dismissed EB-1A Case: Business

' 'identifying data deleted to 
prevent clearly unwarranted 
invasion of persona1 privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
0.S. Citizenship and Immigration Services 
OfJice ofAdininistrative Appeals MS 2090 
Washington, DC 20529-2090 
FILE: Office: NEBRASKA SER'J I('L CENTER Date: 
AUG 0 4 2010 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(I)(A) ofthe Immigration and Nationality Act. 8 U.S.C. 5 1153(b)(I)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R 3 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
.Perry Rhew 
/y,&dh" 
h Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner seeks classification as an enlployment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(A), as an alien 
of extraordinary ability in business. The director determined that the petitioner had not established the 
requisite extraordinary ability through extensive docuinentation and sustained national or international 
acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 
8 C.F.R. fj 204.5(h)(3). The implementing regulation at 8 C.F.R. 5 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement, 
specifically a major, internationally recognized award. Abscnt the receipt of such an award, the 
regulation outlines ten categories of specific objec~ive evidence. 8 C.F.R. 5 204.5(h)(3)(i) through (x). 
The petitioner must submit qualifying evidence under at least three of the ten regulatory categories of 
evidence to establish the basic eligibility requirements. 
On appeal, the petitioner submits further evidence and states: "I have been showcasing world class 
performances of various Filipino Artists in the United States as shown in the souvenir programs, 
posters, publicities and Certifications duly signed and issued by independent musical concert producer 
and ABS-CBN Broadcasting Corporation." For the reasons discussed below, we uphold the director's 
decision. 
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 docunientation, 
(ii) the alien seeks to enter the United Sbtes to continue work in the area of 
extraordinary ability, and 
Page 3 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
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 10ISt 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. and 8 C.F.R. 5 204.5(h)(2). 
The regulation at 8 C.F.R. 5 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim 
and the recognition of his or her achievements in the field. Such acclaim and achievements must be 
established either through evidence of a one-time achievement (that is, a major, international recognized 
award) or through meeting at least three of the following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeabor; 
(ii) 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 internatioi~al cxperts in their disciplines or fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's wolk in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and any 
necessary translation; 
(iv) 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 specialization for which classification 
is sought; 
(v) Evidence of the alien's original scientific. scholarly, artistic, athletic, or business- 
related contributions of major sig11il;cance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases: 
(viii) Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to otkicrs in the field; 01. 
Page 4 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 20 10, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification, See Kazarian v. IILS'CIiV, 596 F.3d 1 1 15 (9"' Cir. 2010). Although the 
court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion.' With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." id. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of cvidel~ce (as the AAO concluded)." Id. at 1122 (citing to 
8 C.F.R. tj 204.5(h)(3)). The court also explained the "final nierits determination" as the corollary to 
this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the veiy top of the[ir] field of endeavor," 
8 C.F.R. 204.5(h)(2), and "that the alien has sustained national or international acclaim 
and that his or her achievements have beer1 recogni~cd in the field of expertise." 
8 C.F.R. 9 204.5(h)(3). Only aliins whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.C. 5 1153(b)(l)(A)(i). 
Id. at 11 19-1 120. 
Thus, Kazarian sets forth a two-part approach where the evidcnce is first counted and then considered 
in the context of a final merits determination. In revieming Service Center decisions, the AAO will 
apply the test set forth in Kazarian. As the AAO maintains dc r201J0 review, the AAO will conduct a 
new analysis if the director reached his or tier cor~clusion by using a one-step analysis rather than the 
two-step analysis dictated by the kiczariun court. See LS'pence~, .knler.pr.ises, Inc. v. United States, 229 
F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ufj'd. 345 F.3d 683 (9"' Cir. 2003); see also Soltane v. 
DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo 
basis). 
11. Analysis 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. tj 204.j(h)(3)(iv) and 8 C.F.K. 8 204.5(h)(3)(vi). 
A. Evidentiary Criteria 
This petition, filed on January 28, 2009, seeks to classify the petitioner as an alien with extraordinary 
ability as a "Community Outreach Liaison." At the time of filing, the petitioner was working in that 
capacity for where he has been employed since October 2007. The 
etitioner has also worked as an "Event and Marketing Manager" for 
P - since October 2006. The petitioner has submitted evidence pertaining to the following 
categories of evidence under 8 C.F.R. 5 204.5(h)(3).? 
Documentation of the alien's receipt c!f'lesser nutionally or internutionally recognized 
prizes or a~lards for excellence in the,field qf'endeuvor.. 
In response to the director's request for evidence, the petitioner submitted an award plaque stating: 
This award plaque was presented subsecluent to the petition's January 28, 2009 filing date. A 
petitioner, however, must establish eligibility as of tne dare of flilng. 8 C.F.R. $5 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l. Comm'r. 1971). Accordingly, the AAO will not 
consider this evidence in this proceeding. hevertheless, there is no evidence demonstrating that this 
local award equates to a nationally or internationally recognized prize or award for excellence in the 
petitioner's field of endeavor. Moreover, the plain language of this regulatory criterion requires 
"documentation of the alien S receipt of . . . nationally or internationally recognized prizes or 
awards." [Emphasis added.] It cannot suffice that the petitioner was one member of a large group 
that earned collective recognition. 
In light of the above, the petitioner has not c:stablished that he meets this criterion. 
Published material about the alien in profe.~.sionul or mujor trcide pub1ication.s or other 
major media, relating to the alien's work in the,field for which classification is sought. 
Such evidence shall include the title. dute, und author of the muterial, and any necessary 
translation. 
-- 
2 The petitioner does not claim to meet or submit el, idellce rflating to rhe :-,!~ulctory categories of evidence not discussed 
in this decision. 
Page 6 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner 
and, as stated in the regulations, be printed in professional or major trade publications or other major 
media. To qualify as major media, the publication should have significant national or international 
distribution. Some newspapers, such as the New Ii)rk Times, nominally serve a particular locality but 
would qualify as major media because of significant national distribution, unlike small local community 
papers. 
3 
The etitioner submitted undated captioned photographs of him and two others in the - 
and entitled and - 
etitioner also submitted captioned photographs mentioning 
the August 27, 2002 issue of and the 
February 1-15, 2007 issue of 
 The plain language of this regulatory 
criterion requires the submission of "[plublished iriaterial about the alien in professional or major trade 
publications or other major media" including "the title, date, and author of the material." The captioned 
photographs in the preceding publications do not ineet these requirements. 
The petitioner submitted an August 20 
in the January 25-31, 2007 issue of 
a January 2007 article in 
distributed in California, Washington, and British Columbia), a February 2007 article in 
- in Northern California), and a February 2007 article in - 
None of these articles are about the petitioner. Rather, they only briefly mention him or list him as a 
point of contact for 
 I'hc plain language of this regulatory 
criterion requires "[plublished material about the alien." Accordingly, articles that are not about the 
petitioner do not meet this regulatory criterion.' Further, there is no evidence (such as objective 
circulation information from an independent source) showing that the preceding publications qualify as 
"major" media in the United States or any other country. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the displuy of' the  alien'.^ 11:ork in [he ,field at artistic exhibitions or 
showcases. 
On appeal, the petitioner states: "I hake been showcasing world class performances of various 
Filipino Artists in the United States as shown in the souvenir programs, posters, publicities and 
Certifications duly signed and issued by independent musical concert producer and - 
In this case. the Filipino artists' pertormances do not equate to display 
of the petitioner's work for purposes of this criterion. Moreover, the submitted evidence indicates 
3 
 Even with nationally-circulated newspapers. con~ideration mvst be given to the placement of the article. For example, 
an article that appears in the Wushington Post, bur in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
See, e.g., Accord Negro-Plumpe v. Okin, 2:07-CV-I;?@-ECK-R.IJ at 7 (D. Nev. Sept. 8, 2008) (upholding a finding that 
articles about a show are not about the actor). 
Page 7 
that the petitioner works as a "Community Outreach Liaison" and an "Event and Marketing 
Manager" rather than as an artist. The plain language of this regulatory criterion indicates that it 
applies to visual artists (such as sculptors and painters) rather than to the petitioner's occupation. 
The ten categories of evidence in the regulations are designed to cover different areas; not every 
criterion will apply to every occupation. Accordingly, the petitioner has not established that he 
meets this criterion. 
Evidence that the alien hus perfc)rmed in u leading or criticul role.for organizations or 
establishments that have a distinguished repzitcrtion. 
The petitioner submitted an employment ver~ficatlon letter fiom ~irector of Business 
Development, - stating: "[ I'he petitioner] is an asset to our company and has 
a talent for coordinating events as part of' marketing/comrnunity outreach and introducing our 
company's name to pertinent future clients " On appeal. the petitioner submits a letter from = 
Executive Producer, stating: "[The petitioner] 
has been with this organization as of October 2006. He has acted as Event and Marketing Manager v 
promoting our first event last April 29, 2007 held at - 
was a complete success because of [the petitioner's] involvemeii~." - letter further 
states that the petitioner has performed promotional tasks. coordinated venues, solicited sponsors, 
and handled celebrity engagements. The record. however, does not include evidence showing that 
Inc. and have a distinguished reputation 
when compared to other businesses in the~r industry. Further. aitl2ough the petitioner has performed 
admirably on the projects to which he was asuigned, there is no evidence showing that his role was 
leading or critical for the preceding companies as a whole. For example, the petitioner has not 
submitted an organizational chart or other similar evidence showing where his positions fell within the - 
hierarchy of and so as to establish 
that his role for them has been leading or critical. There is no evidence showing t at the petitioner's 
role differentiated him from the other-members of the companies' marketing staff let alone their top 
management. Accordingly, the petitioner has not established that he was responsible for the 
preceding companies' success or standing to a degree consistent with the meaning of "leading or critical 
role." 
In light of the above, the petitioner has noi established that he meets this criterion. 
Evidence that the alien has cornnzu~ded a high sul~cry or other signzficantly high 
remuneration-fi,r .service.s, in relution to others in lhe,fieid. 
The petitioner submitted his Form W-2 Wage and Tax Statement for 2008 reflecting earnings of 
$21,365.00. The plain language of this regulatory criterion, however, requires the petitioner to 
submit evidence of a high salary "in relsticm 10 ut-l~ers 111 the lieid." The petitioner offers no basis for 
comparison showing that his earnings are significantly high in relation to others in the field. 
Accordingly, the petitioner has not established that he meets this criterion. 
Page 8 
Evidence qf commerciul successe.s in the pc.~;fi,rnzing UI./.S, as shown by box office 
receipts or record, casselte, compucl disk, or video .sulc.,s. 
The petitioner submitted promotional material pertaining to events that he assisted in coordinating 
for various Fili~ino artists. but his ~resent occunation and the visa classification he seeks are not in 
The petitioner also submitted an August 2002 article inentitled 
mentionin that he directed two shows of 
and the in Calitirrnia. Even if we were to conclude 
that the petitioner seeks classification as a stage director, which we do not, the plain language of this 
regulatory criterion requires evidence of commercial successes in the form of "sales" or "receipts;" 
simply submitting documentation indicating ~har he directed tuo stage performances does not meet 
requirements of this criterion. The record does not include evidence of documented "sales" or 
"receipts" showing that the petitioner has achieved commercial successes in the performing arts. 
Accordingly, the petitioner has not established tliat he meets this criterion. 
Summary 
In this case, we concur with the director's determination that the petitioner has failed to demonstrate 
his receipt of a major, internationally recognized award, or that he meets at least three of the ten 
categories of evidence that must be satistied to establish the minimum eligibility requirements 
necessary to qualify as an alien of extraordinary ability. 8 C.F.R. # 204.5(h)(3). A final merits 
determination that considers all of the evidence follows. 
B. Final Merits Determination 
In accordance with the Kazariun opinion. we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual IS one of that small percentage who have risen to the 
very top of the[ir] field of endeavor," 8 C.F.K. $ 204.5(11)(2); and (2) "that the alien has sustained 
national or international acclaim and thal his or her achievements have been recognized in the field 
of expertise." See section 203(b)(l)(A)(i) of the Act, 8 I1.S.C. # 1153(b)(l)(A)(i), and 8 C.F.R. 
4 204.5(h)(3). Seealso Kuza~*iun, 596 F.3d at 1 119-1 i20. 
The specific deficiencies in the documentation submitted by the petitioner have already been 
addressed in our preceding discussion of the regulatory criteria at 8 C.F.R. 4 204.5(h)(3). The 
submitted evidence is not indicative of the petitioner's sustained national or international acclaim as 
"Community Outreach Liaison" and an "Event and Marketing Manager" and there is no indication 
that his individual achievements have been recogn~zed 117 tile fieid through extensive documentation. 
For instance, with regard to the evidencc ssubmitted for 8 C.P.R. $ 204.5(h)(3)(iii), none of the 
submitted articles are specifically about the petitioner and there is no evidence that the publications 
have significant national or internatiolral distribu:ion. While the petitioner has resided in the United 
States since 2006 and assisted with the planning and marketing of events for Filipino entertainers in 
California and Nevada, there is no evidence showing that his achievements are commensurate with 
sustained national or international acclaim. I he conclus~on we reach by considering the evidence to 
Page 9 
meet each criterion at 8 C.F.R. tj 204.5(h)(-3) separately is consistent with a review of the evidence in 
the aggregate. Even in the aggregate, the evidence does not distinguish the petitioner as one of the 
small percentage who has risen to the very top ofthe field of endeavor. 8 C.F.R. $204.5(h)(2). 
111. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an extent 
that he may be said to have achieved sustained national or international acclaim or to be within the 
small percentage at the very top of his field. 'l'he evidence is not persuasive that the petitioner's 
achievements set him significantly above aln~ost all others in his field at a national or international 
level. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the 
Act and the petition may not be approved. 
An application or petition that fails to conlply \kith the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inca. 1'. United ,Cfu/e.\, 329 F. Supp. 2d at 1043, afd, 345 
F.3d at 683; see ulso Soltune v. DOJ, 381 1:.3cJ at 145 (noting that the AAO conducts appellate 
review on a de novo basis). 
The petition will be denied for the above staled reasons. with each considered as an independent and 
alternative basis for denial. In visa pe'irion proceedings, the ~urden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.