dismissed EB-1A Case: Graphic Design

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: SEP 2 9 2011 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) ofthe Immigration and Nationality Act; 8 U.S.C. § IIS3(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.S(a)(I)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, on February 23, 2010, and is now before the Administrative Appeals 
Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), 
as an art director/graphic designer of extraordinary ability. The director determined that the 
petitioner had not established the beneficiary'S requisite extraordinary ability and failed to 
submit extensive documentation of her sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203 (b)(1 )(A)(i) of the Act 
and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement, specifically a major, internationally recognized award. Absent the receipt of such 
an award, the regulation outlines ten categories of specific evidence. 8 C.F.R. §§ 204.5(h)(3)(i) 
through (x). The petitioner must submit qualifying evidence under at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel claims that the beneficiary meets at least three of the regulatory criteria at 8 
C.F.R. § 204.5(h)(3). Moreover, counsel argues in his brief that the director failed to consider 
the petitioner's comparable evidence for the original contributions criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(v), the artistic display criterion pursuant to the regulation at 
8 C.F.R. § 204.5(h)(3)(vii), the leading or critical role criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(viii), and the commercial successes criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(x). The regulation at 8 C.F.R. § 204.5(h)(3) provides that evidence of 
sustained national or international acclaim "shall" include evidence of a one-time achievement or 
evidence of at least three of the following regulation categories. The ten categories in the 
regulations are designed to cover different areas; not every criterion will apply to every 
occupation. For example, the criterion at 8 C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual 
arts, and the criterion at 8 C.F.R. § 204.5(h)(3)(x) expressly applies to the performing arts. The 
AAO further acknowledges that the regulation at 8 C.F.R. § 204.5(h)(4) provides "[i]f the above 
standards do not readily apply to the beneficiary's occupation, the petitioner may submit 
comparable evidence to establish the beneficiary's eligibility." It is clear from the use of the word 
"shall" in 8 C.F.R. § 204.5(h)(3) that the rule, not the exception, is that the petitioner must submit 
evidence to meet at least three ofthe regulatory criteria. Thus, it is the petitioner's burden to explain 
why the regulatory criteria are not readily applicable to the beneficiary's occupation and how the 
evidence submitted is "comparable" to the objective evidence required at 8 C.F.R. § 204.5(h)(3)(i)­
(x). 
In counsel's brief, he does not explain why the regulatory criteria at 8 C.F.R. § 204.5(h)(3) are 
not applicable to the beneficiary'S occupation. Instead, counsel simply argues that comparable 
Page 3 
evidence was submitted for the original contributions criterion, the artistic display criterion, the 
leading or critical role criterion, and the commercial successes criterion. The regulatory 
language precludes the consideration of comparable evidence in this case, as there is no 
indication that eligibility for visa preference in the beneficiary's occupation as an art 
director/graphic designer cannot be established by the ten criteria specified by the regulation at 8 
C.F.R. § 204.5(h)(3). In fact, as indicated in this decision, counsel discusses evidence in his 
brief that specifically addresses four of the ten criteria at 8 C.F.R. § 204.5(h)(3) that relates to the 
beneficiary's occupation. An inability to meet a criterion, however, is not necessarily evidence 
that the criterion does not apply to the beneficiary's occupation. Moreover, although counsel 
failed to claim these additional criteria, we find that an art director/graphic designer could have 
published material about her pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) and could 
command a high salary pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix). Counsel 
provided no documentation as to why these provisions of the regulation would not be appropriate 
to the profession of an art director/graphic designer. Where an alien is simply unable to meet or 
submit documentary evidence of three of these criteria, the plain language of the regulation at 
8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. In the AAO's 
analysis of the evidentiary criteria below when comparable evidence is claimed, the AAO will 
determine whether the documentary evidence meets the requirements of the plain language of the 
criteria at 8 C.F.R. § 204.5(h)(3)(v), (vii), (viii), and (x). 
I. Law 
Section 203 (b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
Page 4 
u.s. Citizenship and Immigration Services (USerS) 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 st 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. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as ajudge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles In the field, In 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
Page 5 
(x) Evidence of commercial successes in the perfonning arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F .3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.! With respect to the criteria 
at 8 C.F.R. §§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." !d. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS detennines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. § 1153(b)(1 )(A)(i). 
Id. at 1119. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits detennination. In reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
II. Advisory Opinion 
1 Specifically, the court stated that the AAO had unilaterally imposed novel, substantive, or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 6 
letter 
the beneficiary "has demonstrated that she has met at least three of the criteria for certification as an 
immi~ary ability in Graphic Design." A review of the advisory opinion reflects 
that _ was asked by counsel to review selected documentary evidence and 
provide his professional opinion. It does not appear that aware of the 
beneficiary prior to being contacted by counsel. His determination that the beneficiary is an 
alien of extraordinary ability is not based on his prior knowledge of the beneficiary or her work 
but merely on the evaluation of the documents given to him by counsel. 
USCIS may, in its discretion, use as advisory opinion statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission ofletters of support from the beneficiary's personal contacts 
is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. at 500, n.2 (BIA 2008). Thus, the content of the writers' statements and how they became 
aware of the beneficiary's reputation are important considerations. Even when written by 
independent experts, letters solicited by an alien in support of an immigration petition are of less 
weight than preexisting, independent evidence. 
III. Translations 
While not addressed by the director in his decision, the record of proceeding reflects that the 
petitioner submitted numerous non-certified English language translations and foreign language 
documents without any English language translations. The regulation at 8 C.F.R. § 103.2(b) 
provides in pertinent part: 
(3) Translations. Any document containing foreign language submitted to USCIS 
shall be accompanied by a full English language translation which the translator 
has certified as complete and accurate, and by the translator's certification that he 
or she is competent to translate from the foreign language into English. 
The AAO notes that although at the time of the original filing of the petition the petitioner 
submitted a single certified translation, it is unclear which documents, if any, to which the 
certification pertains. The submission of a single translation certification that does not identify 
the document or documents it purportedly accompanies does not meet the requirements of the 
regulation at 8 C.F.R. § 103 .2(b )(3). Because the petitioner failed to comply with the regulation 
at 8 C.F.R. §103.2(b)(3), the AAO cannot determine whether the evidence supports the 
petitioner's claims. Accordingly, the evidence is not probative and will not be accorded any 
weight in this proceeding. 
IV. Analysis 
Page 7 
A. Evidentiary Criteria 
This petition, filed on April 24, 2009, seeks to classify the beneficiary as an alien with 
extraordinary ability as an art director/graphic designer. The petitioner has submitted evidence 
pertaining to the following criteria under 8 C.F.R. § 204.5(h)(3). 2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
In the director's decision, she determined that the petitioner failed to establish the beneficiary'S 
eligibility for this criterion. A review of the record of proceeding reflects that the petitioner 
submitted sufficient documentary evidence demonstrating that the beneficiary meets the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requiring "[d]ocumentation of the alien's 
receipt of lesser nationally or internationally recognized prizes or awards for excellence in the 
field of endeavor." Therefore, the AAO withdraws the findings of the director for this criterion. 
Accordingly, the petitioner established that the beneficiary meets the plain language of the 
regulation for 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 failed to establish the beneficiary'S eligibility for this 
criterion because the documentary evidence "was not consistent with an individual who is one of 
those at the very top of his or her field of endeavor." The plain language of the regulation at 8 
C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence ofthe 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." Pursuant to Kazarian, 596 F.3d at 1121-22, the petitioner submitted 
sufficient documentation establishing that the beneficiary meets the plain language of the regulation 
at 8 C.F.R. § 204.S(h)(3)(iv). Therefore, the AAO withdraws the findings of the director for this 
criterion. 
Accordingly, the petitioner established that the beneficiary meets the plain language of the 
regulation for this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." In compliance with Kazarian, the AAO must focus on the plain 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 8 
language of the regulatory criteria. 596 F.3d at 1121. Here, the evidence must be reviewed to see 
whether it rises to the level of original artistic-related contributions "of major significance in the 
field." The phrase "major significance" is not superfluous and, thus, it has some meaning. 
Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3Td Cir. 1995) quoted in 
APWUv. Potter, 343 F.3d 619,626 (2nd Cir. Sep 15,2003). 
While the petitioner claimed the beneficiary's eligibility for this criterion at the initial filing of 
the petition, the petitioner did not identify any original contributions of major significance in the 
field made by the beneficiary or refer to any submitted documentary evidence. As such, the 
director issued a request for additional evidence pursuant to the regulation at 8 C.F .R. 
§ 103 .2(b )(8) and requested the petitioner to identify specific contributions made by the 
beneficiary and how they have impacted the field. In response, counsel referred to the 
documentary evidence submitted in support of the awards criterion; screenshots from Wikipedia 
regarding Time Warner, Home Box Office (HBO), and Cinemax; and numerous purported 
samples of the beneficiary's work. It is noted that with the exception of a few, there is no 
indication that the samples are, in fact, of the beneficiary's work. Moreover, the petitioner failed 
to submit any English language translations pursuant to the regulation at 8 C.F.R. § 103.2(b)(3). 
In the director's decision, she determined: 
The petitioner's response established that the beneficiary works as a free-lance 
graphic designer for many types of businesses, but a single contribution which is 
acknowledged as one of major significance to her field was not established, 
including the work for which she received two bronze awards. The petitioner 
made no response to USCIS' request for it to identify a specific contribution 
which the beneficiary has made which has proven to be of major significance to 
her field, and to submit documentary evidence of this impact, other than to note 
that she has given a workshop and a talk. 
On appeal, counsel argues: 
As for the fifth criterion [original contributions of major significance], the only 
comparable original contribution to one's field as graphic designer is the original 
design work one creates for those who seek one's services as such. A graphic 
designer does not discover cure for diseases or solutions for scientific problems. 
There is no doubt, however, that, through the Beneficiary's original graphic 
design work for reputable companies, such as HBO and Cinemax, these 
prominent companies were granted awards for creative work aired on television. 
Furthermore, with the assistance of the Beneficiary, who HBO qualifies as "an 
important player in its marketing objectives and success" ... , it selected its 
corporate identity for an important event such as its 15th anniversary. 
As it relates to counsel's references to the beneficiary's awards, the regulations contain a separate 
criterion regarding nationally or internationally recognized prizes or awards for excellence. 8 
C.F.R. § 204.5(h)(3)(i). The AAO will not presume that evidence relating to or even meeting the 
Page 9 
awards criterion is presumptive evidence that the beneficiary also meets this criterion. To hold 
otherwise would render meaningless the regulatory requirement that a beneficiary meet at least three 
separate criteria. While the beneficiary's awards will not be considered under this criterion, the 
awards criterion has already been addressed above. 
Furthermore, while the petitioner submitted a letter Vice President of Creative 
Services for HBO and Cinemax Latin Services, stating that the beneficiary worked on marketing 
projects, there is no indication that the beneficiary's work has been of major significance in the field 
as a whole rather than limited to the employers and companies whom she has worked as a free-lance 
graphic designer, such as HBO and Cinemax. In other words, the petitioner failed to demonstrate 
that the beneficiary's work has impacted or influenced the field beyond HBO or Cinemax. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field [emphasis added]." Merely submitting purported samples of the 
beneficiary's work is insufficient to demonstrate eligibility for this criterion without establishing 
that the beneficiary's work has been of major significance in the field. Without additional, 
specific evidence showing, for example, that the beneficiary's work has been unusually 
influential, widely imitated throughout her field, or has otherwise risen to the level of 
contributions of major significance, the AAO cannot conclude that the beneficiary meets this 
criterion. Therefore, the AAO concurs with the findings of the director for this criterion. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional 
or major trade publications or other major media. 
At the initial filing of the petition, the petitioner claimed the beneficiary's eligibility for this 
criterion without specifically identifying or submitting any documentary evidence that related to 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) that requires "[e]vidence of the 
alien's authorship of scholarly articles in the field, in professional or major trade publications or 
other major media." In the director's request for additional evidence, the director requested the 
petitioner to "submit copies of the articles which [the beneficiary] authored which were 
published in major media accompanied by evidence that these articles were scholarly." As 
indicated in the director's decision, the petitioner failed to submit any evidence for this criterion 
in response to the director's request for additional evidence. 
In counsel's brief, he did not contest the decision of the director or offer additional arguments. 
The AAO, therefore, considers this issue to be abandoned and will not further discuss this 
criterion on appeal. See Sepulveda v. Us. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (lith Cir. 2005). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Page 10 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
In the director's decision, she concluded that the petitioner failed to establish the beneficiary's 
eligibility for this criterion. On appeal, counsel argues: 
[C]omparable evidence of the display of the Beneficiary's graphic design work 
was submitted in the form of the work that she performed for HBO and Cinemax, 
that was exhibited on television and for which awards were granted; dozens of 
products' designs displaying her work and several letters confirming authorship .. 
.. Among these products' designs were graphic design works for worldwide 
renown companies such as Nestle, Coca-Cola, Pepsi-Cola and Bayer. 
Counsel further refers to a letter submitted on appeal by Marketing Manager for 
Coca-Cola, who stated that the beneficiary "provided services in marketing studies and new 
design elaboration for a line of existing fruit drinks." 
A review of the record of proceeding reflects that the petitioner submitted numerous purported 
samples of the beneficiary's work but only demonstrated that a few of the samples actually were 
designed by the beneficiary. Moreover, the samples failed to contain English language 
translations pursuant to the regulation at 8 C.F.R. § 103 .2(b )(3). The petitioner did submit 
documentary evidence establishing that the beneficiary participated in the design of the HBO 
advertising campaign, "Filhos do Carnaval," and of the Cinemax advertising campaign, "Photo 
Boot." Furthermore, the petitioner submitted several noncertified reference letters that briefly 
indicated work that was performed by the beneficiary on behalf of various 
Nonetheless, the letters reflect that the beneficiary performed work for the 
Book Cover, the Editorial luridica Venezolana, Bayer Germany, SC-Tools, Inc., 
The plain language of the regulation at 8 C.F.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 [emphasis added]." 
Again, counsel failed to submit any documentary evidence demonstrating that this regulatory 
criterion is not readily applicable to the beneficiary's occupation. 8 C.F.R. § 204.5(h)(4). In the 
case here, the documentary evidence submitted by the petitioner fails to establish that the 
beneficiary's work has been displayed at artistic exhibitions or showcases such as galleries or 
museums. While the beneficiary's work was used on products and in television commercials, there 
is no evidence indicating that the petitioner's work was artistically displayed at exhibitions or 
showcases consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
Page 11 
At the initial filing of the petItIOn and in response to the director's request for additional 
documentation, counsel referred to the previously mentioned reference letters. Again, the 
petitioner failed to submit any certified English language translation pursuant to the regulation at 
8 C.P.R. § I03.2(b)(3). The director found that the petitioner failed to establish the beneficiary'S 
eligibility for this criterion. On appeal, counsel argues: 
The Beneficiary indeed worked on a free-lance basis, but this did not prevent her 
from performing as essential function for distinguished organizations. As 
comparable evidence for the eighth criterion, we submitted under ... the original 
filing letters about the Beneficiary'S critical work. [USCIS] cannot dispute the 
reputation and importance of any non-profit organization whose mission is to help 
youngsters from low-income families to stay off the streets by providing them 
with educational and vocational orientation courses. It is a problem that afflicts 
not only the U.S., but also countries such as Venezuela where the organization in 
this case, is located. Its letter attested that the 
Beneficiary performed in a critical role for its organization, and it now reiterates 
the Beneficiary'S leading and critical role with an updated letter. ... The fact that 
the Beneficiary performed volunteer work does not diminish its value. 
The plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(viii) requires "[e]vidence that the 
alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation [emphasis added]." In general, a leading role is evidenced from the role 
itself, and a critical role is one in which the alien was responsible for the success or standing of 
the organization or establishment. 
Although the petitioner submitted uncertified translations of the letters, they merely reflect that 
the beneficiary worked on packaging and advertisements for various companies and businesses 
mentioned above. There is no indication from the letters that the beneficiary performed in a 
leading or critical role consistent with the plain language of the regulation at 8 c.P.R. 
§ 204.5(h)(3)(viii). The AAO notes that the director requested specific information from the 
petitioner regarding the beneficiary'S roles. Specifically, the director requested the petitioner to 
identify "which establishments or organizations did [the beneficiary] perform in a leading or 
critical role." The director also requested the petitioner to "[ s ]ubmit an organizational chart 
which depicts the position which the beneficiary filled relative to positions filled by others in that 
organization who also performed in leading or critical roles." The director further requested the 
petitioner to "[i]nclude verification from the president [or] CEO of that organization that the 
beneficiary performed in a leading or critical role which also explains the basis for that 
conclusion." The petitioner failed to submit any of the requested information in response to the 
director's request for additional evidence. Simply submitting letters indicating that the 
beneficiary designed products and advertisements as a free-lance graphic designer is insufficient 
to meet the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(viii) without evidence 
demonstrating that the beneficiary'S roles were leading or critical to the distinguished 
organizations. There is no evidence comparing the roles of the beneficiary from the CEO of 
Coca-Cola or Bayer, for example, so as to demonstrate that the beneficiary performed in a 
Page 12 
leading or critical role. The AAO is not persuaded that sporadic, occasional, or one-time 
employment is reflective of leading or critical roles for organizations or establishments as a 
whole. 
's volunteer work, the petitioner submitted two letters from_ 
stated: 
In 1999 [the beneficiary] was part of this personnel and taught courses and 
workshops on ethics and graphic design, while exhibiting superior humanitarian 
qualities, since she worked "Ad Honorem": she volunteered her work to share her 
knowledge and to teach Graphic Design to low-income young students, as part of 
a pilot project developed by our Institute. 
* * * 
Our professional staff counts with the support and collaboration of [the 
beneficiary], who is not only a voluntary instructor but also a financial 
contributor, so that we can continue our educational program. I was asked to 
write about the results of her work in our Institute. I can proudly say that two of 
our current instructors were her pupils, thanks to her effort, love and dedication. 
The petitioner filed the employment-based immigrant petition to classify the beneficiary as an 
alien with extraordinary ability as an art director/graphic designer. The regulation at 8 C.F.R. 
§ 204.5(h) requires the beneficiary to "continue work in the area of expertise." As the 
beneficiary intends to continue working as an art director/graphic designer, the petitioner must 
demonstrate that her occupation is within her area of "expertise." The petitioner has not 
demonstrated that teaching "courses and workshops on ethics and graphic design" is within her 
area of expertise. See Lee v. INS., 237 F. Supp. 2d 914 (N.D. Ill. 2002) (upholding a finding 
that competitive athletics and coaching are not within the same area of expertise). 
Regardless, the letters from ~dicate only that the beneficiary taught some courses 
in a volunteer capacity rather than that the beneficiary performed in a leading or critical role for 
Again, the petitioner failed to submit any other documentary 
evidence that compared the roles of the beneficiary to others at the institute, so as to establish 
that the beneficiary's role was leading or critical. Furthermore, the failed to submit 
any documentary evidence establishing that the has a 
distinguished reputation pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii). The AAO 
cannot presume that every non-profit or charitable organization has a distinguished reputation. 
The petitioner failed to submit, for example, documentary evidence distinguishing the institution 
from other charitable organizations, so as to establish that it has a distinguished reputation 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
I 
Page 13 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
A review of the record of proceeding fails to reflect that the petitioner claimed the beneficiary's 
eligibility for this criterion at the time of the original filing of the petition or in response to the 
director's request for additional evidence. On appeal, counsel is now claiming the beneficiary's 
eligibility for this criterion. As such, the director could not have erred in his decision as counsel 
is only claiming the beneficiary's eligibility for this criterion for the first time on appeal. 
Specifically, in arguing the beneficiary's eligibility for the artistic display criterion pursuant to 
the regulation at 8 C.P.R.· § 204.5(h)(3)(vii), counsel referred to the previously mentioned letter 
from and claimed that the letter reflected "the direct impact of [the beneficiary's] 
work in the increase of [Coca-Cola's] sales, which is also comparable evidence of commercial 
success." 
The plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(x) requires "[e]vidence of 
commercial successes in the performing arts, as shown by box office receipts or record, cassette, 
compact disk, or video sales [emphasis added]." The beneficiary's field is in the graphic arts 
rather than the performing arts such as an actor or singer. The ten criteria in the regulations are 
designed to cover different areas; not every criterion will apply to every occupation. Moreover, 
the petitioner failed to submit any evidence of commercial successes in the form of "box office 
receipts or record, cassette, compact disk, or video sales." 
Moreover, even if the petitioner were to submit supporting documentary evidence showing that 
the letter from meets the elements of this criterion, which it clearly does not, 
section 203 (b)(1 )(A)(i) of the Act requires the submission of extensive evidence. Consistent with 
that statutory requirement, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(x) requires 
more than one commercial success. Significantly, not all of the criteria at 8 C.P.R. § 204.5(h)(3) are 
worded in the plural. Specifically, the regulations at 8 c.P.R. §§ 204.5(h)(3)(iv) and (ix) only 
require service on a single judging panel or a single high salary. When a regulatory criterion wishes 
to include the singular within the plural, it expressly does so as when it states at 8 C.P.R. 
§ 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." Thus, the AAO 
can infer that the plural in the remaining regulatory criteria has meaning. In a different context, 
federal courts have upheld USCIS' ability to interpret significance from whether the singular or 
plural is used in a regulation. See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. 
Cir. March 26,2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 
30, 2006) (upholding an interpretation that the regulatory requirement for "a" bachelor's degree 
or "a" foreign equivalent degree at 8 c.P.R. § 204.5(1)(2) requires a single degree rather than a 
combination of academic credentials). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
B. Final Merits Determination 
Page 14 
In accordance with the Kazarian OpInIOn, the AAO must next conduct a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the [ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); 
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." See section 203(b)(I)(A)(i) of the 
Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1115. The beneficiary met the plain language requirements for two of the criteria, of which at 
least three are required under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many of the 
deficiencies in the documentation submitted by the petitioner have already been addressed in the 
AAO's preceding discussion ofthe regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In performing the AAO's final merits determination, the AAO must look at the totality of the 
evidence to conclude the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the Act. In 
this case, the beneficiary has won two lesser nationally recognized awards and has served as a 
judge on three occasions. However, the accomplishments of the beneficiary fall far short of 
establishing that she "is one of that small percentage who have risen to the very top of the field of 
endeavor" and that she "has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." See 8 C.F.R. § 204.5(h)(2), section 
203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[a] petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 C.F.R. § 204.5(h)(3), therefore, depends 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. § 204.5(h)(2). 
The petitioner demonstrated that the beneficiary won two PromaxlBDA awards in 2006 and 
2007. Moreover, while the AAO determined that the beneficiary met the judging criterion 
pursuant to the regulation at 8 C.F .R. § 204.5(h)(3)(iv), an evaluation of the significance of the 
beneficiary's judging experience is sanctioned under Kazarian, 596 F. 3d at 1121-11 to 
determine if such evidence is indicative of the extraordinary ability required for this highly 
restrictive classification. In the case here, the petitioner submitted documentary evidence 
establishing that the beneficiary served as part of the jury for HBO Latin America to choose the 
"HBO 15 Years Logo" in 2006, that the beneficiary served a judge for Representaciones 
Aquatrece C.A. in the selection of the image product for "Hydrofresh" in 2005, and the 
beneficiary served as a judge for the Association of Graphic Arts Companies' "AIAG Image 
Contest" in 2001. The beneficiary's limited judging experience is restricted to judging products 
for companies and organizations. Without evidence pre-dating the filing of the petition that sets 
Page 15 
the beneficiary apart from others in her field, such as evidence that she has served as a judge of 
acclaimed graphic designers in a national or international competition rather than inter-company 
evaluations, the petitioner failed to demonstrate that the beneficiary "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). 
Furthermore, the AAO cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of the beneficiary's sustained national or international acclaim. See section 
203 (b) (1 )(A) of the Act. The commentary for the proposed regulations implementing section 
203 (b)(1 )(A)(i) of the Act provide that the "intent of Congress that a very high standard be set for 
aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to present 
more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 
30704 (July 5, 1991). In this case, the petitioner claimed the beneficiary's eligibility for the 
original contributions criterion pursuant to the regulation at 8 C.F.R. 204.5(h)(3)(v) without 
demonstrating any original contributions of major significance in the field made by the 
beneficiary. In fact, the petitioner submitted numerous purported samples of the beneficiary's 
works without establishing that they were actually the works of the beneficiary. Moreover, the 
petitioner submitted uncertified English language translations for the reference letters. 
Regardless, none of the letters indicated a single original contribution that has been of major 
significance in the field, as well as no evidence that the beneficiary performed in a leading or 
critical role pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii). It must be emphasized that 
the favorable opinions of experts in the field, while not without evidentiary weight, are not a 
sound basis for a successful extraordinary ability claim. Again, USCIS may, in its discretion, use 
as advisory opinions statements submitted as expert testimony. See Matter of Caron 
International, 19 I&N Dec. at 795. USCIS is, however, ultimately responsible for making the 
final determination regarding an alien's eligibility for the benefit sought. Id. The submission of 
letters from individuals, especially when they are colleagues of the beneficiary without any prior 
knowledge of her work, supporting the petition is not presumptive evidence of eligibility; USCIS 
may evaluate the content of those letters as to whether they support the alien's eligibility. See id. 
at 795-796; see also Matter of V-K-, 24 I&N Dec. at 500, n.2. The petitioner also claimed the 
beneficiary'S eligibility for the artistic display criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(vii) without submitting any documentary evidence to demonstrate that the 
beneficiary's work has been artistically displayed at exhibitions or showcases in a manner 
consistent with sustained national or international acclaim. The AAO is not persuaded that such 
evidence equates to "extensive documentation" and is demonstrative of eligibility for this highly 
restrictive classification. The truth is to be determined not by the quantity of evidence alone but 
by its quality. Matter of Chaw at he, 25 I&N Dec. 369 (AAO 2010) citing Matter of E-M- 20 I&N 
Dec. 77, 80 (Comm'r 1989). 
The evidence of record falls far short of demonstrating the beneficiary'S sustained national or 
international acclaim as an art director/graphic designer. The regulation at 8 C.F.R. § 
204.5(h)(3) requires that a "petition for an alien of extraordinary ability must be accompanied by 
evidence that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." While the petitioner submitted 
documentation demonstrating that the beneficiary has won two lesser internationally recognized 
awards, the documentary evidence is not consistent with or indicative of sustained national or 
international acclaim. 
USCIS has long held that even athletes performing at the major league level do not automatically 
meet the statutory standards for immigrant classification as an alien of "extraordinary ability." 
Matter 0/ Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994); 56 Fed. Reg. at 60899. In 
Matter o/Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison 
is not a comparison of Racine's ability with that of all the hockey players at all 
levels of play; but rather, Racine's ability as a professional hockey player within 
the NHL. This interpretation is consistent with at least one other court in this 
district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the 
definition of the term 8 C.F.R. § 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and 
circuit, the court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 
§ 204.5(h)(2) is reasonable. Likewise, it does not follow that the beneficiary, who has not 
offered any evidence that distinguishes herself from others in her field, should necessarily 
qualify for approval of an extraordinary ability employment-based visa petition. To find 
otherwise would contravene the regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa 
category be reserved for "that small percentage of individuals that have risen to the very top of 
their field of endeavor." 
The conclusion the AAO reaches by considering the evidence to meet each category of evidence 
at 8 C.F.R. § 204.5(h)(3) separately is consistent with a review of the evidence in the aggregate. 
Ultimately, the evidence in the aggregate does not distinguish the beneficiary as one of that small 
percentage who has risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The 
petitioner seeks a highly restrictive visa classification for the beneficiary, intended for 
individuals at the top of their respective fields, rather than for individuals progressing toward the 
top at some unspecified future time. In this case, the petitioner has not established that the 
beneficiary's achievements at the time of filing the petition were commensurate with sustained 
national or international acclaim, or that she was among that small percentage at the very top of 
the field of endeavor. 
V. Conclusion 
Review of the record does not establish that the beneficiary has distinguished herself to such an 
extent that she may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of her field. The evidence is not persuasive that the 
petitioner's achievements set her significantly above almost all others in her field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(1 )(A) ofthe Act, and the petition may not be approved. 
Page 17 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
affd, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.