dismissed EB-1A Case: Fine Arts

PIBLIC COPY 
LIN 07 003 5 1787 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER 
 DateAPR 2 9 2009 
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. 8 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
8 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
5 103.5(a)(l)(i). 
hohn F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center denied the employment-based immigrant 
visa petition. The director also denied the petitioner's motion to reopen and reconsider. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an 
alien of extraordinary ability in the arts. The director determined the petitioner had not 
established the sustained national or international acclaim necessary to qualify for classification 
as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. - Visas shall first be made available . . . to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with Extraordinary Ability. - An alien is described in this 
subparagraph if - 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national 
or international acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit 
prospectively the United States. 
As used in this section, the term "extraordinary ability" means a level of expertise indicating that 
the individual is one of that small percentage who has risen to the very top of the field of 
endeavor. 8 C.F.R. 5 204.5(h)(2). The specific requirements for supporting documents to 
establish that an alien has sustained national or international acclaim and recognition in his or her 
field of expertise are set forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant criteria 
will be addressed below. It should be reiterated, however, that the petitioner must show that he 
has sustained national or international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a fine artist. 
The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, 
internationally recognized award). Barring the alien's receipt of such an award, the regulation 
outlines ten criteria, at least three of which must be satisfied for an alien to establish the 
sustained acclaim necessary to qualify as an alien of extraordinary ability. A petitioner, however, 
cannot establish eligibility for this classification merely by submitting evidence that simply 
relates to at least three of the criteria outlined in 8 C.F.R. 4 204.5(h)(3). In determining whether 
the petitioner meets a specific criterion, the evidence itself must be evaluated in terms of whether 
it is indicative of or consistent with sustained national or international acclaim. A lower 
evidentiary standard would not be consistent with the regulatory definition of "extraordinary 
ability" as "a level of expertise indicating that the individual is one of that small percentage who 
have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). 
The petitioner has submitted evidence that, he claims, meets the following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in thejeld of endeavor. 
In his September 1, 2006 letter accompanying the 
 prior counsel indicated that the 
petitioner had won the "JACA Grand Prize (Japanese Visual Art Exhibition 1997)." In denying 
the petition, the director stated that the record did not "establish the significance of the 
beneficiary's award." The record, however, does not contain any evidence of this award, and the 
petitioner does not pursue the issue on appeal. 
The record does not establish that the petitioner meets this criterion. 
Documentation of the alien's membersh@ in associations in the jeld for which 
classz~cation is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
To demonstrate that membership in an association meets this criterion, the 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 work 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. The overall prestige 
of a given association is not determinative. The issue is membership requirements rather than the 
association's overall reputation. 
The petitioner submitted a March 3 1, 2003 letter from the Japanese Artists Association of New 
York, Inc. (JAANY), certifying that he had been a member of the organization since 2003. The 
petitioner also submitted a copy of a document that purports to be his membership certification 
in the Japan Afi-o-Asia-Latin American Artist Association JAALA. However, the translation 
accompanying this document does not identify the translator and the translator does not certify 
that he or she is competent to translate from Japanese into English, as required by 8 C.F.R. 
tj 103.2(b)(3), Furthermore, the petitioner submitted no evidence that a condition of membership. 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
* Different counsel represented the petitioner during the initial stages of this proceeding. Previous counsel will be 
referred to as prior counsel in this decision. 
In response to the director's request for evidence (RFE), the petitioner submitted a July 25,2007 
letter from the founder of JAANY, which stated: 
Jaany has [a] very rigorous standard for membership. We have many professional 
artists seeking membership to our association each year. Requirements for 
membership are rigorous by any standard. They include a demonstration of 
professional status, a peer review requiring 90% acceptance by the entire body of our 
professional artist members[.] In addition, we accept only artist who has future plans 
of hisher art activities in this country. 
In support of the motion, the petitioner submitted a copy of the application for membership in 
JAANY, which requires the applicant to submit a statement and "20 slides" of the applicant's 
work as well as make a "brief speech." Counsel asserts that this is evidence of the outstanding 
achievement required for membership in the organization. 
Nonetheless, a "rigorous" membership standard is not the same as requiring outstanding 
achievement as a condition of membership. Nothing in the documentation submitted establishes 
that a potential member of JAANY must demonstrate outstanding achievement as opposed to 
completion of "20 slides" of work and a "professional status." 
The petitioner submitted no other documentation about his membership in JAALA. 
The evidence does not establish that the petitioner meets this criterion. 
Published materials about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the jeld for which classiJication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In order to meet this criterion, published materials must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
The petitioner submitted several documents that appear to be articles from various media, 
identified by the petitioner to include The Asahi Times and the Tokyo Times. However, the 
petitioner failed to submit certified translations of these documents and therefore the AAO 
cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. 8 
103.2(b)(3). Accordingly, the evidence is not probative and will not be accorded any weight in 
this proceeding. 
Other documentation included an article from the websites of Associated Content and Asian 
Social Network, both about the petitioner's exhibit of his works at the gallery, Susan Eley Fine 
Page 5 
Art. However, the petitioner submitted no documentation that either of these media is considered 
major media or a major trade publication. 
With his motion, the petitioner resubmitted two of the documents previously submitted, 
accompanied by English translations. We note first that the documents do not identify the 
translator, and the translator did not certie that the translation was complete and accurate and 
did not certify that he or she is competent to translate fiom the foreign language into English. See 
8 C.F.R. $ 103.2(b)(3). Accordingly, the evidence is not probative and is of no evidentiary value in 
this proceeding. 
The record does not establish that the petitioner 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 alliedjeld of specification for which classification is 
sought. 
The petitioner did not initially allege that he meets this criterion. However, on motion, counsel 
stated that the petitioner "is a prominent member of JAANY and also part of the selection 
committee to judge new applicants to JAANY." Counsel references the July 25,2007 letter fiom 
the founder of JAANY in which he stated that the entire membership votes on new members. 
The regulatory criteria are established to assist the petitioner in demonstrating national or 
international acclaim, and must be interpreted as a whole with the statute. Not all who sit as a 
judge will have extraordinary ability or will qualie under this criterion. The AAO interprets this 
regulation to require that the selection and participation process for serving as the judge of the 
work of others in the field be indicative of national or international acclaim in the field. The 
evidence does not establish that the membership of JAANY is based on outstanding achievement 
of its members, and thus the petitioner's evaluation of new members, along with every other 
member of the organization, does not indicate that he does so because of his national or 
international acclaim. 
The petitioner has not established that he meets this criterion. 
Evidence of the alien's original scientiJic, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
To establish that he meets this criterion, the petitioner submitted letters of recommendation 
attesting to his talents and creativity as an artist. The petitioner is described as "a gifted artist" 
and "an artist of the highest ability and talent" whose work is "very striking and creative." Others 
who commented included: 
director of the Hyundai gallery in Seoul, Korea, who stated that the 
petitioner "has provided a new style in the installation field that is most appropriate[] for 
his visionary themes." 
Page 6 
a professor in the College of Fine Arts at Sungshin Women's University, 
who stated that the petitioner "has excellent talent and his abilities of expression and 
description are inventive." 
founder of CoenAssociates, who stated that the petitioner's "paintings have 
an [sic] unique style and he has the strength to create original work." 
Executive Director of Motoazabu Gallery in Tokyo, Japan, who stated 
that the petitioner's "unique and remarkable work impresses me as extraordinary." 
However, none of those who attested to the petitioner's ability indicated that his work constituted 
a contribution of major significance to art. 
The evidence does not establish that the petitioner meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The petitioner submitted documentation establishing that his work has been exhibited in several 
galleries and artistic exhibitions. We concur with the director that the petitioner meets this 
criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that he performed a leading or critical role for an 
organization or establishment and that the organization or establishment has a distinguished 
reputation. 
In his September 1, 2006 letter accompanying the petition, prior counsel asserted that the letters 
of recommendation submitted by the petitioner was evidence of this criterion. The authors of the 
letters are primarily other artists, curators or directors of art galleries, who attest to the 
petitioner's ability as an artist. They provide no information that the petitioner worked in a 
leading or critical role for any organization. 
In a March 20, 2003 letter, , president of the art group Wakoukai, stated that the 
petitioner taught oil painting and watercolor for the group. Other documentation indicates that 
the petitioner worked as a volunteer at the Museum of Modern Art in New York, as a teacher at 
the Council Senior Center, and a special lecturer at Nippon University. None of the 
documentation, however, establishes that the petitioner served in a critical or leading role for 
these organizations and, other than the Museum of Modern Art, nothing in the record indicates 
that these organizations enjoy a distinguished reputation. 
On motion, counsel asserts that the petitioner meets this criterion as a director and member of the 
board of JAANY and as a "member of the Committee in JIAC [Japan International Artist Club], 
a prominent organization hosting annual exhibition at the prominent Tokyo Metropolitan 
Museum." However, the petitioner submitted no documentation to establish that his position as a 
member of JAANY or JIAC was in a critical or leading role or that these organizations enjoy 
distinguished reputations. 
The evidence does not establish that the petitioner meets this criterion. 
Other comparable evidence. 
The regulation at 8 C.F.R. 5 204.5(h)(4) states: "Vthe above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility." [emphasis added]. The regulatory language precludes the consideration 
of comparable evidence in this case, as there is no indication that eligibility for visa preference in 
the petitioner's occupation cannot be established by the ten criteria specified by the regulation. 
However, we will briefly address other evidence the petitioner submitted under this provision. 
Both counsel and prior counsel refer to the petitioner's community involvement as evidence of 
his extraordinary ability. However, the petitioner's role as a community organizer or volunteer 
does not provide evidence of his sustained acclaim in his area of expertise. Counsel also refers to 
the letters of recommendation written on behalf of the petitioner. However, these letters have 
been considered under the criterion discussed above, and do not serve as an independent means 
of establishing the petitioner's sustained national or international acclaim as an artist. 
Counsel asserts that based on prior decisions of the AAO, these letters written by "expert 
witnesses [who] are highly placed within their fields" carry "considerable weight and can be 
enough to overcome other weaknesses in a petition." We note first that the case cited by counsel 
is unpublished. While 8 C.F.R. 5 103.3(c) provides that precedent decisions of USCIS are 
binding on all USCIS employees in the administration of the Act, unpublished decisions are not 
similarly binding. Precedent decisions must be designated and published in bound volumes or as 
interim decisions. 8 C.F.R. 5 103.9(a). Second, the letters submitted on behalf of the petitioner 
are not sufficient in and of themselves to overcome the deficiencies in the petitioner's evidence. 
Further, although the writers attest to the petitioner's skills as an artist, none indicate that the 
petitioner has reached the top of his profession. 
Documentation in the record indicates that the petitioner has a previously approved petition as an 
alien with extraordinary ability under section 101(a)(15)(0)(i) of the Act, 8 U.S.C. 5 
1 10 1 (a)(l5)(0)(i). While USCIS has approved an 0- 1 nonimmigrant visa petition filed on behalf of 
the beneficiary, that prior approval does not preclude USCIS from denying an immigrant visa 
petition based on a different, if similarly phrased standard. It must be noted that many 1-140 
immigrant petitions are denied after USCIS approves prior nonirnmigrant 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. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 
1989). Because USCIS spends less time reviewing 1-129 nonirnmigrant petitions than 1-140 
immigrant petitions, some nonimmigrant petitions are simply approved in error. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude 
USCIS from denying an extension of the original visa based on a reassessment of the 
beneficiary's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Cornm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomeiy, 825 F.2d 1084,1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonirnrnigrant petition on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct 51 (2001). 
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 field of endeavor. The conclusion we 
reach by considering the evidence to meet each criterion separately is consistent with a review of the 
evidence in the aggregate. Even in the aggregate, the evidence does not distinguish the petitioner as 
one of the small percentage who has risen to the very top of the field of endeavor. 
The evidence indicates that the petitioner is not persuasive that the petitioner's achievements set 
him significantly above almost all others in her field. Therefore, the petitioner has not established 
eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.