dismissed EB-1A Case: Hair Design

identifying data deleted to 
prevent clearly Ilnwarranted 
invasion or personal privacy 
PUBUCCOPy 
DATE: JUL 3 1 201bFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Ilcpartmcnt of Homeland Security 
U.S. Citizenship and immigration Services 
Administrative Appeals Of rice (I\AO) 
20 Massachusetl~ Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act; R U.s.c. § 1153(h)( 1 )(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 mailer have been returned to the ollice that originally decided your case. Please 
he advised that any further inquiry that you might have concerning your case must he made to that ollice. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to rcopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be !bund at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
't j' 
"' t'h" '::3\: 
(". 1 
Perry Rhew ".,.'.' 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on August 3, 2011, 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 alien of extraordinary ability as a master hair designer. The director determined that the 
petitioner had not established the beneficiary'S requisite extraordinary ability and failed to submit 
extensive documentation of 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 the beneficiary's "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). 
1. 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 (e): 
(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 
Page 3 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723101'1 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. ld.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's 
sustained acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a onc-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
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. users, 596 F.3d 1115 (9th Cir. 2(10). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAC),s 
evaluation of evidence submitted to meet a given evidentiary criterion.
l 
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." ld. at 1121-
22. 
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)." ld. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this matter, the AAO will review the 
evidence under the plain language requirements of each criterion claimed. As the petitioner did not 
submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requirement of three types of evidence. Id. 
II. TRANSLATIONS 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
heyond lhose 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 4 
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. 
At the initial filing of the petition and in response to the director's request for additional evidence 
pursuant to the regulation at 8 C.F.R. § 103.2(b)(8), the petitioner submitted a single certified 
translation. However, it is unclear which documents, if any, to which the translation certification 
pertains. The submission of a single translation certification that does not specifically 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), which requires that any document containing foreign language 
submitted to USCIS shall be accompanied by a full English language translation that 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. Without a single translator's 
certification for each foreign language form of evidence, or a translator's certification specifically 
listing the documents it is validating, the certification cannot be regarded to be certifying any 
specific form of evidence. The final determination of whether evidence meets the plain language 
requirements of a regulation lies with USCIS. See Matter of ear on International, 19 I&N Dec. 791, 
795 (Comm'r 1988) (finding that the appropriate entity to determine eligibility is USCIS in a 
scenario whereby an advisory opinion or statement is not consistent with other information that is 
part of the record). 
Moreover, the petitioner submitted foreign language documents without any English language 
translations, as well as handwritten snippets purportedly translating captions accompanying 
photographs in magazines and brochures. However, as the regulation at 8 C.F.R. § 103.2(b)(3) 
specifically requires a "ful! English language translation [emphasis added]," partial translations and 
snippets do not comply with the regulation. 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 documentary evidence identified below that does not comply 
with the regulation at 8 C.F.R. § 103.2(b)(3) is not probative and will not be accorded any weight in 
this proceeding. 
HI. ANALYSIS 
A. Evidentiary Criteria 2 
Documentation of the alien :\. receipt of' lesser nationally or internationally 
recof!,nized prizes or awards for excellence ill the field of endeavor. 
~ On appeal, the petitioner does not claim [0 meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
The director detennined that the petitioner failed to establish the beneficiary's eligibility for this 
criterion. The plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(i) requires 
,,[ d]ocumentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor." Moreover. it is the petitioner's burden to establish 
eligibility for every element of this criterion. Not only must the petitioner demonstrate the 
beneticiary's receipt of prizes and awards, it must also demonstrate that those prizes and awards are 
nationally or internationally recognized for excellence in the field of endeavor. In other words, the 
petitioner must establish that the beneficiary's prizes and awards are recognized nationally or 
internationall y for excellence in the field beyond the awarding entities. 
On appeal, counsel claims that the beneficiary is eligible for this criterion based on her receipt of the 
following awards: 
However, the petitioner failed to submit certified translations of the foreign language documents as 
required pursuant to the regulation at 8 C.F.R. § 103.2(b)(3). Therefore, the petitioner failed to 
establish the beneficiary's "receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor" pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i). 
Moreover, the petitioner submitted a letter from 
who claimed that the beneficiary is "a three (3) time winner 
presented by our foundation Ii-om 2007 through 2009." However, the regulation at 
8 C.F.R. § 103.2(b )(2) provides in pertinent part: 
(i) The non-existence or other unavailability or required evidence creates a 
presumption of ineligibility. If a required document, such as a birth or marriage 
certificate, does not exist or cannot be obtained, an applicant or petitioner must 
demonstrate this and submit secondary evidence, such as church or school records, 
pertinent to the fact at issue. If secondary evidence also does not exist or cannot be 
obtained, the applicant or petitioner must demonstrate the unavailability of both the 
required document and relevant secondary evidence, and submit two or more 
affidavits, sworn to or affirmed by persons who are not parties to the petition who 
Page 6 
have direct personal knowledge of the event and circumstances. Secondary 
evidence must overcome the unavailability of primary evidence, and affidavits must 
overcome the unavailability of both primary and secondary evidence. 
The regulation at 8 C.F.R. § 103.2(b)(2)(i) provides that the non-existence or unavailability of 
required evidence creates a presumption of ineligibility. According to the same regulation, only 
where the petitioner demonstrates that primary evidence does not exist or cannot be obtained may 
the petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be 
unavailable may the petitioner on affidavits. While the letter from claims 
that the beneficiary won the petitioner must 
submit primary evidence of the beneficiary's awards unless it can establish that primary evidence 
does not exist or cannot be obtained. Here, primary evidence exist in the form of certificates, 
but the petitioner failed to submit certified translations. As letter is not 
primary evidence, as well as secondary evidence, of the beneficiary's awards, the letter is 
insufficient to demonstrate the beneficiary's receipt of nationally or internationally recognized 
awards for excellence in the field. Regardless, the letter that has been provided is not an affidavit, 
as required pursuant to the regulation at 8 C.F.R. § 103.2(b)(2), as it was not sworn to or atfirmed 
by the declarant before an officer authorized to administer oaths or affirmations who has, having 
confirmed the declarant's identity, administered the requisite oath or affirmation. See Black's Law 
Dictionary 58 (9th Ed., West 2(09). Nor, in lieu of having been signed before an officer authorized 
to administer oaths or affirmations, does it contain the requisite statement, permitted by Federal law, 
that the signers, in signing the stat~th of the statements, under penalty of 
perjury. 28 U.S.c. § 1746. Even if~ letter was an affidavit, which it clearly 
is not, and the petitioner demonstrated that primary and secondary evidence does not exist or cannot 
be obtained, which it clearly did not, the petitioner only submitted one letter in which the plain 
'ISU"IS~ of the regulation at 8 C.F.R. § 103.2(b )(2) requires more than one 
made no mention of the beneficiary receiving the purported 
The petitioner also failed to establish that the beneficiary's purported awards are nationally or 
internationally recognized for excellence in her field of endeavor. On appeal, counsel claims that 
the beneficiary's awards "were published by _ one of Japan's major professional 
journal[ s ]." However, while the petitioner submitted uncertified . sh language translations, 
there is no indication that the awards were, in fact, published by nor did counsel submit 
any documentary evidence to support his assertions that that is a major professional 
journal. In fact, a review of the original documents simply contains headings, photographs, and 
captions without any indication or characteristics of being published in a professional journal, let 
alone published in _ The unsupported statements of counsel on appeal or in a motion are 
not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 4M U.S. 
183, 188-89 n.6 (1984). The AAO must look to the plain language of the documents executed by 
the petitioner and not to subsequent statements of counsel. Matter of IZllmmi, 22 I&N Dec. 169, 
185 (Comm'r 1998). Further, while Mitsumasa Taniguchi provided background information 
regarding the history and selection process of the contest, the petllIOner failed to submit 
independent, objective evidence demonstrating that the awards are nationally or internationally 
Page 7 
As discussed, the plain language of this regulatory criterion specifically requires that the petitioner 
demonstrates the beneticiary's receipt of nationally or internationally recognized prizes or awards 
for excellence in her field. In this case, the petitioner failed to demonstrate that the beneficiary has 
received any prizes or awards, let alone nationally or internationally recognizcd prizes or awards for 
excellence in the field. The truth is to be determined not by the quantity of evidence alone but by its 
quality. Matter vfChawathe, 25 I&N Dec. 369 (AAO 2(10) citing Matter oj'f,'-M- 20 I&N Dec. 
77,80 (Comm'r 1989). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Documentation vj'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. 
In the director's decision, she determined that the petitioner failed to establish the beneticiary'"s 
eligibility for this criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) 
requires "[d]ocumentation of the alien's membership in associations in the field for which is 
classification is sought, which require outstanding achievements of their members, as judged by 
recognized national or international experts in their disciplines or fields." In order to demonstrate 
that membership in an association meets this criterion, a petitioner must show that the association 
requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or 
experience, standardized test scores, grade point average, recommendations by colleagues or current 
members, or payment of dues do not satisfy this criterion as such requirements do not constitute 
outstanding achievements. Further, the overall prestige of a given association is not determinative; 
the issue here is membership requirements rather than the association's overall reputation. 
On appeal, counsel claims that the beneficiary'S membership with the Japan llair Design 
Foundation (JHDF) meets the requirements of this criterion. A review of the record of proceeding 
retlects that the petitioner submitted an uncertified translation of a certificate claiming that the 
beneficiary "has been accepted as a life-time member of the PHDF] alier the board members' 
careful review and consideration on her contribution to the industry," As the petitioner failed to 
submit a certified translation as required pursuant to the regulation at 8 C.F.R. § 103.2(b )(3), the 
petitioner failed to establish that the beneficiary is a member of JHDF. It is noted that while 
. indicated that the beneficiary received lifetime membership with JHDF, the 
to demonstrate the beneticiary's membership with JHDF as primary evidence 
may exist, but the petitioner failed to submit a certified translation, and the letter does not meet the 
regulatory requirements set for under 8 C.F.R. § 103.2(b)(2) for the similar reasons discussed under 
the awards criterion. 
Page H 
Moreover, the plain language of the regulation at 8 C.F.K § 204.5(h)(3)(ii) states that the 
memhership in associations "require outstanding achievements of their members, as judged by 
recognized national or international experts in their disciplines or fields." The petitioner submitted a 
letter from and a portion of JHDF's by-laws that was 
accompanied by an uncertified translation. It is noted that Takao Honda stated that "r flor the fact 
that I have studied English during my college and lived in English-speaking country, Australia, for 
three years, I can vouch for the accuracy of my translation of the original into English." Again, the 
plain language of the regulation at 8 C.F.R. § 103.2(b)(3) specifically requires that "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." As did not certity that 
that his translation was "complete and accurate," his translation fails to comply with the regulation 
at 8 C.F.R. § 103.2(b)(3) and cannot be accorded any weight to determine the beneficiary's 
eligibility for this criterion. 
It is noted that the uncertified translation claims that "r n lominations must be made with 
recommendations from at least five (5) active members of the JHDF to the Lifetime Membership 
Committee followed by the approval of the Lifetime Membership Committee." However, the 
petitioner failed to establish that Lifetime Membership Committee is comprised of "recognized 
national or international experts in their disciplines or fields." As the petitioner only submitted a 
portion of JHDF's by-laws, there is insufficient documentary evidence to establish that membership 
with JHDF is judged by recognized national or international experts pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(ii). 
Notwithstanding the above, even if the petitioner were to establish that the beneficiary'S purported 
membership with JHDF meets the elements of this criterion, which it clearly has not, section 
203(b)(I)(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.F.R. § 204.5(h)(3)(ii) requires 
membership in more than one association. Significantly, not all of the criteria at 8 C.F.R. 
§ 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 C.F.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.F.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. USC/S, Civ. Act. No. 06-2158 (RCL) at 
12 (D.C. Cir. March 26, 200S); Snapilames.com Inc. v. Chertoff, 2006 WL 3491005 at '" 10 (D. Or. 
Nov. 30, 20(6) (upholding an interpretation that the regulatory requirement for "a" bachelor's 
degree or "a" foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) requires a single degree rather than 
a combination of academic credentials). In the case here, the petitioner claimed the beneficiary's 
eligibility for this criterion based on her membership with only one association. 
For the reasons discussed above, the petitioner failed to demonstrate that the beneficiary is a 
member of associations that require outstanding achievements, as judged by recognized national or 
Page 9 
international experts in their disciplines or field consistent with the plain language of the regulation 
at 8 C.F.R. § 204.5(h)(3)(ii). It is the petitioner's burden to establish every element of this 
regulatory criterion. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
PubUshed material about the alien in professional or major trade publicatiol1s or 
other major media. relating to the alien 's work in Ihe/ieldIor which classification is 
sought. Sllch evidence shall include the title, date, and allthor of the material, and 
any necessary translatio/l. 
The director determined that the petitioner established the beneficiary's eligibility for this criterion. 
The plain language of the regulation at 8 C.F.R. ~ 204.5(h)(3)(iii) requires '"[p]ublished 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." In generaL in order lor published 
material to meet this criterion, it must be primarily about the beneficiary and, as stated in the 
regulations, be printed in professional or major trade publications or other major media. To qualify 
as major media, the publication should have significant national or international distribution. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers.' 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that "[s]uch 
evidence shall include the title, date, and author of the material, and any necessary translation." 
Based on a review of the record of proceeding, the AAO must withdraw the findings of the director 
for this criterion. 
At the outset, the petitioner submitted numerous magazine articles and covers without any English 
language translations as required pursuant to the regulation at 8 C.F.R. §§ 103.2(b)(3) and 
204.5(h)(3)(iii). Moreover, the petitioner submitted magazine articles and covers with handwritten 
annotations that simply indicated the beneficiary's name. Furthermore, the handwritten annotations 
are not full and certified translations of the foreign documents and do not equate to published 
material about the beneficiary relating to her work in the field consistent with the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
In addition, the petitioner submitted the following documentation: 
I. of an article entitled, 
unidentified author, ()c'ap,pa; 
2. An uncertified translation of an article entitled, 
_ unidentified date, self-authored, unidentified publication; 
-' Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside afthat county. 
Page 10 
3. An uncertified translation of an article entitled, 
_" unidentified date, self-authored, unidentified publication; 
4. An uncertified translation of an article entitled, 
_ August 2008, self:authored,_ 
5. An uncertified translation of an article entitled, 
_unidentified date, self-authored, unidentified source; 
6. An uncertified translation of an article entitled. 
unidentified author, 
7. An uncertified translation of an article entitled, 
•••••••••••••• September 2008, unidentified author. 
-
8. An uncertified translation of an article entitled, 
_ unidentified date, unidentified author, 
9. An uncertified translation of an article entitled. 
_, unidentified author, 
10. An uncertified translation of an article entitled. 
unidentified date, 
unidentified source; 
11. . Ie entitled, 
unidentified source; and 
12. An uncertified translation of an article enltitll~d, 
Award," December 2008, unidentified author,_ 
January 
The petitioner failed to submit certified English language translations for any of the items listed 
above as required pursuant to the regulation at 8 C.F.R. §§ 103.2(b)(3) and 204.5(h)(3)(iii). 
Moreover, besides the petitioner's selfauthored articles listed in items 2 - 5, the petitioner failed to 
include the author of the material as required pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). Furthermore, the petitioner failed to include the date of the material listed in 
items 2 - 3, 5, 8, and 10 - 11 as required pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(iii). 
Notwithstanding the above, it appears from the uncertified translations submitted by the petitioner 
that only item 1 reflects published material about the beneficiary relating to her work. Regarding 
Page 11 
items 2 - 5, the plain language of the regulation at 8 CF.R. § 204.5(h)(3)(iii) requires that the 
published material be "about" the beneficiary relating to her work in the field for which 
classification is sought. Articles authored by the beneficiary are not articles about her relating to her 
work consistent with the plain language of this regulatory criterion as they are not independent, 
journalistic coverage of the beneficiary. Similarly, regarding items 6 - 12, the articles reflect 
interviews with the beneficiary in which her answers are simply recorded in the submitted material. 
The unidentified authors do not discuss the beneficiary, and the material does not qualify as 
published material about the beneficiary relating to her work. 
In addition, the plain language of the regulation at 1; CF.R. § 204.5(h)(3)(iii) requires the puhlished 
material to be in "professional or major trade publications or other . media." However. the 
~bmit any documentary evidence establishing that 
~ or major trade puhlications or other major media. Further, regarding items 
2 - 3, 5, and 10 - 11, the petitioner failed to identify where the material was published. 
peltitilDwcr submitted a letter from 
who stated that the berlehctary 
top-hilling actresses, signers [sic J and other celehrities and aplJeared 
magazines including, but not limited to, 
submitted several magazine covers from 
English language translations. While numerous in which 
"celebrities" have adorned the beneticiary's hairdos and the uncertified translations of the covers list 
the beneficiary as the hairstylist, the plain language of the regulation at 1; CF.R. § 204.5(h)(3)(iii) 
requires published material about the beneficiary relating to her work rather than published material 
and of other people who have worn the beneficiary's hairstyles. It is noted that 
did not indicate that are professional or major 
trade publications or other major submitted an uncertified 
~9!!~rg that listed the circulation statistics of various magazines 
Again, the petitioner failed to submit any documentary 
evidence reflecting that the has had published material about her relating to her work in 
magazines listed on the unidentified and uncertified translated document. 
The plain language of the regulation at 8 CF.R. § 204.S(h)(3)(iii) requires "[p]ublished 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." The burden is on the petitioner to 
estahlish that the beneficiary meets every element of this criterion. In this case, the petitioner 
submitted one article that appeared to be published material about the beneficiary relating to her 
work but failed to submit a certified English language translation, failed to include the author of the 
material, and tililed to demonstrate that_ is a professional or major trade publication or other 
major media. Even if the petitioner established that the article meets every element of this criterion, 
which it clearly has not, the plain language of the regulation at 8 CF.R. § 204.5(h)(3)(iii) requires 
published material in more than one publication. As such, the AAO withdraws the decision of the 
director for this criterion. 
Page 12 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of the alien's participation. either individually or on a panel. as ajudge oj 
the work of others in the same or an allied field of specification for which 
classification is sought. 
In the director's decision, she detemlined that the petitioner failed to establish the beneficiary's 
eligibility for this criterion. Specifical the director determined that the claim that the 
beneficiary participated as a judge at was 
insufficient to meet the eligibility requirements of this criterion. On appeal, COlll1SI~1 
The Petitioner has never made a claim whatsoever that the Beneficiary served as a 
judge at In fact, the Petitioner submitted the evidence with its 
initial petition and in response to the [request for additional evidence] demonstrating 
that the Beneficiary served as the judge in 2008. 
(Emphasis in original.) 
The plain language of the regulation at 8 C.F.R. ~ 204.5(h)(3)(iv) requires "[e]vidence of the alien's 
participation, either individually or on a panel, as a judge of the work of others in the same or an 
allied field of specification for which classification is sought." A review of the record of proceeding 
reflects that at the initial filing of the petition, the petitioner submitted screenshots from 
••••••• reflecting photographs of the_. In addition, the~submitted a 
screenshot from regarding event information for the _ Moreover, 
the petitioner a program the without an English language translation, let 
alone a certified English language petitioner was only claiming the beneficiary's 
eligibility for this criterion based on it is unclear why the petitioner would submit 
documentary evidence regarding the On appeal, counsel makes nO argument why the 
__ documentary evidence was submitted at the initial filing of the petition. 
also submitted an uncertitied tranSlation of a course schedule from 
•• 1) that reflected a short profile of the beneficiary but did not indicate that she 
participated as a judge of the work of others pursuant to the plain language of the regulation at 8 
C.F.R. § 204.5(h)(3)(iv). On appeal. counsel does not claim that the beneficiary's work with_ 
demonstrate, eligibility for this criterion. The AAO, therefore, considers this previous claim to be 
abandoned. See Sepulveda v. u.s. All): Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2(05); Hris(ol' I'. 
Roark, No. 09-CY-27312011, 20]] WL 4711885 at *1, '"9 (E.D.N.Y. Sept. 30, 2(11) (the court 
found the plaintiIrs claims to be abandoned as he failed to raise them On appeal to the AAO). 
In response to the director's request for additional evidence pursuant to the regulation at 8 C.F.R. 
~ ] 03.2(b )(8), the petitioner submitted an uncertified translation of a purported invitation requesting 
the beneficiary to participate as a judge at in the wig design department. The 
petitioner also submitted a copy of the cover the program for the_with an uncertified 
translation claiming that the beneficiary was a judge in wig design. As the petitioner failed to 
Page 13 
submit certified English language translations as required pursuant to the regulation at 8 C.F.R. 
§ 103.2(b)(3), the . failed to establish that the beneficiary participated as a judge of the 
work of other at consistent with the plain language of the regulation at 8 C.F.R. 
§ 204.S(h)(3)(iv). 
The petitioner also submitted a letter who stated 
that the beneficiary was a judge in the area of wig design However,_ 
letter is not primary evidence of the beneficiary's participation as a judge at _lIiiiiil 
Again, the regulation at 8 C.F.R. § I m.2(b )(2)(i) provides that the non-existence or 
unavailability of required evidence creates a presumption of ineligibility. According to the same 
regulation, only where the petitioner demonstrates that primary evidence does not exist or cannot be 
obtained may the petitioner rely on secondary evidence and only where secondary evidence is 
demonstrated to be unavailable may the pe~ts. In this case, it appears that 
primary evidence does exist in the form of ~and invitation, but the petitioner 
failed to submit certified translations of the documents as required pursuant to the regulation at 8 
C.F.R. § 103.2(b)(3). Even if primary and secondary evidence do not exist, which it appears that 
they do, the petitioner only submitted one letter in which the plain language of the regulation at 8 
C.F.R. § 103.2(b)(3) requires more than one affidavit. 
For the reasons discussed above, the petitioner failed to demonstrate that the beneficiary served as a 
judge of the work of others in the same or an allied field of specification for which classification is 
sought at the time of the filing of the petition consistent with the plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(iv). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of Ihe alien '.\' original scienlijic scholarly. arlislic. alhlelic. or husincss­
related contributions of major sigllificallce in the field. 
The director determined that the petitioner failed to establish the beneficiary's eligibility for this 
criterion. The plain language of the regulation at 8 C.F.R. § 204.S(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." Here, the evidence must be reviewed to see whether it rises to the level of 
original artistic-related contributions "01' major significance in the field." The phrase "major 
significance" is not supert1uous and, thus, it has some meaning. Silverman v. Eastrich Multiple 
illl'l!s/or Fwu/, L.I'., 51 F. 3d 28, 31 (3'" Cir. 1995) quoted ill APWU v. Potter, 343 F.3d 619, 626 
(2"" Cir. Sep 15,2(03). 
pn)ceedimg ret1ects that the petitioner submitted a letter from _ 
stated: 
[The petitioner] is one of the most respected hair designers in Japan because she is 
credited for creating the signature hairdo for Japan's top-billing supermodel 
_ which has become the country's most popular hairdo known as 
Page 14 
chan Style," the Japanese equivalent in the 
United States .... This hairdo was created by [the petitioner] as inspired by one of 
Japanese traditional hairstyles. As demonstrated by her published portfolio which I 
understand has been submitted her in connection with her immigration visa 
petition. her original has been prominently featured in Japan's 
best -selling fashion television programs, and in 
advertisements and other global 
corporations. Her original hairdo has become immensely popular among girls and 
women all over Japan and its neighboring Asian counties [sic] and inspired 
professional hair designers and hair salons all over Asia to emulate it. [n fact, this 
hairdo has been, still is, requested so often at hair salons, it has became [sic] the 
most popular hairstyle of all times in Asia. 
While claimed was created by the beneficiary and has 
been widely influential in Japan and neighboring countries, the record of proceeding does not 
support these claims. Depending on the specificity, detail, and credibility of a letter, USCIS may 
give the document more or less persuasive weight in a proceeding. The Board of Immigration 
Appeals (the Board) has held that testimony should not be disregarded simply because it is "self­
serving." See, e.g., Matter of S-A-, 22 [&N Dec. 1328, 1332 (BIA 2000) (citing cases). The Board 
also held, however: "We not only encourage, but require the introduction of corroborative 
testimonial and documentary evidence, where available." Id. If testimonial evidence lacks 
specificity, detail, or credibility, there is a greater need for the petitioner to submit corroborative 
evidence. Matter ofY-B-, 21 I&N Dec. 1136 (B[A 1998). [n the case here, the beneficiary's "Ebi­
chan style" is not even mentioned in any the documentary evidence submitted in support of the 
other criteria. For example, a review of the uncertified translations discussed under the published 
material criterion, makes no mention of the hairstyle. Again the petitioner submitted several 
interviews with the beneficiary, yet the beneficiary was never asked about the 
Moreover, regarding the awards criterion, the not indicate that any of the 
beneficiary's purported awards were based on the The AAO notes that the 
petitioner submitted two additional recommendation criterion, which will be 
discussed further below, but the hairstyle is nevcr referenced or mentioned. Rcgarding _ 
_ reference to the beneticiary's portfolio, the AA(~ petitioner's 
submission of uncertified translations of magazine covers of ____ and 11011-110 
under the published material criterion. Again, the uncertified translations simply credit the 
as being the hairstylist for the individuals on the cover but make no refcrence to the 
As the documentary evidence submitted by the petitioner fails to the 
claims made the petitioner failed to demonstrate that 
be considered an original contribution of major significance in the field consistent 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(v). 
r, the petitioner submitted a letter from of_ 
who stated that the business has "long engaged [the petitioner] since 2006 as 
cOlnsulltant advising the management in terms of creating hairdos for fashion models in 
company's catalogues, commercials and other marketing and promotional campaigns." 
Page 15 
The petitioner also submitted a letter from 
original contributions of major significance in the 
briclly referenced the beneticiary's role at 
Asia Pacific, who indicated the beneticiary's skills and "remarkable talent.'· However, 
did not indicate how the beneficiary's skills or talents are original contributions of major 
significance to the field. Merely having a diverse skill set is not a contribution of major significance 
in and of itself. Rather, the record must be supported by evidence that the beneficiary has already 
used those unique skills to impact the field at a significant level in an original way. Furthermore, 
assuming the beneficiary's skills are unique, the classification sought was not designed merely to 
alleviate skill shortages in a given field. In fact, that issue properly falls under the jurisdiction of the 
Department of Labor through the alien employment labor certification process. See Matter of New 
York State Department of Transportation. 22 I&N Dec. 215. 221 (Comm'r 1998). 
While those familiar with the beneficiary's work generally describe it as "extraordinary," there is 
insufficient documentary evidence demonstrating that the beneficiary's work is of major 
significance. This regulatory criterion not only requires the beneficiary to make original 
contributions, the regulatory criterion also requires those contributions to he of major significance. 
The AAO is not persuaded by vague, solicited letters that simply repeat the regulatory language but 
do not explain how the beneficiary's contributions have already influenced the field. Vague, 
solicited letters from local COlleagues that do not specifically identify contributions or provide 
specific examples of how those contributions influenced the field are insufficient. Kazarian v. 
USC/S, 580 F.3d 1030, 1036 (9th Cir. 20(9) affd in part 596 F.3d 1115 (9th Cir. 2(10). In 2010, 
the Kazarian court reiterated that the AAO's conclusion that the "letters from physics professors 
attesting to [the petitioner's] contributions in the field" were insufficient was "consistent with the 
relevant regulatory language." 596 F.3d at 1122. Moreover, the letters considered above primarily 
contain bare assertions of the beneficiary's status in the field without providing specitic examples of 
how those contributions rise to a level consistent with major significance in the field. Merely 
rcpcating the language of the statute or regulations does not satisfY the petitioner's burden of proof 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1 lOS (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. 
Cir. 1990); Avyr Associates, file. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The lack of 
supporting evidence gives the AAO no basis to gauge the significance of the benefiicary's present 
contributions. 
Further, USClS may, in its discretion, use as advisory opInIOn statements submitted as expert 
testimony. See Matter of Caron International, 191&N Dec. at 795. However, USCIS is ultimately 
responsible for making the final detem1ination regarding an alien's eligibility for the benetit sought. 
Id. The submission of letters 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; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 200S). 
Thus, the content of the writers' statements and how they became aware of the benefiicary'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 of original contributions of major significance. 
Again. the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[eJvidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field [emphasis added]." Without additional, specific evidence showing that the 
beneficiary's work has been unusually inf1uential. widely applied throughout her field, or has 
otherwise risen to the level of contributions of major significance, the AAO cannot conclude that 
she meets this criterion. The AAO notes even if the petitioner established that the 
meets every element of this criterion, which it clearly has not, the plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(iii) requires more than one original contribution of major significance in the 
field. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of"the alien '.I' authorship of scholarly articles in thefield, in proje.lsional or 
major trade publications or other major media. 
In the director's decision, she determined that the "article published in Art-in-facts magazine in 
2010" did not meet this criterion. On appeal. counsel states that the petitioner has never claimed the 
beneficiary's for this criterion, and the petitioner never submitted an article that was 
"published in Further. counsel states that this criterion "is more 
pertinent to the determination of 'an alien of extraordinary ability in the science or education," not 
in the artistic field. As counsel does not claim the beneficiary's eligibility for this criterion on 
appeal, the AAO, therefore, considers this issue to be abandoned. See Sepulveda v. U.S. AII'y Gell., 
401 F.3d at 1228 n. 2; Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *9, (the court 
found the plaintitTs claims to be abandoned as he failed to raise them on appeal to the AAO). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of the display of the alien's work ill the field at artistic exhibitiolls or 
showcases. 
In the director's decision, she discussed the petitioner's submission ofa letter from 
who indicated that the beneficiary'S work 
in July 2011. 
The director then indicated: 
It should be noted that a petition cannot be filed under this classification based on 
thc expectation of the beneficiary's future eligibility. See Matter ofKatigbak, 141 
& N Dec. 45, 49 (Reg!. Commr. 1971). The instant petition was field [sic 1 on 
November 23,2010, and the exhibition is scheduled for July 2011. 
Page 17 
However. in the director's conclusion jt)r this criterion, the director stated that "thc evidence 
submitted does meet this criterion," On appeal, counsel states that "the Petitioner assumes that the 
USCIS intended to write 'As such, the evidence submitted does 'not' meet this criterion. '" A 
revicw of the record of proceeding reflects that thc as correctly indicated by the director, 
was filed on November 23, 2010, Moreover, did, in fact, indicate that the 
beneficiary's work was selected to be exhibited at the TMAM in July 2011. Eligibility must bc 
established at the time of filing. 8 C.F,R, §§ 103,2(b)(I), (12). Whether referencing an immigrant 
or a nonimmigrant classification, case law requires that an alien applying for a benefit, or a 
petitioner seeking an immigration status for a beneficiary, must demonstrate eligibility for the 
benefit or the status at the time the petition is filed. See Matter of Pazandeh, 19 I&N Dec. 884, 886 
(BIA 1989) (citing Matter of Atembe, 19 [&N Dec. 427, 429 (BlA 1986); Matter ofDriRo, 18 [&N 
Dec. 223, 224-225 (BIA 1982); Matter of Bardollille, 18 I&N Dec, 114, 116 (BlA 1981», A 
petition may not be approved if the beneficiary or the self-petitioner was not qualified at the priority 
date. See Matter ofKatiRbak, 14 I&N Dec, at 49; see also Matter of Michelin Tire Corp., 17 [&N 
Dcc. 248, 249 (Reg'l Comm'r 1978) regarding nonimmigrant petitions. The Regiona[ 
Commissioner in Maller of Wing's Tea House. 16 [&N Dec. 158, 160 (Reg' I Comm'r 1977) 
emphasizes the importance of not obtaining a priority date prior to being eligible, based on future 
experience. This follows the policy of preventing affected parties from securing a priority date in 
the hope that they will subsequently be able to demonstrate eligibility, [n fact, this principle has 
been extended beyond an alien's eligibility for the classification sought. For example, an employer 
must establish its ability to pay the proffered wage as of the date of filing, See Matter of Greal 
Wall, 16 I&N Dec. 142, 144-[45 (Act. Reg'l Comm'r 1977), which provides that a petition should 
not become approvable under a new set of facts, Ultimately, in order to be meritorious in fact, a 
petition must meet the statutory and regulatory requirements for approval as of the date it was filed, 
OR1I/Jdipe v. Mllkasey, 541 F.3d 257, 261 (4th CiL 2008), Therefore, the upcoming exhibition at the 
TMAM will not be considered to establish the beneficiary's eligibility for this criterion. 
On appeal, counsel further states that the is eligible for this criterion based on the 
exhibition of her work and refers to letter. 
Specitically 2007 to 2009 ... the photographs of her hair designs 
were selected for exhibition under the Fashion Division and prominently showcased at the 
llowcver, the petitioner failed to submit primary evidence of the beneficiary's 
exhibition at the _s required pursuant to the regulation at 8 CER, § 103.2(b)(2). In fact, it 
appears that primary evidence may exist as indicated by In discussing the 
bcneliciary's upcoming July 2011 exhibit' stated that "[w]e will be more than 
happy to forward to your office under separate cover of the __ which will 
display her art work once it becomes available." As indicated that ...... 
catalogue will be available, it is not unreasonable to conclude that catalogues for 2007 - 2009 may 
also exist. rhus, the petitioner's submission of a letter from is insufficient to 
comply with the regulation at 8 CF,R. § 103.2(b)(2). Even if the petitioner demonstrated that 
primary and secondary evidence do not exist, which it clearly did not, the petitioner only submitted 
one letter in which the plain language of the regulation at 8 CER. § 103.2(b)(2) requires more than 
one affidavit. 
Page IX 
For the reasons discussed above, the petitioner failed to demonstrate that the beneficiary meets thc 
plain language of the regulation at 8 CF,R, ~ 204.5(h)(3)(vii) that requires "[e]vidence of the 
display of the alien's work in the field at artistic exhibitions or showcases." 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
f:vidence that the aliell has performed in a leadilll: or critical role for orl:wlizatio/lS 
or estahlishments that have a distinguished replllation. 
In the director's decision, she determined that the petitioner failed to establish the beneficiary's 
eligibility for this criterion. On appeal, counsel claims that the beneficiary is eligible based on her 
role with and referred to the previously discussed letter from _ 
In that the director unlawfully interjected requirements by 
stating the beneficiary's position was not permanent and thus implying that '''leading or critical 
role' the alien has performed must be 'permanent. .. , 
The plain language of the regulation at 8 CF.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 or standing of the 
organization or establishment. As indicated prcviously, briefly stated that the 
beneficiary has been engaged as creative consultant advising the management since 2006. The 
plain language of the regulation at 8 CF.R. § 204.5(h)(3)(viii) does not require the alien's role to be 
permanent. Howe~ust establish that the beneficiary's role is leading or critical. 
In the case here, ___ letter failed to provide specific information such as the 
beneficiary's job responsibilities. specific reporting requirements, or frequency of her consulting 
services, so as to demonstrate that she performed in a leading or critical role. Simply submitting a 
general lctter indicating that the beneficiary served as a creative consultant is insufficient to meet the 
plain language of the regulation at 8 CF.R. § 204.5(h)(3)(viii) without evidence demonstrating that 
the beneficiary's roles were leading or critical to the distinguished organization. There is no 
evidence comparing the roles of the beneficiary from the other employees in a similar position at 
for example, so as to demonstrate that th~formed in a 
leading or critical role. In fact, whcn compared to the position of ~ who is the 
Senior Vice President, it appears that the beneficiary was in a subordinate role. In general, 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 unless the petitioner submits 
documentation retlccting that the beneticiary's role is leading or critical. In the case here, the 
submission of a letter that simply indicates that beneficiary'S job title is insutIicient to meet the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
Moreover, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires that the 
leading or critical role be "for organizations or establishments that have a 
Although provided some background information regarding 
Page 19 
Ltd., the petitioner failed to submit 
company has a distinguished reputation. 
Again, the plain language of the regulation at 8 c.r.R. § 204.5(h)(3)(viii) requires "[eJvidence that 
the alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." The burden is on the petitioner to establish that the beneficiary meets 
every element of this criterion. Even if the petitioner established that the beneficiary's role was 
leading or critical and has a distinguished reputation, which it clearly did 
not, the plain language of the regulatory criterion requires a leading or critical role with more than 
one organization or establishment in which the petitioner claimed the beneficiary's eligibility based 
on only one organization. Without documentary evidence demonstrating that the beneficiary has 
performed in a leading or critical role for organizations or establishments that have a distinguished 
reputation, the AAO cannot conclude that the beneficiary meets this criterion, 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The director determined that the petitioner failed to establish the beneficiary's eligibility for this 
criterion. Specifically, the director stated: 
The employment agreement ofreeord shows that the benefieiary['s] is $6,500.00 per 
month. In response to the UCIS Request for Evidence (RFE) the petitioner provided 
additional information. However, the petitioner failed to demonstrate that the 
beneficiary has been actually paid the amount stipulated in the contract. Thc 
petitioner could have submitted for example copies of the beneficiary's W-2, or 
similar foreign tax documents which establish yearly wages earned outside the U.S. 
The evidence of record is deficient. 
On appeal, counsel states that that "the petitioner, through its attorneys, concurs with the users's 
conclusion: As such, the evidence of record docs not meet this criterion." As counsel docs not 
claim the beneficiary's eligibility for this criterion on appeal, the AAO, therefiJre. considers this 
issue to be abandoned. See Sepulveda v. u.s. Att:" Gell., 40] F.3d at 1228 n. 2; Hristuv v. Roark, 
2011 WL 4711885 at *9, (the court found the plaintilrs claims to be abandoned as he failed to raisc 
them on appeal to the AAO). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of commercial Sllccesses in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In the director's decision, she determined that the petitioner failed to submit any evidence for this 
criterion. On appeaL counsel states that "the Petitioner, through its attorneys, represents that the 
Page 20 
petitioner did not submit any evidence pertinent to this specific criterion as correctly notcd by the 
lJSCIS in the Decision." As counsel does not claim the beneficiary's eligibility for this criterion on 
appeal, the AAO, therefore, considers this issue to bc abandoned. See Sepulveda v. u.s. Att\' Gen., 
401 F.3d at 122tl n. 2; Hristov v. Roark, 20 II WL 4711tltl5 at *9, (the court found the plaintifTs 
claims to be abandoned as he failed to raise them on appeal to the AAO). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
IV. 0-1 NONIMMIGRANT ADMISSION 
At the time of the filing of the petition, the beneficiary was last admitted to the United States on 
October 11, 2010, as an 0-1 nonimmigrant visa petition for an alien of extraordinary ability in the 
arts. Although the words "extraordinary ability" are used in the Act for classification of artists 
under both the nonimmigrant 0-1 and the first preference employment -based immigrant categories, 
the statute and regulations define the term differently for each classification. Section 101(a)(4ti) of 
the Act states that "[t]he term 'extraordinary ability' means, for purposes of section 
101 (a)( I 5)(0)(i), in the case of the arts, distinction." The 0-1 regulation reiterates that 
"[e]xtraordinary ability in the field of arts means distinction." tl C.F.R. § 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. § 204.5(h)(2). The 
evidentiary criteria for these two classifications also differ in several respects, for example, 
nominations for awards or prizes arc acceptable evidence of 0-1 eligibility, 8 C.F.R. 
§ 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of nationally or 
internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i), Given the clear statutory and 
regulatory distinction between these two classifications, the beneficiary's receipt of 0-1 
nonimmigrant classification is not evidence of her eligibility for immigrant classification as an alien 
with extraordinary ability. Further, the AAO does not find that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each case must be decided on a case-by-case 
basis upon review of the evidence of record. 
However, while USC[S has approved at least one 0-1 nonimmigrant visa petition filed on behalf of 
the beneficiary, the prior approval does not preclude USCiS from denying an immigrant visa 
petition based on a different, if similarly phrased, standard. It must be noted that many 1-140 
immigrant petitions are denied after uscrs approves prior nonimmigrant petitions. See, e.g., Q 
Data Consulting, ine. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKFA US v. US Dept. oJJustice, 48 
F. Supp. 2d 22 (D.D.C. 1999); Fedin Bruthers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 
19t19). Because uscrs spends less time reviewing 1-129 nonimmigrant petitions than [-[40 
immigrant petitions, some nonimmigrant petitions are simply approved in error. Q Data 
Consulting, Inc, v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. 
Appx. 556. 2004 WL 1240482 (5th Cir. 20(4) (finding that prior approvals do not preclude uscrs 
from denying an extension of the original visa based on a reassessment of petitioner's 
qualifications). 
The AAO is not required to approve applications or petItions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Chllrch Scientology International, 19 I&N Dec. 593. 597 (Comm'r 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d J084, lO90 (6th Cir. 1987), cert. denied, 485 U.S. \008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2(01), cert. denied, 122 S.O. 51 (2()(JI). 
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 J043, affd, 345 
F.3d at 683; see also Soltane v. DO], 381 F.3d 143, 145 (3d Cir. 20(4) (noting that the AAO 
conducts appellate review on a de novo basis). 
V. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of the 
small percentage who has risen to the very top of the field of endeavor. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstratecl: (1) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of thel ir] lield of endeavor" and (2) "'that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field 
of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
not explain that conclusion in a final merits determination. 4 Rather, the proper conclusion is that the 
.\ The AAO maintains de novo review of all yucstions of fact and law. See So/fane v, Do.!, 381 r:.3d at 145. In any 
future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the oiTicc that made the 
last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii). See also section 100(a)(I) of the Act; section 204(b) of the Act; 
DHS Delegation Number 0150.1 (effective Mareh 1.20(3); R C.F.R. § 2.1 (2003); R C.F.R. § 1 03.I(f)(3)(iii) (20m): 
Page 22 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. /il. 
at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(I)(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 2<) I 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. 
Matter of Aurelio, 19 I&N Dec. 458, 460 (iliA 1987) (holding that legacy INS, now USCIS, is the sole authority 
with the jurisdiction to decide visa petitions).