dismissed EB-1A Case: Farrier

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PUBLICCOPY 
DATJAPR 1 9 2012 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act; 8 U.S.c. § 1 1 53(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 c.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, on September 1, 2010, and 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 as a farrier. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of his 
sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203(b)(l)(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, 
specifically a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific 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. 
On appeal, counsel claims that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3). 
1. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(l) 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 
Page 3 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897,60898-99 (Nov. 29, 1991). The tenn "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. Id; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.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. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.1 With respect to the criteria 
at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits detennination." 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 failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." /d. 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 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria2 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
In the director's decision, she determined that the petitioner established eligibility for this criterion. 
However, based on a review of the record of proceeding, the petitioner failed to meet the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). As such, the AAO must withdraw the 
findings of the director for this criterion. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[P]ublished material 
about the alien in professional or major trade publications or other major media, relating to the 
alien's work in the field for which classification is sought." In general, in order for published 
material to meet this criterion, it must be primarily about the petitioner and, as stated in the 
regulations, be printed in professional or major trade publications or other major media. To qualify 
as major media, the publication should have significant national or international distribution. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers.3 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that "[s]uch 
evidence shall include the title, date, and author of the material, and any necessary translation." 
The record of proceeding reflects that the petitioner submitted the following documentation: 
1. An uncertified and partial translation of an article entitled, "Conversation 
with Stephane Tournier The Best of Both Worlds," August 2009, by 
Monique Craig, Infor Marechalerie; 
2. An uncertified and partial translation of an article entitled, "Farrier. The 
Conquest of the West," April 6, 2009, by Herve Queille, Le Telegramme; 
3. An uncertified and partial translation of an article entitled, "A Native of 
Besancon on the Other Side of the Globe," February 1, 2009, unidentified 
author, Besan~on; 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
3 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Page 5 
4. An uncertified and partial translation of an article entitled, "Stephane 
Toumier Knows Every Horse by Their Name," unidentified date, 
unidentified author, unidentified publication; 
5. An uncertified and partial translation of an article entitled, "An Italian Farrier 
Visits the North," unidentified date, by Sabine Jobert, unidentified 
publication; 
6. An uncertified and partial translation of an article entitled, "Stephane 
Tournier: A Young Farrier for an Old Trade," unidentified date, unidentified 
author, unidentified publication; 
7. An advertisement for EponaShoe in Infor Marechalerie; and 
8. An article entitled, "Stephane Toumier Takes Balanced Approach to Hoof 
Care," unidentified date, unidentified author, Farrier Magazine. 
Regarding items 1 - 6, the regulation at 8 C.F.R. § 103 .2(b) provides in pertinent part: 
(3) Translations. Any document containing foreign language submitted to USCIS 
shall be accompanied by a full 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 from the foreign language into English. 
As cited above, the regulation at 8 C.F.R. § 103.2(b)(3) specifically requires that any foreign 
language document that is submitted to USCIS must be accompanied by a full and certified English 
language translation. Because the petitioner failed to submit full and certified English language 
translations, he failed to comply with the regulation at 8 C.F.R. §§ 103.2(b)(3) and 204.5(h)(3)(iii). 
As such, the AAO cannot determine whether the evidence supports the petitioner's claims. 
Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding. 
Moreover, regarding items 3 - 6, the petitioner failed to include the date and/or author of the 
material as required pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Furthermore, the 
petitioner failed to submit any documentary evidence establishing that Infor Marechalerie, Le 
Teiegramme, and Besanr;on are professional or major trade publications or other major media. In 
fact, the petitioner failed to indicate where the articles were even published regarding items 4 - 6, let 
alone ifthey were published in professional or major trade publications or other major media. 
Regarding item 7, an advertisement for a product that simply credits the petitioner in a caption to a 
photograph is not "published material" consistent with the plain language of the regulation at 8 
C.F.R. § 204.5(h)(3)(iii). Further, the advertisement is for EponaShoe rather than independent, 
journalistic coverage about the petitioner relating to his work. 
Regarding item 8, the article reflects published material about the petitioner relating to his work. 
However, the petitioner failed to include the date and author of the material as required pursuant to 
Page 6 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii). In addition, the petitioner failed to submit any 
documentary evidence demonstrating that Farrier Magazine is a professional or major trade 
publication or other major media. Even if the petitioner were to submit supporting documentary 
evidence showing that the article in Farrier Magazine meets the elements of this criterion, which he 
has not, section 203(b)(1)(A)(i) of the Act requires the submission of extensive evidence. 
Consistent with that statutory requirement, the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii) requires published material in more than one professional or major trade 
publication or major medium. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are 
worded in the plural. Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only 
require service on a single judging panel or a single high salary. When a regulatory criterion wishes 
to include the singular within the plural, it expressly does so as when it states at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." Thus, the AAO 
can infer that the plural in the remaining regulatory criteria has meaning. In a different context, 
federal courts have upheld USCIS' ability to interpret significance from whether the singular or 
plural is used in a regulation. See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. 
Cir. March 26,2008); Snapnames.com Inc. v. ChertofJ, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 
2006) (upholding an interpretation that the regulatory requirement for "a" bachelor's degree or "a" 
foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) requires a single degree rather than a 
combination of academic credentials). In the case here, the petitioner submitted only one document 
that reflects published material about the petitioner relating to his work but failed to meet the 
remaining elements of the regulatory criterion. 
The AAO notes at the initial filing of the petition, counsel also claimed the petitioner's eligibility for 
this criterion based on the petitioner's "select[ion] to be in a documentary describing his successful 
career. . .. The documentary will be broadcast on the TV channel Equidia [emphasis added]." The 
petitioner submitted a letter from Gerard Pelisson, Y.N. Productions, who stated that the petitioner 
"has been selected to take part in the shooting of a documentary film named 'French people who 
succeeded in the USA' which will be broadcast in September 2010 on the French network Equidia 
[emphasis added]." However, the petition was filed on March 22, 2010. Eligibility must be 
established atthe time offiling. 8 C.F.R. §§ 103.2(b)(1), (12); Matter ofKatigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. Matter of /zummi, 22 I&N Dec. 169, 175 (Comm'r 
1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), 
that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." 
Id at 176. Regardless, documentaries do not meet the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). Again, this regulatory criterion requires "published material" in professional or 
major trade publications or other major media, as well as the "title, date, and author of the material." 
As television interviews, appearances, and documentaries are not published material in professional 
or major trade publications or other major media, they clearly do not meet the plain language of this 
regulatory criterion. 
The burden is on the petitioner to establish that he meets every element of this criterion. As 
discussed above, the petitioner failed to demonstrate that his documentary evidence meets the plain 
Page 7 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Therefore, the AAO withdraws the 
decision of the director for this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field 
The director determined that the petitioner failed to establish eligibility for this criterion. In 
counsel's brief, he did not contest the findings of the director for this criterion or offer additional 
arguments. The AAO, therefore, considers this issue to be abandoned. See Sepulveda v. us. Atty 
Gen., 401 F.3d 1226, 1228 n. 2 (11 th Cir. 2005); Hristov v. Roark, No. 09-CV -27312011,2011 WL 
4711885 at *1, *9 (E.D.N.Y. Sept. 30,2011) (the court found the plaintiffs claims to be abandoned 
as he failed to raise them on appeal to the AAO). 
Accordingly, the petitioner 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. 
In the director's decision, she determined that the petitioner failed to establish eligibility for this 
criterion. Specifically, the director found that the petitioner did not identify any organization or 
establishment that the petitioner purportedly performed in a leading or critical role. On appeal, 
counsel states: 
[The petitioner] previously stated he worked for in my 
correspondence to USCIS. Althou~t is correct in the literal sense 
because [the petitioner] deals with _he individual) on a one to one 
. so often, the Director totally misinterpret[s] [the petitioner's] relationship to 
business by overem~ petitioner's] professional relationship 
the individual . ....- and his horse business is registered as 
an organization and as such, any work [the petitioner] has 
done for his organization, ••••••••• 
Stables, Incorporated (SPDS). 
On appeal, the petitioner submitted a letter from _ demonstrating that the petitioner 
performed work for SPDS. In additio~ stated that the petitioner "is the exclusive and 
designated farrier for SPDS ... and has shoed all of our horses for the last 3 years." _ 
further stated that the petitioner's "importance to [SPDS] is such that I have him on permanent 
retainer and call for his assistance at the farm on a near-daily basis. I also require him to be 
available at all times ~ horses, and if necessary, travel to international competitions with 
our horses." Finally,_ credited the petitioner with the success of one of SPDS' horses, 
Ravel, who won several national and international accolades including "Horse of the Year" by the 
United States Equestrian Federation. 
Page 8 
The plain language of the regulation at 8 C.F.R § 204.5(h)(3)(viii) requires "[e]vidence that the 
alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." In other words, the petitioner must demonstrate that his role was leading 
or critical, was for organizations or establishments, and those organizations or establishments have a 
distinguished reputation. In the case here, the petitioner established that he performed in a critical 
role for SPDS that has a distinguished reputation. 
However, the plain language of the regulation at 8 C.F.R § 204.5(h)(3)(viii) requires the petitioner 
to perform in a leading or critical role for more than one organization or establishment. On appeal, 
counsel claimed the petitioner's eligibility for this criterion based solely on SPDS. As the petitioner 
demonstrated his role with only a single organization or establishment, the petitioner failed to 
establish that he meets every element of this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field 
The director determined that the petitioner established eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R § 204.5(h)(3)(ix) requires "[e]vidence that the alien has 
commanded a high salary or other significantly high remuneration for services, in relation to others 
in the field." Based on a review of the record of proceeding, the petitioner submitted sufficient 
documentary evidence demonstrating that he minimally meets the plain language of the regulation 
at 8 C.F.R § 204.5(h)(3)(ix). 
Accordingly, the petitioner established that he meets this criterion. 
B. 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. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir] 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 
Page 9 
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 final merits determination.4 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. 
at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1 )(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. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
4 The AAO maintains de novo review of all questions offact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii). See also section 103(a)(1) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions).