dismissed EB-1A Case: Hair Styling

MATTER OF A-S-A-S-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 17,2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a salon and spa, seeks to classify the Beneficiary as an individual of extraordinary 
ability in the arts. See Immigration and Nationality Act (the Act) section 203(b)(l )(A), 8 U.S.C. 
§ 1153(b)(l)(A). This first preference classification makes immigrant visas available to those who 
can demonstrate their extraordinary ability through sustained national or international acclaim and 
whose achievements have been recognized in their field through extensive documentation. 
The Director of the Texas Service Center denied the Form 1- I 40, Immigrant Petition for Alien 
Worker, concluding that the Beneficiary had not satisfied any of the ten initial evidentiary criteria. of 
which he must meet at least three. 
On appeal, the Petitioner contends that the Beneficiary meets at least three of the ten criteria and that 
he has sustained national or international acclaim at the top of his field of endeavor. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(I)(A) ofthe Act makes visas available to immigrants with extraordinary ability 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 m the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
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." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
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at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate that a beneficiary has a one-time achievement (that 
is a major, internationally recognized award). Alternatively. a petitioner must provide 
documentation for an individual that meets at least three of the ten categories of evidence listed at 
8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as awards. memberships. and published material 
in certain media). The regulation at 8 C.F.R. § 204.5(h)( 4) allows a petitioner to submit comparable 
material if it is able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not readily 
apply to a beneficiary's occupation. 
Where a beneficiary meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS. 596 F.3d 1115 (9th Cir. 20 I 0) 
(discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination): see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCJS. 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality:' as well as the principle that we 
examine "each piece of evidence for relevance. probative value, and credibility, both individually 
and within the context of the totality of the evidence. to determine whether the fact to be proven is 
probably true." Malter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Beneficiary works as artistic director and master hair colorist for the petitioning organization. 
The Petitioner did not indicate, and the record does not establish. that the Beneficiary has received a 
major, internationally recognized award pursuant to 8 C.F.R. § 204.5(h)(3). The Petitioner must 
therefore demonstrate the Beneficiary's eligibility under at least three of the criteria listed at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). On appeal, the Petitioner maintains that the Beneficiary meets the published 
material criterion at 8 C.F.R. § 204.5(h)(3)(iii), the display criterion at 8 C.F.R. § 204.5(h)(3)(vii). 
the leading or critical role criterion at 8 C.F.R. § 204.5(h)(3)(viii). and the high salary criterion at 
8 C .F.R. § 204.5(h)(3)(ix). In addition, the Petitioner requests that we consider comparable evidence 
for the original contributions criterion at 8 C.F.R. § 204.5(h)(3)(v). We have reviewed the entire 
record of proceedings. and it does not support a finding that the Beneficiary meets the plain language 
requirements of at least three criteria. 
A. Evidentiary Criteria 
Published material about the alien in professional or major trade publications or other 
major media. relating to the alien's work in thefield.fiw JVhich classification is sought. 
Such evidence shall include the title, date. and author ofthe material. and any necessary 
translation. 8 C.F.R. § 204.5(h)(3)(iii). 
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Mauer of A-S-A-S-
As evidence for this criterion, the Petitioner submits a 2006 article in 
en6tled ' The article identifies 25 luxury service providers 
including the Beneficiary's blow-dry 
hair styling offered at 
It devotes three sentences to advertising his service and concludes by stating: ·'Blow-dry by (the 
Beneficiary] costs from Dhs 180. Call The aforementioned article discusses 25 ways 
to experience a lavish lifestyle in and is not about the Beneficiary. The plain language of the 
regulatory criterion requires "published material about the alien... Further. the Petitioner has not 
demonstrated that the publication qualifies as professional or trade publication or major media . A 
webpage from asserts that ' 
and that it has a circulation of US CIS 
need not rely on the self-promotional material of the publisher. See Braga v. Poulos. No. CV 06 5105 
SJO, qffd 317 Fed. Appx. 680 (C.A.9). In addition, the record includes 2015 
media kit and a listing an average circulation of but the 
Petitioner has not provided comparative statistics or other evidence showing that this number 
elevates the magazine to a form of major media. 
The record also contains a 2005 article in magazine, but the author of the material is not 
identified as required by this criterion. Furthermore. while the article present s highlighting and 
lowlighting hair styling information and tips shared by Beneficiary. this material is instructional in 
nature and is not about him. In addition, the Petitioner provides information about from its 
publisher discussing its content and formula for success. but this documentation does not reflect that 
the magazine is a form of major media. The evidence also include s articles about the Bene1iciary in 
magazine and but their authors were not identified and the Petition er has 
not shown that these are qualifying publications. 
The Petitioner also maintains that broadcast a television 
report focusing on the Beneticiary. The record contains various webpages from but 
those webpages do not show a report about the Beneficiary. Nor has the Petitioner offered a 
transcript of the news program or a copy of its video footage to demonstrate that the televi sion 
coverage was about the Beneficiary. In addition. the Petitioner offers information from 
stating: ' is a television station in FL that serves the 
television market. The station runs programming from the 
network and identifies itself as The information from further 
indicates that 1s among TV Channels'· and that the 
television market ranks among the Television Markets" in 
the United States. The record, however, does not include rankings or viewership information 
specific to or its program showing that it qualifies as a f{)rm of major media . 
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The Director noted that this circulation in the United Arab Emirates, an Arabic-speaking "country of over 9.3 million 
people, is not necessarily major media." 
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Matter of A-S-A-S-
In light of the above, the Petitioner has not established that the Beneficiary meets this regulatory 
criterion. 
Evidence of the alien's original scientific, scholarly, artistic. athletic. or business­
related contributions o.f major sign(ficance in the .field 8 C.F.R. § 204.5(h)(3)(v). 
The Petitioner initially claimed the Beneficiary satisfied this criterion through letters of 
recommendation from his colleagues and clients. . The Director discussed this evidence and 
determined that it was not sufficient to demonstrate the Beneficiary's original artistic contributions 
of major significance in the field. Specifically, the Director found that the reference letters did not 
show that the Beneficiary's work has impacted the field of hair styling or was otherwise of major 
significance in the field. We find that the record supports those findings. In its appeal brief: the 
Petitioner does not contest the Director's analysis of the evidence or identify any erroneous 
conclusions oflaw or fact. Rather, the Petitioner requests that we consider the Beneficiary's "role as 
a top hair stylist" for individuals whose "appearance was required to be paramount" as comparable 
evidence for this criterion. 2 
The regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of"comparable evidence'· if the 
ten categories of evidence "do not readily apply to the beneficiary's occupation." It is the petitioner's 
burden to explain why the regulatory criteria are not readily applicable to a 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). Here, the Petitioner has not explained or demonstrated that the criterion at 
8 C.F.R. § 204.5(h)(3)(v) does not readily apply to artistic directors , colorists, or hair stylists. As 
such, the Petitioner has not shown that it may rely on comparable evidence. 
Furthermore, while the record reflects the Beneficiary styled hair for important clients such as 
(chief marketing officer for a Canadian real estate development 
company) and (a French art auctioneer), the record does not establish that this 
work is comparable to the regulation at 8 C.F.R. § 204.5(h)(3)(v) which requires evidence of original 
contributions of major significance in the field. The Petitioner has not shown the evidence it claims 
as comparable to the regulation at 8 C.P.R. § 204.5(h)(3)(v) is of the same caliber as that required by 
the regulation. Accordingly, the Beneficiary has not satisfied this criterion by meeting its plain 
language requirements or through the submission of comparable evidence. 
Evidence of the display o( the alien's ·work in the field at artistic exhibitions or 
showcases. 8 C.F.R. § 204.5(h)(3 )(vii). 
The Director determined that the Petitioner had not presented evidence that the Beneficiary's work 
has been displayed at artistic exhibitions or showcases. On motion to the Director and again on 
appeal, the Petitioner references a prior Texas Service Center decision involving the Beneficiary. 
2 We note that the regulations include a separate criterion for performing in a leading role tor a distinguished organization at 
8 C.F.R. § 204.5(h)(3)(viii), and the Beneficiary's role as a hair stylist will be further addressed there. 
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Matter of A-S-A-S-
in which the Director concluded that he had met this criterion. 3 In the latest 
denial decision, the Director , citing Malter of Church ScientoloKY lnt '/, 19 I&N Dec. 593, 597 
(Comm 'r 1988), correctly noted that US CIS "is not bound to approve subsequent petitions or 
applications seeking immigration benefits where eligibility has not been demonstrated, merely 
because of a prior approval which may have been erroneous. . . . Each matter must be decided 
according to the evidence of record on a case-by case basis.'' See also La. Philharmonic Orchestra 
v. INS, No. 98-2855 , 2000 WL 282785, at *2 (E.D. La. 2000) (finding that we are not bound by a 
decision of a service center or district director); Sussex Eng 'g, Ltd. v. Montgomery, 825 F.2d 1084, 
1090 (6th Cir. 1987). 
In the present matter , the evidence offered for this criterion includes a February 2014 letter from a 
casting director stating: "The Beneficiary worked for 
magazine in 2008 during 2 days in as a hairdresser for a fashion shooting. I recommend his 
high quality and excellent job.'' This letter, however, was unaccompanied by published photographs 
from the magazine or other evidence showing that the Beneficiary's work was in fact exhibited or 
displayed by the magazine. 
In addition, the Petitioner provides an article about the Beneficiary entitled '"[The Beneficiary] 
in The regulation s include a separate criterion for published 
material at 8 C.F.R. § 204.5(h)(3)(iii), and the aforementioned article has already been addressed there. 
Regardless , the article does not represent display of the Beneficiary· s work at an 
artistic exhibition or showcase." Lastly, the record includes a ' photograph that the 
Petitioner contends is evidence that "the Beneficiary was showcased in a full page stylized photo 
showing his innovative artistic skills and expertise ." The Petitioner, however. does not identify the 
artistic exhibition or showcase in which the photograph was displayed. Nor does the record contain 
evidence from the exhibition or showcase organizer indicating that it was the Beneficiary' s work on 
display. The evidence therefore does not establish that the Beneficiary meets this regulatory 
criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R . * 204.5(h)(3)(viii). 
In the appeal brief, the Petitioner contends that the Beneficiary has performed in a leading o r critical 
role for its location in The record includes a letter from the Petitioner ' s managing 
member and copy of the Beneficiary's contract. Both documents provide a detailed list of the 
Beneficiary's duties and responsibilities, and they sutliciently demonstrate that he has performed in 
a qualifying role as artistic director and master hair colorist. Jn addition, the Petitioner offers atticles 
m and that suffice to demonstrate that the petitioning 
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The Director found that the Beneficiary had met this criterion based on infonnation about his employers, a contract, 
and photographs of clients and salons. We find such determination to be an error, as this documentation does not 
constitute display of the Beneficiary's work in the field at artistic exhibitions or showcases. 
4 This article does not display his work. 
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Matter of A-S-A-S-
organization has a distinguished reputation in the field. Accordingly, the Petitioner has established 
that the Beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other signfficantly high 
remunerationfor services. in relation to others in thefield 8 C.F.R. § 204.5(h)(3)(ix). 
The record includes a December 2013 employment contract stating that the Beneficiary will receive 
"a salary of $85,000 per annum." In addition, the Petitioner offers the Beneficiary's December 2014 
pay statement and his 2013 and 2014 Forms W-2. Wage and Tax Statements, reflecting earnings of 
$97,019.69 and $99,635.55, respectively. It also submits prevailing wage data from the Foreign 
Labor Certification Data Center and wage estimates from the U.S. Bureau of Labor Statistics for 
"Hairdressers, Hairstylists, and Cosmetologists ." The Petitioner fm1her provides online articles from 
listing salary information for a "hairdresser .. and a ''hair stylist.' ' 
Although the Petitioner compares the Beneficiary's compensation to hairdressers, hairstylists, and 
cosmetologists, he has served as its artistic director and master hair colorist since 2013. Unlike the 
former occupations , the Beneficiary's job (as set forth in his contract) involves supervising and 
directing staff, overseeing photo shoots , researching new technologies and techniques. preparing and 
teaching product knowledge classes, and serving as an ambassador and spokesperson for the 
petitioning organization. The Petitioner must present evidence showing that the Beneficiary has 
earned a high salary or significantly high remuneration in comparison with those performing similar 
services in the field . See Matter of Price, 20 I&N Dec. 953. 954 (Assoc. Comm ·r 1994) 
(considering a professional golfer's earnings versus other PGA Tour golfers); see also Skokos v. US 
Dept. of Homeland Sec., 420 F. App'x 712, 713-14 (9th Cir. 2011) (finding salary information for 
those performing lesser duties is not a comparison to others in the field): Grimson v. INS, 934 F. 
Supp. 965, 968 (N.D. 111. 1996) (considering NHL enforcer's salary versus other NHL enforcers): 
Muni v. INS, 891 F. Supp. 440. 444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player 
to salary of other NHL defensemen). Here, the Petitioner has n ot established that the wage 
information for hairdressers , hairstylists , and cosmetologists constitutes an appropriate basis tor 
comparison. Based on the foregoing, the Petitioner has not demonstrated that the Beneficiary meets 
this regulatory criterion. 
B. 0-1 Nonimmigrant Status 
We note the record of proceedings reflects that the Beneficiary received 0-1 status , a classification 
reserved tor nonimmigrants of extraordinary ability. Although USCIS has approved at least one 0-1 
nonimmigrant visa petition tiled on behalf of the Beneficiary , the prior approval does not preclude 
USCIS from denying an immigrant visa petition which is adjudicated based on ditlercnt standard ­
statute , regulations , and case law. Many Form I-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant petitions. See , e.g. Q Data Consulting Inc. v. INS, 293 F. Supp . 2d 25 
(D.D.C . 2003); IKEA US v. US Dept . (!(Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers 
Co. Ltd. , 724 F. Supp. at 1103. Furthermore, our authority over a USCIS service center , the office 
responsible for adjudicating the nonimmigrant visa petition, is comparable to the relationship 
Matter of A-S-A-S-
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of an individual, we are not bound to follow that finding in the 
adjudication of another immigration petition. See Louisiana Philharmonic Orchestra. 2000 WL 
282785 at *2. 
C. Ineffective Assistance of Counsel 
On appeal, the Petitioner asserts that previous counsel '"failed to adequately provide the appropriate 
information to the adjudicating officer to allow for a reasoned review. evaluation, and adjudication 
of the [petition]." The Board of Immigration Appeals (the Board) established a framework for 
asserting and assessing claims of ineffective assistance of counsel. See Matter of Lozada. 19 I&N 
Dec. 63 7 (BIA 1988), af['d, 857 F .2d 10 (I st Cir. 1988). 
Lozada sets forth the following threshold documentary requirements for asserting a claim of 
ineffective assistance: 
• A written affidavit of the Petitioner attesting to the relevant facts. The affidavit should 
provide a detailed description of the agreement with fonner counsel (i.e., the specific actions 
that counsel agreed to take), the specific actions actually taken by former counsel. and any 
representations that former counsel made about his or her actions. 
• Evidence that the Petitioner informed former counsel of the allegation of inetlective 
assistance and was given an opportunity to respond. Any response by prior counsel (or 
report of former counsel's failure or refusal to respond) should be submitted with the claim. 
• If the Petitioner asserts that the handling of the case violated fmmer counsel's ethical or legal 
responsibilities, evidence that the Petitioner tiled a complaint with the appropriate 
disciplinary authorities (e.g .. with a state bar association) or an explanation why the 
Petitioner did not tile a complaint. 
Id at 639. These documentary requirements are designed to ensure we possess the essential 
information necessary to evaluate ineffective assistance claim and to deter meritless claims. !d. 
Allowing former counsel to present his version of events discourages baseless allegations. and the 
requirement of a complaint to the appropriate disciplinary authorities is intended to eliminate any 
incentive for counsel to collude with his client in disparaging the quality of the representation. We 
may deny a claim of ineffective assistance if any of the Lozada threshold documentary requirements 
are not met. Castillo-Perez v. INS. 212 F.3d 518, 525 (9th Cir. 2000). As the Petitioner has not 
provided documents meeting the relevant evidentiary requirements set forth in Lozada. we will not 
further consider its ineffective assistance of counsel claim. 5 Regardless, as our review is de novo, 
we have considered the entire record including the new appellate arguments relating to the 
regulatory criteria at 8 C.F.R. § 204.5(h)(3) and comparable evidence under 8 C.F.R. § 204.5(h)(4). 
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We also note that present counsel has represented the Petitioner for both its motion on the Director's decision and its 
subsequent appeal, and thus has had opportunities to remedy any deficiencies in the information previous counsel 
provided to users. 
Matter of A-S-A-S-
III. CONCLUSION 
The Petitioner is not eligible because it has not submitted the required initial evidence for the 
Beneficiary demonstrating either a qualifying one-time achievement or documents that meet at least 
three of the ten criteria. As a result, we need not provide the type of tina! merits determination 
referenced in Kazarian, 596 F.3d at 1 I 19-20. Nevertheless, we advise that we have reviewed the 
record in the aggregate, concluding that it does not support a finding that the Petitioner has 
established the level of expertise required for the classification sought. For the foregoing reasons, 
the Petitioner has not shown that he qualifies for classification as an individual of extraordinary 
ability. 
ORDER: The appeal is dismissed. 
Cite as Matter ofA-S-A-S-, ID# 01 I 766 (AAO Jan. I 7, 2018) 
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