dismissed EB-1A Case: Chef

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLlCCOPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington, DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: Office: TEXAS SERVICE CENTER FILE: 
AUG 24 2012 
IN RE: Petitioner: 
Lleneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pu"uant to Sectioll 
203(h)(I)(I\) of the Immigration and Nationality Act, 8 U.S.c. § 1153(h)(I)(I\) 
ON LlEHALF OF PETITIONER: 
INSTRUCTIONS: 
Endosed please find the decision of thc Administrative Appeals Office in your casco All of thc u"euments 
related to this mailer have hcen returned to the office that originally decided your case. Please he advised tilat 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to n;opcn in 
accordance with the instructions on Form 1-290Ll, Notice of Appeal or Motion, with a fee of $fi](). The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires any motion to he riled within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you. 
Perry Rhew 
Chief. Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks the beneficiary's classification as an "alien of extraordinary ability"' in the arts as a 
chef, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.s.c. 
§ 1153(b)( I )(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. 
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)(I)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 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. 
The priority date established by the petition filing date is February 17, 2010. On June 2, 20 I 0, the 
director served the petitioner with a request for evidence (RFE). After receiving the petitioner's 
response to the RFE, the director issued her decision on February 18, 2011. On appeal, the petitioner 
submitted a brief with new documentary evidence. For the reasons discussed below, the AAO upholds 
the director's ultimate determination that the petitioner has not established the beneticiary"s eligibility 
for the classification sought. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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 ll1 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 RR, 723 101st Cong" 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29,1991). The term "extraordinary ability" reters 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.F.R. ~ 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USC/S, 596 F.3d 1115 (9th Cir. 2(10). Although the court 
upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion. 1 With respect to the criteria at 1'\ 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 evidcnce submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has Jailed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3». 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. Id. 
I Specifically, the court slated that lhe AAO had unilaterally imposed novel suhstantive or evidellliary 
requirements heyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) anu R C.F.R. 
§ 204.5(h)(3)(vi). 
II. ANALYSIS 
A. Previous 0- I Approval 
While U.s. Citizenship and Immigration Services (USCIS) has approved at least one 0-1 nonimmigrant 
visa petition filed on behalf of the petitioner, the prior approval does not preclude USCIS from denying 
an immigrant visa petition based on a different, if similarly phrased, standard. First, the regulatory 
requirements for an immigrant and non-immigrant alien of extraordinary ability in the arts arc 
dramatically different. 8 C.F.R. § 214.2(0)(3)(ii) defines extraordinary ability in the arts (including the 
perfonning arts) as simply "distinction," which is further defined as follows: 
Distinction mcans a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation relating to the immigrant classification, 8 C.F.R. § 204.5(h)(2), however, defines 
extraordinary ability in any field as "a level of expertise indicating that the individual is on of that small 
percentage who have risen to the very top of the field of endeavor." While the ten immigrant criteria set 
forth at 8 C.F.R. § 204.5(h)(3) appear in the nonimmigrant regulation at 8 C.F.R. § 214.2(0)(3)(iii), they 
refer only to aliens who scek extraordinary ability in the fields of science, education, business or 
athletics. Rather, separate criteria for nonimmigrant aliens of extraordinary ability in the arts arc set 
forth in the regulation at 8 C.F.R. § 214.2(0 )(3)(iv). The distinction between these fields and the arts, 
which appears in 8 C.F.R. § 214(0) does not appear in 8 C.F.R. § 204.5(h). As such, the petitioner's 
approval for a non-immigrant visa under the lesser standard of "distinction" is not evidence of his 
eligibility for the similarly titled immigrant visa. 
In addition, it must be noted that many 1-140 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. 20(3): 
fK1:A US v. US Dept. oj'.Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. f.td. v. Sava, 724 
F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing Form 1-12,! nonimmigrant 
petitions than Form 1-140 immigrant petitions, some nonimmigrant petitions are simply approved in 
error. Q Data Consultin[?, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Unil'. I'. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2(04) (finding that prior approvals do not 
preclude USClS from denying an extension of the original visa based on a reassessment of petitioner's 
qualifications). 
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, Malter or 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
suggest that USC IS or any agency must treat acknowledged errors as binding precedent. Sussex EIl[?!;. 
Ltd. v. Mont[?omery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (I Wi8). 
Page 5 
Furthennore, the AA(Ys 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. Clara Fashion, Inc. v. Holder, 11 ClV. 889 PAE, 2012 WL 352309 *7 
(S.D.N.Y. Feb. 3, 2012); Royal Siam v. Chertoff, 484 F.3d 139, 148 (1st Cir.2007); Tapis In!'l v. INS, 
94 F.Supp.2d 172, 177 (D.Mass.2000» (Dkt.1O); Louisiana Philharmonic Orchestra v. INS, 
44 F.Supp.2d 800, 803 (E.D.La.1999), affd, 248 F.3d 1139 (5th Cir. 2(01), cert. denied, 122 S.O. 51 
(20()! ). 
B. One Time Achievement 
Congress' example of a one-time achievement is a Nobel Prize. H.R. Rep. No. 101-723,59 (Sept. 19, 
1990). The regulation is consistent with this legislative history, stating that a one-time achievement 
must be a major, internationally recognized award. 8 C.F.R. § 204.5(h)(3). The petitioner asserted that 
the beneficiary satisfied this requirement as he "was awarded the highest prestigious internationall y­
recognized award in the culinary arts. The World Association of Chef's Societies ... awarded Certilied 
Master Chef VOMEND the degree of 'WACS GLOBAL MASTER CHEF.' IN THE CULINARY 
ARTS, THIS IS TilE EQUIVALENT OF AN Emmy or Grammy Award." According to evidence 
submitted by the petitioner in response to the RFE, the claimed award issued by the World Association 
of Chefs' Societies (WACS) is actually a certification program rather than a prize or award as 
anticipated by the statute and the regulation. Consequently, the beneficiary cannot qualify for this 
immigrant classification by relying on this certification as a one-time achievement. 
C. Translated Evidence 
"Petitioners and applicants for immigration benefits are required by regulation to provide certitied 
English translations of any foreign language documents they submit." Malter oj'Nevarez, 15 I&N Dec. 
550,551 (BIA 1976) (citing 8 C.F.R. § 103.2(b), now promulgated at 8 C.F.R. § 103.2(b)(3» which 
states: "Any document containing foreign language submitted to USCIS shall be accompanied by a liJlI 
English language translation which the translator has certified as complete and accurate, and by the 
translator's certification that he or she is competent to translate Irom the loreign language into English." 
While not addressed by the director in her decision, the record of proceeding reflects that thc petitioner 
submitted numerous translations that were either not in accordance with the regulation at 8 C.F.R. 
§ 103.2(b)(3) or did not contain all of the elements of translated evidence required by 8 C.F.R. 
§ 204.5(h)(3)(iii). Each foreign language document is accompanied by a certification from a translator; 
however, several of the certification portions of the translations performed by either 
contain an irrelevant title of the document that she claimed to be translating, or it indicated thc incorrect 
foreign from which she was actually translating. Additionally, the majority of the translations 
perfonned by arc missing her signature, even though each translation contained a 
designated space for her to sign. These discrepancies reduce the reliability of all the translations 
performed by~. The AAO therefore, will assign diminished weight to this evidence. 
Many of the translations performed by Compass Languages either lack the title, date, or author of the 
published material that is the subject of the translation, or a combination thereoE. Additionally, several 
translations are missing the publication name. Translations without all of the regulatory required 
elements found at 8 c.F.R. § 204.5(h)(3)(iii) will not be considered within this proceeding. 
D. Evidentiary Criteria 2 
Documentation of the alien's receipt of lesser nationally or internationally recognized "rize.1 or 
awards for excellence in the field of endeavor. 
This criterion contains several evidentiary elements the petitioner must satisfy. According to the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i), the evidence must establish that the alien be the 
recipient of the prizes or the awards (in the plural). The clear regulatory language requires that the 
prizes or the awards are nationally or internationally recognized. The plain language of the regulation 
also requires evidence that each prize or award is one for excellence in the field of endeavor rather than 
simply for participating in or contributing to the event. The petitioner must satisfy all of these elements 
to meet the plain language requirements of this criterion. 
The petitioner provided numerous examples of prizes or awards that either did not comply with the 
regulatory requirements for translated evidence or were not accompanied by sufficient evidence 
demonstrating that the prize or award was nationally or internationally recognized. Documentation that 
is sufficient to be considered as evidence consisted of a diploma of participation from the 5
th 
All Africa 
Games dated January 10, 1991, a certificate of achievement fro~ in Egypt dated January 
10, 1991, photographs of the beneficiary at various events, and newspaper articles indicating that the 
petitioner received various awards. The director determined that the petitioner failed to meet the 
requirements of this criterion. On appeal. counsel's brief listed the beneficiary'S first prize as the hest 
international cook at the 1989 Chefs Olympic Competition, a certificate of participation from the I 'NO 
Best Young Commis Rotisseur Competition, newspaper accounts of the beneficiary" s receipt of the 
1989 "White Hal" prize, and other foreign language evidence accompanied hy the deficient translations 
perfonned hy_ 
The forms of evidence related to the 5
th 
All Africa Games, the 1989 Chefs Olympic Competition, and 
the 1990 Best Young Commis Rotisseur Competition are not accompanied by evidence demonstrating 
that any of these prizes or awards are nationally or internationally recognized for excellence in the 
beneficiary's field. As such, this will not serve to demonstrate that the petitioner has provided evidence 
that satisfies this criterion's plain language requirements. In response to the RFE, the petitioner also 
provided a list of several awards that the . has received, with no awards listed 
bctwce and which, as stated 
above, is not an award or prize. The petitioner failed, however, to provide sufficient evidence to 
substantiate these claims. Going on record without supporting documentary evidence is not sufficient 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories or evidence not 
discussed in this decision. 
Page 7 
for purposes of meeting the burden of proof in these proceedings. Matter ofSojfici. 22 I&N Dec. 1St!. 
165 (Assoc. Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l 
Comm'r 1972)). 
The regulation at 8 C.F.R. § 103.2(b)(2) provides: 
Submitting secondary evidence and affidavits. (i) General. The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. If a required 
document, such as a birth or marriage certificate, does not exist or cannot he obtained, an 
applicant or petitioner must demonstrate this and submit secondary evidence, such as church or 
school records, pertinent to the facts at issue. If secondary evidence also does not exist or cannot 
be obtained, the applicant or petitioner must demonstrate the unavailability of both the required 
document and relevant secondary evidence, and submit two or more affidavits. sworn to or 
affirmed by persons who are not parties to the petition who have direct personal knowledge of 
the event and circumstances. Secondary evidence must overcome the unavailability of primary 
evidence, and affidavits must overcome the unavailability of both primary and secondary 
evidence. 
Regarding the newspaper accounts and photographs of the petitioner's awards in lieu of the actual 
awards, the AAO finds that the photographs are not sufficiently detailed to show that the evidence 
satisfies the regulatory requirements, because the AAO is unable to determine from the photograph that 
the petitioner was the recipient of the award, the nature or name of the competition, or the date of the 
competition. Moreover, although the photograph is accompanied by self-serving typed notations, going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
petitioner's burden of proof in these proceedings. Matter of Sojfiei, 22 I&N Dec. 158, 165 (Comm'r 
199t!) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Additionally, where the regulations require specific, objective evidence of achievements, the primary 
evidence of such awards would be copies of the awards themselves. Secondary evidence might be 
newspaper reports of the competition results. As the petitioner has only provided secondary evidence of 
some of the beneficiary's awards, it must also demonstrate that the award itself cannot be obtained. The 
petitioner has not demonstrated that the required evidence is unavailable or cannot be obtained, and 
therefore the beneficiary is presumed ineligible pursuant to 8 c.F.R. § 103.2(b)(2). 
Therefore, the petitioner has not submitted evidence that meets the plain language requirements of this 
criterion. 
Documentation of the alien '.\' membership in associations in the field .Ii1r which classi/iwtion is 
SOllRht, which require outstanding achievements of their members, as judged by recoRllized Ilaliollal 
or international experts in their disciplines or fields. 
This criterion contains several evidentiary elements the petitioner must satisfy. First, the petitioner must 
demonstrate that the beneficiary is a member of more than one association in his field. Second. the 
petitioner must demonstrate that the associations require outstanding achievements (in the plural) of 
Page K 
their members. The final requirement is that admittance is judged, or adjudicated, by nationally or 
internationally recognized experts in their field. The petitioner must submit evidence satisfying all Dr 
these elements to meet the plain language requirements of this criterion. 
The petitioner, through counsel, asserted in the appellate brief that it satisfied the membership 
criterion's requirements through the receipt of three titles. The director determined that the petitioner 
failed to meet the requirements of this criterion. 
The first title the petitioner claimed on behalf of the beneficiary was 
_ Counsel"s brief that accompanied the initial petition filing indicated that this title was a '"degree" 
awarded to the beneficiary. According to the evidence submitted in response to the RFE, this title or 
degree is awarded after the candidate attains several prerequisites and undergoes testing. This same 
evidence also indicated that this title or degree serves as a precondition for certain positions in the 
beneficiary's tield. The record is deficient of evidence that might indicate that this title is equivalent to 
a membership. Instead, the evidence reflects that this title is more in line with an educational degree. 
such as a bachelor·s. A degree such as this is not a membership in an association in the bencliciary"s 
field as contemplated by the regulation. 
In reference to the petitioner being a member of Les Toques Blanches - Egypt, the bene!iciary's 
membership certificate is in a foreign language and is accompanied by a translation performed by. 
_ As the translations performed by carry diminished evidentiary weight in the 
current proceedings, this certificate and its translation into English will not be sufficient to demonstrate 
that the petitioner is a member of the association. However, the record also contained a newspaper 
article that indicated that the beneficiary was not only a member of this association, but he was also the 
secretary. Regarding the question of whether this association requires outstanding achievements of its 
members as judged by recognized national or international experts, the record contains insufficient 
evidence to demonstrate this requirement. According to evidence submitted by the petitioner on appeal, 
the following is the definition of a suitable member: "Members must be or have been a chef of good 
standing as defined by the officers of the association, elected committee persons and accepted by the 
members." These requirements fall far short of demonstrating that the association requires outstanding 
achievements as a prerequisite for membership. 
In view of the foregoing, the petitioner has not submitted evidence that meets the plain language 
requirements of this criterion. 
Puhlished material ahout the aliell ill professiollal or major trade pllhlicatiOlls or other major 
media. relating to the alien ',\' work in the fieldfbY which classijicatioll is sough/. Such e1'idencc 
shall include the tille, date, and author of the material, and any necessary translatioll. 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must primarily be about the beneficiary and the contents must relate to the bcncliciar),'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 (in the plural). Professional or 
Page 9 
major trade publications arc 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. § I 03.2(b )(3). The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
The petitioner provided several forms of evidence under this criterion. The director determined that the 
evidence was deficient either because the petitioner had not established that the material appeared in a 
qualifying publication or because the material was not about the beneficiary and related to his work. On 
appeal the petitioner, through counsel identified evidence submitted from Esquire magazine as well as 
material that appeared in the following publications: AAA Motorist Magazine, El Gomhollria. The 
JOllrnal, WV Living, Frederick News Post, Hagerstown Magazine, Nosse Diwjh, AI- Wafd, Rosa YlIssej; 
DUsseldorf Express, and EI Mawed. 
Although Esquire magazine clearly qualifies as a form of major media, the submitted material within 
the magazine is not about him and related to his work. A small portion of the article is about the 
beneficiary's place of work, the Bavarian Inn, and a small inset within the article contained the recipe 
for buckwheat tlapjacks, which was highlighted in the article. As the director's decision con'eell) 
pointed out, the remaining evidence either was not about the petitioner and relating to his work or the 
petitioner failed to demonstrate that the material appeared in a professional or major trade publication or 
other major media. The AAO notes that the petitioner failed to submit evidence to support the 
information about the circulation of the publications that appears below the self-serving list of articles. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter ofSoffici, 22I&N Dec. 158, 165 (Comm'r 1998) {citing 
Matter of Treasllre Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
As such, the petitioner has not submitted evidence that meets the plain languagc requiremcnts of this 
criterion. 
Evidence o(the alien '.\. participation either individllally or on a panel. as aiU(~!{e of the work of 
others ill the same or an allied field of specification for which classification is sought. 
In the director's decision, she found that the petitioner established the beneticiary's eligibility f(lr this 
criterion. A review of the record of proceeding reflects that the petitioner submitted sufficient 
documentary evidence demonstrating that the beneficiary meets the plain language of the regulation at 
8 C.F.R. § 204.S(h)(3)(iv). 
Page 10 
Evidence oj the alien's original scientific. scholarly, artistic, athletic, or husillcIs-rela{l'd 
contrihutions of major siRnificance in the field. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish the beneficiary's eligibility, On appeal, the petitioner does not contest the director's findings 
for this criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda v. u.s. All'y Gen., 401 F.3d 1226, 1228 n. 2 (l1th Cir. 2005); Hristov v. Roark, 
No. 09-CV-27312011, 2011 WL 4711885 at * I, 9 (E.D.N.Y. Sept. 30, 2(11) (the court found the 
plaintilrs 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. 
Evidence o{the alien :1' authorship o/,s'cholarly articles in the jield in professional or major trade 
puhlicatiollS or other major media. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish the beneficiary's eligibility. On appeal, the petitioner does not contest the director's lindings 
for this criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion. 
Evidence ojthe display olthe alien's work in thejield at artistic exhibitions or Sh(}ll'COSCI 
The director determined that the petitioner is not a visual artist and has not created tangible pieces of art 
that were on display at exhibitions or showcases. Therefore, the director concluded that the petitioner 
had not submitted qualifying evidence that meets the plain language requirements of this criterion. On 
appeal, the petitioner does not contest the director's findings for this criterion or offer additional 
arguments. The AAO, therefore, considers this issue to be abandoned. Sepulveda, 401 F.3d at 1228 n.2; 
Hristov, 2011 WL 4711885, at *9. Accordingly, the petitioner ·has not submitted qualifying evidence 
under this criterion. 
Evidence that the aliell has perj(Jrmed in a leading or critical role jar orglllliz(lliolls or 
estahlishments that have a distinguished reputatioll. 
The petitioner claims to meet this criterion for the first time on appeal. The methods vary by which a 
petitioner can be notified of evidentiary requirements. For example, a petitioner is considered to be on 
notice through the specific requirements outlined within the regulations, or through various forms of 
communication from USC1S to a petitioner or applicant noting an evidentiary deficiency or requesting 
more evidence. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988). The regulation al 8 C.F.R. 
§ 204.5(h)(3) notified the petitioner of the specific filing requirements to demonstrate eligibility under 
the extraordinary ability classification. In addition, the instructions to the Form 1-140 petition state that 
the petitioner "must attach evidence with [the) petition showing that the alien has sustained national or 
international acclaim" and then lists the ten regulatory criteria. Therefore, the petitioner must claim 
every criterion that the petitioner would like to be considered before the director. In instances when the 
Page 11 
petitioner was notified of the types of evidence that are required to demonstrate eligibility and WaS 
afforded the opportunity to provide the evidence prior to the issuance of an adverse decision, new 
eligibility claims will not be considered on appeal. See Matter of Soriano, 19 I&N Dec. at 700. 
If the petitioner would like for USCIS to consider claims to additional eligibility criteria, this must be 
accomplished through the filing of a new petition. See id. at 766. Cf Matter of Jimenez. 21 I&N Dec. 
567,570 n.2 (BIA 1996) (finding that claims of eligibility for a waiver presented for the first time On 
appeal are not properly before the Board of Immigration Appeals and that the Board will not issue a 
determination on the matter.) Although the AAO maintains de novo review of appellate cases and a 
petitioner may supplement the record in regards to previous claims, a petitioner may not raise a 
previously unclaimed eligibility criterion on appeal. See Matter of Soriano, 211&N Dec. at 706. 
Evidence that the alien has commanded a high salary or other significantly high remuneration jiir 
services, in relation to others in the field. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish the beneticiary's eligibility. On appeal, the petitioner does not contest the director's lindings 
for this criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at 'Y. Accordingly. the 
petitioner has not submitted qualifying evidence under this criterion. 
E. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the 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: (I) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of thelirJ 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. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
Page 12 
final merits determination.] Rather, the proper conclusion is that the petitioner has failed to salisf y the 
antecedent regulatory requirement of three types of evidence. /d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(I)(A) of the Act and the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 2lJ I of the 
ACl, 8 U.S.c. § 1361; Matter of Soriano, IlJ I&N Dec. at 766 (citing Maller of Bra Illig all. II I&N Dec. 
493 (BIA 1%6». Here, the petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed. 
J The AAO maintains de novo review of all questions of fact and law. See Soltune v. DOl, 3Xl F3d 143. 145 (3d CiT. 
2(04). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determinatioll as the 
office lhat made the last decision in this matter. 8 C.F.R. § 100.5(a)(I)(ii). See also section 103(a)( 1) of the Act; 
section 204(h) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); R 
C.F.R. § 103.1(1)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, 
now USClS, is the sole authority with the jurisdiction to decide visa petitions).