dismissed EB-1A Case: Business

(b)(6)
DATE: JUL 2 2 2015 
lNRE: Petitioner: 
Beneficiary: 
FILE# 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office {AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § 1153(b )(!)(A) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our decision 
and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § I 03.5. Motions must be 
filed on a Notice of Appeal or Motion (Fom1 I-290B) within 33 days of the date of this decision. The Fom1 I-
290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing location, and other 
requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
:?-(3 ~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
REV 3/2015 www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks to classify the beneficiary as an "alien of extraordinary ability" in 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 with additional documentary evidence. For the reasons 
discussed below, we agree that the petitioner has not established the beneficiary's eligibility for the 
exclusive classification sought. Specifically, the petitioner has not submitted qualifying evidence of 
a one-time achievement pursuant to 8 C.F.R. § 204.5(h)(3), or evidence that 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 the beneficiary 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. 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 3 
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. 723 101 st Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991 ). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. Id; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.P.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petltwner can 
demonstrate the beneficiary's sustained acclaim and the recognition of the beneficiary'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 (9
1
h Cir. 201 0) 
(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. USCIS, 
772 F.Supp.2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of Kazarian), aff'd, 683 
F.3d. 1030 (91h Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) (finding that 
USers appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 2010) (holding that the "truth is to be determined not by the quantity of evidence alone but by 
its quality" and that users exan1ines "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. Previously Approved 0-1 Petition 
While U.S. Citizenship and Immigration Services (USCrS) has approved at least one 0-1 nonimmigrant 
visa petition filed on behalf of the beneficiary, the prior approval does not preclude users from 
denying an immigrant visa petition based on a different, if similarly phrased, standard. It must be noted 
that many r-140 immigrant petitions are denied after USCIS approves prior nonimmigrant 
petitions. See, e.g, Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); 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). We are not required to approve applications or petitions where eligibility has not 
been demonstrated, merely because of prior approvals that may have been enoneous. See, e.g, Matter 
of Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). Moreover, we need not 
treat acknowledged enors as binding precedent. Sussex Engg Ltd v. Montgomery, 825 F.2d 1084, 
1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
Furthermore, our authority over the service centers is comparable to the relationship between a comt of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions 
on behalf of the beneficiary, we would not be bound to follow the contradictory decision of a service 
center as the law is clear that an agency is not bound to follow an earlier determination as to a visa 
applicant where that initial detemlination was based on a misapplication of the law. Clara Fashion, Inc. 
v. Holder, 11 CIV. 889 PAE, 2012 WL 352309 *7 (S.D.N.Y. Feb. 3, 2012); Royal Siam v. Cherto_ff, 484 
F.3d 139, 148 (1st Cir.2007); Tapis Int'l v. INS, 94 F.Supp.2d 172, 177 (D.Mass.2000)) (Dkt.10); 
Louisiana Philharmonic Orchestra v. INS, 44 F.Supp.2d 800, 803 (E.D.La.1999), affd, 248 F.3d 1139 
(5th Cir. 2001), cert. denied, 534 U.S. 819 (2001). 
B. Evidentiary Criteria' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The director determined the petitioner met the requirements of this criterion. The petitioner has 
submitted sufficient evidence to establish that the beneficiary's evidence meets this criterion. 2 
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 discussed the evidence submitted for this criterion and found that the petitioner did not 
establish the beneficiary' s eligibility. On appeal, the petitioner does not contest the director's findings 
for this criterion or offer additional discussion. Therefore, the petitioner has abandoned its eligibility 
claims under this criterion. Sepulveda v. US Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); 
Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at * 1, 9 (E.D.N.Y. Sept. 30, 2011) (the 
court found the plaintiff's claims to be abandoned as he failed to raise them on appeal to the 
AAO). Accordingly, the petitioner has not submitted qualifying evidence under this 
criterion. 
1 We have reviewed all of the evidence the petitioner has submitted and will address those criteria the petitioner 
claims to meet or for which the petitioner has submitted relevant and probative evidence. 
2 The regulation requires that the beneficiary be the actual recipient of any qualifYing award. While the petitioner 
did not submit award certificates or official announcements crediting the beneficiary as the winner (including as a 
named member of a winning team) of many of the awards, the record does contain some evidence from the 
award-issuing entities confirming that the beneficiary was a named recipient of the award. For example , the letter 
from affirms that 
the beneficiary was personally nominated as part of a team for an award that the team won. Similarlv . 
. strongly implies the beneficiary personally won awards in and 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
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. 
This criterion contains multiple evidentiary requirements the petitioner must satisfy. First, the 
published material must be about the beneficiary and the contents must relate to the beneficiary's work 
in the field under which he seeks classification as an immigrant. The published material must also 
appear in professional or major trade publications or other major media. Professional or major trade 
publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or international distribution and be published in a 
predominant national language. The final requirement is that the petitioner provide each published 
item's title, date, and author and if the published item is in a foreign language, the petitioner must 
provide a translation that complies with the requirements found at 8 C.F.R. § 103.2(b)(3). The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
The petitioner initially provided a online article titled ' _ 
" The petitioner also provided other published material. The director determined that 
the petitioner did not submit evidence meeting the requirements of this criterion. The appeal focuses on 
the article, and does not challenge in the director's determination that the remaining 
material is not about the beneficiary, or that it did not appear in one of the required publication types. 
In addition to the article, the record consists of the following Internet articles: 
• 
• 
• 
While these articles may be about projects with which the beneficiary has some association, they are not 
articles about him. The regulation requires that the published material be "about the alien ... relating to 
the alien's work in the field." The submitted articles do not mention the beneficiary by 
name. Published material that mentions or even focuses on projects with which the beneficiary is 
associated does not meet the plain language requirements of the regulation. The published piece itself 
must be about the person and relating to his or her work in the field for which classification is sought. 
8 C.F.R. § 204.5(h)(3)(iii): see Noroozi v. Napolitano, 905 F.Supp.2d 535, 545 (S.D.N.Y. 2012); see 
also generally Negro-Plumpe v. Okin, No. 2:07-CV-820-ECR-RJJ, 2008 WL 10697512, at *3 (D. Nev. 
Sept. 9, 2008) (upholding a finding that articles about a show are not about the actor). The petitioner 
also submitted a biography relating to the beneficiary from the website 
Although this one-paragraph biography is about the beneficiary, the petitioner has not provided 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
evidence demonstrating this website is a professional or major trade publication or other major media, 
and as such it does not meet the plain language requirements of this criterion. 
While the clearly qualifies as a form of major media, the evidence is not about the 
beneficiary, relating to his work in the field. The article is entitled '' 
relating to Media and Advertising and lists new appointments of at least 18 individuals in the 
advertising field. An article that is not about the beneficiary does not meet this regulatory criterion. See 
Noroozi, 905 F.Supp.2d at 545; see also generally, Negro-Plumpe , 2008 WL 10697512, at *3 
(upholding a finding that articles about a show or a character within a show are not about the 
performer). Further, as noted by the director, this article does not indicate its author, which is a 
requirement within the regulation. 
As such, the petitioner has not submitted evidence that meets the plain language requirements of this 
criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
This criterion contains multiple evidentiary elements the petitioner must satisfy. The plain language 
requirements of this criterion require that the work in the field is directly attributable to the beneficiary. 
Generally, 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts. This interpretation is longstanding 
and has been upheld by a federal district court in Negro-Plumpe, 20008 WL 10697512, at *3 
(upholding an interpretation that performances by a performing artist do not fall under 8 C.F.R. 
§ 204.5(h)(3)(vii)). See also Visinscaia, 4 F. Supp. 3d at 135-136. The beneficiary's work also must 
have been displayed at artistic exhibitions or showcases. The petitioner must satisfy all of these 
elements to meet the plain language requirements of this criterion. 
The petitioner provided evidence relating to two advertising campaigns that it asserts are on permanent 
display at the but it did not indicate that this evidence should apply to the 
display criterion in the proceedings before the director. In fact, the petitioner's response to the 
director's request for evidence (RFE) lists this evidence as applicable to the awards criterion. 
Consequently, the director did not issue a determination under this regulatory provision. On appeal, the 
petitioner indicates that the director should have considered the evidence under the display criterion. 
The relevant evidence consists of two letters that the petitioner resubmits on appeal. 
the Director of Events at the - is the 
author of both letters. The letters indicate that each year the top advertising is "honored and made part 
ofthe archive of the Department of Film ofthe '' Each letter also 
attributes the relevant commercial to the beneficiary. Materials that the museum maintains in an 
archive but does not display do not meet this criterion. The petitioner did not submit letters from 
anyone at the museum confirming that archived items are on display. As such, the content of Ms. 
letters does not establish that the beneficiary meets this criterion. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
Accordingly, the petitioner has not submitted evidence that meets 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 the petitioner met the requirements of this criterion. The petitioner has 
submitted sufficient evidence, including the beneficiary's roles for the petitioner as well as for 
, to meet this criterion. 
Evidence that the alien has commanded a high salary or other sign?fzcantly high remuneration for 
services, in relation to others in thefzeld 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires the petitioner to submit 
evidence of the beneficiary's "high salary or other significantly high remuneration for services, in 
relation to others in the field." Average salary information for those performing work in a related but 
distinct occupation 
with different responsibilities is not a proper basis for comparison. The petitioner 
must submit documentary evidence of the earnings ofthose in the beneficiary's occupation performing 
similar work at the top level of the field.3 The petitioner must present evidence of objective earnings 
data showing that the beneficiary has earned a "high salary" or "significantly high remuneration" in 
comparison with those performing similar work during the same time period. 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 ofNHL defensive player to salary of other NHL defensemen). 
Although the petitioner mentioned the beneficiary's salary in the initial filing, it did not indicate that this 
salary is sufficient to meet the high salary or other significantly high remuneration criterion in the 
proceedings before the director. Consequently, the director did not address this regulatory provision. 
On appeal, the petitioner only mentions the beneficiary's salary in the context of a final merits 
determination, in the event that the petitioner has satisfied at least three of the regulatory criteria on 
appeal. The salary related documents the petitioner has provided consist of the appeal brief and a letter 
from the petitioner submitted with the initial petition that lists the beneficiary's future salary. 
The plain language of this regulatory criterion requires evidence of "a high salary or other significantly 
high remuneration for services, in relation to others in the field." The petitioner offers no basis for 
3 While we acknowledges that a district court's decision is not binding precedent, we note that in Racine v. INS, 
1995 WL 153319 at *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 ... the definition of the term 8 C.F.R. § 204.5(h)(2), and the discussion set forth in the preamble 
at 56 Fed. Reg. 60898-99." 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 8 
comparison showing the beneficiary's salary was high or his other remuneration was significantly high 
in relation to others in his 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, 934 F. 
Supp. at 968 (considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. 
Supp. 440, 444-45 (N.D. Ill. 1995) (comparing salary ofNHL defensive player !o salary of other NHL 
defensemen). In the present case, the evidence submitted by the petitioner does not establish the 
beneficiary has received a high salary or other significantly high remuneration for services in relation to 
others in the field. 
As a result, the petitioner has not submitted evidence that meets the plain language requirements of this 
criterion. 
C. 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 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 beneficiary 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.F.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. 4 
4 
We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 3 81 
F.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.F.R. § 103.5(a)(l)(ii); see also INA 
§§ 1 03(a)(1), 204(b); DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.l(i)(3)(iii) (2003); Matter of Aurelio, 19 l&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
users, is the sole authority with the jurisdiction to decide visa petitions). 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
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 of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.