dismissed EB-1A Case: Fine Art

(b)(6)
DATlUL 0 3 Z014 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusett s Ave., N.W., MS 2090 
Washington, DC 2052 9-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § 1153(b )(1 )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions . If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5 . Do not file a motion directly with the AAO. 
Thank you, 
))QWYldtu 
fl Ron Rosenberg 
~ Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 'L 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on August 13, 2013, 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)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an alien 
of extraordinary ability as a fine artist. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of her 
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 )(1 )(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, the petitioner claims that she meets at least three of the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3). 
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 --
(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. 
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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
51 
Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. /d.; 8 C.P.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.P.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 our decision to deny the petition, the court took issue with our evaluation of 
evidence submitted to meet a given evidentiary criterion.1 With respect to the criteria at 8 C.P.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while users 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 determination." /d. at 1121-22. 
The court stated that our 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 we 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 we 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, we will review the evidence 
under t4e 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. /d. 
II. ANALYSIS 
A. Wikipedia 
The record of proceeding reflects that the petitioner submitted numerous screenshots from 
Wikipedia. As there are no assurances about the reliability of the content from this open, user-edited 
1 
Specifically, the court stated that we had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(iv) and 8 C.P.R. § 204.5(h)(3)(vi). 
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Internet site, we will not assign weight to information from Wikipedia. See Laamilem Badasa v. 
Michael Mukasey, 540 F.3d 909 (81h Cir. 2008).2 
C. Evidentiary Criteria 3 
Documentation of the alien 's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The director determined that the petitioner did not establish eligibility for this criterion. Specifically, 
the director found that the petitionP.r'" first nlace award at the · 
in 2012, the ~ at tht 
in 2006, a ' in 
2005,a in 2002, and the 
in 1997 did not meet the eligibility 
requirements for this criterion. 
The plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the 
alien's receipt oflesser nationally or internationally recognized prizes or awards for excellence in the 
field of endeavor." It is the petitioner's burden to establish that the evidence meets every element of 
this criterion. Not only must the petitioner demonstrate her receipt of prizes and awards, she must 
also demonstrate that those prizes and awards are nationally or internationally recognized for 
excellence in the field of endeavor, which, by definition, goes beyond the awarding entity. 
On appeal, the petitioner does not contest the findings of the director or offer additional arguments 
regarding the 2005 the 2002 by the 
, and the 1997 . Therefore, the petitioner has abandoned these claims. See 
Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-
CV-27312011, 2011 WL 4711885, at *1, *9 (E.D.N.Y. Sept. 30, 2011) (finding the plaintiffs claims 
to be abandoned as he failed to raise them on appeal). 
Regarding the petitioner 's 2012 the petitioner submitted a letter from Juror for 
the 2012 who stated: 
2 
See also the online content from http://en.wikipeclia.org/wiki/Wikipedia : General disclaimer, accessed on May 7, 2014, 
and copy incorporated into the record of proceeding: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to develop 
a common resource of human knowledge. The structure of the project allows anyone with an Internet 
connection to alter its content. Please be advised that nothing found here has necessarily been reviewed 
by people with the expertise required to provide you with complete, accurate or reliable information .. .. 
Wikipedia cannot guarantee the validity of the information found here. The content of any given article 
may recently have been changed, vandalized or altered by someone whose opinion does not correspond 
with the state of knowledge in the relevant fields. 
3 
On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed 
in this decision. 
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Our first was held in December 2012, which included twenty artists from 
eight countries. One of the participants was [the petitioner], an established and 
commercially successful artist who is represented by , 
a leading fine 
arts dealer in . This exhibition included leading contemporary 
artists who are presently active in New York. Indeed, it is a highly competitive 
environment wherein contributions in all media were in evidence; painting, 
photography, sculpture, installation, video, and performance. [The etitioner] was a 
clear leader amongst the participants. She won First Place in the 
category. It was [the petitioneil who consistently drew the most attention from our 
students with her oil painting 
Although explained why the petitioner was awarded first place, there is no evidence 
demonstrating that the petitioner's first place award is nationally or internationally recognized for 
excellence in the field. The petitioner did not submit any documentary evidence to establish the 
award's recognition beyond for excellence in the field consistent with the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(i). 
Regarding the petitioner's 2006 the petitioner submitted two letters from , Director 
of who confirmed that the petitioner received the in 2006, as well as a commendation 
in 2005. Althoug indicated that "is a renowned art critic and senior editor 
for the internationally distributed and taste-making art publication Art in America," there is no 
indication that the is a nationally or internationally recognized award for excellence in the 
field. In addition, the petitioner submitted screenshots from the website regarding the 
mission and activities of the foundation, as well as postings of the 2005, 2006, and 2013 awardees. 
However, the screenshots provide no evidence of recognition for excP lence by the field of 
endeavor. The petitioner did not submit any documentary evidence beyond to establish that 
is a nationally or internationally recognized award for excellence in the field. 
As discussed, the plain language ofthis regulatory criterion specifically requires that the petitioner 's 
prizes or awards be nationally or internationally recognized for excellence in her field. In this case, 
the petitioner did not demonstrate that her prizes or awards are nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
Accordingly, the petitioner did not establish that she meets this criterion. 
Documentation of the alien 's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
The director determined that the petitioner did not establish eligibility for this criterion. Specifically, 
the director found that the petitioner's membershi£s with the of New 
York, the , and the 
of New York did not meet this criterion. 
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The plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(ii) requires "[d]ocumentation of the 
alien's membership in associations in the field for which is classification is sought, which require 
outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or fields." In order to demonstrate that membership in an association 
meets this criterion, a 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 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. Further, the 
overall prestige of a given association is not determinative; the issue here is membership 
requirements rather than the association 's overall reputation. 
Regarding 
who stated: 
the petitioner submitted a letter from 
The seeks to garner both the recognition of emerging talents and interest in the 
work of established artists whose creations remain inspirational today. Our firm 
offers artists the first investment opportunity created specifically to provide artists 
with a long-term financial planning program .... 
* * * 
The . advisory board is comprised of world renowned artists and art 
professionals. Hence, our selection process is extremely rigorous. [The petitioner] 
has met our standards . ... 
The petitioner also submitted an email from who stated: 
The criteria is quality and promise. While most artists have an exhibition history and 
some career successes prior to acceptance, some are selected because the committee 
believe[ s] their career track has exceptional promise. There have been some who 
have had extraordinary success since inception .... 
In addition, the petitioner submitted screenshots from www.aptglobal.org reflecting that "[artists are 
nominated by an Associate Curator and then voted on by the team of Head Curators 
consisting of gallerists, art school academics, and other professionals from the art world." On 
appeal, the petitioner submits her contract with New York. 
A review of the submitted documentation does not establish that requires outstanding 
achievements as a condition for membership. Although stated that 
selection process is extremely rigorous since its advisory board is comprised of worldly renowned 
artists and professionals, she did not provide any specific description of the selection process. 
According to the webpage for provided by the petitioner, advisory team has experience in 
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"identifying artists with high potential of success and in supporting these artists through the early 
and mid-stages of their career." Further, according to email, artists can 
become members of if the committee believes that the artists have exceptional promise rather 
than already having demonstrated outstanding achievements. Membership conditions that are based 
upon speculative future potential of artists in the early or mid-stage of their career are not sufficient 
to establish that the applicant's membership is based upon demonstrated outstanding achievements. 
Accordingly, the evidence does not establish that the Head Curators bases its determination on 
outstanding achievements for membership. 
Regarding 
stated: --
the petitioner submitted a letter from ___ ____. President of 
To be a member, a recommendation from an existing member is required. The first 
screening is by a candidate's portfolio. After the candidate is selected, s/he has the 
second screening, which consists of an interview. Admission is highly selective and 
some years we accept no one. Applicants must evince a clear artistic trajectory and 
promise in their field. In addition, the applicant must understand our mission fully 
and have a great passion to be a productive member of this community through 
his/her art works and activities. We do not seek to merely increase our membership. 
Selection is predicated on our desire to identify and promote quality art .... 
In the petitioner's brief on appeal, the petitioner states: 
[T]o maintain the status of top Japanese "fine art" artist association with quality 
individuals, the selection process of artist members is very exclusive and 
not open to the public. Thus the applicant needs a member's recommendation. . . . 
[M]embers have at least four year college degrees in Art. Many of them have 
Master's degrees. 
The petitioner indicates that the ; guidelines for membership are: 
1. Applicants must have at least ten (10) years of career as an artist. 
2. Applicant must submit current portfolio, statement and resume. 
3. Applicant must make presentation of his/her artworks in front of the board 
members. 
4. Recommendation letter of a current member is required. 
who 
Although the petitioner submitted numerous documents regarding projects and 
exhibitions, the documentation does not support the petitioner's assertions. 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 (Cornm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Cornm'r 1972)). We must look to the plain 
language of the documents executed by the petitioner and not to subsequent statements. Cf, Matter 
of Izummi, 22 I&N Dec. 169, 185 (Comm'r 1998). There is no evidence reflecting that JAANY's 
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membership requires an applicant to have at least a ten-year career as an artist, and that an aoolicant 
must make presentations of his/her artwork in front of board members. In fac the 
president of , does not mention these two claimed guidelines as requirements for 
membership. Neither the petitioner's claimed· guidelines, nor statement that an 
applicant requires a recommendation from a member and the screening of an applicant 's portfolio, 
reflects outstanding achievements for membership. Furthermore, similar to the above-mentioned 
membership requirements for indicated that applicants must demonstrate promise 
in their field rather than the regulatory requirement of demonstrating membership based upon 
outstanding achievements. 
Regarding on appeal, the petitioner claims that the director's decision does not discuss this 
associatiOn. However
, a review of the director's decision reflects that the director indicated that the 
petitioner claimed eligibility for this criterion based in part on the petitioner's membership with 
and the director ultimately concluded that none of the petitioner 's memberships met the 
eligibility requirements for this criterion. 
Notwithstanding , at the initial filing of the petition, the petitioner submitted a letter from 
President of the New York Chapter of Ms. provided some background 
regarding the association and praised the petitioner for her work but provided no evidence of the 
eligibility requirements for membership with On appeal, the petitioner submits screenshots 
from www.summiesociet v.org and www.metronysumieart.org reflecting background and activities 
of the association, as well as a membership application. 
The petitioner claims on appeal that "[t]o be a member, you have to have sufficient experience of 
Sumi-e. As a result, all members are well-experienced or established Sumi-e artists ... . " However, 
the documentation does not support the petitioner's claims. 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. at 165 (citing Matter of Treasure Craft of California, 
14 I&N Dec. at 190). A review of the membership application indicates that it requires an applicant 
to provide biographical information and to pay a fee. Although the application reflects different 
membership fees depending on the membership status, such as "regular," "supporting," "sustaining," 
"sponsor," "patron," and "student," the petitioner did not indicate her current membership status and 
did not submit any documentation regarding the requirements for each status, so as to demonstrate 
that outstanding achievements are required for membership. Furthermore, the petitioner did not 
submit any documentation to establish that membership with is judged by nationally or 
internationally recognized experts in their disciplines or fields. For these reasons, the petitioner did 
not establish that her membership with meets the plain language of the regulation at 8 C.P.R. 
§ 204.5(h)(3)(ii). . 
Accordingly, the petitioner did not establish that she 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 classification is 
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Page 9 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The director determined that the petitioner did not establish eligibility for this criterion. Specifically, 
the director found that the petitioner submitted various screenshots reflecting announcements of 
exhibitions where the petitioner is among a list of artists. The director indicated that the petitioner 
submitted information regarding the and the but did not submit any of 
the articles. On appeal, the petitioner claims that she did submit the articles "[b ]ut for some 
unexplained reason the Director could not find them." A review of the record of proceeding reflects 
that the petitioner did submit some articles in response to the RFE and submits additional articles on 
appeal. 
The plain language of the regulation at 8 C.P.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 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 nominally serve a particular locality but would qualify as major media 
because of significant national distribution, unlike small local community papers.4 Furthermore, the 
plain language of the regulation at 8 C.P.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." 
ThP. nPJitinm~r ~mhmittecl several fo_rejl:!n lanl:!llaQ:e articles, such as 
and 
. with non-certified English language translations. As these articles do not comply wnn tne 
regulation at 8 C.F.R. § 103.2(b )(3) and 204.5(h)(3)(iii), they have no probative value and will not 
be considered. 
Moreover, with the exception of one article, the petitioner's evidence does not reflect published 
material about the petitioner relating to her work consistent with the plain language of the regulation 
at 8 C.P.R. § 204.5(h)(3)(iii). Compare 8 C.P.R. § 204.5(i)(3)(i)(C) relating to outstanding 
researchers or professors pursuant to section 203(b)(l)(B) of the Act, which only requires published 
material about the alien's work. Rather, the articles reflect material regarding exhibitions in which 
the petitioner is credited as one of numerous other artists displaying their work; the articles are not 
about the petitioner. For instance, the petitioner submitted an article entitled, 
entitled, -contains a single reference to the petitioner's artwork, the 
Similarly, the petitioner submitted a screenshot entitled, 
The article is about the exhibit 
Although the article 
article is not about the petitioner. 
4 
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 County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
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The screenshot is about an exhibit entitled, 
--- " rather than the netitioner. The petitioner also submitted 
several articles, such a 
), anc ~ 
which are reviews of exhibitions in which the petitioner's work was 
briefly critiqued. Articles that are not about the petitioner, however, do not meet this regulatory 
criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) 
(upholding 
a finding that articles about a show are not about the actor). 
As indicated above, the petitioner did submit one article that can be considered published material 
about the petitioner relating to her work -
I . However, the petitioner did not include the author of this article or 
the authors for some of the other submitted articles such as -
, as required by the regulation. Furthermore, the petitioner did not submit 
any documentary evidence demonstrating that as well as the other 
websites such as -
and is other major media. In 
addition, many newspapers or organizations, regardless ot Size and distribution, post at least some of 
their stories on the Internet. To ignore this reality would be to render the "major media" requirement 
meaningless. The petitioner did not establish that Internet accessibility is a realistic indicator of 
whether a given website is "major media." For these reasons, these articles do not meet the plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii). 
Even if the petitioner were to submit supporting documentary evidence showing that 
_ meets the elements of this criterion, which she 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.P.R. § 204.5(h)(3)(iii) requires 
published material in more than one professional or major trade publication or other major medium. 
Significantly, not all of the criteria at 8 C.P.R. § 204.5(h)(3) are worded in the plural. Specifically, 
the regulations at 8 C.P.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.P.R. § 204.5(k)(3)(ii)(B) that evidence of experience 
must be in the form of"letter(s)." Thus, 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. Cf Maramjaya v. USCIS, 2008 WL 9398947, 
*1, *6 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005, at *1, *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.P.R. § 204.5(1)(2) requires a single degree 
rather than a combination of academic credentials). 
The petitioner's documentary evidence does not reflect published material about her relating to her 
work in professional or major trade publications or other major media. 
Accordingly, the petitioner did not establish that she meets this criterion. 
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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 allied field of specification for which 
classification is sought. 
The petitioner did not previously claim eligibility for this criterion, either at filing or in response to 
the director 's RFE. However, on appeal, the petitioner now argues that she meets eligibility for this 
criterion. The methods vary by which a petitioner can be notified of evidentiary requirements. For 
example, a petitioner is considered to be on notice through the specific requirements outlined within 
the regulations, or through various forms of communication from USCIS to a petitioner or applicant 
noting an evidentiary deficiency or requesting more evidence. See Matter of Soriano, 19 I&N Dec. 
764, 766 (BIA 1988). The regulation at 8 C.F.R. § 204.5(h)(3) notified the petitioner of the specific 
filing requirements to demonstrate eligibility under the extraordinary ability classification. In 
addition, the instructions to the Form I -140 petition state that the petitioner "must attach evidence 
with [the] petition showing that the alien has sustained national or international acclaim" and then 
lists the ten regulatory criteria, including evidence of "[p ]articipation on a panel or individually as a 
judge of the work of others in the field or an allied field." Finally, the director issued a request for 
evidence listing all of the regulatory criteria. 
As the petitioner was notified of the evidence required to demonstrate eligibility and was afforded 
the opportunity to provide the evidence prior to the issuance of an adverse decision, new eligibility 
claims will not be considered on appeal. See Matter of Soriano, 19 I&N Dec. at 766. Consideration 
of the petitioner's additional claims of eligibility must be accomplished through the filing of a new 
petition. See id. at 766. Cf Matter of Jimenez, 21 I&N Dec. 567, 570 n.2 (BIA 1996) (finding that 
claims of eligibility for a waiver presented for the first time on appeal are not properly before the 
Board of Immigration Appeals and the Board will not issue a determination on the matter.) 
Although we maintain de novo review of appellate cases and a petitioner may supplement the record 
in regards to previous claims, a petitioner may not raise a previously unclaimed eligibility criterion 
on appeal. See Matter of Soriano, 21 I&N Dec. at 766. 
Our review is a determination as to whether the director erred in his determination. If a claim was 
not previously made, there could not have been any error on the part of the director. As the 
petitioner did not previously claim eligibility for this criterion before the director, the director did not 
err in his decision, and we will not consider the petitioner's new claims on appeal. 
Accordingly, the petitioner did not establish that she meets this criterion. 
Evidenc e 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 did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the alien's original 
scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the 
field." Here, the evidence must rise to the level of original contributions "of major significance in 
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the field." The phrase "major significance " is not superfluous and, thus, it has some meaning . 
Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU 
v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 2003). 
The director found that the petitioner's recommendation letters did not meet the plain language of 
this regulatory criterion. On appeal, the petitioner claims that the letters should also be considered as 
comparable evidence pursuant to the regulation at 8 C.P.R.§ 204.5(h)(4). The regulation at 8 C.P.R. 
§ 204.5(h)(3) provides that evidence of sustained national or international acclaim "shall" include 
evidence of a one-time achievement or evidence of at least three of the ten regulatory categories of 
evidence to establish the basic eligibility requirements. The ten categories in the regulations are 
designed to cover different areas; not every criterion will apply to every occupation. For example, 
the criterion at 8 C.P.R. § 204.5(h)(3)(vii) implicitly applies to the visual arts, and the criterion at 8 
C.F.R. § 204.5(h)(3)(x) expressly applies to the performing arts. Moreover , the regulation at 8 
C.P.R. § 204.5(h)(4) provides "[i]f the above standards do not readily apply to the [petitioner ' s] 
occupation , the petitioner may submit comparable evidence to establish the [petitioner's] 
eligibility." It is clear from the use of the word "shall" in 8 C.F.R. § 204.5(h)(3) that the rule, not the 
exception, is that the petitioner must submit evidence to meet at least three of the regulatory criteria. 
Thus, it is the petitioner's burden to explain why the regulatory criteria are not readily applicable to 
her occupation and how the evidence submitted is "comparable" to the objective evidence required 
at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
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 as a fine artist cannot 
be established by the ten criteria specified by the regulation at 8 C.P.R. § 204.5(h)(3). In fact, as 
indicated in this decision, the petitioner mentions evidence in the brief that specifically addresses 8 
of the ten criteria at the regulation at 8 C.F.R. § 204.5(h)(3). An inability to meet a criterion, 
however, is not necessarily evidence that the criterion does not apply to the petitioner's occupation. 
Where an alien is simply unable to meet or submit documentary evidence of three of these criteria, 
the plain language of the regulation at 8 C.P.R. § 204.5(h)(4) does not allow for the submission of 
comparable evidence. 
On appeal, the petitioner claims that her eligibility for this criterion based on her artwork sales at 
and The petitioner submitted a letter from 
, Adminstrator, who stated that the petitioner "has not only contributed works to three of 
our exhibitions and one contemporary art fair in Shanghai, we have also sold her art works ." Mr. 
t, however, did not explain how these contributions were made to the field as a whole rather 
than being limited to the l and The petitioner did not 
submit any documentary evidence to establish that her work at or ~ 
has a significant impact to the field, so as to demonstrate that she has made original 
contributions of major significance in the field. 
The petitioner also claims on appeal that she has made original contributions of major significance in 
the field based on her service as a Sumi-e guest-lecturer at The petitioner 
submitted a letter from President of , who stated that most of her 
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students are established Western artists, such as who incorporated the 
petitioner's teachings into her own work. did not establish how the petitioner's 
guest-lecturing has been of major significance in the field. Instead, 1 provided a single 
example of a student who has benefited from the petitioner's teachings. The petitioner has not 
demonstrated that any of her guest lecturing has resulted in original contributions of major 
significance in the field pursuant to the plain language of this regulatory criterion. 
Further, the petitioner claims on appeal that she meets this criterion based on her design for a table 
tennis paddle. The petitioner submitted a letter from ~ Founder and President of 
who stated that the petitioner "created _ paddles with an emblematic design 
upon them that shows her mastery of the traditional Japanese aesthetic which is known for its 
simplicity and elegance." Although _ confirmed the petitioner 's design of ~ 
paddles, there is no evidence reflecting that her design has been of major significance to her field. 
The petitioner did not demonstrate the impact or influence of her design, so as to establish that she 
has made an original contribution of major significance in the field. 
Finally, on appeal the petitioner claims eligibility for this criterion based on her art exhibition 
management at Gallery. A second letter from stated that the petitioner 
"has consistently been a leader and contributor to our endeavors." Although this claim is more 
applicable to the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii) briefly discussed the petitioner's contributions to the 
Gallery rather than any original contributions of major si!!llificance to the field as a whole. The 
petitioner has not demonstrated that her contributions at Gallery and 
have resulted in any original contributions of major significance in the field. 
The petitioner submitted recommendation letters that highly praise her talents and skills as a fine 
artist, indicating that she "is an extraordinary talented voice in New York's art scence" 
"is one of the international art community's well-respected and critically lauded artists" 
, that her "body of work occupies a unique and highly prominent position in the art world" ·­
), and "is a highly original and important professional working in contemporary art (Dr. 
None of the letters indicated how the petitioner's skills are original contributions of 
major significance in the field. Having a diverse skill set is not a contribution of major significance 
in and of itself. Rather, the record must be supported by evidence that the petitioner has already 
used those unique skills to impact the field at a significant level in an original way. Assuming the 
petitioner's skills are unique, the classification sought was not designed merely to alleviate skill 
shortages in a given field. In fact, that issue properly falls under the jurisdiction of the Department 
of Labor through the alien employment labor certification process. See Matt er of New York State 
Department of Transportation, 22 I&N Dec. 215, 221 (Assoc. Comm'r 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
USCIS may, in 
its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of reference letters supporting the petition is not presumptive 
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evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support 
the alien's eligibility. See id. at 795-796; see also Matter ofV-K-, 24 I&N Dec. 500, n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"). Thus , the content 
of the references' statements and how they became aware ofthe petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in support of 
an immigration petition are of less weight than preexisting, independent evidence that one would 
expect of a fine artist who has made original contributions of major significance in the field. See 
also Visinscaia, CV No. 13-223, at *1, *6 (D.D.C. Dec~ 13, 2013)(concluding that USCIS' decision 
to give little weight to uncorroborated assertions from professionals in the field was not arbitrary and 
capricious). 
Although those familiar with the petitiOner generally describe her as "extraordinary," there is 
insufficient documentary evidence demonstrating that the petitioner has made original contributions 
of major significance. This regulatory criterion not only requires the petitioner to make original 
contributions, the regulatory criterion also requires those contributions to be of major significance. 
Vague, solicited letters that repeat the regulatory language but do not explain how the petitioner's 
contributions have already influenced the field are insufficient to establish original contributions of 
major significance in the field. Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 
596 F.3d at 1115. In 2010, the Kazarian court reiterated that the USCIS ' conclusion that the "letters 
from physics professors attesting to [the petitioner's] contributions in the field" were insufficient 
was "consistent with the relevant regulatory language." 596 F.3d at 1122. In this matter, the letters 
considered above primarily contain bare assertions of the petitioner's status in the field without 
providing specific examples of how those contributions rise to a level consistent with major 
significance in the field. 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), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates , Inc. v. Meissner, No. 95 CIV. 10729, *1, 
*5 (S.D.N.Y. Apr. 18, 1997). Without supporting evidence, the petitioner has not met her burden of 
establishing her present contributions of major significance in the field. 
Without additional, specific evidence showing that the petitioner's work has been unusually 
influential, widely applied throughout her field, or has otherwise risen to the level of contributions of 
major significance, the petitioner has not established that she meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The director determined that the petitioner established eligibility for this criterion. A review of the 
record of proceeding reflects that the petitioner submitted sufficient documentary evidence 
establishing that she meets the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
Accordingly, the petitioner established that she meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
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The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.P.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." 
On appeal, the petitioner claims eligibility for this criterion based on her roles at of New York, 
, and The petitioner does not, however, make any claims or refer to any 
documentation regarding the distinguished reputations of of New York, , and 
Moreover, although the petitioner previously made other claims of eligibility, such as her 
roles at · , which were addressed in 
the director's decision, she does not contest fhe tmdmgs or me mrector or offer additional 
arguments. Therefore, the petitioner has abandoned these claims. See Sepulveda v. U.S. Att'y Gen., 
401 F.3d at 1228 n. 2; Hristov v. Roark, 2011 WL 4711885, at *9 (finding the plaintiffs claims to be 
abandoned as he failed to raise them on appeal). 
Regarding of New York, on appeal the petitioner refers to the previously discussed letter from 
, President of of New York, who stated that the petitioner has "been extremely 
helpful to our chapter because she speaks, reads and writes Japanese." Moreover, 
stated that the petitioner volunteered at two events. The contributions that the petitioner has made to 
the of New York are not indicative of leading or critical roles consistent with the plain language 
of the regulation. The petitioner did not submit any other documentation that reflected her roles with 
of New York that could be considered leading or critical beyond participating and volunteering 
at events sponsored by the of New York. The petitioner did not submit, for example, any 
documentary evidence that distinguished her roles from other members of of New York, so as 
to reflect that she performed in a leading or critical role. Furthermore, although on appeal the 
petitioner submits screenshots from _ and 
reflecting background and activities of the association, there is no indication that of New York 
has garnered a distinguished reputation. The petitioner did not submit independent, objective 
evidence reflecting the reputation of the : of New York. Cf, Braga v. Poulos, No. CV 06 5105 
SJO aff'd 2009 WL 604888 (USCIS need not rely on the self-promotional material). 
Regarding , on appeal the petitioner claims that she has performed leading and 
critical roles as an artistic director in important aspects of its art exhibitions. The previously 
discussed letter from indicated that the petitioner "stirred considered interest" 
regarding a recent exhibition. In addition, indicated that the petitioner "collaborated 
with other visual and performing artists as a calligrapher" and "teaches the technique of Japanese Ink 
Painting at with great .success." however, did not indicate the 
petitioner ' s roles rise to the level of leading or critical as required by the plain language of the 
regulation. The petitioner did not submit any other documentation evidencing her roles at 
There is no evidence, for example, comparing the roles of the other artists to the 
petitioner in her collaboration on events and projects. Moreover, when compared to 
the President of it appears that the petitioner performed in a far lesser role that is 
not reflective of a leading or critical role. In addition, the petitioner did not establish that 
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has a distinguished reputation. The record of proceeding contains screenshots from 
reflecting the background and events of the entity. Although 
received the from the • ~ _ which 
appears to be a local award, the petitioner did not submit sufficient objective evidence demonstrating 
the distinguished reputation of 
Regarding , the petitioner submitted sufficient documentary evidence demonstrating that she 
performed in a leading or critical role. However, the petitioner has not established that has 
a distinguished reputation. Although the petitioner submitted documentation from as well 
as evidence of various demonstrations and exhibits, there is no evidence establishing the 
distinguished reputation of Even if the petitioner demonstrated that . has a 
distinguished reputation, which she did not, 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. 
Accordingly, the petitioner did not establish that she 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 petitioner did not previously claim eligibility for this criterion, either at filing or in response to 
the director's RFE. However, on appeal, the petitioner now argues that she meets eligibility for this 
criterion and her "initial I-140 filing apparently and inadvertently did not include this evidence." 
As the petitioner did not previously claim eligibility for this criterion before the director, the director 
did not error in his decision, and we will not consider the petitioner's new claims on appeal. 
Accordingly, the petitioner did not establish that she meets this criterion. 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. 0-1 Nonimmigrant Status 
The petitioner indicated on her Form I-140, Immigrant Petition for Alien Worker, that she was last 
admitted to the United States on July 25, 2012, as an 0-1 nonimmigrant. On appeal, the petitioner 
claims that "she was granted 0-1 visas two (2) times with two (2) different sponsors over six years 
during which time she has succeeded to an even higher level of extraordinary achievement in the art 
world as required under this immigrant petition." Although the words "extraordinary ability" are 
used 
in the Act for classification of artists under both the nonimmigrant 0-1 and the first preference 
employment-based immigrant categories, the statute and regulations define the term differently for 
each classification. Section 101(a)(46) of the Act states that "[t]he term 'extraordinary ability' 
means, for purposes of section 10l(a)(l5)(0)(i) , in the case of the arts, distinction ." The 0-1 
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regulation reiterates that "[ e ]xtraordinary ability in the field of arts means distinction." 8 C.F .R. 
§ 214.2( o )(3)(ii). "Distinction" is a lower standard than that required for the immigrant 
classification, which defines 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.P.R. § 204.5(h)(2). The evidentiary criteria for these two classifications also differ in several 
respects, for example, nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 8 
C.P.R. § 214.2( o )(3)(iv )(A), but the immigrant classification requires actual receipt of nationally or 
internationally recognized awards or prizes. 8 C.P.R. § 204.5(h)(3)(i). Given the clear statutory and 
regulatory distinction between these two classifications, the petitioner's receipt of 0-1 nonimmigrant 
classification is not evidence of her eligibility for immigrant classification as an alien with 
extraordinary ability. Further, an 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 upon review of the 
evidence of record. 
Many I-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. 1103 
(E.D.N.Y. 1989). Some nonimmigrant petitions are simply approved in error. Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 
(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 alien's qualifications). 
Applications or petitions are not required to be approved where the petitioner has not demonstrated 
eligibility because of prior approvals that may have been erroneous. See, e.g., Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm 'r 1988). Agencies need not 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, our 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 nonimmigrant 
petition on behalf of the alien, we would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 44 F.Supp. 2d 800 (E.D. LA 1999), ajfd, 
248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the Service Center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. CA 
2001), ajfd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). 
IV. CONCLUSION 
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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 of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While we conclude 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, we need not explain that conclusion in a 
final merits determination. 5 Rather, the proper conclusion is that the petitioner has failed to satisfy 
the antecedent regulatory requirement of three types of evidence. !d. 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 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, that burden has not been met. 
ORDER: The appeal is dismissed. 
5 We conduct appellate review on a de novo basis. See Siddiqui v. Holder, 670 P.3d 736, 741 (7th Cir. 2012); 
Soltane v. DOl, 381 P.3d at 145; Dor v. INS, 891 P.2d 997, 1002 n. 9 (2d Cir. 1989). In any future 
proceeding, we maintain the jurisdiction to conduct a final merits determination as the office that made the last 
decision in this matter. 8 C.P.R. § 103.5(a)(1)(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.P.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).