dismissed EB-1A Case: Digital Media Art

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
and Immigratibn 
Services 
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 1153(b)(l)(A) 
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. 
fj 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. 
103.5(a)(l)(i). 
shn F. Grisso !TI 
Acting Chief, Administrative Appeals Office 
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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. tj 1153(b)(l)(A), as an 
alien of extraordinary ability in the arts. 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. 
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. 
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. tj 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. tj 204.5(h)(3). The relevant criteria 
will be addressed below. It should be reiterated, however, that the petitioner must show that she 
has sustained national or international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a digital 
media artist. The regulation at 8 C.F.R. 4 204.5(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 qualify 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. fj 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. 
fj 204.5(h)(2). 
The petitioner filed her Form 1-140, Immigrant Petition for Alien Worker, on September 25, 
2006, and indicated that she sought immigrant status as an alien of extraordinary ability pursuant 
to 8 C.F.R. fj 203(b)(l)(A). Her accompanying letter, however, addressed the requirements for an 
alien seeking nonimmigrant status as an alien of extraordinary ability under section 
lOl(a)(l5)(O)(i) of the Act, 8 U.S.C. fj 1101(a)(15)(0)(i) and 8 C.F.R. fj 214.2(0)(3)(ii), under 
which the petitioner had been previously approved. 
However, approval of a nonimmigrant visa does not mandate the approval of a similar immigrant 
visa. Each case must be decided on a case-by-case basis on the evidence of record. Moreover, 8 
C.F.R. fj 214.2(0)(3)(iv), relating to nonimrnigrant aliens of extraordinary ability in the arts, 
provides for entirely different criteria than those for the immigrant classification discussed below. 
Thus, the petitioner could meet the nonimmigrant criteria and not the ones necessary for immigrant 
classification. 
While the U.S. Citizenship and Immigration Services (USCIS) has approved the petitioner's 0-1 
nonimmigrant visa petition, that prior approval does not preclude USCIS from denying an 
immigrant visa petition based on a different, if similarly phrased standard. It must be noted that 
many 1-140 immigrant petitions are denied after 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. 
1 103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 1-129 nonimmigrant 
petitions than 1-140 immigrant petitions, some nonimmigrant petitions are simply approved in 
error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas AM Univ. v. 
Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do 
not preclude USCIS from denying an extension of the original visa based on a reassessment of 
the beneficiary'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., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
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nonirnmigrant petition on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001)' cert. denied, 122 S.Ct. 51 (2001). 
Following the director's request for evidence (WE) issued on May 31, 2007, the petitioner 
responded with additional documentation and with claims that she meets the following criteria, 
as outlined in 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 the field of endeavor. 
The petitioner submitted documentation reflecting that she had received the inaugural Anglo- 
Israeli Photographic Award, now the Multi Exposure Award, in 1993. In an April 20,2004 letter 
submitted with the petition, who identified herself as the director and trustee of 
Multi Exposure, stated that she founded the organization in 1993 and that it "is a non-profit 
organization that promotes cultural exchange between Israel and the United ~in~dom." She 
further stated that the organization promotes "cultural and artistic exchange between Britain and 
Israeli artists, enabling artists to spend a month in each other's countries in order to produce a 
body of work for exhibition." While the petitioner's documentation reflects that participants in 
this program are selected through an open competition for artists from Israel and Britain, this 
does not automatically elevate the recognition received at the event to one that is recognized 
nationally or internationally as denoting excellence in the field. The petitioner submitted no 
documentation to reflect that an award by Multi Exposure is a national or internationally 
recognized award of excellence in her field of endeavor. 
The petitioner also submitted an April 22, 2004 letter from - who stated that she 
was an art critic and free-lance curator and that she was a member of a juried committee that 
awarded the Young Artists' Prize to the petitioner in 1996 on behalf of the Israeli government. 
stated, "This prize is a merit award of considerable significance in Israel given to 
working artists under the age of 35 years old, who have produced work which is consistently of 
the highest standard" and "given to artists who have earned the acknowledgment and respect of 
their communities through excellence and continuous hard work." The petitioner submitted no 
documentation to confirm statements. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner also submitted a copy of a certificate indicating that she received "'The Young 
Artist Prize' in Plastic [Visual] Arts For 1996." Although the prize is awarded by the Israeli 
government, it is not clear that it is a prize or award for excellence in the petitioner's field of 
endeavor. A copy of an article from the January-February 1997 issue of Israeli Art Magazine 
indicates that the purpose of the prize was to encourage creativity. 
I 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Furthermore, the petitioner has not established that receipt of a "Young Artist Prize in Plastic 
[Visual] Arts in a competition restricted to artists aged 35 and younger is an indications that she 
"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). The petitioner seeks a highly restrictive visa classification, intended for 
individuals already at the top of their respective fields, rather than for individuals of a certain age 
who may be progressing toward the top at some unspecified future time. The evidence submitted 
is insufficient to establish that the Young Artists Prize is a nationally recognized award for 
excellence in the petitioner's field of endeavor. 
The petitioner also claims to meet this criterion based on a 2007 receipt of the Pathogeographies 
Award Commission granted by the University of Chicago Arts Planning Council and Free Tank 
Chicago. However, even if this award was evidence of this criterion, it was presented after the 
filing date of the petition on September 25, 2006. 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. Matter of Katzgbak, 14 I&N Dec. 45, 49 (Comm. 
1971); 8 C.F.R. 5 103.2(b)(12). Accordingly, the petitioner's receipt of an award in 2007 is not 
evidence of her sustained acclaim and of her eligibility for visa classification for purposes of this 
petition. 
The petitioner also claims to meet this criterion based on her selection as a panelist at the 2005 
annil conference of the College Arts Association (CAA). In a May 1, 2006 letter, - 
of the Department of Art at the University of Kentucky stated: 
CAA offers a limited selection of panels and exhibition at its annual international 
conference. Panelists are selected from around the world; the selection process is 
highly competitive. Professional artists and critics are chosen for panels based on 
the outstanding quality of their work, their reputation and the excellence of their 
field. 
stated that the petitioner was invited to present her video work at the panel and to 
open the session. 
 stated that it was "gratifying to see the audience share our 
enthusiasm" for the petitioner's work and that she was "unsurprised" at the warm reception 
received by the petitioner. However, the petitioner submitted no documentation to establish that 
presenting her work at the annual conference of CAA is nationally or internationally recognized 
as an award of excellence in her field. 
On appeal, the petitioner submits a September 25, 2007 letter from 
 president of 
The New Media Caucus of CAA, stating: 
The field of new media art is still relative new and evolving and as such there is not 
yet an established national (United States) or international awards program that 
honors those artists who have risen to the pinnacle of new media and who are making 
the most significant contributions. 
Page 6 
did not identify any national or international awards program that recognizes those in 
new media art. 
The petitioner has failed to establish that she meets this criterion. 
Published materials about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classzfication 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 materials 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 copies of articles about herself or her work that appeared in the January 
14, 1994 edition of Ha 'ir, the March-April 1996 edition of Studio, the March 10, 1996 edition of 
Plastic [Visual] Art, the March 1996 edition of Four by Five, the April 3, 1996 edition of Ha 'ir, 
the July-August 1997 edition of Studio, and the December 2004lJanuary 2005 edition of 
Artweek. The petitioner also submitted an article that appeared in the July 2007 issue of Slash 
Seconds. As the latter article was after the petition was filed on September 25, 2006, it is not 
evidence of the petitioner's eligibility for this visa petition. 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. Matter of Katigbak, 14 I&N Dec. at 49. 
According to documentation from Studio, the publication "is a bi-monthly, non profit, visual arts 
magazine published since 1987; considered Israel's foremost visual arts review." The 
documentation indicates that the magazine is "distributed in Israel's major museums, art 
galleries, books and fashion stores as well as sent to a vast international mailing list of major 
curators, Galleries and Museums." The petitioner submitted no other documentation confirming 
that Studio magazine is "considered Israel's foremost visual arts review" and no evidence of the 
magazine's distribution. Without supporting documentary evidence, the petitioner cannot meet 
her burden of proof. Matter of SofJici, 22 I&N Dec. at 165. 
Documentation submitted from the Artweek website indicates that the magazine has "[llong 
[been] recognized as the national voice of contemporary art on the West Coast." On atmeal 
petitioner submits a copy of a September 25, 2007 letter from 
graduate writing coordinator for the New School for Social Research, in which she repeats the 
language from Artweek's website, and further states that the magazine has a readership in excess 
of 50,000, that universities throughout the United States subscribe to the publication, and that it 
is distributed in art centers, bookstores and specialty art centers. Doctor Monroe states: 
Page 7 
Artweek is one of the most respected and widely recognized national arts journals 
to have been published in the U.S.; it is a major, national publication among the 
small number of national publications of standing that specialize in a specific 
region of the United States, with national subscription and circulation. These 
publications allow curators, specialists, academics and artists to fully comprehend 
the breadth of professional art activities and artists at the top of the field 
throughout the United States. Artweek holds a unique position in print 
publications and has great respect because of its longevity, quality and sustained 
international audience. 
Doctor Monroe does not reveal the source of her information regarding Artweek's readership and 
distribution; however, she states that she has "a great deal of experience with professional 
publications in the fields of cultural criticism, art and writing." Assuming that Artweek is a major 
trade publication, the petitioner submitted only one article from that publication. 
While the articles that appeared in Ha 'ir and Plastic [Visual] Art are about the petitioner or her 
work, the petitioner failed to submit evidence to establish that these publications are major media 
or major trade publications. 
The petitioner also submitted a copy of an article titled "Here, There, Everywhere." The 
document is not dated and does norshow the publication in which it appeared. The record 
contains a copy of a forwarded e-mail from, who identified herself as "co- 
founder," presumably ofan on line publication that focuses on new and cutting 
edge contemporary art," that "spend[s] time exploring our special artists projects." - 
stated, "In 2005, Stretcher invited Psychological Prosthetics to be one of these project[s], where 
an article about the project, "Here, there, Everywhere" was on the home page of - 
between July-November 2005." However, the document submitted by the petitioner contains no 
indication that it appeared on the website, and the petitioner submitted no other evidence that the 
article appeared as stated by 
 See id. 
alleges that stretcher.org "has an average of 5,000 individual viewers per week." 
However, there is no documentary evidence to support her statement. Further, while Internet sites 
are technically accessible nationally and even internationally, it cannot be credibly asserted that 
every Internet site has the same degree of national or international influence. Anyone can create a 
website and post articles. The mere act of posting an article online does not transform what is 
otherwise a local publication into major media. The record lacks evidence that stretcher.org 
routinely attracts national or international attention. 
Additionally, the Act requires that the petitioner to establish sustained acclaim through extensive 
documentation. The documentation submitted by the petitioner prior to the one article in the 
December 2004lJanuary 2005 edition of Artweek was published in 1994, 1996 and 1997. The 
minimum documentation provided as evidence during the period prior to the filing of the petition 
in September 2006 is not sufficient evidence of the sustained acclaim required by this criterion. 
The evidence does not establish that the petitioner meets this criterion. 
The petitioner also submitted documentation about an article published by the petitioner. 
However, articles published by the petitioner are not articles about the petitioner or her work. 
Published articles by the petitioner are considered under a separate criterion. However, the 
petitioner does not allege that her single article in Media-N is sufficient evidence to establish that 
she meets that 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 speczjkation for which classzfication is 
sought. 
In her August 20,2007 letter accompanying the petitioner's response to the RFE, counsel stated: 
[The petitioner] was chosen to work with the LAB as a judge and curator of the 
LAB'S video screening program in 2006. The LAB is the oldest non-profit 
institution in the San Francisco Bay Area and has a stellar reputation for 
producing cutting edge art programming and exhibits. In her role [as] a judge and 
curator, [the petitioner] was responsible for executing a call for art entries to 
artists throughout the world. [The petitioner] was solely responsible for reviewing 
resumes, screening each video submission, and selecting the top artists suitable 
for the content of the two artistic programs of which she served as curator. 
The ~etitioner submitted a Julv 17. 2007 letter addressed to her from The Lab and signed bv 
d z " 
- as president of the board. The letter thanks the petitioner for her 
contributions" to the organization, states that "Your role as an expert judge and curator has 
enhanced our programming considerably," and that: 
When we first invited you to be the judge and curator of our video screening 
program in 2006, we did not imagine want a success this would turn out to be! It 
is no secret that our board chose you fiom among the nations leading new media 
artists in the field to be the sole judge for this event, based on your sterling 
international reputation within the video and new media community . . . The first 
event you judged for the LAB, "Road Movies" featured the work of contemporary 
artists fiom around the globe, specifically chosen by you for this program, dealing 
with a classical cinematic theme in new ways and technologies. "Stranger than 
Fiction", the second program you judged and curated pushed the boundaries of 
documentary tradition, featuring new media work and performance based acts in 
video . . . Thank you for taking the time as our sole judge to review each resume, 
then watch each video submission, and select the top artists suitable to the content 
of your curatorial vision for each event. 
The petitioner submitted a copy of a flyer indicating that she was the curator of "Stranger than 
Fiction," which was showing at The LAB on July 19, 2006. The petitioner also submitted a July 
29, 2007 letter from the Israeli Center for Digital Art signed by 
 as the video archive 
manager, indicating that in July 2006, the petitioner was asked to select a program for inclusion 
in the organization's "The Archive" exhibition. 
The petitioner provided an August 2, 2007 letter from the Associate Director of the Charlotte 
Street Foundation, inviting her to "further develop" the organization's Urban Culture Project. We 
note first that the petitioner submitted no documentation that she accepted this invitation and 
second that, even if she had, the invitation occurred subsequent to the filing of the visa petition. 
Accordingly, it is not evidence of the petitioner's sustained acclaim prior to the filing of the visa 
petition. See Matter of Katigbak, 14 I&N Dec. at 49. 
The petitioner's documentation indicates that she acted as a judge and curator only in 2006, the 
same year that she filed her petition. Three acts as a judge, occurring within a few months of the 
filing date of the petition, is not evidence of the sustained acclaim required by the statute and 
regulation. 
The evidence does not establish that the petitioner meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in the field. 
To establish that she meets this criterion, the petitioner submitted "letters of recommendation 
from veteran artists, top academicians, art critics, and other high-ranking art professionals" 
(more than 65, according to counsel) who attest to her extraordinary ability as a new media artist. 
These individuals describe the petitioner as "innovative," "a pioneer," "an important figure in the 
New Media field," and "unique." an associate professor in the University of 
Southern California's Gayle Garner Roski School of Fine Arts, stated that in her "ground 
breaking work Letters to An Unknown Friend' the petitioner "invented a machine that allowed 
visitors to add to and alter the artwork during the exhibition" and that "This unique example of 
[the petitioner's] new media work is pioneering because it allows the audience to make their own 
stories a part of the work." further stated that the petitioner's "unique ability 
to brin her audience into the work has had a great impact in the field."  onet the less,- 8 does not state how the field has adopted and used the petitioner's work or techniques 
such that it can be determined that it "has had a great impact in the field." 
, a professional artist, states that the petitioner's "extraordinary talent lies in her 
unique ability to blend new and old technologies," and that "This blending of familiar objects 
from the past and present day technology is a signature" of her work "and an example of her 
unique talent.", a senior faculty member at Bezalel Academy of Art and Design, 
states that the petitioner "has carved a niche for herself in the U.S. as a leader in the field of new 
media art, and she is playing a key role in shaping the future direction of the field." 
, the director of the Tang Museum at Skidmore College, states that the petitioner's 
"singular talent lies in her use of the cultural artifact." He further states, "She works with 
everyday objects and places: all the things of everyday life that we take for granted She takes 
, these objects and makes us see them and the world around us entirely differently."- 
Darraby, an attorney and former art gallery owner, opines that the petitioner "offers a significant 
contribution to the field of new media art, and to the contemporary cultural discourse." She 
states: 
I consider [the petitioner) to be a significant artist in the field of new media, 
particularly the area of digital art. New Genre arts practices, such Digital Media 
are a vital cutting edge genre in contemporary art practice. Exhibition venues 
range from screenings; (projection-based events) in museums and alternative 
spaces, live and web-streamed events in public spaces (interventions,) to 
exhibitions in prestigious galleries, art spaces and international art collections, 
which may also simultaneously appear on-line. This type of work is of great 
significance to new art expression in a democratic society. [Her] creative 
endeavors in this area are significant. 
None of the writers, however, provide any information as to how the petitioner's "creative 
endeavors" have influenced others in her field. 
director of Digital Arts & Multimedia Design at LaSalle University, states: 
What makes [the petitioner] an artist of such tremendous talent is her 
groundbreaking approach to the viewer and the subject of her work. Her 
photographic work for Multi Exposure in the early 1990's first revealed this 
innovative approach, specifically her handling of the relationship to the viewer. 
She broke the established rules of documentary photography by placing herself 
within the photographic image and empowering the subjects of her photographs. 
This practice of relinquishing the power to the audience and allowing them to 
work with her in taking the photograph has become, since that time, a commonly 
used device within documentary photography. 
[The petitioner] is at the forefront of this type of new media artwork that moves 
art work beyond the gallery walls, into public places and onto the Internet. This 
expanded exhibition practice currently is a major focus in cutting edge 
contemporary work. 
, the director of Boston Cyberarts, Inc., states, "A salient aspect of her work is 
combining new technologies and performance in forging a new form of public art," and that 
- - 
"This work is important in the future of public at that incorporates audience interactivity." 
William Horrigan, director of media arts at Wexner Center for the Arts at Ohio State University, 
stated that the petitioner's "approach to new media is distinctly her own." 
As noted, the petitioner submitted numerous letters attesting to her ability as an artist. While 
many of those writing letters on behalf of the petitioner indicate that her work is unique, we note 
that only 
 and 
 suggest that her work has influenced others. The petitioner 
submitted no other documentation to corroborate the opinions of 
 and - and 
no other evidence in the record supports their conclusions. Further, the ten regulatory criteria at 8 
C.F.R. 5 204.5(h)(3) reflect the statutory demand for "extensive documentation" in section 
203(b)(l)(A)(i) of the Act. Opinions from witnesses whom the petitioner has selected do not 
represent extensive documentation. Independent evidence that already existed prior to the 
preparation of the visa petition package carries greater weight than new materials prepared 
especially for submission with the petition. 
The evidence submitted does not establish that the petitioner meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
In her August 20,2007 letter accompanying the petitioner's response to the WE, counsel asserts 
that the petitioner's work has been displayed in more than 200 exhibits. Many of those writing 
letters on behalf of the petitioner also reference exhibitions in which her works have appeared. 
However, most do not provide specifics as to when and where these exhibitions took place or the 
writer's knowledge of those exhibitions. For example, stated in a May 18, 2006 letter 
that he became familiar with the petitioner's project "Psychological Prosthetics" in 2005 and that 
the work was exhibited in the United States, Europe and Israel. However, he does not state the 
locations of these exhibitions and the basis of his knowledge of the exhibitions. - 
director of the Shelburne Museum, stated in a May 25, 2006 letter that he viewed the 
screening of the petitioner's work "Everything I Knew About America I learned from the 
Movies" in 2002. did not state where this screening took place. The uncorroborated 
statements of these individuals are not sufficient to meet the petitioner's burden of proof. See 
Matter of Soffici, 22 I&N Dec. at 165. The record also contains documentation that offers a 
compilation of the petitioner's work, including a description of each project, exhibitions, press, 
publication, and other information. However, these documents are not dated, do not indicate their 
source, or who was responsible for compiling the information. 
The record contains the following specific information about the display of the petitioner's work: 
1. A June 9, 2006 letter from 
 an assistant professor at the University of 
California Santa Cmz, who stated that he was a contributing writer and editor for 
Stretcher, a visual culture magazine, and that in 2005, the magazine "was invited to be 
part of a prestigious triennial exhibition at the Yerba Buena Center for the Arts in San 
Francisco, California. [The petitioner's] project Psychological Prosthetics was chosen as 
a feature project to be reviewed and presented by Stretcher as a part of the exhibition." 
2. A copy of a press release announcing the "performance artwork" of Psychological 
Prosthetics Valise at the Berkley Art Museum on June 23,2005. 
3. An article from the December 2004lJanuary 2005 edition of Artweek about the 
petitioner's exhibition "Just like in the Movies" at the Austin Law group on December 
30. 
4. An April 12, 2004 letter fro- in which she stated that the petitioner was 
scheduled to participate in an exhibition, Sacred Spaces, thatwas curating that 
was scheduled to be exhibited during the summer of 2004. The petitioner submitted no 
documentation indicating that this exhibition was performed as planned. 
5. A May 1, 2006 letter fro-, the director of the Memorial Union Art 
Gallery at the University of California, Davis, in which she stated that she attended an 
exhibition of the 
 work "Letter to an Unknown Friend" during the summer of 
2004, and that, at her invitation, the petitioner exhibited her work at the Memorial Union 
Art Gallery in January 2006. 
6. An April 20, 2004 letter from a writer and filmmaker, in which she 
stated that she had invited the petitioner to participate in a show that as 
curating called Betweens, which was to be presented on October 15, 2004. However, the 
submitted no documentation that she actually participated in the show. 
7. An April 23, 2004 letter from 
 the gallery director for Olive Hyde Art 
Gallery in Freemont, California. 
 the petitioner participated in 
an exhibition, "Family Unit," at 
 did not state when this event 
occurred. A newspaper article about the exhibit does not contain a date or a publication 
name; however, a handwritten annotation indicates that the article appeared in "Argus" 
on April 7,2003. 
8. A copy of a June 22, 2002 "Calendar" section from the Los Angeles Times, indicating 
that a photograph by the petitioner appeared in an exhibition at the UCLA Fowler 
Museum of Cultural History. A page from the museum's website indicated that the 
exhibit appeared fiom May 19,2002 to July 14,2002. 
9. In a May 9, 2004 letter, 
 Senior Curator of Photography, at the Israel 
Museum, Jerusalem, stated that the petitioner's work was included in an "innovative 
catalogue" that was a "CD illustration of the work of the participating artists," that her 
work was also included in a 2000 "major historic exhibition titled Time Frame: A 
Century of Photography in the Land of Israel," and that the museum had acquired two of 
the petitioner's works "for inclusion in its permanent collection, and those works have 
been exhibited within the framework featuring recent acquisitions." 
10. A November 4, 2004 letter fiom , an artist and educator at the 
Hamidrasha School of Art, in which she stated that in 1997, the petitioner presented an 
exhibition of her work "Look & Listen. Say that" at the school. The exhibition was also 
Page 13 
reviewed and reported in the July-August 1997 edition of Studio, the Israeli Art 
Magazine. 
11. A copy of an April 3, 1996 article from Ha 'ir, reviewing the petitioner's exhibition Pins 
and Needles at the gallery Camera Obscura. 
12. A March 8, 1996 article fi-om- indicating that the petitioner's exhibition "where 
I'm calling from," would open at the Camera Obscura Gallery in Tel Aviv and run from 
March 13 to April 3. This exhibition was also reported in April-May 1996 edition of 
Studio and the March 2 1, 1996 edition of Iton Tel Aviv. 
The evidence indicates that the petitioner's work has consistently appeared in exhibitions, and 
that the evidence is sufficient to establish that she meets this criterion. 
The regulation at 8 C.F.R. 5 204.5(h)(4) states: "lfthe above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's 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. 
In her letter accompanying the petitioner's response to the RFE, counsel states: 
Although the majority of the 10 standards listed in the regulations for determining 
"sustained national and international acclaim have been met by the beneficiary, 
the petitioner/beneficiary would like to add an additional item that shows she 
continues to receive invitations to exhibit her work and participate in major 
artistic endeavors as an artist of extraordinary abilities. 
The petitioner submitted several letters of invitation to present or lecture about her work. 
However, as these invitations are for events occurring subsequent to the filing date of the 
petition, none are relevant in determining the petitioner's sustained acclaim for purpose of this 
visa petition. 
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 her field of endeavor. 
The evidence of record, however, does not establish that the petitioner has distinguished herself 
as a digital media artist to such an extent that she may be said to have achieved sustained 
national or international acclaim or to be within the small percentage at the very top of her field. 
The evidence indicates that the petitioner is an artist, but is not persuasive that the petitioner's 
achievements set her significantly above almost all others in her 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. 
Page 14 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.