dismissed EB-1A Case: Gallery Director

identifying date dek(ed to 
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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: VERMONT SERVICE CENTER Date: MAR 2 5 2005 
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. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
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. 
U 
6 Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary 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. The director determined the petitioner had not established the beneficiary's sustained 
national or international acclaim necessary to qualify for classification as an alien of extraordinary ability. 
On appeal, counsel challenges the director's conclusion, relying most1 on evidence that came into existence 
after the date of filing. The petitioner submits a letter fromd Curator of Photography at the Los 
~ngeles County Museum of Art, evaluating the evidence. For the reasons discussed below, we find that the 
evidence establishes that the beneficiary met two of the regulatory criteria as of the date of filing, one of which 
he met very minimally. Pis will be discussed below, however, the evidence is not persuasive that the beneficiary 
met a third criterion as of the date of filing. According to the regulations and case law cited below, an alien 
must meet three criteria as of the date of filing in order to be eligible for the classification sought. Thus, we 
concur with the director's ultimate conclusion. 
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 have 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 the beneficiary has sustained national or international acclaim at the very top level. 
This petition seeks to classifj, the beneficiary as an alien with extraordinary ability as a gallery director. The 
regulation at 8 C.F.R. 3 204.5(h)(3) indicates that an alien can establish sustained national or international 
acclaim through evidence of a one-time achievement (that is, a major, international 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 qualie as an alien of extraordinary ability. The 
petitioner has submitted evidence that, is claimed, meets the following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for 
excellence in the field of endeavor. 
Counsel continues to assert that the participation of the beneficiary's gallery at the Armory Show 2002 served to 
meet this criterion. We concur with the director that it does not. Participation in an art exhibition, even a 
competitive exhibition, is not an award or prize. While we do not question ~r.msertion on appeal that 
there are no awards for gallery directors, evidence submitted to meet a criterion that is not readily applicable to 
the beneficiary's field must be comparable to the evidence required by the criterion. 8 C.F.R. 5 204.5(h)(4). 
Participation at an art festival is far more relevant to the criterion set forth at 8 C.F.R. 5 204.5(h)(3)(vii), which 
relates to display at an artistic exhibition or showcase. Thus, we will not consider the beneficiary's participation 
under this criterion; rather, we will consider it below as it relates to the criterion set forth at 8 C.F.R. 
tj 204.5(h)(3)(vii). For the reasons discussed below, however, we find that this evidence does not meet that 
criterion either. 
Documentation of the alien S membership in associations in the field for which classiJication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or3elds. 
Initially, counsel asserted that the beneficiary's service on the Board of Directors of the Center for Photography 
at Woodstock served to meet this criterion. Serving on the board of directors of a photography center is not a 
"membership" in an association. Rather, we will consider this service pursuant to 8 C.F.R. 5 204.5(h)(:3)(viii), 
which relates to a leading role for an organization with a distinguished reputation. 
On appeal, Mr. sserts that the beneficiary is also a member of the Association of International 
Photography Art Dealers (AIPAD). The record contains no evidence of this membershi . Thus, we cannot 
determine whether the beneficiary was a member at the time of filing. Moreover, Mrhasserts that a 
member must demonstrate "a reputation in his community for honesty and integrity, both generally and in his 
dealings with the public, museums, photographers and other dealers." This is not an outstanding achievement in 
the field. Mr. urther asserts that the beneficiary must have demonstrated that he is "'making substantial 
contributions to the field of fine art photography through the quality of the photographic art offered for sale, the 
exhibitions he mounts' or his other worthwhile endeavors." The record does not contain the source of this 
quote. Regardless, without the official bylaws setting forth the membership requirements for AIPAD, we cannot 
determine whether it requires outstanding achievements of its members as judged by recognized national or 
international experts in photography. 
Published materials about the alien in professional or major trade publications or other major media, 
relating to the alien's work in the field for which classfication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
I The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
The director concluded that the published materials were either not primarily about the beneficiary or did not 
appear in major media or both. Counsel challenges this characterization on appeal. 
Initially, the petitioner submitted one-paragraph reviews of exhibitions at the beneficiary's gallery in New York 
publications such as the New Yorker and Village Voice and in the magazine ARTnews. The petitioner also 
submitted longer reviews of multiple gallery exhibits that include the beneficiary's gallery. We concur with the 
director that these reviews do not constitute published material about the beneficiary. 
The record also includes an article in i'he New York Times hlly devoted toes' exhibit at the 
beneficiary's gallery. This article, however, is primarily about Mr. 
!m 
The petitioner also submitted 
articles in a foreign language about Simen Johans. The petitioner fai e o su mit translations of nearly all of 
these articles as required by 8 C.F.R. 204.5(h)(3)(iii) and 8 C.F.R. 9 103.2(b)(3). Regardless, they appear to 
be primarily about ~r The International Gazette published an article on younger collectors of 
photography that quotes the beneficiary. The record contains no circulation or distribution data for this 
publication. As such, we cannot determine whether it is major media. Moreover, we are not persuaded that an 
article about young art collectors that quotes the beneficiary is an article about him. 
Maariv America ran a cover story on the beneficiary, consisting of a detailed interview with him. While counsel 
notes that Maariv is major media in Israel, the petitioner has not demonstrated that Maariv America is circulated 
in Israel. It is a foreign language paper that appears to be distributed within the United States. A publication in 
a language that the majority of the population in the country where it is distributed cannot comprehend is not 
major media. 
In response to the director's request for additional evidence and again on appeal, the petitioner submits more 
recent media coverage. This evidence, however, does not relate to the beneficiary's eligibility as of the date of 
filing. See 8 C.F.R. 9 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). Thus, we 
cannot consider the more recent media coverage. In light of the above, the petitioner has not established that the 
beneficiary met this criterion as of the date of filing. 
Evidence of the alien's participation, either individually or on apanel. as a judge of the work of others in the 
same or an alliedfield of specijcation for which cIassiJication is sought. 
In ZOO0 and 2002, the petitioner reviewed photographs submitted foouston, Texas. = 
Executive Director of the Galveston Art Center and chair of the photography accessions committee of 
the Museum of Fine Arts in Houston, confirms that every two years, "FotoFest invites a select group of 
international experts in the photography field to come to Houston to review the portfolios of hundreds of 
photographers from throughout the world." Meeting Place Coordinator for FotoFest 
International, asserts that FotoFest is "one of the biennial events in the world ,- the oldest 
and most respected biennial of its kind in the United States." The program for the festival reveals that there 
were 97 reviewers, albeit from around the country. 
Mary Virginia Swanson, founder of the American Photography Institute at New York University's Tisch School 
of the Arts and currently a consultant in the field, asserts that she served with the beneficiary as a reviewer at 
Review Americas in record contains no confirmation of this role from the organizers of 
that event. Similarly, a professor at the University of Texas at Austin, asserts that the 
beneficiary has reviewed work for the International Center of Photography in New York, but the record is absent 
confirmation from that center. 
irector of the Rhubarb-Rhubarb International Portfolio Festival in England, indicates that she 
"will be inviting" the beneficiary to review the festival, but the record contains no evidence that the beneficiary 
had already done so as of the date of filing. Mr. appellate letter lists several events for which the 
beneficiary had reviewing responsibilities, most of which occurred after the date of filing. Once again, 
evidence of post-filing achievements cannot be considered evidence of the beneficiary's eligibility at the time of 
filing. See 8 C.F.R. 9 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. at 49. 
The director failed to consider this evidence. While stronger evidence of serving as a reviewer on more 
exclusive panels for different shows would have been more persuasive, we find that the petitioner's reviewing 
responsibilities in Houston suffice, if minimally, to meet this criterion. 
Evidence of the alien 's original scientrJic, scholarly, artistic, athletic, or business-related contributions of 
major sign$cance in the3eld 
While counsel does not assert that the beneficiary meets this criterion, we will consider the reference letters 
submitted and the objective evidence supporting the claims in those letters., an art critic and regular 
contributor to the New York Times and Art in America and the author of several books on photographv, asserts 
that the beneficiary's gallery has introduced new artists other galleries failed to recognize and that, "in several 
cases," the artists went on to earn international distinction. Director of Photography at the 
RiccoIMaresca Gallery in New York, provides similar information, asserting: 
[The beneficiary's] gallery is the most important gallery in New York City exhibiting young 
photographic talent. He represents the most distinguished photographers in the field. However, 
because of his extreme creativity, resourcefulness and unusually talented methodology, he has 
been able to draw public attention to rising new talent. 
Photo Editor for Mother Jones, asserts that she is constantly looking for new and extraordinary 
talent in the field of photojournalism for publication in Mother Jones. Mswmplies that the beneficiary's 
gallery has been a source for her. She concludes: 
4 
His contributions to the industry are immeasurable. It is no wonder his name tops my lists of 
resources and recommendations to others in the field. He has established himself a permanent 
place in the field of photojournalism. He has emerged as the authority of discovering talent and 
demonstrating creativity in this select industry. 
Professor of Art and Art History at the University of Texas at Austin, asserts that the 
in identifying, cultivating and displaying photographic talent. ~ontinues that 
the beneficiary has succeeded in finding emergent artists. 
While the exhibition of work by respected photographers is indicative of the reputation the beneficiary's gallery 
enjoys, it is not a contribution of major significance to the field of photography. The evidence supporting the 
claim that the beneficiary is responsible for the success of emerging photographers is minimal. 
Page 6 
Ian associate professor at the Minneapolis College of Art and Design, asserts that her work 
was first exhibited at the beneficiary's gallery and has since been sold to the Brooklyn Museum of Art, the - - 
Museum of Fine Art Houston, the Museum of Modern Art and the Metropolitan ~useum of Art. Ms- 
resume, however, reveals that she had exhibited her work all over the country, including the International Center 
of Photography in New York, prior to exhibiting her work at the beneficiary's gallery. 
other professor at the Minneapolis College of Art and Design, asserts that his exhibit at the 
beneficiary's gallery received "glowing" reviews in the New York Times, the New Yorker and Art News. Mr. 
Goldes resume, however, reveals that he had exhibited his work all over the country, including the Museum of 
Modern Art in New York in 1991, before exhibiting his work at the beneficiary's gallery. 
a professor at Columbia College in Chicago asserts that the beneficiary gave him his first solo 
According to his resume, however, he had exhibited his work at one- erson shows in other 
areas, including at the Museum of Contemporary Photography in Chicago. Mr.had also previously 
exhibited his work in shows featuring more than one artist at the Museum of Modern Art in New York. 
An article onmeflects that his first book was published in 1993, before he exhibited his work 
at the beneficiary's gallery in 2002. The translation of one article about Simen Johan indicates he got his break 
in New York at a alle run by a rock club. There is no evidence that the beneficiary's gallery is run by a rock 
club. Thgppears to have gotten his break at a different gallery in New York. 
and Media Arts at the Corcoran asserts that the Corcoran 
at the beneficiary's gallery. While the Corcoran's 
will follow its exhibition at the beneficiary's gallery, as discussed above, 
its exhibition at the beneficiary's gallery. 
Finally, Mr. rovides numerous examples of media coverage of artists "discovered by the beneficiary. 
All of this coverage post-dates the filing of the petition and has little relevance to the beneficiary's eligibility as 
of that date. See 8 C.F.R. 3 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. at 49. 
While the above letters and the pre-tiling media coverage of the photographers exhibiting their work at the 
beneficiary's gallery attest to the reputation of his gallery, they do not suggest that the beneficiary had made a 
contribution of major significance to the field of photography as a whole. 
Evidence of the display of the ulien 's work in the$eld at artistic exhibitions or showcases. 
The petitioner submitted a letter to the beneficiary from the 2002 Armory Art Show accepting his exhibitor 
application. The letter indicates that 300 galleries "from around the globe" applied for 150 exhibitor spots. A 
press release regarding the show indicates that there would be 164 exhibitors from 20 countries. Seventy-nine 
of the exhibiting galleries were based in the United States. The release continues that the show is "the leadinn 
u 
United States and the world's leading art fair devoted exclusively to contemporary 
art." Director of the Armory Show, indicates that only three of the galleries represented at 
galleries. She does not, however, indicate how many photography- 
appeal, ~rttests to the significance of the show. 
It is inherent to the field of visual art to display the art. While the Armory Show may be prestigious, it does not 
appear to be exclusive. Over half of the galleries that apply are invited to participate. Thus, we do not find this 
evidence to be comparable to the type of display at an exclusive artistic showcase or exhibition that we would 
require of a visual artist seeking to meet this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or establishments that 
have a distinguished reputation. 
The director failed to consider the evidence relating to this criterion, focusing mostly on the beneficiary's 
remuneration. We note that this criterion is a separate criterion from the remuneration criterion and while it 
might be typical for an alien playing a leading or critical role for a distinguished organization to receive high 
remuneration, failing to meet the remuneration criterion does not preclude meeting this criterion. 
In addition to the petitioner's service on the Board of Directors of the Center for Photography at Woodstock, the 
petitioner is the director of his own gallery. The record contains no evidence regarding the national reputation 
of the Center for Photography at Woodstock. The media coverage of the photographers exhibiting their work at 
the beneficiary's gallery, the caliber of photographers he has attracted, and the beneficiary's participation in the 
prestigious Armory Show attest to the distinguished reputation of his gallery. As the director of the gallery 
named after himself, he clearly plays a leading role for that gallery. Thus, we find that the beneficiary 
satisfactorily meets this criterion. 
Evidence that the alien has commanded a high salary or other signrficantly high remuneration for services, 
in relation to others in the field. 
The petitioner did not initially claim that the beneficiary meets this criterion, although it was the focus of the 
director's decision. As with the published material submitted in response to the director's request for additional 
evidence and on appeal, the evidence of the beneficiary's most significant remuneration postdates the filing of 
the appeal. Specifically, the gross receipts of the beneficiary's gallery increased from $686,000 in 2002, the 
year the petition was filed, to $1,215,341 in 2003. While the gallery's gross receipts were quite high in 2003, 
the beneficiary's personal remuneration was not as extravagant, $1 13,097 in 2002 and $202,519 in 2003. 
Counsel asserts on appeal that the 2003 Guidestar Nonprofit Compensation Report lists the 90" percentile of 
income for chief curators as $149,109. Assuming that a "chief curator" is comparable to a director of a high-end 
art gallery, that remuneration is still more than the beneficiary earned in 2002 when the petition was filed. Thus, 
the petitioner has not demonstrated that the beneficiary met this criterion as of the date of filing. 
Comparable evidence pursuant to 8 C.F.R. 9' 204.5(h)(4) 
The regulation at 8 C.F.R. 5 204.5(h)(4) provides that where the above criteria do not readily apply, a petitioner 
may submit comparable evidence. Counsel asserts that the accolades of the petitioner's references serve as 
comparable evidence. First, counsel has not demonstrated that at least three of the above criteria do not readily 
apply to the beneficiary's field. Moreover, counsel has not explained how the subjective opinions of the 
beneficiary's references are comparable to the ten types of objective evidence of sustained national or 
international acclaim set forth at 8 C.F.R. 3 204.5(h)(3). Those ten regulatory criteria reflect the statutory 
demand for "extensive documentation" in section 203(b)(l)(A)(i) of the Act. Opinions from witnesses whom 
the petitioner has selected do not represent extensive documentation. Independent evidence that already existed 
prior to the preparation of the visa petition package carries greater weight than new materials prepared 
especially for submission with the petition. 
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. 
Review of the record, however, does not establish that the petitioner has distinguished the beneficiary as a 
gallery director to such an extent that he may be said to have achieved sustained national or international 
acclaim or to be within the small percentage at the very top of his field. The evidence indicates that the 
beneficiary is acquiring recognition in the field, but is not persuasive, especially as of the date of filing, that the 
beneficiary's achievements set him significantly above almost all others in his field. Therefore, the petitioner 
has not established the beneficiary's 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. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.