dismissed EB-1A Case: Fashion Merchandising

MATTER OF P-G-G-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 19, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a fashion merchandiser and purchaser, seeks classification as an individual "of 
extraordinary ability." See Immigration and Nationality Act (the Act) § 203(b)(1)(A), 8 U.S.C. 
§ 1153(b)(l)(A). The Director, Nebraska Service Center, denied the petition. The matter is now before 
us on appeal. The appeal will be dismissed. 
The classification the Petitioner seeks makes visas available to foreign nationals who can 
demonstrate their extraordinary ability through sustained national or international acclaim and whose 
achievements have been recognized in their field through extensive documentation. The Director 
determined that the Petitioner did not satisfy the initial evidentiary requirements set forth under 
8 C.F.R. § 204.5(h)(3), which requires a one-time achievement or satisfaction of at least three of the 
ten regulatory criteria. Specifically, the Director found that the Petitioner had not met any criterion. 
On appeal, the Petitioner asserts that she meets the high salary or other significantly high 
remuneration criterion under 8 C.F.R. § 204.5(h)(3)(ix). She does not, however, state that she meets 
any other criteria listed under 8 C.F.R. § 204.5(h)(3)(i)-(x). For the reasons discussed below, she has 
not established her eligibility for the classification sought. Even had she met the salary and 
remuneration criterion, which as explained below she has not, she would not have demonstrated her 
eligibility, because under the regulation, as initial evidence, she must have a one-time achievement 
(that is a major, internationally recognized award) or provide proof that she satisfies at least three of the 
ten criteria listed under 8 C.F.R. § 204.5(h)(3)(i)-(x). She has not filed the required documentation. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who' 
are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. --An alien is described in this subparagraph 
if-
Matter of P-G-G-
(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 into the United States will substantially benefit 
prospectively the United States. 
The term "extraordinary ability" refers only to those individuals in that small percentage who has risen 
to the very top of the field of endeavor. 8 C.P.R. § 204.5(h)(2). The regulation at 8 C.P.R. 
§ 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained acclaim and 
the recognition of her achievements in the field through a one-time achievement (that is a major, 
internationally recognized award). If that petitioner does not submit this documentation, then she must 
provide sufficient qualifying evidence that meets at least three of the ten criteria listed at 8 C.P.R. 
§ 204.5(h)(3)(i)-(x). 
Satisfaction of at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. See Kazarian v. US CIS, 596 F .3d 1115 (9th Cir. 201 0) (discussing a two-part review 
where the documentation is first counted and then, if fulfilling the required number of criteria, 
considered in the context of a final merits determination). See also Rijal v. USCIS, 772 F. Supp. 2d 
1339 (W.D. Wash. 2011) (affirming U.S. Citizenship and Immigration Services' (USCIS) proper 
application of Kazarian), aff'd, 683 F.3d 1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F. Supp. 3d 126, 
131-32 (D.D.C. 2013) (finding that USCIS appropriately applied the two-step review); Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that the "truth is to be determined not by the 
quantity of evidence alone but by its quality" and that USCIS examines "each piece of evidence for 
relevance, probative value, and credibility, both individually and within the context of the totality of 
the evidence, to determine whether the fact to be proven is probably true"). 
II. ANALYSIS 
A. Procedural History 
Under the regulation at 8 C.P.R. § 204.5(h)(3), the Petitioner, as initial evidence, may present a one­
time achievement that is a major, internationally recognized award. In this case, the Petitioner has 
not asserted or shown that she is the recipient of a qualifying award at a level similar to that of the 
Nobel Prize. As such, she must provide at least three of the ten types of documentation listed under 
the regulations at 8 C.P.R. § 204.5(h)(3)(i)-(x) to meet the basic eligibility requirements. 
In her initial filing, the Petitioner correctly noted that to establish her eligibility, as initial evidence, 
she must submit documentation of a one-time achievement, at least three of the ten criteria, or "other 
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comparable evidence." She stated "she has performed a lead[ing] and critical role for organizations 
that have [a] distinguished reputation." She also provided materials pertaining to her "academic 
accomplishments and remuneration record demonstrating exceptional ability," "achievements in the 
field," "additional achievements and work experience in the industry," and ')ob offers." 1 Other than 
the leading and critical role criterion, she did not specify if any of her filings confirm a one-time 
achievement under 8 C.F.R. § 204.5(h)(3), met any other criteria under 8 C.F.R. § 204.5(h)(3)(i)-(x), 
or constituted comparable evidence under 8 C.F.R. § 204.5(h)( 4). 
In his request for evidence (RFE), the Director informed the Petitioner that she did not indicate 
which criteria she met. The Director noted that "USCIS has evaluated the evidence submitted as 
best it could" and found that "the only criterion that seemed to fit for the evidence submitted was the 
criterion of high salary or other significantly high remuneration for services." The Director offered 
the Petitioner an opportunity to file, among other materials, proof that demonstrated she received a 
one-time achievement or met at least three of the ten criteria listed under 8 C.F.R. § 204.5(h)(3). 
In her RFE response, the Petitioner stated that she had submitted evidence showing she was "an 
individual who has been recognized in the top of her field," who "will continue to work in her field 
as a Latin American Merchandiser." She maintained that she had filed materials establishing that 
her "entry will substantially benefit prospectively the United States," her intent to "continue to work 
in their [sic] claimed area of expertise," and that "she has commanded a high salary or other 
significantly high remuneration for services, in relation to others in the field." The response did not, 
however, assert that she met any criteria, other than the salary or remuneration criterion. 
In his decision denying the petition, the Director found that the Petitioner did not meet the salary or 
remuneration criterion, and stated that the Petitioner did not specifically assert which other criteria 
she met. On appeal, the Petitioner challenges the Director's finding in regard to that one criterion. 
She does not address whether she has demonstrated a one-time achievement, met any of the other 
criteria, or filed comparable evidence. 
B. Evidentiary Criteria2 
We agree with the Director that other than the salary or remuneration criterion, the Petitioner has not 
specifically maintained that she meets any additional criteria. Although in her initial filing, she 
indicated that she met the leading and critical role criterion under 8 C.F.R. § 204.5(h)(3)(viii), she 
did not continue to assert that she met this criterion in her RFE response or on appeal. We will 
therefore consider the salary and remuneration criterion below, and conclude that she has abandoned 
all other criteria. See Desravines v. United States Att'y Gen., No. 08-14861, 343 F. App'x 433, 435 
1 Evidence of I 0 years of experience and a degree are relevant in determining whether a foreign national has 
demonstrated "exceptional ability," under 8 C.F.R. § 204.5(k)(3), which is a lesser classification than "extraordinary 
ability." Compare§ 203(b)(2) ofthe Act. 
2 We have reviewed all of the evidence the Petitioner has filed and will address those criteria she asserts she meets or for 
which she has submitted relevant and probative documentation. 
3 
(b)(6)
Matter of P-G-G-
(11th Cir. 2009) (finding that issues not briefed on appeal by a pro se litigant are deemed 
abandoned); Tedder v. FMC Corp., 590 F.2d 115, 117 (5th Cir. 1979) (deeming abandoned an 
issue raised in the statement of issues but not anywhere else in the brief). Moreover, the record, 
while containing letters with conclusory statements pertaining to her performing as a "top player," 
"an essential contributor to our company 's success," a leader of a "merchandising team," and a 
"leader for her company and her team,"3 does not corroborate her place in the hierarchy of her 
employers as represented by an organizational chart, her specific impact on any company, or the 
distinguished reputation of any of her employers. Merely repeating the language of the statute or 
regulations does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Assocs., Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept primarily 
conclusory assertions. 1756, Inc. v. The Att'y Gen. ofthe US, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Accordingly, the record does not support 
a finding that she has met 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. 
On appeal, the Petitioner asserts that she meets this criterion. The Petitioner works as a senior buyer 
for . a women's fashion retailer. Her Internal Revenue Service (IRS) Form W-2 Wage and Tax 
Statement indicated that she earned $45,255.06 in 2014, $46,589.98 in 2013, and $48,067.27 in 
2012. The record includes letters offering her purchasing manager and other positions with an 
annual salary ranging between $80,000 and $100,000, plus bonuses and benefits. The Petitioner has 
not shown that she meets this criterion. 
According to information from the United States Bureau of Labor Statistics (BLS), in May 2012, the 
median annual wage for "purchasing managers, buyers, and purchasing agents" was $60,550, and for 
"wholesale and retail buyers, except farm products" was $51,470. BLS materials reflect that in May 
2014, the median income, or wage at the 50th percentile, for "wholesale and retail buyers, except 
farm products" had increased to $52,270. All three median figures are higher than the annual 
earnings the Petitioner received between 2012 and 2014, which does not support a finding that her 
income is indicative of a high salary or other significantly high remuneration for services. 
On appeal, the Petitioner asserts that July 2015 job offer for a purchasing 
manager position with an annual salary of $80,640 demonstrates that she meets this criterion. In a 
July 2015 letter, Owner and President of also presented the Petitioner a 
merchandise purchasing manager position with an annual wage of $100,000. These propositions, 
however, do not show that she meets this criterion. A petitioner must establish eligibility for the visa 
petition at the time of filing. See 8 C.P.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971). A petitioner cannot secure a priority date based on the anticipation of 
3 These quotes derive, respectively, from letters authored by the following individuals: _ Vice President of 
Owner of Chief Executive Officer and Founder of 
President of 
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Matter of P-G-G-
future events that might exhibit her eligibility. See Matter of Wing 's Tea House, 16 I&N Dec. 158, 
160 (Reg'l Comm'r 1977); Matter oflzummi, 22 I&N Dec. 169, 175-76 (Assoc. Comm'r 1998) 
(adopting Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981) for the concept that USCIS cannot 
"consider facts that come into being only subsequent to the filing of a petition.") Accordingly, the 
Petitioner may not rely on July 2015 employment opportunities to prove that she was eligible for the 
petition that she submitted in October 2014. 
In addition, BLS printouts showed that a position as a purchasing manager is not equivalent to a 
position as a buyer or purchasing agent. In May 2012, the median yearly wage for buyers or 
purchasing agents ranged between $51,470 and $58,760, depending on the industry; while the 
median annual earning for purchasing managers was $100,170, which is more than the wages 
suggested for Petitioner. As such, even had we considered the July 2015 employment offers for a 
purchasing manager position, the Petitioner would not have met this criterion. 
The Petitioner also submitted an August 2014 letter from Owner and President of 
regarding a Market Analyst and Merchandising Manager position with a salary of $85,000 
per year plus bonuses. In addition, the record includes 
other employment opportunities , such as a 
September 2014 offer from Owner of for an unspecified position that pays 
$80,000 annually plus bonuses and benefits; and a July 2015 offer from . Owner of 
, doing business as . for a position in the e-commerce expansion team that pays 
$100,000 annually. The Petitioner has not filed information on what constitutes a high salary or 
other significantly high remuneration for these positions. The Petitioner, therefore, has not 
established that these job openings meet the criterion. Moreover, these offers are also prospective, 
and do not confirm that the Petitioner has already commanded a high salary or other significantly 
high remuneration. Based on the above stated reasons, the Petitioner has not documented that she 
satisfies this criterion. 
C. Summary 
The Petitioner has been working as a buyer for her employer for a number of years. The reference 
letters, authored by people who worked with the Petitioner, stated in general terms that she has been 
capable at her position, praised her character and ability, and indicated that she could move to 
positions that offer a higher compensation . The letters, however, do not demonstrate, and the 
Petitioner does not maintain, that she meets any of the ten criteria, other than the salary or 
remuneration criterion. The evidence also shows that she has received a Bachelor of Arts degree in 
marketing, and was emolled in an Executive Master of Business Administration (EMBA) program 
as of April 2014. These academic achievements similarly do not relate to any criteria at 8 C.F.R 
§ 204.5(h)(3). 
III. CONCLUSION 
The documentation submitted in support of an extraordinary ability petition must show that the 
individual has achieved sustained national or international acclaim and is one of the small percentage 
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Matter of P-G-G-
who has risen to the very top of his or her field of endeavor. Had the Petitioner included the 
requisite material 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 submissions in 
the context of whether or not she has achieved: (1) 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," and (2) "that 
the [Petitioner] has sustained national or international acclaim and that his or her achievements have 
been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(2) and (3); see also Kazarian, 596 
F.3d at 1119-20. As the Petitioner has not done so, the proper conclusion is that she has not satisfied 
the antecedent regulatory requirement of presenting initial evidence set forth at 8 C.F .R. 
§ 204.5(h)(3) and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the 
type of final merits determination referenced in Kazarian, a review of the record in the aggregate 
does not support a finding that the Petitioner has achieved the level of expertise required for the 
classification sought. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the Petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter ofP-G-G-, ID# 15681 (AAO Feb. 19, 2016)