dismissed EB-1A Case: Graphic Arts

US. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
JONT SERVICE CENTER Date: 0 1 
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 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. 
u 
9~obert P. Wiernann, 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 (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 that the petitioner had not established the sustained national or international 
acclaim requisite to classification as an alien of extraordinary ability and denied the petition on January 18, 
2005. The petitioner timely submitted a Form I-290B, which was rejected by Citizenship and Immigration 
Services (CIS) because the submitted check was incorrectly completed. Counsel resubmitted the Form I-290B 
with a second check, but CIS then rejected the Form I-290B as untimely filed. On appeal, the petitioner submits 
a copy of the original check, which shows no errors. We find that the petitioner's Form I-290B was rejected in 
error and was timely filed on February 17, 2005. However, counsel's claims and the additional evidence 
submitted on appeal do not overcome the deficiencies of the petition and the appeal will be dismissed for the 
reasons discussed below. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 8 C.F.R. 204.5(h)(3). An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight given to evidence submitted to fulfill the criteria 
at 8 C.F.R. 5 204.5(h)(3), or under 8 C.F.R. 5 204.5(h)(4), must depend on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained national or international acclaim at the very top of the 
alien's field of endeavor. 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. 9 204.5(h)(2). 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the arts as a graphic artist. 
We address the evidence submitted and counsel's contentions in the following discussion of the regulatory 
criteria relevant to the petitioner's case. Counsel does not claim that the petitioner is eligible under any criteria 
not discussed below. 
(0 Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in thejeld of endeavor. 
The petitioner submitted documentation of the following accomplishments as evidence of her eligibility under 
this criterion: The petitioner's solo exhibition at the Exhibit A gallery in New York City was included in a list 
of shows in the January 26 to February 1, 2000 edition of Voice Choices, a weekly guide published by the 
Village Voice. The Village Voice is a New York City regional newspaper and the record contains no evidence 
that inclusion in Voice Choices is a nationally recognized prize or award. On appeal, counsel claims that the 
Village Voice is "the leading arts and culture weekly newspaper and internet web site" and that "[r]ecognition by 
the Village Voice is a major national award." The record contains no documentation of the national circulation 
of the Village Voice, the Voice Choices selection criteria, or any other evidence to support counsel's claims. 
Without documentary evidence to support the claim, the assertions of counsel will not satisfy the petitioner's 
burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503,506 (BIA 1980). 
The petitioner submitted an excerpt from the catalogue of "Graphic Front," the "Tokyo Urban Art Projects 
Nippon Graphic Exhibition 1991 Final," which lists her as one of several artists to receive a "Runner-Up 
Award." The record contains no evidence regarding the competitiveness, significance and national or 
international recognition of this exhibition and its awards. On appeal, counsel states, "As Tokyo is the cultural 
. . . center of Japan, an award in a major exhibit in Tokyo is comparable to an award in a similar exhibition in 
New York City, which is the national cultural center of the United States." Again, the record does not support 
counsel's claims and the unsupported assertions of counsel do not constitute evidence. Obaigbena, 19 I&N 
Dec. at 534; Laureano, 19 I&N Dec. 1; Ramirez-Sanchez, 17 I&N Dec. at 506. 
The record contains another catalogue excerpt from the 1991 Exhibition of Japanese Illustration, which includes 
an image of one of the petitioner's prints. The catalogue states that this annual exhibition is devoted to 
promoting "promising artists" and that for the 1991 exhibition, 95 pieces were chosen from 2,195 entries. The 
catalogue further states that the exhibition will be shown at various venues in Japan as well as in Spain and the 
former Soviet Union. According to the catalogue, 17 prizes were awarded to exhibiting artists. The submitted 
evidence does not show that the petitioner received any of those prizes. On appeal, counsel states that the 
petitioner's selection to participate in this exhibition reflects "national recognition of her significant artistic 
achievements." Even if the petitioner received national recognition through this 1991 exhibition, her inclusion 
in one national show 13 years prior to the filing of her petition does not demonstrate the requisite sustained 
acclaim. 
On appeal, counsel further contends that the petitioner's receipt of an Asian Student's Scholarship from the 
School of Visual Arts in New York City evidences her eligibility under this criterion. The record contains no 
primary evidence of the petitioner's receipt of this scholarship. Even if properly documented, however, the 
scholarship would not meet this criterion. Scholarships, fellowships and other forms of student financial aid do 
not satisfy this criterion because they support academic study or research and only other students - not 
established professionals in the applicable field - compete for such funding. 
The record does not demonstrate that the petitioner has received any nationally or internationally recognized 
awards for excellence in her field that are consistent with the requisite sustained national or international 
acclaim. Accordingly, the petitioner does not meet this criterion. 
(iii) Published material about the alien in professional or major trade publications or other major media, 
relating to the alien's work in theJield for which classijication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
As evidence of her eligibility under this criterion, the petitioner submitted copies of one newspaper article, one 
press release, two advertisements for the petitioner's solo exhibitions, four listings of exhibitions including the 
petitioner in a gallery guide, and one printout from the website of a gallery that represents her work. None of 
these documents discuss the petitioner's work in any depth and the materials do not reflect sustained national or 
international acclaim for the petitioner's work. 
The advertisements, press release and gallery website printout do not satisfy this criterion because they are 
promotional materials produced by the curators or galleries themselves and are not independent media coverage 
of the petitioner's work that reflects national or international acclaim. The inclusion of the exhibitions of the 
petitioner's work in the listings of the New York edition of Gallery Guide also do not meet this criterion. The 
record contains no documentation of the editorial guidelines for Gallery Guide or any other evidence that 
inclusion in the guide reflects national or international acclaim, rather than the exhibitors' own unsolicited 
submission of the show information to the guide. 
The single newspaper article submitted also fails to meet this criterion. The article was published in the 
November 6, 2003 edition of Water-ont Journal and is entitled "Artists7 Slide Night Gets Inside Local Art." 
The article discusses this monthly event at the Jersey City Museum in New Jersey. The feature-length article 
includes only the following, brief mention of the petitioner's work: "We met so many new artists from the 
neighborhood like [the petitioner], whose colorful installations incorporate silk screen images on high tech 
materials like plastic and vinyl." The record is also devoid of any evidence that the Water-ont Journal is a 
nationally circulated newspaper, publication in which might reflect national acclaim. 
On appeal, counsel submits copies of two articles from the September 5 and October 17, 2004 editions of the 
New York Times that include photographs of the petitioner's work. We cannot consider this evidence because it 
arose after the petition was filed. The petitioner must establish eligibility at the time of filing; a petition cannot 
be approved at a future date after the petitioner becomes eligible under a new set of facts. See 8 C.F.R. 5 
103.2(b)(12), Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
On appeal, counsel further claims that the petitioner meets this criterion through her work as the "art 
directorldesigner of several high-end art publications which were outlined and enclosed with the original 
submission at Tab G. She has also been acclaimed for her work on corporate publications through the awards 
which she received." The record contains no evidence of s 
 'tioner. Exhibit G sibmitted with 
the petitioner's Form 1-140 is a recommendation letter fro 
-- 
irector of Goliath Visual Space, 
who discusses the petitioner's artistic prints and her partlclpatlon In an e 
 ibition at Goliath. The record 
contains no evidence that the petitioner has worked as a commercial art director or designer and counsel's 
statements are apparently unrelated to this case. 
The record contains no evidence of published materials about the petitioner's work in professional, major trade 
publications or other major media in a manner reflective of sustained national or international acclaim. 
Accordingly, the petitioner does not meet this criterion. 
(v) Evidence of the alien's original scient$c, scholarly, artistic, athletic, or business-related contributions of 
major significance in the field. 
The petitioner did not initially claim eligibility under this criterion. 
 On appeal, counsel claims that the 
submitted recommendation letters evidence the petitioner's major contributions to her field. 
 The record 
contains support letters from seven artists and art professionals who have worked with the petitioner or are 
otherwise familiar with her work. While such letters provide relevant information about an alien's experience 
and accomplishments, they cannot by themselves establish the alien's eligibility under this criterion because 
they do not demonstrate that the alien's work is of major significance in his or her field beyond the limited 
number of individuals with whom he or she has worked directly. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition carry less weight than preexisting, independent 
evidence of major contributions that one would expect of an alien who has sustained national or international 
acclaim. Accordingly, we review the letters as they relate to other evidence of the petitioner's contributions. 
= 
an artist familiar with the petitioner's work, states: 
[The petitioner's] approach to printmaking is truly unique, including particularly her understanding of 
light and color. [The petitioner] works to create art for the sake of art and her works are the product of 
unbridled imagination and passion. This is an extremely rare quality in our age of commercialization of 
the arts. [The petitioner's] works combine superb mastery of the newest technology with a nalve and 
pure quality, resulting in prints of the highest artistic level. 
While Ms.favorably describes the petitioner's work, the record contains no corroborative evidence that 
the petitioner's allegedly unique approach to printmaking has received significant recognition as making a major 
contribution to her field in a manner consistent with national or international acclaim. 
= the owner of the Exhibit A gallery in New York City, states that he met the petitioner when she was a graduate student and subsequently sold one of her installations. Mr. xplains that his gallery 
has presented two ibitions of the petitioner's work and included the petitioner in two group exhibitions 
at the gallery. Mr. 
To my knowledge . . . there is noone [sic] doing what [the petitioner] is doing right now. I can also tell 
you that on technical level [sic] there are a mere handful who could even attempt to achieve her quality 
of printmaking. Her installation work is another thing altogether, limited only by the financial resources 
that can be applied to her creativity. Her work is certain to be copied and appropriated but she will 
always remain a genuine original. This status alone compels me to assert that she is a major artist who 
will not merely greatly contribute to her field but will actually establish a new field in contemporary 
printmaking. 
M m ttests to the unique aspects and technical quality of the petitioner's work, but the record contains no 
evidence that these as~ects of the petitioner's work have been recomized as making maior contributions to her 
- - " 
field in a manner consistent with the requisite sustained acclaim. In fact, ~rltimates that the petitioner 
is an emerging artists who will greatly contribute to her field in the future, rather than an artist who is already 
recognized for her contributions of major significance to her field. 
, Associate Curator at the Jersey City Museum, states that the petitioner was included in 
a benefit exhibition at the Jersey City Museum and will be included in a future group exhibition at the museum. 
Mr. states: 
Blending physics, mathematics, biology, design, chaos theory, and even a bit of popular culture, [the 
petitioner's] work is not only original but also very engaging to any audience, even those who may not 
necessarily like contemporary art. . . . [The petitioner] forms part of a group of important, New York 
artists who are interested in the crossing of science and art . . . . As such, her work contributes greatly to 
this expanding and developing movement in contemporary art. Indeed, her work will contribute to the 
field by exploring the dialogue of art and science through her unique works that incorporate geometric 
forms, motion, repetition, and patterning into their expression. 
 also notes that "[als a woman, in particular, [the petitioner's] work is critical because 
there are few women artists who are working with the ideas she broaches in her work." In closing, ~rv 
Alvarado states that the petitioner is "important to the continued development of the art community here m ew 
Jersey. . . . Her contributions are needed in order to ensure the continued excellence in aesthetic production in 
the siate and in our local community." Mr. explains that the petitioner "stands head and 
shoulders above most of her peers in this state.' 
The record contains no independent evidence to support Mr. 
 sertions that the petitioner is 
part of a distinct group of New York artists or that her work 
 major contributions 
to a particular movement in contemporary art. 
 etter discusses the 
petitioner's contributions on a regional level and does not indicate that the petitioner has achieved sustained 
national or international acclaim for her work. 
chairperson of Associate Degree Programs at Pratt Institute in New York City, states that he is 
the etitioner's colleague and supervisor at the Pratt Institute where the petitioner is a printmaking instructor. 
Mr. 
 states that the petitioner "has already demonstrated that she is an extraordi 
 ted artist as 
evidenced by exhibitions at leading galleries in the United States." In particular, Mr. 
 xplains that 
Association. 
after he saw the petitioner's work in "Plastic Fantastic!" at the Exhibit A gallery, he 
"The Broome Street Galle 
 Holiday Invitational Exhibition," organized by the New York Artists Equity 
Mr. also notes that the petitioner is a "ve conscientious, dedicated and caring 
instructor" and "is a strong role model for young artists." Despite Mr. 
h 
praise, the record contains no 
corroborative evidence that the petitioner's participation in the two exhl it~ons e mentions garnered significant 
recognition in her field or that she has made~majo~contributions to the field of printmaking instruction. 
- 
a professional artist, printmaker and teacher, explains that she met the petitioner when the 
petitioner was a student at the School of Visual Arts. Ms 
u 
states that the petitioner's work "is outstanding, 
and sets a lofty standard of excellence for others to follow. 
 er printmaking technique is practically flawless, 
and her imagination remarkable." Ms.favorably describes the aesthetic 
 and effects of the 
Page 7 
petitioner's work, but the record does not corroborate that these aspects of the petitioner's work have made 
maior contributions to her field in a manner consistent with sustained national or international acclaim. 
of Goliath Visual Space in Brooklyn, New York, states that the petitioner participated in a group 
"Symbiotic Dialogue" at Goliath in 200 1. M-s: 
[The petitioner's] prints attracted the most attention at the exhibition. Her work shows exceptional 
intelligence, creativity and resourcefulness. She is one of the most talented artists we have shown. She 
brings to her work emotionality and at the same time outstanding technical quality; she masterfully 
combines the technological and organic to create unique masterpieces that stand out among the rest. 
The rare capacity to stretch, to engage, and to freeze time are present in [the petitioner's] works. 
The record contains no corroborative evidence that the petitioner's work exhibited in "Symbiotic Dialogue" 
received significant critical acclaim, influenced other artists, or otherwise made a major contribution to her field. 
Ahn Behrens, an art dealer and arts columnist for the Water-ont Journal, states 
 she went to write the 
aforementioned article about Artists' Slide Night at the Jersey City Museum 
 'was so impressed by 
[the petitioner's] high tech works; she was one of only three artists [Ms. 
 ention in [her] column." 
cream to the top of the New York art market. . . . 
a@ 
Ms.xplains that the petitioner's work is "cutting-edge and original. It fits in, yet stands out, rising like 
AmOnw 
in her field, I believe she has much to 
contribute." As noted above under the third criterion, Ms. 
 article in the Water-ont Journal only 
briefly mentions the petitioner and does not discuss her artwor In any depth. The record also does not show 
that the Water-ont Journal is a nationally circulated newspaper or a professional arts journal. The record is 
also devoid of any corroborative evidence that the petitioner's work is at the top of the New York art market, as 
Ms.claims. 
MS. ~r. ,  rand Mr~al stress the significance of the petitioner's 
two solo exhibitions at t e Exhibit A gallery in New York City given the extreme competitiveness of the New 
York art world. Yet the record contains no evidence that the petitioner's solo shows were critically acclaimed, 
influenced other artists or otherwise made contributions of major significance to the petitioner's field. As 
discussed above under the first criterion, the record contains no independent evidence regarding the significance 
of the inclusion of the petitioner's solo show, "Creation" in one edition of Voice Choices. While the record 
documents the petitioner's participation in numerous exhibitions, the record is devoid of any evidence that any 
of the petitioner's work in these exhibitions was reviewed in major art journals or other art media or has 
otherwise received significant recognition in her field that reflects sustained national or international acclaim. 
Accordingly, the petitioner does not meet this criterion. 
(vii) Evidence of the display of the alien's work in theJield at artistic exhibitions or showcases. 
The record documents the display of the petitioner's work in two solo exhibitions at Exhibit A gallery in New 
York City in 2000 and 2002 and 13 group exhibitions in New York, New Jersey and Japan between 1991 and 
2003. However, duties or activities which nominally fall under a given regulatory criterion at 8 C.F.R. 
tj 204.5(h)(3) do not demonstrate national or international acclaim if they are inherent or routine in the 
occupation itself. Frequent display of an artist's work is intrinsic to his or her profession and the regulation 
requires that evidence under this criterion demonstrate sustained national or international acclaim, not simply 
document an alien's continued activity in his or her field. 
In our discussion of the first, third and fifth criteria, we noted that the petitioner received a runner-up award at a 
national exhibition in Japan in 1991; that her solo exhibition at the Exhibit A gallery in New York City was 
included in a list of shows in the January 26 to February 1, 2000 edition of Voice Choices; and that her work 
received a brief, favorable mention in an article in the November 6, 2003 edition of Waterkont Journal. While 
these accomplishments document the petitioner's continued activity in her field, they do not establish that she 
has displayed her work in a manner reflective of sustained national or international acclaim. 
On appeal, counsel claims that the petitioner's "works have been displayed at some of the leading graphic 
gallery's [sic] in the Metropolitan New York area," but cites only the submitted recommendation letters to 
support this contention. The record contains no independent evidence of the reputation or national or 
international standing of the venues that have exhibited the petitioner's work. 
On appeal, counsel also cites the petitioner's participation in recent and planned exhibitions as evidence of her 
eligibility under this criterion. As noted above under the third criterion, we cannot consider the articles about 
the "Jersey (New)" exhibition from the New York Times because they were published after the petition was 
filed. Similarly, the petitioner's planned participation in future exhibitions cannot satisfy this criterion. The 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See 8 C.F.R. tj 103.2(b)(12), Katigbak, 14 I&N Dec. at 49. 
Accordingly, the petitioner does not meet this criterion. 
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
In her brief accompanying the Form 1-140, counsel claimed the petitioner met this criterion through her 
participation in solo and group exhibitions at various venues in New York City. On page five of her initial brief, 
counsel listed seven of "the most significant group exhibitions" in which the petitioner participated. Four of 
these exhibitions were held at the gallery of the School of Visual Arts when the petitioner was an undergraduate 
and graduate student, not an established artist. Even if the record established the distinguished reputation of the 
other venues that have exhibited the petitioner's work, which it does not, the petitioner's participation in shows 
of limited duration does not demonstrate that she performed a leading or critical role for the venues as a whole. 
For example, although the petitioner may be represented by Exhibit A, the record does not demonstrate that the 
exhibition of her work has brought significant commercial or critical success to the gallery, or that the petitioner 
herself, through her role as an artist represented by Exhibit A, has won significant critical acclaim or wide 
recognition in her field in a manner consistent with sustained national or international acclaim. 
In her initial brief, counsel also claimed that the petitioner met this criterion through her work as a printmaking 
instructor at the Pratt Institute in New York City. The petitioner submitted an appointment letter evidencing her 
employment as a visiting instructor at Pratt in 2003 and an excerpt from a 2003 Pratt newsletter which notes that 
. . 
the petitioner, who was-a "visiting instructor," had displayed her work at a group exhibition at the Exhibit A 
gallery. In his letter, Mr. describes the petitioner as a very conscientious, dedicated and caring 
instructor, but he does not s 
 e 
 s e perfoms a leading or critical role for the Pratt Institute as a whole. The 
record also contains no independent evidence that the-~rzitt Institute has a distinguished reputation. The 
evidence submitted does not satisfy this criterion and counsel does not reassert the petitioner's eligibility under 
this category on appeal. 
In her initial brief, counsel claimed that the petitioner's exhibition record in the United States and Japan should 
be considered as comparable evidence of her eligibility. Pursuant to the regulation at 8 C.F.R. 5 204.5(h)(4), 
comparable evidence may be submitted when the criteria at 8 C.F.R. 5 204.5(h)(3) "do not readily apply to the 
beneficiary's occupation." Counsel has not explained and documented why the regulatory criteria at 8 C.F.R. 
fj 204.5(h)(3) do not apply to the petitioner's profession. To the contrary, the record in this case shows that at 
least four criteria readily apply to a visual artist such as the petitioner and we have addressed the petitioner's 
exhibition record in our discussion of the first, third, fifth and seventh criteria. Accordingly, there is no need to 
invoke the comparable evidence provision of 8 C.F.R. 5 204.5(h)(4) in this case. 
Below and on appeal, counsel claims that the petitioner's receipt of 0-1 nonimmigrant classification should be 
persuasive evidence of her eligibility for immigrant classification as an alien with extraordinary ability. The 
regulations do not support counsel's contention. Although the words "extraordinary ability" are used in the Act 
for both the nonimmigrant 0-1 classification and the first preference employment-based immigrant 
classification, the applicable regulations define the terms differently for each classification. The 0-1 regulation 
explicitly states that "[elxtraordinary ability in the field of arts means distinction." 8 C.F.R. 5 214.2(0)(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.F.R. 5 204.5(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.F.R. fj 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of awards or 
prizes. 8 C.F.R. 5 204.5(h)(3)(i). Given the clear regulatory distinction between these two classifications, the 
petitioner's receipt of 0-1 nonimmigrant classification is not persuasive evidence of her eligibility for immigrant 
classification as an alien with extraordinary ability. 
On appeal, counsel further contends that the director's denial of the petition without prior issuance of a request 
for additional evidence (RFE) contravenes established policy and basic due process. To support her claim, 
counsel cites Matter of Shen, 16 I&N Dec. 612 (BIA 1978), an unpublished AAO decision, and section 103.2(g) 
of the Citizenship and Immigration Services (CIS) Operating Instructions. None of these sources buttress 
counsel's claim. Matter of Shen concerned a district director's denial of a family-based immigrant visa petition 
filed by a mother on behalf of her biological child under section 203(a)(2) of the Act. The district director 
denied the petition due to the petitioner's failure to establish that the beneficiary was in fact her child through 
primary evidence. The Board noted that Taiwanese household registration extracts were official records 
comparable to birth certificates in their ability to establish a mother and child relationship and remanded the 
case to the district director to afford the petitioner the opportunity to submit additional evidence such as further 
household registration extracts or an explanation of why such evidence was unavailable. Shen is clearly 
distinguishable on both legal and factual grounds from the petitioner's case. The petitioner seeks eligibility 
under entirely different statutory and regulatory provisions than those at issue in Shen. Moreover, the director 
denied the petition based on the evidence submitted, not for lack of one crucial document such as the household 
registration extract referenced in Shen. 
Counsel's reliance on an unpublished AAO decision is similarly misguided. Pursuant to 8 C.F.R. fj 103.4(c), 
designated and published decisions of the AAO are binding precedent on all CIS employees in the 
administration of the Act. However, unpublished decisions have no such precedential value. 
Counsel's citation of CIS Operating Instruction 103.2(g) is also inapposite. The portion of section 103.2(g) 
cited by counsel states: 
Unless information or evidence is classified, an applicant or petitioner must be advised, before a 
decision is rendered, of any derogatory information or evidence of which he is unaware and which is 
being considered as a basis for denial; and he must be given an opportunity to rebut such information 
or evidence and present evidence in his own behalf before the decision is made. 
This instruction explains CIS' duty under the regulation at 8 C.F.R. 9 103.2(b)(16)(i) and is clearly 
inapplicable to this case. Nonetheless, counsel has quoted this portion of the instruction in a disingenuous 
manner by omitting the words "derogatory information" and "of which he is unaware." The director did not 
base his decision on any derogatory information or evidence of which the petitioner was unaware. Rather, 
the director determined that the submitted evidence did not establish the petitioner's eligibility. 
The relevant regulation also does not support counsel's claim that the director should have issued an RFE. The 
regulation at 8 C.F.R. 3 103.2(b)(8) requires the director to request additional evidence in instances "where 
there is no evidence of ineligibility, and initial evidence or eligibility information is missing." Id. However, 
the director is not required to issue a request for further information in every potentially deniable case. If the 
director determines that the initial evidence supports a decision of denial, the cited regulation does not 
require solicitation of further documentation. 
Furthermore, even if the director committed a procedural error by failing to solicit further evidence, it is not 
clear what remedy would be appropriate beyond the appeal process itself. Counsel has submitted additional 
evidence on appeal, but these documents arose after the petition was filed and cannot be considered. The 
petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See 8 C.F.R. 5 103.2(b)(12), Katigbak, 14 I&N Dec. at 49. 
On appeal, counsel has submitted no additional evidence of the petitioner's eligibility at the time of filing and 
does not specifically state what evidence would have been submitted in response to an RFE. Hence, it would 
serve no useful purpose to remand this case simply to afford the petitioner the opportunity to present 
additional evidence. Finally, the record contains no evidence that the petitioner suffered substantial 
prejudice such that the director's failure to issue an RFE would amount to a procedural due process violation. 
See De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004) (holding that an alien "must make an initial 
showing of substantial prejudice" to prevail on a due process challenge). 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The evidence in 
this case indicates that the petitioner is an accomplished and promising graphic artist. However, the record does 
not establish that, at the time of filing, the petitioner had achieved sustained national or international acclaim as 
an artist placing her at the very top of her field. She is thus ineligible for classification as an alien with 
extraordinary ability pursuant to section 203(b)(l)(A) of the Act, 8 U.S.C. 5 11 53(b)(l)(A), and her 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. fj 1361. 
 Here, the petitioner has not sustained that burden. 
 Accordingly, the appeal will be 
dismissed. 
Page 11 
ORDER: The appeal is dismissed.