dismissed EB-1A Case: Fine Arts

(b)(6)
DATE: 
JUL 2 8 2015 
INRE: Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT #: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office 
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)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case . 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/o r reopen the proceeding. The requirements for motions are located at 8 C.F .R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee , filing 
location, and other requirem ents. Please do not mail any motions directly to the AAO. 
Thank you, 
!~~~:~;trative Appeals Office 
REV 3/2015 www. uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the Immigrant Petition for Alien 
Worker (Form I-140), which is now before the Administrative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), 
which makes visas available to individuals who can demonstrate their extraordinary ability through 
sustained national or international acclaim aRd whose achievements have been recognized in their 
field through extensive documentation. The director determined that the petitioner had not satisfied 
the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires documentation of 
a one-time achievement or evidence that meets at least three of the ten regulatory criteria. 
On appeal, the petitioner submits a brief with previously submitted documentation and asserts that 
he meets at least three of the regulatory categories of evidence. For the reasons discussed below, we 
agree that the petitioner has not established his eligibility for the exclusive classification 
sought. Specifically, the petitioner has not submitted qualifying evidence of a one-time achievement 
pursuant to 8 C.F.R. § 204.5(h)(3), or evidence that satisfies at least three of the ten regulatory 
criteria set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(i)-(x). As such, the petitioner has not 
demonstrated that he is one of the small percentage who is at the very top in the field of endeavor, 
and that he has sustained national or international acclaim. See 8 C.F.R. § 204 .5(h)(2), 
(3). Accordingly, we will dismiss the petitioner's appeal. 
I. FIELD OF EXPERTISE 
Although not addressed in the director's decision, as a preliminary matter, we must clarify the 
petitioner 's field of expertise. We maintain de novo review of all questions of fact and law. See 
Soltane v. United States Dep 't o.f.Justice, 381 F.3d 143, 145 (3d Cir. 2004). 
In Part 6 of Form I -140, the petitioner left blank all of the questions regarding basic information 
about the proposed employment including his job title and job description . Moreover, in the 
petitioner 's cover letter submitted at the initial filing of the petition, the petitioner indicated that he 
"has worked as a painter and professor in the field of Fine Art[s], " and that he is a "leading artist in 
the field of Fine Art[s]." Although not required, the petitioner also submitted U.S. Department of 
Labor, Application for Alien Employment Certification (Form 750) in which the petitioner indicated 
that he was seeking employment in the United States as a painter and lecturer. In addition, the 
petitioner submitted a letter entitled, "Detailing Job Plan to Work in the United States ," stating that 
he would continue to do printing paint work, and that he would apply for a faculty position at the 
Department of Arts, California State University Fullerton in or around February 2014. Finally, the 
petitioner submitted documentary evidence for the awards criterion pursuant to the regulation at 8 
C.P.R. § 204.5(h)(3)(i), the judging criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(iv), 
and the artistic display criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(vii). All of the 
petitioner's documentary evidence pertained to the petitioner's experience as a painter rather than as 
a lecturer or professor. 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
In response to the director 's reque st for evidence (RFE), the petitioner submitted a seco nd letter 
entitled, "Detailing Job Plan to Work in the United States," stating that he "plan[s] to hold 
exhibition[ s) two or three times per year with other artists in the United States, and if possible, [he] 
would like to teach for persons who have [an] interest in [the] Arts." Although the petitioner 
submitted additional documentation regarding the awards criterion and the artistic display criterion, 
the documentation related to his profession as an artist rather than as a lecturer or professor. 
In addition to requiring that the petitioner must have sustained national or international acclaim, the 
statute and regulations require that the petitioner seek to continue work in his area of expertise in the 
United States. See sections 203(b)(1)(A)(i) and (ii) of the Act, 8 U.S.C. §§ 1153(b)(l)(A)(i) and 
(ii), and 8 C.F.R. §§ 204.5(h)(3) and (5). Although a fine arts painter and a fine arts teacher share 
knowledge of the arts, the two rely on very different sets of basic skills. Thus, a painter and 
instructor are not the same area of expertise. This interpretation has been upheld in federal court. In 
See Lee v. Ziglar, 237 F. Supp. 2d 914 (N.D. Ill. 2002), the court stated: 
It is reasonable to interpret continuing to work in one's "area of extraordinary ability " 
as working in the same profession in which one has extraordinary ability , not 
necessarily in any profession in that field. For example, Lee's extraordinary ability as 
a baseball player does not imply that he also has extraordinary ability in all positions 
or professions in the baseball industry such as a manager, umpire or coach. 
!d. at 918. The court noted a consistent history in this area. In the present matter , there is no 
evidence showing that the petitioner has sustained national or international acclaim through his 
achievements as a lecturer , professor, or teacher. Although we acknowledge the possibility of a 
petitioner's extraordinary ability in more than one field, such as a painter and as a painting 
instructor, the petitioner , however , must demonstrate "by clear evidence that the alien is coming to 
the United States to continue work in the area of expertise." See the regulation at 8 C.F.R. 
§ 204.5(h)(5). 
Based on the petitioner 's submitted documentation, we will review the record to determine whether 
the petitioner is an "alien of extraordinary ability" as a painter. If the petitioner intended to seek 
classification as an "alien of extraordinary ability " as a professor or lecturer, he did not submit any 
documentation for any of the criteria pertaining to that occupation. Ultimately, the petitioner must 
satisfy the regulation at 8 C.F.R. § 204.5(h)(3) through his achievements as a painter and continue to 
work in his area of expertise in the United States as a painter. 
II. 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): 
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NON-PRECEDENT DECISION 
(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. 
U.S. Citizenship and Immigr
ation 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. Id. ; 8 C.F.R. § 204 .5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a pet1t10ner can 
demonstrate the individual's sustained acclaim and the recognition of the individual 's achievements 
in the field through evidence of a one-time achievement (that is, a major, internationally recognized 
award). If the petitioner does not submit this evidence, then a petitioner must submit sufficient 
qualifying evidence that meets at least three of the ten categories of evidence listed at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself , 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (9
111 
Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying 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 USCIS' proper application of Kazarian), 
aff'd, 683 F.3d. 1030 (91h 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 "). 
(b)(6)
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NON-PRECEDENT DECISION 
IV. ANALYSIS 
A. Evidentiary Criteria 
1 
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. The plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the alien's 
receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field 
of endeavor." Moreover, it is the petitioner's burden to establish that the evidence meets every 
element of this criterion. Not only must the petitioner demonstrate his receipt of prizes and awards, 
he must also demonstrate that those prizes and awards are nationally or internationally recognized 
for excellence in the field of endeavor, which, by definition, means that they are recognized beyond 
the awarding entity. 
The petitioner submitted documentary evidence establishing that he received: 
1. An accepted prize at the 14th in 1995; 
2. An excellent prize at the 8th 
in 1994; and 
3. An excellent prize at the 9th in 1996. 
Res;rarcling item 1, the petitioner submitted a letter from 
, who stated that has held the Grand Art Exhibition of Korea since 1Y~2 , and all tme 
artists around the world are eligible to present their works. 1's letter, however , does not 
provide any evidence demonstrating that the accepted prize is a nationally or internationally 
recognized prize for excellence in the field of endeavor. Moreover, the petitioner did not submit any 
independent, objective evidence regarding the accepted prize, so as to establish that it is nationally or 
internationally recognized for excellence consistent with the plain language of the regulation at 8 
C.P.R. § 204.5(h)(3)(i). As such, the petitioner did not establish that his receipt of the accepted prize 
meets the plain language of this regulatory criterion. 
Regarding items 2 and 3, the petitioner submitted a letter from 1, , who stated 
that is an international competition that any art director, artistic designer, painter, 
photographer, typographer, and etc. working anywhere can participate in the competition and 
1 We have reviewed all of the evidence the petitioner has submitted and will address those criteria the 
petitioner claims to meet or for which the petitioner has submitted relevant and probative evidence. As 
previously discussed, the petitioner submitted no evidence that he meets any of the criteria as an instructor or 
lecturer. 
(b)(6)
NON-PRECEDENT DECISION 
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provided the evaluation criteria for the prizes. The letter does not indicate whether the prize is 
nationally or internationally recognized for excellence. Furthermore, the petitioner did not submit 
any other documentary evidence demonstrating that the excellent prize is nationally or 
internationally recognized for excellence. Therefore, the petitioner did not establish that his receipt 
of the excellent prizes meet the plain language of this regulation at 8 C.F.R. § 204.5(h)(3)(i). 
Again , the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires that "[d]ocumentation of the alien 's 
receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field 
of endeavor." Simply submitting evidence of the petitioner's receipt of prizes and awards is not 
sufficient to meet this criterion unless the petitioner submits evidence establishing that the prizes and 
awards are nationally or internationally recognized for excellence in the field. Although the 
petitioner submitted evidence of his receipt of three prizes or awards, he did not submit sufficient 
documentary evidence demonstrating that his prizes or awards are nationally or internationally 
recognized for excellence in the field. 
Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence of the alien 's participation , either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specification for which 
classification is sought. 
The director determined that the petitiOner established eligibility for this criterion. The plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(iv) requires "[e]vidence 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." A review of the record of proceeding 
reflects that the petitioner submitted sufficient documentary evidence establishing that he meets the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
Accordingly, the petitioner established that he 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 did not establish eligibility for this criterion because 
"[t]he petitioner has not provided any supporting evidence to prove that the artistic exhibitions have 
raised the [petitioner] to the very top of the field of endeavor." The plain language of the regulation 
at 8 C.P.R. § 204.5(h)(3)(vii) requires "[e]vidence of the display of the alien's work in the field at 
artistic exhibitions or showcases." In accordance with Kazarian 596 F.3d at 1122, the status or 
reputation of the artistic exhibitions or showcases is not relevant in the first step of the two-part 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
review? Instead, the petitioner must submit evidence establishing that his work has been displayed 
at artistic exhibitions or showcases. In this case, the petitioner submitted documentation reflecting 
that his work was displayed at various artistic exhibitions and showcases such as the iallery, 
Gallery , and Therefore, we withdraw the findings of the director for this 
criterion. 
Accordingly, the petitioner established that he meets this criterion. 
B. Summary 
For the reasons discussed above, we agree with the Director that the petitioner has not submitted the 
requisite initial evidence, in this case, evidence that satisfies three of the ten regulatory criteria. 
V. CONTINUE TO WORK IN THE AREA OF EXPERTISE 
Although not addressed by the director in his decision, the petitioner did not establish his intent to 
continue to work in his area of expertise in the United States as required by section 203(b)(1)(A)(ii) 
of the Act and 8 C.F.R. § 204.5(h)(5). We maintain de novo review of all questions of fact and law. 
See Soltane v. United States Dep 't of Justice, 381 F.3d at 145. 
Section 203(b)(l)(A)(ii) requires that the petitioner "seeks to enter the United States to continue 
work in the area of extraordinary ability. " The regulation at 8 C.F.R. § 204.5(h)(5) states: 
Neither an offer for employment in the United States nor a labor certification is 
required for this classification; however, the petition must be accompanied by clear 
evidence that the alien is coming to the United States to continue work in the area of 
expertise. Such evidence may include letter(s) from prospective employer(s) , 
evidence of prearranged commitments such as contracts, or a statement from the 
beneficiary detailing plans on how he or she intends to continue his or her work in the 
United States. 
As previously discussed, the petitioner submitted a letter at the initial filing of the petition and in 
response to the director's RFE that indicated that he would hold two or thre e exhibitions per year 
with other artists. According to the regulation at 8 C.F.R. § 204.5(h)(5), the petitioner must submit 
"clear evidence" and his statement must detail his plans on how he intends to continue his work in 
the United States. The petitioner 's letters, however, lack specific information to establish his plans 
to continue to work in his field of expertise. The petitioner's letters do not provide any details such 
2 If the petitioner had submitted the requisite evidence under at least three evidentiary categories, the second 
step would have been a final merits determination that would have considered the status or reputation of the 
artistic exhibitions or showcases to determine whether the petitioner is one of that small percentage who has 
risen to the very top of the field of endeavor, that he has sustained national or international acclaim, and that 
his achievements have been recognized in the field of expertise. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
as where and when he intends to hold his exhibitions; the names of any galleries or festivals that 
would be interested in displaying his work; and the names of other artists with whom he intends to 
display his work. The petitioner did not submit any other documentation, such as letters from 
prospective employers or any evidence of prearranged commitments such as contracts, reflecting 
that he is coming to the United States to continue work in the area of expertise. Although the 
petitioner indicated that he would like to teach, the petitioner has not shown that his field of 
expertise is as an instructor rather than as a painter. See Lee v . Ziglar, 237 F. Supp. 2d at 914 
(upholding a finding that competitive athletics and coaching are not within the sam e area of 
expertise). 
For the reasons discussed above, the petitioner has not submitted "clear evidence" that he intends to 
continue in his area of expertise in the United States pursuant to section 203(b)(1)(A)(ii) of the Act 
and the regulation at 8 C.F.R. § 204.5(h)(5). 
VI. 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 his or her field of endeavor. 
Had the petitioner 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 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. As the petitioner has not done so, the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of 
presenting evidence that satisfied the initial evidence requirements 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 evidence in the aggregate supports a 
finding that the petitioner has not demonstrated the level of expertise required for the classification 
sought. 3 
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 
3 We maintain de novo review of all questions of fact and law. See Soltan e v. United States Dep 't of Justice, 
381 F.3d at 145. 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.F.R. § 103.5(a)(1)(ii); see also INA 
§§ 103(a)(1), 204(b); 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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
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.