dismissed EB-1A Case: Industrial Art Design

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
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Office: CALIFORNIA SERVICE CENTER Date: ,)AN 2 8 2009 
WAC 97 158 51 195 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 9 11 53@)(1)(~) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
.'I 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
tht doffice that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
F. ~rissov~ctin~ Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The employment-based immigrant visa petition was initially approved by the 
Director, California Service Center. Subsequently, the director issued a notice of intent to revoke 
(NOIR) the approval of the petition. In a Notice of Revocation (NOR), the director ultimately revoked 
the approval of the Immigrant Petition for Alien Worker (Form 1-140). The petitioner filed an appeal 
with the Administrative Appeals Office (AAO), which remanded the matter to the director for further 
action and consideration. The director again served the petitioner with a NOIR, and ultimately 
revoked the approval of the petition. The matter is now before the AAO on certification. The 
decision of the director will be affirmed, and the approval of the petition will remain revoked. 
Section 205 of the Act, 8 U.S.C. !j 1155, states, in pertinent part, that the Secretary of Homeland 
Security "may, at any time, for what he deems to be good and sufficient cause, revoke the approval 
of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of Immigration Appeals has stated: 
In Matter of Estime, . . . this Board stated that a notice of intention to revoke a visa petition is 
properly issued for "good and sufficient cause" where the evidence of record at the time the 
notice is issued, if unexplained and unrebutted, would warrant a denial of the visa petition 
based upon the petitioner's failure to meet his burden of proof. The decision to revoke will 
be sustained where the evidence of record at the time the decision is rendered, including any 
evidence or explanation submitted by the petitioner in rebuttal to the notice of intention to 
revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 
1987)). 
By itself, the director's realization that a petition was incorrectly approved is good and sufficient 
cause for the revocation of the approval of an immigrant petition. Id. The approval of a visa petition 
vests no rights in the beneficiary of the petition, as approval of a visa petition is but a preliminary 
step in the visa application process. Id. at 589. The beneficiary is not, by mere approval of the 
petition, entitled to an immigrant visa. Id. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. !j I1 53(b)(l)(A), as an alien 
of extraordinary ability in the arts. The director determined that the petitioner had not established the 
sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability and that he is recognized as one of that small percentage who have risen to the 
very top of his field. The petitioner did not respond to the director's notice of certification. 
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): 
Page 3 
(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. 
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 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means a level of 
expertise indicating that the individual is one of that small percentage who have risen to the very top 
of the field of endeavor. 
 8 C.F.R. 5 204.5(h)(2). 
 The specific requirements for supporting 
documents to establish that an alien has sustained national or international acclaim and recognition 
in his or her field of expertise are set forth in the regulation at 8 C.F.R. 5 204.5(h)(3). It should be 
reiterated that the petitioner must show that he has sustained national or international acclaim at the 
very top level. 
This petition, filed on May 15, 1997, seeks to classify the petitioner as an alien with extraordinary 
ability as an Industrial Art Designer. The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien 
can establish sustained national or international acclaim through evidence of a one-time achievement 
(that is, a major, internationally recognized award). Barring the alien's receipt of such an award, the 
regulation outlines ten criteria, at least three of which must be satisfied for an alien to establish the 
sustained acclaim necessary to qualify as an alien of extraordinary ability. A petitioner, however, 
cannot establish eligibility for this classification merely by submitting evidence that simply relates to 
at least three criteria at 8 C.F.R. 5 204.5(h)(3). In determining whether the petitioner meets a 
specific criterion, the evidence itself must be evaluated in terms of whether it is indicative of or 
consistent with sustained national or international acclaim. 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. 5 204.5(h)(2). 
As the facts and procedural history have been adequately documented in the previous decision of the 
AAO, we will only repeat certain facts as necessary here. On May 26, 2005, the AAO withdrew the 
director's October 7, 2004 NOR and remanded the petition for further action and consideration. In 
its decision, the AAO agreed with the director that petitioner had failed to demonstrate receipt of a 
major, internationally recognized award, or that he meets at least three of the criteria at 8 C.F.R. 
Page 4 
§ 204.5(h)(3). While the director's decision was couched in the pertinent statute, binding precedent, 
and regulations, the petitioner was not afforded an opportunit to address all of the derogatory findings 
cited in the May 12, 2000 investigative report (such as hs statements). As such, the 
matter was remanded to the director for the purpose of advising the petitioner of additional 
derogatory information from the investigative report and of additional deficiencies in his evidence 
for the regulatory criteria at 8 C.F.R. 
 204.5(h)(3). Upon remand, the director issued a NOIR on 
January 12, 2006, which informed the petitioner of the deficiencies in the record and afforded him 
the opportunity to submit further evidence. In response to the NOR, the petitioner resubmitted 
copies of documents already contained in the record. 
With regard to the investigative report's findings regarding the September 10, 1990 Certificate of 
Award for "First Prize in the 2nd Provincial Academic Achievement Competition" from the Science 
and Technology Association of Shandon Province, the documentation submitted by the petitioner 
does not overcome the statement from g Director of the Department of Profession, 
- 
indicating that the Manual of Industrial Art and Painting illustrated by the petitioner was not listed 
as a prize winner. The petitioner's response to the NOIR included an August 11, 2004 letter from 
Ex-Vice Secretary of the Shandong Academic Society of Arts and Crafts, stating that 
the prize certificate was mistakenly issued to the petitioner as a result of a clerical error of the 
Society. As the prize certificate submitted by the petitioner bears the seal of the Science and 
Technology Association of Shandong Province rather than the Shandong Academic Society of Arts 
and Crafts, we do not find 
 explanation to be credible. The petitioner has not submitted 
rebuttal evidence originating from the Science and Technology Association of Shandong Province or 
the Department of Profession confirming his receipt of a first prize in the aforementioned 
competition or the existence of the clerical error. Further, the petitioner has not submitted a credible 
explanation or evidence addressing the investigative report's finding that 
participate in the 4oth Anniversarv Commemorative Stamv Set 
''second Place prize" (as claimed i; the August 26, 1997 ~etier of ~eriication from m. 
is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless 
the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Id. at 59 1. 
On November 4, 2008, the director again revoked the approval of the petition, finding that the 
petitioner failed to demonstrate receipt of a major, internationally recognized award, or that he meets 
at least three of the regulatory criteria 8 C.F.R. tj 204.5(h)(3). The director certified his decision to 
the AAO for review and notified the petitioner that he could submit a brief to the AAO within 30 
days of service of the director's decision. To date, no further submission has been received. 
Accordingly, the record is considered to be complete as it now stands. 
Upon review, we concur with the director's findings. The relevant evidence as it relates to the 
regulatory criteria at 8 C.F.R. tj 204.5(h)(3) was discussed in the director's decision and in the 
previous decision of the AAO. The petitioner has submitted no new evidence since the issuance of 
Page 5 
the AAO's May 26, 2005 appellate decision. The evidence of record does not establish that the 
petitioner has distinguished himself to such an extent that he may be said to have achieved sustained 
national or international acclaim or to be within the small percentage at the very top of his field. 
Consequently, the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the 
Act and the petition may not be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. 
U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
As always, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. The burden remains with the petitioner in revocation proceedings to 
establish eligibility for the benefit sought under the immigration laws. Matter of Cheung, 12 I&N 
Dec. 71 5 (BIA 1968); Matter of Estime, 19 I&N Dec. at 452 n.l; Matter of Ho, 19 I&N Dec. at 589. 
Here, the petitioner has not sustained that burden. 
ORDER: 
 The director's decision of November 4, 2008 is affirmed. The approval of the petition 
remains revoked.