dismissed EB-1A Case: Design

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofjce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PUBLIC COPY a, 
Office: NEBRASKA SERVICE CENTER 
 Date: JUL 0 8 2009 
LIN 07 049 50012 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
5 103.5 for the specific requirements. 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 $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
5 103.5(a)(I)(i). 
J(y$lJ/yL 
i-- John . Grissom 
y Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petition is now before the Administrative Appeals Office (AAO) 
on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an 
alien of extraordinary ability. The director determined the petitioner had not established the 
sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability. More specifically, the director found that the petitioner had failed to 
demonstrate receipt of a major, internationally recognized award, or that he meets at least three 
of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
On appeal, counsel for the petitioner argues that the petitioner meets the statutory requirements and 
at least three of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
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 to the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and the 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 56 
Fed. Reg. 60897, 60898-9 (Nov. 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 has 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. 5 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, 
however, that the petitioner must show that he has sustained national or international acclaim at 
the very top level. 
This petition, filed on December 5, 2006, seeks to classify the petitioner as an alien with 
extraordinary ability as a designer. The regulation at 8 C.F.R. $ 204.5(h)(3) indicates that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement (that is, a major, internationally 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 qualifl as an alien of extraordinary ability. A 
petitioner, however, cannot establish eligibility for this classification merely by submitting 
evidence that simply relates to at least three of the criteria outlined in 8 C.F.R. $ 204.5(h)(3). In 
determining whether the petitioner meets a specific criterion, the evidence itself must be 
evaluated in terms of whether it is indicative of or consistent with sustained national or 
international acclaim. A lower evidentiary standard would not be consistent with the regulatory 
definition of "extraordinary ability" as "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 petitioner has submitted evidence that, he claims, meets the following criteria under 8 C.F.R. 
$ 204.5(h)(3).' 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in theJield of endeavor. 
The petitioner submitted copies of the following: certificates indicating that he received a Pratt 
Circle Award for Academic Achievement issued by the Pratt Institute in 1998 and 2000; 
certificates indicating that Graphic Design USA presented him with an American Graphic Design 
Award in 2001, 2005 and 2006; a certificate indicating that he was a member of a team that 
received a 2002 Award of Excellence at the 43rd Annual Exhibition of Communication Arts; a 
2005 "Certificate of Design Excellence" issued by Digital Design Annual; and certificates 
indicating that he received two American Inhouse Design Awards presented by Graphic Design 
USA. The petitioner also submitted a certificate indicating that the Museum of Modern Art 
(MoMA) was recognized with honorable mention at the 2003 Museum Publications Design 
Competition sponsored by the American Association of Museums (AAM). Although the 
certificate indicates that it included the Department of Graphic Design, the petitioner is not 
named on the certificate. 
The petitioner submitted no documentation to indicate that any of these awards are nationally or 
internationally recognized as awards of excellence in his field. The Pratt Circle Awards indicate 
that they are for academic achievement. Academic study is not a field of endeavor, but training 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
for a future field of endeavor. As such, academic scholarships and student awards cannot be 
considered prizes or awards in the petitioner's field of endeavor. 
Further, with regard to awards won by the petitioner in student level competitions, we cannot 
conclude that such awards indicate that he "is one of that small percentage who have risen to the 
very top of the field of endeavor." See 8 C.F.R. 5 204.5(h)(2). USCIS has long held that even 
athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 1994); 56 Fed. Reg. 
at 60899.~ Likewise, it does not follow that the petitioner who had success in a competition 
restricted to students rather than his field at large should necessarily qualify for an extraordinary 
ability employment-based immigrant visa. To find otherwise would contravene the regulatory 
requirement at 8 C.F.R. 5 204.5(h)(2) that this visa category be reserved for "that small 
percentage of individuals that have risen to the very top of their field of endeavor." 
In response to a request for evidence (RFE) issued by the director on March 6, 2008, the 
petitioner submitted a letter dated A ril 14, 2008 from Awards Director for 
Graphic Design USA. stated that Graphic Design USA is "the premier news 
magazine for graphic designers and other creative professionals" and confirmed that the 
petitioner had received awards from the organization in 2001, 2005, 2006 and 2008. The 
petitioner submitted a copy of a letter from The American Inhouse Design Awards notifying him 
that he had been selected as a winner in the 2008 awards. However, awards received after the 
filing date of the petition cannot be used to establish the petitioner's eligibility under this 
regulatory criterion. A petitioner must establish eligibility at the time of filing; a petition cannot 
be approved at a future date after the petitioner or beneficiary becomes eligible under a new set 
of facts. 8 C.F.R. 5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). 
Accordingly, this award will not be considered in this proceeding. 
The American Inhouse Design Awards is the leading showcase for outstanding 
work by in-house designers. Each year our judges . . . review hundreds of 
While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of Racine, 
1995 WL 1533 19 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 at least one other court in 
this district, Grimson v. INS, No. 93 C 3354, (N.D. 111. September 9, 1993), and the definition of the term 
8 C.F.R. 6 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the court's 
reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. $204.5(h)(2) is reasonable. 
Page 5 
submissions from Graphic Designers sand other creative professionals from 
corporations, publishing houses, non-profit organizations, universities and 
government agencies. These designers create original work within the limitations 
of their industries and provide significant contributions to the design world. 
The petitioner submitted no documentation to confi- assessment of the impact 
of the design awards, such as evidence of media coverage or similar documentation, to establish 
that these awards are nationally or internationally recognized as awards of excellence in the 
petitioner's field of endeavor. 
The petitioner provided a copy of an April 15, 2008 "advisory opinion" from - 
Executive Editor of Communication Arts magazine, which she stated "is a professional journal 
for designers, art directors, copywriters, design firms, corporate desi n departments, advertisin 
agencies and everyone involved in visual communication." 
 a 
d further stated that the 8' 
Interactive Annual attracted over 2,000 entries of which only 47 were accepted, and that the 
petitioner's work "was selected by the distinguished 2002 jury based on creative excellence and 
quality of execution." Nonetheless, the petitioner submitted no documentation to establish that an 
award from Communication Arts is recognized nationally or internationally as an award of 
excellence in the petitioner's field. 
In an April 15, 2008 letter, 
 from the AAM, who identified herself as Editor-in- 
Chief, stated that the AAM's Museum Publications Design Competition is the "only national, 
juried competition of its kind." However, being the only event of its kind does not automatically 
mean that awards granted by the organization are recognized nationally or internationally as 
awards of excellence. 
On appeal, counsel states "the percentage chosen for an award versus the number of entries . . . 
shows that only those who are at the top of their field [like the petitioner] are given these 
awards." Counsel's argument however is not supported by the evidence of record. Merely 
because a given percentage of entries are selected for recognition does not automatically mean 
that the competitions attract entries from the very top of the field. Further, the criterion requires 
the petitioner to establish that the award or prize given is recognized on a national or 
international level as an award of excellence in the field. Therefore, the number of entries and the 
percentage selected for recognition are not necessarily synonymous with excellence. 
In this instance, while we do not dispute the petitioner's receipt of various design awards, he has 
failed to establish that any of the awards are recognized beyond the awarding entity itself. The 
documentary evidence is not sufficient to establish the national or international recognition, if 
any, associated with the awards received by the petitioner. 
The petitioner has failed to establish that he meets this criterion. 
Page 6 
Documentation of the alien's membership in associations in the field for which 
classiJication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
To demonstrate that membership in an association meets this criterion, the petitioner must show 
that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, 
minimum education or work experience, standardized test scores, grade point average, 
recommendations by colleagues or current members, or payment of dues do not satisfy this 
criterion as such requirements do not constitute outstanding achievements. The overall prestige 
of a given association is not determinative. The issue is membership requirements rather than the 
association's overall reputation. 
The petitioner claims to meet this criterion through his membership in the Art Directors Club 
(ADC), the Type Directors Club (TDC) and the American Institute of Graphic Art (AIGA). 
However, the petitioner submitted no documentation of his membership in these organizations 
with his petition. In response to the RFE, the petitioner submitted a September 19,2005 welcome 
letter from, Executive Director of the ADC, acknowledging the petitioner as a new 
member into the club. The petitioner also submitted a copy of a card indicating that he had been 
a member of the AIGA since 1997, and a copy of a September 28,2005 letter notifying him that 
he had been elected to regular membership in the TDC. The petitioner submitted no 
documentation about the membership requirements of the ADC or the AIGA. 
The petitioner submitted a copy of the bylaws of the TDC, which recognizes six classes of 
membership. According to the bylaws: 
Regular Members shall be those individuals of an acceptable level of professional 
competence who are actively engaged in the selection, specification, design or 
creative use of typography. Acceptance is subject to approval by the Board. 
The bylaws also recognize associate members, who are non-professionals with an interest in the 
fields of typography, design or graphic arts; student members, who are those engaged in 
undergraduate or post graduate studies; life members are those with 20 years or more 
consecutive membership who have "made outstanding contributions to the fields of typography, 
typographic design or graphic arts and who are retiring from active employment; sustaining 
members are businesses, organizations or individuals who give financial support to the TDC; and 
honorary members, those "individuals who have made outstanding contributions to the fields of 
typography, typographic design or the graphic arts." 
Therefore, according to its bylaws, TDC does not require outstanding achievements of its 
members. Those who have outstanding contributions may be honorary or life members; 
however, regular membership, such as that held by the petitioner, does not require outstanding 
achievement. 
Page 7 
On appeal, the petitioner submits a June 20, 2008 letter from George Fernandez, director of 
membership of AIGA, who identified only one requirement for membership in the organization: 
that the individual is a professional working in the field of design. 
The petitioner also submitted a copy of a July 3 1, 2006 letter acknowledging his membership in 
D&AD and accompanying material that indicates the term "member" is reserved for those 
creatives who have had work featured in the D&AD Annual. The material further indicates that 
"associate membership is open to all non-creatives" who are "a client, marketing director or . . . 
promote creativity in business." The membership requirements of D&AD do not indicate that 
outstanding achievements are required of its members. 
The evidence submitted does not indicate that any of the organizations for which the petitioner 
claims membership requires outstanding achievements of its members as judged by national or 
international experts in the field. Accordingly, the petitioner has failed to establish that he meets 
this criterion. 
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 classijication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In order to meet this criterion, published material must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
The petitioner submitted a copy of his portfolio and copies of his designs that appeared in 
publications such as CMYK, Print, Interactive Annual 2002, Communication Arts, Graphic 
Design, Experimenta, Open Ends and the MoMA staff newsletter. However, none of these 
published photographs of the petitioner's work is accompanied by the documentation required by 
this criterion. This criterion specifically requires the material to be about the alien and to include an 
author, title, and any needed translation. Those specific requirements reference published written 
work instead of visual work such as photographs of the petitioner's graphic designs. As such, these 
photographs do not qualifl the petitioner under this criterion. 
Further, the petitioner has not established that any of the publications in which photographs of his 
work appeared is a professional or major trade publication or constitutes other major media. We 
note that stated that Communication Arts magazine is a professional journal, and Ms. 
stated that Graphic Design USA is "the premier news magazine for graphic designers 
and other creative profes~ionals." However, the petitioner submittedno objective documentation 
to confirm either of these statements. 
Page 8 
On appeal, the petitioner submits documentation indicating that Print is a "general-interest 
magazine" published bimonthly and is a "three-time winner" of the National Magazine Award 
for Excellence (Circulation of under 100,000). Documentation regarding CMK and 
Communication Arts indicate that those publications also have circulations of less than 100,000. 
Nothing in the record, particularly these circulation numbers, indicate that these publications are 
considered professional or major trade publications or other major media. Counsel also asserts 
that the petitioner's work has been viewed on the MoMA website. In today's world, many 
printed materials, regardless of size and distribution, are posted on the Internet. To ignore this 
reality would be to render the "major media" requirement meaningless. We are not persuaded 
that international accessibility via the Internet by itself is a realistic indicator of whether a given 
publication or website is "major media." The petitioner must still provide evidence, such as, a 
widespread distribution, readership, or overall interest in the publication in order to demonstrate 
that the MoMA website as well as the other claimed publications can be considered a 
professional or major trade publication or can be considered other major media. 
The petitioner has failed to establish that he meets this criterion. 
Evidence of the alien S participation, either individually or on a panel, as a judge of the 
work of others in the same or an alliedfield of speciJication for which classi~cation is 
sought. 
The petitioner claims to meet this criterion based on his position of senior designer at MoMA. In 
her December 1, 2006 letter accompanying the petition, counsel states that "elemental' to the 
uetitioner's res~onsibilities in his current iob. he "must evaluate and assess the work of others." 
  ow ever, nothing in the letter of~eii~n Director for MoMA, and the petitioner's direct 
supervisor, - indicated that the petitioner had any duties that involved 
evaluating or assessing the work of others. 
In response to the RFE, the petitioner submitted a copy of an April 16, 2008 letter from Ms. 
b 
, who stated that she was the assistant design director, and the petitioner's direct supervisor. 
ccording to, in his job, the petitioner "regularly evaluates the professional work of 
others including both our desi n em loyees and outside vendors used in the production of 
MoMA design work." n, a professional designer, stated that the petitioner 
supervised and evaluated her work and other professional designers hired on a project basis. 
However, duties or activities which nominally fall under a given regulatory criterion at 8 C.F.R. 
5 204.5(h)(3) do not demonstrate national or international acclaim if they are inherent or routine 
in the occupation itself. 
In this instance, pursuant to his job responsibilities the petitioner was required to review the work 
of his subordinates and coworkers. The record lacks evidence that the petitioner performed as 
judge of others outside of his employment responsibilities, such as judging design contests or 
judging applicants for membership in design associations. We find the routine duties performed 
by the petitioner insufficient to meet this criterion and inconsistent with the level of acclaim 
required for this highly restrictive classification. 
The petitioner has not established that he meets this criterion. 
Evidence of the alien S original scientiJic, scholarly, artistic, athletic, or business-related 
contributions of major signlJicance in thejeld. 
As evidence that he meets this criterion, the petitioner submitted a copy of his portfolio and 
several letters of reference and recommendation. A review of the petitioner's portfolio does not 
confirm that he has made a contribution of major significance to his field of endeavor. Further, 
while the petitioner's references describe him as innovative, with outstanding artistic talents and 
technical abilities, they do not specify any contributions of major significance that he has made 
to the field. 
Those submitting letters about the petitioner's original contributions to the field include = 
, the associate creative director at Ogilvy Interactive Worldwide, who stated that he and 
the petitioner were students together and collaborated on group projects. 
 and = 
a graphic designer at The Metropolitan Museum of Art, state that the petitioner "has 
always produced desi ns of the highest quality and is responsible for many original contributions 
to the field." co-founder and partner of Dresser Johnson, LLC also stated that the 
petitioner "was responsible for many original contributions to the field." However, none describe 
those contributions or assert that they were of major significance to the petitioner's field. 
, editor and president of the Esopus, a twice-yearly arts magazine, stated that he served 
as one of the petitioner's thesis project advisors at the School of Visual Arts. He stated that the 
petitioner "is responsible for original contributions of major significance to business inherent in 
the duties of' his position at MoMA. did not specify the contributions that the 
petitioner had made nor did he specify how these contributions were of significance to the field. 
Counsel asserted in her December 1, 2006 letter that the petitioner's work has resulted in the 
creation of new media and "increased international recognition and revenues for [MoMA] as 
well as for other clients for whom he has designed." However, the evidence of record does not 
support counsel's statement. Without documentary evidence to support the claim, the assertions 
of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). 
In order to stay competitive, the petitioner, as with all designers and businesses, must continually 
develop original and innovative ideas. However, all original or innovative ideas are not 
contributions of major significance to the field. The petitioner has submitted no documentation to 
demonstrate, for instance, that his work has been implemented, copied, or otherwise adopted by 
Page 10 
other designers to the extent that it can be said that it is of major significance to his field of 
endeavor. 
The petitioner has failed to establish that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The petitioner claims for the first time on appeal that he meets this criterion. The wording of this 
criterion indicates it is intended for those in the visual arts such as sculptors and painters. 
Counsel asserts that the petitioner's work with curators is to design materials for artistic exhibits 
and that his "designs are displayed as an important part in exhibitions at one of the leading 
contemporary art and design museums." In an August 29, 2006 letter, 
 the 
acting chief curator at MoMA, stated that the petitioner worked closely with him and other 
curators "to design, prepare and install exhibition design viewed b an estimated 2.5 million 
visitors per year," with others viewing via the museum's website. stated that the 
petitioner's designs included the staff newsletter, the website, brochures, letterhead and business 
cards, signage, posters and exhibitions. Thus, it is clear that the petitioner's works are not the 
focus of the exhibition but a means of calling attention to the work of other artists. Further, as 
discussed previously, duties or activities that nominally fall within a given criterion at 8 C.F.R. 
5 204.5(h)(3) do not demonstrate national or international acclaim if they are inherent to the 
occupation itself. The record does not contain sufficient evidence to establish that specific 
designs of the petitioner were featured or exhibited at MoMA or any other artistic venue or 
showcase. 
The petitioner has failed to establish that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that he performed a leading or critical role for an 
organization or establishment and that the organization or establishment has a distinguished 
reputation. We concur with the director that MoMA is an organization with a distinguished 
reputation. However, the petitioner must also establish that his position as a senior designer was 
in a leading or critical role for MoMA. 
In his undated letter submitted with the petition, 
 stated that he was the Design Director 
in MoMA's Department of Graphic Design and the petitioner's direct supervisor. He further 
stated that in his position of senior designer: 
[The petitioner] is responsible for designing and managing MoMA's graphical 
identity for internal and external use. He plays a leading role at our distinguished 
organization. Not only is the graphic or corporate identity key to any business, 
but in an organization such as ours, which is devoted to being a leader in art and 
design, [the petitioner's] work is critical to MoMA's place in the arts 
Page 11 
environment. [The petitioner] works closely with the museum's curators to 
design, prepare and install exhibition graphic design. 
In her April 16, 2008 letter, submitted in response to the RFE, 
 stated that she 
was the assistant design director at MoMA and served as the petitioner's direct supervisor. She 
repeated assessment of the petitioner's work at M~MA and stated that the petitioner's 
"continued presence at MoMA is key to the successful operation of the Museum." 
The record indicates that at least two people are senior to the petitioner within the Department of 
Graphics Design with MoMA. Further, MoMA apparently has a number of curators and other 
designers who are responsible for obtaining and displaying the work of artists. Although the 
evidence reflects that the petitioner's designs have garnered some recognition and assisted MoMA 
in the promotion of its exhibitions, the petitioner submitted no evidence showing that he is 
responsible for MoMA's success or standing to a degree consistent with the meaning of "leading or 
critical role" and indicative of sustained national or international acclaim at the very top of his field. 
The petitioner stated that he was the graphic and website designer for Wang Investment Associates 
of New York. In a March 14,2006 letter,, who worked with the petitioner at Wang 
Investment Associates, Inc., stated that as graphic and website designer, the 
 played a ke; 
role in the company, and that his "designs resulted in successful marketing promotions." 
The petitioner submitted no documentation to confirm 
 statement's regarding the 
petitioner's role in the company or any documentation to establish that Wang Investment Associates 
is an organization or establishment with a distinguished reputation. 
The petitioner has failed to establish that he meets this criterion. 
The regulation at 8 C.F.R. tj 204.5(h)(4) states: "lfthe above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the p 
eligibility." [Emphasis added]. The regulatory language precludes the consideration of 
comparable evidence in this case, as there is no indication that eligibility for visa preference in 
the petitioner's occupation cannot be established by the ten criteria specified by the regulation. 
However, we will briefly address counsel's argument under this provision. 
Counsel states on appeal: 
[The petitioner's] unique design talent and his ability to consistently create 
effective original artwork, particularly in business communications and corporate 
branding for one of the leading art museums in the world deserve weight and 
consideration when determining eligibility for extraordinary ability. 
The petitioner, however, submits no additional documentation for consideration under 8 C.F.R. 
5 204.5(h)(4). Furthermore, the evidence submitted by the petitioner does not establish that his 
talent and his ability alone are so unique that they establish that he is an alien of extraordinary 
ability. The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of 
the small percentage who has risen to the very top of his field of endeavor. Review of the record, 
however, 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. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(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 291 
of the Act, 8 U.S.C. 8 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.