which 'classification is
sought, which require outstanding achievements oftheir members, as judged by recognized national
or international experts in their disciplines orfields.
Initially, the, petitioner' submitted' the beneficiary's' Real Estate Sales Associate License and
Membership Card for the National Association of Realtors (NAR). The director requested evidence of
the membership criteria for the NAR. In response, the petitioner'submitted a May 11, 2006 letter from
" CEO' of the National Association of Sales Professionals I I.' 'Confirming the
benefici~'s membership in NASI>. Mr.. further asserts that is comprised of "dynamic
leaders" who rank in the top ten percentof their field. In asimilar letter dated August 9, 2001, the
former CEO of ~,asserts that members of_"generally"'rallk in the top 10
percent of the field. The official materials also state that members "generally" rank in the upper 10
percent and suggest that~ merely provides "premier sales certification" available to career-minded
sales persons.' ,
The director concluded that the petitioner had not established that the beneficiary is a member of an
association that requires outstanding achievements of its members. On appeal, counsel asserts that the
letters from. set forth, ','in detail, its requirements of extraordinary ability of its membership."
Counsel also asserts; for the first time in these proceedings, that the petitioner submitted evidence of the
beneficiary's "membership" in the . Counsel specifically asserts that the
director erred in faiiing tocorisider the beneficiary's_ "membership" even though counsel has never
advanced this claim previously.
younsel serious1 ymischaracterizes the letters from The letters are not detailed, but'brief. They
provide, no specific memberships requirements. The broad assertion that members are "generally"
highly ranked in the field is insufficient. The association must "require" outstanding achievements of
its members to qualify. 8 C.F.R. § 204.5(h)(3)(ii). The letters do not explain how members are elected
. ; I ' .
Page 11
.or otherwise chosen or provide the specific criteria under which they are evaluated for membership.
Merely passing a certification examination is not an outstanding achievement.
It is noted that the petitioner has submitted voluminous documentation in this matter. At no point has
counsel identified which exhibit documents the beneficiary's "membership" in ULI. We have been
unable to locate any mention ofULI in the record.
In light of the above, the petitioner has not established that the beneficiary meets this criterion.
. Published materials 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 ofthe material, and any necessary translation.
The petitioner submitted articles in .the South Florida Business Journal about the acquisition of land in
Boynton Beach for the Seacrest Village development. The beneficiary is identified as a developer and
official of Intown Development Group. Ms. _ an officer of the petitioner, is listed as a co­
developer. While counsel and several references tout the significance of this project as having altruistic
values, the September 16 -22,2005 edition of the South Florida Business Journal reveals that the main
landowners contributing to the development insisted on this issue. Moreover, as discussed above, the
. plan was actually designed by Mr. _. Finally, the completion of the project as planned remains
uncertain even as of the date of appeal.
i
The director requested clarification as to how this evidence serves to meet the criterion. In response,
the petitioner submitted articles in other local South Florida papers and the letter,. discussed above,
from Mr. 'I. As stated above, Mr. s makes assertions that are explicitly contradicted by the
articles. Thus, his letter has little credibility. .
The director 'concluded that the press coverage had no national circulation and, thus, could not serve to
meet this criterion. On appeal, the petitioner submits new news articles, indicating that the eRA voted
to negotiate with Intown· rather than seek proposals from other developers because, without. eminent
domain, soon to be outlawed for private'developmeQ.t, the City could not acquire the land to be
developed. Without owning the land, the CRA could tiot open the process to outside proposals. The
eRA, however, had yet to grant full development rights to Intown. A May 4, 2006 article in the Palm
Beach Post indicates that city commissioners "asked staffers to review the Intown proposal but made
no promises." A May 13,2006 article in the same'paper indicates that Governor Jeb Bush signed the
eminent domain law sooner than expected and that the new law "foils last-minute negotiations with
Intown Development Group for the second phase of the Heart of Boynton." .A June 23, 2006 article in
the Sun.;.Sentinelindicates that the City of Boyton agreed to look at proposals from multiple developers.
~ Intown is..namedas a group planning to ma~e a proposal. The latest article submitted, a July 11, 2006
.article in the Palm Beach Post, still does not indicate that any final proposal has been accepted.
Page 12
While the beneficiary is quoted in some of the articles, they are not primarily about her. Even if we
were to conclude that the articles,were sufficiently' about the beneficiary, relating to her work, they did
not appear in major media. The record lacks evidence that the papers that have covered Seacrest have a
significant national distribution.
Also on appeal, counseLasserts that the beneficiary's'television appearance was covered by a national
affiliate. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19
I&N Dec. 533, 534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter ofRamirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The record contains no evidence that the beneficiary
received nationally televised coverage.
", In light of the above, the petitioner has not established that the beneficiary meets this criteri~n .
.... .
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 ofspecification for which classification is sought.
Counsel does not challenge the director's assertion that the petitioner did not claim or submit evidence
relating to this criterion and we concur with the director.
Evidence' of the alien's, original scientific, scholarly, artistic, athletic, or business-related
contributions ofmajor significance in thefield
As discussed above, the petitioner submitted several reference letters'that relate mostly to this criterion.
As also ~xplained above, mere attestations of extraordinary ability, skill and contributions are
insufficient. The most persuasive letters will provide specific examples of contributions and explain
how those contributions have influenced the field. '
The letters iregarding the benefiCiary's work on are not persuasive; As discussed
above, that project has yet to go forward and,as such, cannot be considered a contribution that has
already influenced the field. Moreover, some ofthe most significant elements, such as the design, are
not the benefiCiary's own original contributions.
The, record contains several presentations prepared by the beneficiary foi I; clients. These
presentations include" ," a metric based economic, model cre,ated by
_ current CEO according to his biography in the record. The record lacks letters from the clients
who participated in these seminars as to the influential nature of the beneficiary's presentations. 'Mr.
.... asserts that the beneficiary recruited "invaiuable" clients for the New York office and has
received favorable acclaim in the field, but provides no examples of how the benefiCiaryhas influenced
,the field of marketing and sales beyond demonstrating her competence at _. While counsel
focuses on Mr. discussion ofthe beneficiary's successful score at the time of hiring, the record'
lacks evidence as to how this score is indicative of her past contributions of major significance or
Page 13
general acclaim in the field. Acclaim requires not merely talent, but notoriety in the field beyond one's
own employers and clients.
The beneficiary's presentations of _management strategies, developed by the company's CEO,
while possibly tailored to an individual client, do not appear to be original contributions. Regardless,
the record lacks evidence of widespread adoption of these strategies.
The petitioner also submitted several marketing plans for various real estate properties and a cellular
phone company. As discussed above, several references assert· that these marketing plans were
unusually successful. Mostoftheseletters arenot from the actual employer. Regardless, assuming that
the beneficiary is responsible for successful marketing plans, not every successful marketing plan is a
contribution of major significance to 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. We must presume that the phrase "major significance" is not
superfluous and, thus, that it has some meaning. To be considered a contribution of major·
significance in the field of marketing, it can be expected a marketing plan will not merely be
successful, as they are designed to be, but influential on the field as a whole.
The record is absentevidence that the beneficiary's real estate marketing plans have proven influential
in the field or have even been acknowledged outside of Florida. The record contains no evidence that
the beneficiary is a frequent lecturer on marketing or has authored influential scholarly articles in major
trade journals explaining her methods. The record lacks letters from members of the field outside of
Florida who were previously aware of the beneficiary through her national reputation and who have
been influenced by her marketing plans.
In light of the above, we withdraw the director's finding that the beneficiary meets this criterion.
Evidence of the alien's authorship ofscholarly articles in the field, in professional or major trade
publications or other major media.
The petitioner initially submitted a local news article in a community .newspaper authored by the
. beneficiary. The director requested evidence that the beneficiary had authored an article in a scholarly
journal or major trade publication. In response, the petitioner submitted several internal reports and
presentations prepared by the beneficiary on behalf of for its clients. The director concluded
that these reports were not published in professional or major trade publications or other major media.
Counsel does not specifically challenge this conclusion on appeal but does reiterate that these materials
were submitted.
The plain language ofthe regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires that the articles be scholarly
and that they appear in professional or major trade publications or other major media. The'
beneficiary's articles for local newspapers are not "scholarly" and do not appear in major media. The
Page 14
beneficiary's reports and presentations prepared for her employer's clients are not published III
professional or major trade publications or other major media.
Tn light of the above, the petitioner has not established that the beneficiary meets this criterion.
Evidence ofthe display ojthe alien's work in thefield at artistic exhibitions or showcases.
Initially, the petitioner submitted marketing materials for , an
community. The unofficial sample submitted lists the beneficiary as the designer of l j logo and
a Harbor Islands advertisement. The petitioner also submitted a proposal for marketing the Ocean
Palms prepared by the beneficiary, credited as Director of Marketing for the architecture company
ItecDesign. The petitioner also submitted Internet materials for
n 1 reports prepared for the }I Organization's New Jersey World Headquarters and
promotional materials for corporations sponsoring the Greater Miami Inner City Games. Nothing in
these materials credits the beneficiary as the designer of these materials. Finally, the petitioner
submitted the plans for a proposed Sears building. These plans are not credited to the beneficiary and
the beneficiary is not an architect.
The director's request for additional evidence emphasizes that this criterion requires display at artistic
exhibitions or showcases and does not apply to the beneficiary's field. Counsel did not address this
.'. criterion in response. The director ultimately concluded that the displays of the beneficiary's work
were not at artistic exhibition or showcases and that this criterion is not applicable to the beneficiary's
field. Counsel does not challenge this conclusion on appeal and we concur with the director. Thus, the
petitioner has not established that the beneficiary meets this criterion.
Evidence that the alien has performed in a leading or critical role for organizations or
establishments that have a distinguished reputation.
Counsel initially claimed that the beneficiary played leading or critical
Organization in New York and for the following development projects:
and all in Florida. The index to the initial submission suggests that the petitioner is also
relying on the beneficiary's roles with the Don Shula Foundation, the Greater Miami Inner City Games
and the Miami Project to Cure Paralysis. .
In respons~ t~est for additional evidence, the petitioner submitted a letter from the
CEO of The_ affirming that the beneficiary served as the Vice President of Sales
and Marketing for the company's New York Office for 14 months. The director concluded that the
beneficiary meets this criterion and we concur, although this 14~month position hardly seems indicative
.of the type ofsustained acclaim contemplated by the statute.
The record lacks sufficient evidence that the beneficiary's remaining roles have been leading or.critical
as she merely served as a consultant. Specifically, the record lacks letters from the actual entities that
employed her, as opposed to those who appear to know of her work indirectly. The regulation at
8 CF.R. § 204.5(g)(1) provides that evidence of employment should be in the form ofletters from the
employers themselves. ' Forms W-2 confirming actual employment with any
company other than The The record also lacks evidence that the beneficiary's
other alleged employers, as opposed to their clients, have distinguished reputations nationally.
In light of the above, while we will not withdraw the director' s conclusion that the beneficiary meets
this criterion, we find that the evidence, although' minimally sufficient, carries far less weight than
claimed by counsel.
Evidence that the alien has commanded a high salary or other significantly high remuneration for
services, in relation to others in thefield.
'Initially, counsel asserted that the beneficiary "has been, and will continue to be req1Uneratedwith a
significant salary for her extraOrdinarywOrk." The only evidence submitted initially-relating to this
criterion was the job offer from the petitioner. This letter does not demonstrate what the beneficiary
had already earned as remuneration. .
'The director reguested evidence ofthe beneficiary's remunerationin 2002,2003 and 2004 and evidence
of comparative salaries in the field. In response, the petitioner submitted the beneficiary's 2000 Wage
and ,Tax Statement d~$120,,282. The petitioner also submitted a let):erfrom I
T' 5 CEO of the _ confirming that the beneficiary was employed as their Vice
President of Sales and Marketing in New York office from December 1999 through February 2001. He
further states that _ paid the beneficiary "one of the highest base salaries for a Vice President in
our company." (Emphasis added.)
The directOrconcluded that the petitioner had not established the beneficiary's remuneration after 2000
and had not established that her remuneration was high "in relation to others in the field." On appeal,
, counsel asserts that the director did not give sufficient weight to Mr_letter.
,The petitioner must establish the beneficiary's eligibility as of the' date' of filing. See' 8 C.F.R.
§ 103.2(b)(l2); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). Thus, the petitioner's
offer ofemployment to the beneficiary is insufficient. We note that the beneficiary already serves as an
'officer of Intown, a partner of the petitioner, yet the record does not establish that she is earning a
significant ~alary in that position. Regarding the beneficiary's $120,282 salary with .... the reCOrd
is not persuasive that this wage is significantly high in the field. While Mr. 1 asserts that the
,~age was one of the company's highest base salaries for that position, we will not narrow the
beneficiary's field to those earning a base level wage in a similar position. The beneficiary must
compare with the top earners in her occupation. The record does not establish that her salary at_
compares with the top earning Vice Presidents of Sales and Marketing nationwide.
In light of the above, the petitioner has not established ~hat the beneficiary meets this criterion.
Evidence ofcommercial successes in the performing arts, as shown by box office receipts or record,
cassette, compaci disk, or video sales.
Counsel does not challenge the director's assertion that the petitioner did not claim or submit evidence
relating to this criterion and we concur with the director.
The· documentation submitted in support of a claim· of extraordinary ability rImstclearly 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 th~ field of endeavor.
Review of the record, however, does not establish that the beneficiary has distinguished herself as areal
estate development president to such an extent that she may be said to have achieved sustained national
or international acclaim or to be within the small percentage at the very top of her field. The evidence
indicates that the beneficiary shows talent as a real estate development president, but is not persuasive
that the beneficiary's achievements set her significantly above almost all others in her field. Therefore,
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.
While Citizenship and Immigration Services (CIS) approved at least one 0-1 nonimmigrant visa
petition filed on behalf of the beneficiary, the prior approval does not preclude CIS from denying an
immigrant visa petition based on a different, if similarly phrased standard. It must be noted that many
1-140 immigrant petitions are denied after CIS 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. ofJustice, 48
F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989).
Because CIS spends less time reviewing 1-129 nonimmigrant ,petitions than 1~140 immigrant
petitions, some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v.
INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL
1240482 (5th Cir. 2004) (finding that prior approvals do not preclude CIS from denying an extension
of the original visa based ona reassessment of beneficiary's qualifications). .
Moreover, if the previous nonimmigrant petition was approved based' on the same unsupported and
contradictory assertions that are contained in the current record, the approval would constitute material
and gross erroron the part of the director. Due to the lack of required initial evidence in the present
record, the' AAO finqs that the director was justified in departing from the previous nonimmigrant
approval by denying the present immigrant visa petition.
The AAO is not required to approve applications or petItIons where eligibility has not been
demonstrated, merely because of prior approvals that may have been erroneous. See e.g. Matter of
Church Scientology International, 19 J&N Dec. 593,597 (Coriun. 1988). It wOllldbe absurd to suggest
that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd v.
Montgomery, 825 F.2d 1084,1090 (6thCir. 1987), cert. denied,485 U.S. 1008 (1988).
Page 17
Furthennore, the AAO's·authority over the service centers is comparable to the relationship between a
court of appeals and a district court. Even if a service center director had approved the nonimmigrant
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision
of a service center. Lou;isiana Philharmonic Orchestra v. INS, 2000 WL 282785 (ED. La.), affd, 248
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
The director is instructed to review the previous nonimmigrant approval for possible revocation,
pursuant to 8 C.F.R.§ 214.2(0)(8).
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of
the Act, 8 U.S.C. § 1361. ~ere, the petitioner has not sustained that burden. Accordingly, the appeal
will be dismissed.
ORDER: . The appeal is dismissed.