dismissed EB-1A Case: Industrial Design

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PITRLTC COPY 
U.S. Department of tlomeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdrninistrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
'd C- 
FILE: Office: NEBRASKA SERVICE CENTER Date: 10('7T 9 6 
rn LIN 08 045 50754 
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. $ 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
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. $ 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. $ 103.5(a)(l)(i). 
,uo~&dL 
n~errv Rhew 
*chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A), as an alien 
of extraordinary ability in industrial design.' 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. More specifically, the director found that the petitioner had failed to 
demonstrate receipt of a major, internationally recognized award, or that she meets at least three of 
the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
On appeal, previous counsel argues that the petitioner meets at least three of the regulatory criteria at 
8 C.F.R. 5 204.5(h)(3) and that she submitted comparable evidence her extraordinary ability 
pursuant to the regulation at 8 C.F.R. 5 204.5(h)(4). 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics whch 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 
' The petitioner was initially represented by 
 In tlus decision, the term 'previous counsel" shall 
refer to - 
in his or her field of expertise are set forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
she has sustained national or international acclaim at the very top level. 
This petition, filed on November 26, 2007, seeks to classify the petitioner as an alien with 
extraordinary ability as an industrial designer. At the time of filing, the petitioner was working for 
DSP Electronics, Inc. in San Francisco, California. In 2009, aside from her employment at DSP 
Electronics, Inc., the petitioner taught two Product Design classes at the Academy of Art University 
in San Francisco. 
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). The petitioner has submitted evidence pertaining to the following criteria under 
8 C.F.R. 5 204.5(h)(3).~ 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner submitted an October 29, 2007 letter from fi of Product 
Development, Home Automation, Inc., stating: 
Last year, we engaged [the petitioner] to develop the industrial design for a new thermostat 
home control systems [sic], which is now known as Omnistat2 Thermostat. Her new 
thermostat design solution integrates new look and feel, aesthetics and usability that is user 
friendly, easy to operate and control. It is ergonomic and efficient, and blends into the home 
environment. The design challenge for her was to develop an innovative design that would 
blend into a home dkcor, be it a wall paper or paint, without standing out or looking out of 
place. The unique and simple solution that [the petitioner] introduced has round edges and 
flat surfaces to prevent dust and dirt collection on the product. 
The final design reflects our initial goal of a stylish, elegant look and feel that would be 
appreciated by the largest segment of the market. 
2 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
As I have stated, [the petitioner] has done excellent work for our company on this product, 
and we have submitted the Omnistat2 Thermostat in the 2008 International CES [Consumer 
Electronics Show] Innovations Design and Engineering Awards competition. 
The petitioner also submitted material from the International CES internet site listing "Home 
Automation, Inc. Omnistat2" among eight "CES Innovations 2008 Awards Honorees" in the "Home 
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Appliances" category.3 The material states: 
 "The Omnistat2 is an advanced programmable, 
communicating thermostat. Features energy graphs, and easy-to-program scheduling, coupled with 
over one hundred backlight choices and three case choices: Black, White, and Silver." We note Mr. 
statement that the petitioner introduced a "unique and simple solution that . . . has round 
edges and flat surfaces to prevent dust and dirt collection on the product." Nothing in the product 
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description posted on the International CES internet site focuses on the design features for which Mr. 
specifically credits the petitioner with developing. Further, the preceding documentation 
indicates that "Home Automation, Inc. Omnistat2" received the honor rather than the petitioner. The 
plain language of this regulatory criterion, however, requires "documentation of the alien's receipt 
of lesser nationally or internationally recognized prizes or awards." [Emphasis added.] In this 
instance, there is no evidence from the competition's organizers showing that the petitioner received 
a prize or an award at the 2008 International CES or that the preceding honor focused primarily on 
features which she developed. It cannot suffice that the petitioner was one member of a large group 
of Omnistat2 product contributors that earned collective recognition. The petitioner does not address 
the contribution of Home Automation Inc.'s own engineering staff in developing the Omnistat2 
Thermostat. We cannot ignore information submitted by the petitioner from Home Automation 
Inc.'s internet site stating: "The Engineering Staff consistently receives awards for their design and 
creativity." One of the many forms of recognition received by Home Automation Inc.'s engineering 
staff and identified on the company's internet site is the 2008 CES Innovations Design and 
Engineering honor claimed by the petitioner. 
Even if the petitioner were to submit evidence demonstrating that this honor was primarily 
attributable to her design work, which she has not, she has not established that selection as a CES 
Innovations 2008 Design and Engineering Award Honoree constitutes a nationally or internationally 
recognized prize or award for excellence in the field of endeavor. The petitioner submitted 
information about the CES Innovations Design and Engineering Award program, but the self-serving 
nature of this material is not sufficient to demonstrate that selection as an honoree has a significant 
level of recognition beyond the context of the Consumer Electronics Association's CES. The plain 
language of the regulatory criterion at 8 C.F.R. 5 204.5(h)(3)(i) specifically requires that the petitioner's 
awards be nationally or internationally recognized and it is her burden to establish every element of this 
criterion. In the 2008 CES alone, multiple Innovations Design and Engineering Award honorees in 
each of 34 different categories were chosen and scores of products were bestowed this same honor. We 
cannot conclude that selection for an honor that is annually conferred upon a substantial number and 
percentage of product entries is indicative of national or international recognition in the field of 
industrial design. To find otherwise would contravene the regulatory requirement at 8 C.F.R. 
CES' selection of Home Automation, Inc.'s Omnistat2 Thermostat for this honor in November 2007 predates the filing 
of this petition. 
§ 204.5(h)(2) that this visa category be reserved for "that small percentage of individuals that have risen 
to the very top of their field of endeavor." Furthermore, among the eight honorees in the "Home 
Products" category in which the petitioner's product was recognized, we note that iRobot Corporation's 
Gutter Cleaning Robot earned the top honor in that category as a "Best of Innovations" recipient. 
Moreover, according to the "Rules and Eligibility" material submitted by the petitioner, companies 
participating in the CES Innovations Award program self-nominate their own products and must pay a 
substantial entry fee. For example, the "Regular Entry Fee" for non-members of the Consumer 
Electronics Association and non-exhibitors at the CES is $950. True awards for excellence in the 
field are generally not contingent upon payment of a fee. 
In response to the director's request for evidence, previous counsel states that "Ominstat2 received 
many more awards, among them: a 2008 Electronic House Product of Year, Innovative Housing 
Technology Award, CEDIA [Custom Electronics Design and Installation Association] 
Manufacturer's Excellence Finalist, one of the Best 100 New Products by Professional Builder 
Magazine." The record reflects that these awards were all conferred subsequent to May 2008, 
several months after the petition's November 26, 2007 filing date. On appeal, the petitioner also 
submits a Home Automation, Inc. press release dated March 19, 2009 stating that the Omnistat2 
Thermostat won a "2009 Mark of Excellence Award" from Consumer Electronics Association for 
"Best Green Product." Home Automation, Inc.'s Omnistat2 Thermostat was selected for and 
received the preceding honors subsequent to the petition's filing date. A petitioner, however, must 
establish eligibility at the time of filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N 
Dec. 45,49 (Regl. Commr. 1971). Accordingly, the AAO will not consider these honors from 2008 
in this proceeding. Nevertheless, there is no evidence showing that the petitioner herself received 
these honors or that they were primarily attributable to her work. For example, the material posted 
on the awarding organizations' internet sites focuses primarily on Omnistat2's precise temperature 
and humidity control technology rather than the petitioner's design features as discussed in 
letter. 
In light of the above, the petitioner has not established that she meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classzfication 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. 
The petitioner submitted a November 7, 2007 from 
 San Francisco Chapter, 
Industrial Designers Society of America (IDSA), stating that the petitioner is a member of IDSA. 
On appeal, the petitioner submits general information about the IDSA fiom its internet site, but there 
is no evidence (such as membership bylaws) showing the official admission requirements for the 
IDSA. In this case, there is no evidence showing that the IDSA requires outstanding achievements 
of its members, as judged by recognized national or international experts in the petitioner's field or 
an allied one. Accordingly, the petitioner has not established that she meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in thejield for which classzjcation is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner 
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. An alien would not earn acclaim at the national level fiom a local publication. 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.4 
In response to the director's request for evidence, the petitioner submitted product reviews, press 
releases, and descriptions for Omnistat2 posted on the internet sites of Electronic House, Mavromatic 
Blog, AS1 Home, SmartHome, HA1 Blog, This Week in Consumer Electronics, Embedded Computing 
Design, and Home Controls Inc. The petitioner also submitted marketing material prepared by Home 
Automation, Inc. about Omnistat2. The petitioner's response also included information about the Octet 
RED System posted on the internet site of its manufacturer, ForteBio. The petitioner also submitted a 
January 17, 2008 press release regarding Bio-Rad Laboratories, Inc.'s receipt of a patent for its 
BioOdyssey Calligrapher Miniarrayer and marketing material for the product. None of the preceding 
material is about the petitioner and almost all of it post-dates the filing of this petition. As discussed, a 
petitioner must establish eligibility at the time of filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not consider material published in 2008 or 
later in this proceeding. The plain language of this regulatory criterion requires "[plublished material 
about the alien in professional or major trade publications or other major media" including "the title, 
date, and author of the material." The documentation submitted by the petitioner does not meet the 
preceding requirements. With regard to the press releases, we note that those product announcements 
were not about the petitioner. Further, a press release is a written communication directed at the 
news media for the purpose of announcing information claimed as having news value rather than 
"published material . . . in professional or major trade publications or other major media." We cannot 
conclude that a press release, which is not the result of independent media reportage and which is sent 
4 
 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 of that county. 
to journalists in order to encourage them to develop articles on a subject, meets the plain language of 
this regulatory criterion. 
In addressing the evidence submitted by the petitioner for this criterion, the director's decision stated: 
In response to the USCIS' request for evidence, counsel contends that product reviews, 
marketing material and press releases about products which the petitioner has designed 
should be considered to meet the requirements of this criterion. While conceding that none of 
these contain a single mention of the petitioner, counsel argues that industrial designers 
rarely, if ever, receive this sort of recognition. However, none of the submitted evidence can 
be considered major trade publications or other major media. Press releases prepared by the 
manufacturer, advertising, and product reviews which appear on websites where the products 
are sold do not carry the same evidentiary weight as independently produced material which 
appears in major trade publications and major, national media. Further, the bulk of this 
material focuses on the technological innovations of the various products, and only briefly 
touches upon the industrial design elements for which the petitioner was responsible. 
We concur with the director's findings. On appeal, previous counsel argues that the preceding 
evidence should be considered as comparable evidence for this regulatory criterion. Previous 
counsel states: "The designers' names are neither published nor advertised. Even designers of the 
most successful gadgets that people use every day and consider prestigious remain largely 
anonymous." In support of this contention, previous counsel cites a September 11, 2008 letter from 
, San Francisco chapter, IDSA, which states that "industrial designers have a 
quiet but profound presence in almost everything people encounter during the day.'' 
The multiple deficiencies in the petitioner's evidence for this regulatory criterion have already been 
discussed. The ten criteria in the regulations are designed to cover different areas; not every 
criterion will apply to every occupation. Nevertheless, the letters of support submitted by the 
petitioner do not specifically address or establish the inapplicability of this regulatory criterion to the 
petitioner's occupation. In the absence of further evidence, we cannot conclude that the nature of the 
petitioner's occupation precludes published material about acclaimed industrial designers. The 
regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable evidence" only if the 
ten criteria "do not readily apply to the beneficiary's occupation." In this case, the regulatory 
language at 8 C.F.R. $ 204.5(h)(4) precludes the consideration of comparable evidence, as there is 
no evidence that eligibility for visa preference in the beneficiary's occupation cannot be established 
by the ten criteria specified by the regulation at 8 C.F.R. §204.5(h)(3). Where an alien is simply 
unable to meet three of the regulatory criteria, the plain language of the regulation at 8 C.F.R. 
5 204.5(h)(4) does not allow for the submission of comparable evidence. Further, we note that the 
statute and regulations require "extensive documentation" of "sustained national or international 
acclaim" for recognized achievements in the field. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
4 1153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). Previous counsel does not explain how the petitioner 
was purportedly able to achieve sustained national or international acclaim if the she remains "largely 
anonymous." 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the 
work of others in the same or an alliedJield of specification for which classzJication is 
sought. 
The regulation at 8 C.F.R. fj 204.5(h)(3) provides that "a petition for an alien of extraordinary ability 
must be accompanied by evidence that the alien has sustained national or international acclaim and 
that his or her achievements have been recognized in the field of expertise." The evidence submitted 
to meet this criterion, or any criterion, must be indicative of or consistent with sustained national or 
international a~claim.~ 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. 
fj 204.5(h)(2). 
On appeal, the petitioner submits a July 21, 2009 letter from , School 
of Industrial Design, Academy of Art University, stating: "It is my great pleasure to introduce [the 
petitioner], our Instructor for the FA 2009 semester. . . . [The petitioner] is a graduate of our 
department. She graduated in the spring of 2002. She has returned to our school and taught a 
successful IDS 41 1: Product Desim 6 in the s~ring: semester of 2009." The ~etitioner also submits an 
April 14, 2009 e-mail from 
 ~rdiuate School, Academy of 
Art University, inviting the petitioner to join the university's "Final Review Committee" to review the 
work of graduate students. The petitioner's appellate submission also includes a March 18, 2009 e-mail 
from thanking the petitioner for participating 
in the "IDSA Student Mixer Portfolio Review 2009." The petitioner also submits March 20, 2009 and 
April 3, 2009 e-mails from regarding the petitioner's participation in "the IDSA's 
Student Merit Award Selection process." The petitioner's submission also includes a September 28, 
2008 letter from confirming that the petitioner "reviewed portfolios for the IDSA-SF 
[San Francisco] 2008 Mixer." 
The petitioner's appointment as an instructor at Academy of Art University and her local reviews of 
students' work in the preceding instances post-date the filing of this petition. As discussed, a petitioner 
must establish eligibility at the time of filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 
I&N Dec. at 49. Accordingly, the AAO will not consider the preceding evidence in this proceeding. 
Nevertheless, the plain language of this regulatory criterion requires "[elvidence of the alien's 
participation . . . as a judge of the work of others in the same or an allied field of specification." We 
cannot conclude that evaluating students, who have not yet begun working in the field, meets this 
requirement. Further, the record does not include supporting evidence establishing the level of 
acclaim associated with performing reviews at these local student events. Internal review of student 
5 
 We note that although not binding precedent, this interpretation has been upheld in Yasar v. DHS, 2006 WL 778623 *9 
(S.D. Tex. March 24, 2006) and All Pro Cleaning Sewices v. DOL et al., 2005 WL 4045866 *11 (S.D. Tex. Aug. 26, 
2005). 
work is not indicative of or consistent with national or international acclaim and, thus, cannot serve to 
meet this criterion. Kazarian v. USCIS, 2009 WL 2836453, *5 (9th Cir. 2009). 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence of the alien's original scientzfic, scholarly, artistic, athletic, or business- 
related contributions of major signzjicance in thejield. 
The petitioner submitted letters of support from Bloomsbury Publishing, Qoop, Bio-Rad 
Laboratories, ForteBio, Bar Ilan University, Embarcadero Systems Corporation, Home Automation 
Inc., El A1 Airlines, and Ebril & Ebril expressing admiration for her design work. While the 
petitioner's design work has contributed in part to the marketability of her clients' products, there is 
no evidence demonstrating that her work constitutes original contributions of major significance in 
the industrial design field. In addressing the petitioner's evidence for this criterion, the director's 
decision stated: 
Evidence has been submitted which demonstrates that the petitioner has designed, or had a 
large part in designing, various products, including laboratory equipment, a thermostat, 
electronics accessories and a snowball launcher. While much evidence was submitted 
regarding her design of an e-book, there is no evidence that this product has gone to market 
or progressed beyond the design stage. Reference letters from the petitioner's clients indicate 
that they were pleased with her work, and that the products have done well in the 
marketplace, thanks in part to her efforts. The totality of this evidence indicates that the 
petitioner is a successful industrial designer, but does not support the conclusion that her 
work has had a major impact on the field of industrial design. 
We concur with the director's findings. The record lacks evidence showing that the petitioner has 
made original contributions that have significantly influenced or impacted the field of industrial 
design. For example, the record does not indicate the extent of the petitioner's influence on other 
industrial designers nationally or internationally, nor does it show that the field has somehow 
changed as a result of her work. According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's 
contributions must be not only original but of major significance. We must presume that the phrase 
"major significance" is not superfluous and, thus, that it has some meaning. While the beneficiary 
has helped improve the appearance and functionality of various products for companies that 
contracted her services, there is no evidence demonstrating that the design aspects specifically 
attributable to her are recognized beyond her employers and clients such that they equate to original 
contributions of major significance in the field. 
In this case, the letters of recommendation submitted by the petitioner are not sufficient to meet this 
criterion. These letters, while not without weight, cannot form the cornerstone of a successful 
extraordinary ability claim. USCIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 
1988). However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. Id. The submission of letters from experts supporting the 
petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters 
as to whether they support the alien's eligibility. See id. at 795. Thus, the content of the experts7 
statements and how they became aware of the petitioner'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 that one would expect of an industrial designer who has sustained national or 
international acclaim. Without extensive documentation showing that the petitioner's design work 
has been unusually influential, highly acclaimed throughout her field, or has otherwise risen to the 
level of original contributions of major significance, we cannot conclude that she meets this 
criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
In response to the director's request for evidence, the petitioner submitted information from the 
internet sites of ForteBio, Bio-Rad Laboratories, and Home Automation, Inc. reflecting that products 
for which the petitioner provided design services were displayed at trade shows, meetings, 
conferences, seminars, symposiums, and expositions in the biotechnology, consumer electronics, 
building, and security industries. The petitioner has not established that such events for facilitating 
the sale of a product in the biotechnology, consumer electronics, building, and security industries 
equate to the display of her work at artistic exhibitions or showcases in the field of industrial design. 
Further, the information fi-om the internet sites of ForteBio, Bio-Rad Laboratories, and Home 
Automation, Inc. indicates that the events displaying their products took place in 2008 and 2009. As 
discussed, a petitioner must establish eligibility at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not consider the events from 
2008 and 2009 in this proceeding. Aside fi-om its listing of 2008 and 2009 product display events, 
the ForteBio internet site included information indicating that its Octet System was marketed at 2007 
events such as the Octet User's Group Meeting in the Northeast, Bioprocess International 
Conference and Exhibition, New Products Online Webinars conducted by ForteBio, the Laboratory 
Robotics Interest Group Mid-Atlantic Technology Exhibition, the CHI PEGS Protein Engineering 
Summit, and the gth SAPA West Annual Conference. Nothing in ForteBio's events listing indicates 
that the petitioner's design work was the focus of these displays rather than the detection and 
analysis functionalities of the Octet System. Further, there is no evidence establishing that these 
product displays were consistent with sustained national or international acclaim at the very top of 
the petitioner's field or that such displays equate to the exclusive showcases of an artist's work that are 
contemplated by this regulation for visual artists. 
In addressing the evidence submitted for this criterion, the director's decision stated: 
In responding to USCIS' request for evidence, counsel contends that the display of products 
for which the petitioner can claim industrial design credit at domestic and international trade 
shows qualifies under this criterion. However, this criterion was written primarily for the 
visual arts. It has not been established that renting space at a trade exhibition is comparable 
to a significant, exclusive artistic showcase. Further, an exclusive, artistic exhibition not only 
Page 11 
recognizes the artist's work as significant, but serves to enhance the artist's acclaim. In the 
petitioner's case, as has been stressed by counsel in responding to USCIS' request for 
evidence, she received no acclaim or even acknowledgement by having these products 
displayed at trade shows. 
On appeal, previous counsel argues that the director's comment that the petitioner had not 
"established that renting space at a trade exhibition is comparable to a significant, exclusive artistic 
showcase" mischaracterizes information regarding the CES Innovations Design and Engineering 
Awards program. Previous counsel asserts that nowhere in the "Rules and Eligibility" material for the 
2009 CES Innovations Design and Engineering Awards program "does it state that honorees must rent 
the space to have their winning products shown." While we agree with counsel that the "Rules and 
Eligibility" material for the awards program does not expressly state that honorees must "rent" space at 
the International CES, the "Entry Fees" section on page one of the "Rules and Eligibility" material 
indicates that all participants in the CES Innovations Design and Engineering Awards program must 
pay non-refundable entry fees. For example, the "Regular Entry Fee" for exhibitors and non-members 
of the Consumer Electronics Association at the International CES is $650. Accordingly, the evidence 
submitted by the petitioner indicates that all participants paid an entry fee for taking part in the CES 
Innovations Design and Engineering Awards program. 
We further note that awards program honorees that are non-exhibitors at the International CES are 
precluded from display in the Innovations Showcase. Thus, unless a company whose product was 
honored has exhibited that product at the International CES, it cannot be displayed in the Innovations 
Showcase. On page 5, under "Product Entry Rules," the "Rules and Eligibility" material states: 
Selected products must also be available for display in the Innovations Showcase at the Sands 
Expo and Convention Center at the 2009 International CES, held January 8-1 1, 2009 in Las 
Vegas, Nevada. However, non-exhibitor honoree products will not be included for display in 
the innovations 2009 Design and Engineering Showcase at the International CES. 
[Emphasis added.] 
With regard to the director's observation about "renting space," the petitioner has not submitted 
evidence from the International CES organizers to refute the conclusion that companies whose products 
were displayed in the Innovation Showcase were required to have paid a separate fee as exhibitors at the 
International CES. We cannot conclude that selection for an Innovations Showcase which was 
contingent upon an award program entry fee andlor having paid for space as a trade show exhibitor 
equates to the exclusive showcases of an artist's work that are contemplated by this regulation for visual 
artists. 
Finally, although selection of Home Automation, Inc.'s Omnistat2 Thermostat as a 2008 CES 
Innovations Design and Engineering Awards program honoree in November 2007 pre-dates the 
filing of this petition, the honorees were not displayed at the International CES until January 7-10, 
2008. 
 As discussed, a petitioner must establish eligibility at the time of filing. 
 8 C.F.R. 
98 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not 
consider Home Automation, Inc.'s Omnistat2 Thermostat display at the International CES in January 
2008 in this proceeding. 
With regard to the director's observation that the petitioner herself "received no acclaim or even 
acknowledgement by having these products displayed at trade shows," previous counsel states: 
"Simply because her name is not known or readily attached to her products, it does not mean that she 
did not distinguish herself through her work." As discussed, the statute and regulations require 
"extensive documentation" of "sustained national or international acclaim" for recognized achievements 
in the field. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. tj 1153(b)(l)(A)(i), and 8 C.F.R. 
8 204.5(h)(3). Previous counsel does not explain how the petitioner was purportedly able to achieve 
sustained national or international acclaim if "her name is not known" or recognized throughout the 
field. Accordingly, we concur with the director's observation. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
At issue for this criterion are the position the petitioner was selected to fill and the reputation of the 
entity that selected her. In other words, the position must be of such significance that the alien's 
selection to fill the position, in and of itself, is indicative of or consistent with national or international 
acclaim. 
The petitioner submitted a November 14, 2007 letter from 
 of DSP Electronics, 
Inc., stating: 
DSP Electronics, Inc. design group is a creative product design and innovation consulting 
firm that specializes in product design development, prototyping, and engineering. DSP was 
founded in 2003 in San Francisco, California. DSP Electronics Inc. provides full product- 
development services and design strategy from concept development to production. We offer 
extensive knowledge and experience of design and development solutions to companies that 
want to extend their brand's identity into the future technology environments. Our industrial 
design team specializes in bestowing emotional appeal on physical products, and bringing a 
new look and feel to customers' products. 
I have been [the petitioner's] direct manager for nearly 3 years; [the petitioner] assumed a 
leadership role in running the Industrial Design department to improve DSP's project 
management efficiency and productivity. She is the core asset of DSP Electronics. [The 
petitioner] develops unique design solutions, has a wealth of knowledge, and conducts 
comprehensive research and studies on each of our customer projects. She has an exceptional 
understanding of fundamental design disciplines, including form, color and graphics. 
As if it weren't enough, [the petitioner] is also immensely instrumental in other areas. She is 
[sic] frequently works with the marketing team resolving product marketing issues, where 
she puts to a further use her wide knowledge and experience in fields of biomedicine and 
pharmaceuticals, security, consumer electronics, engineering, ergonomic, and materials. She 
is consistent in tackling all her assignments with dedication and utmost professionalism, is 
very well respected by her peers and always strives to improve on her work and knowledge. 
There is no evidence showing that DSP Electronics, Inc. has a distinguished reputation. Further, while 
the letter fiomstates that the petitioner assumed a leadership role in running the Industrial 
Design department, the petitioner has not submitted an organizational chart or other similar evidence 
showing the petitioner's position in relation to that of the other managers employed by DSP 
Electronics, Inc. The documentation submitted by the petitioner is not sufficient to demonstrate that 
her role is leading or critical to the company as a whole. 
The petitioner also submitted letters of support from Bloomsbury Publishing, Qoop, Bio-Rad 
Laboratories, ForteBio, Embarcadero Systems Corporation, Home Automation Inc., El A1 Airlines, 
and Ebril & Ebril discussing the petitioner's work for them on various design projects. The record 
adequately demonstrates that El A1 Airlines and Bloomsbury Publishing have a distinguished 
reputation. With regard to the remaining companies, aside from their own self-serving marketing 
material, the record lacks evidence demonstrating that they have distinguished reputations. While 
the letters of support indicate that the petitioner performed admirably in providing design services to 
the preceding companies, there is no evidence demonstrating that her role was leading or critical to their 
overall operations, particularly since she was not a direct employee and her work for them was only 
temporary or contractual. There is no evidence demonstrating how the petitioner's role differentiated 
her from the companies' internal engineering and marketing staff, let alone the original inventors of 
their products and the companies' top management. In this case, the documentation submitted by the 
petitioner does not establish that she was responsible for the success or standing of the preceding 
companies to a degree consistent with the meaning of "leading or critical role" and indicative of 
sustained national or international acclaim. 
The petitioner also submitted company and product information for Vernier Networks and Fabric 7 
Systems, but there are no letters of support from these companies discussing the nature of the 
petitioner's role for them. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofjci, 22 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of Calz$ornia, 14 I&N Dec. 190 
(Reg. Comm. 1972)). 
On appeal, the petitioner submits a July 21, 2009 letter from stating that the petitioner 
began teaching courses at Academy of Art University in 2009. The petitioner's appointment as an 
instructor at Academy of Art University post-dates the filing of the petition. 
 As discussed, a 
petitioner must establish eligibility at the time of filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not consider the petitioner's role as an 
instructor in this proceeding. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
The petitioner submitted letters of support and other information from Bio-Rad Laboratories, 
ForteBio, Bar Ilan University, and Home Automation Inc. discussing the marketability and potential 
of products for which the petitioner provided design services. The petitioner's field, however, is not 
"in the performing arts." Nevertheless, the petitioner has not submitted documentation showing 
specific sales figures for her products or that their commercial success was primarily attributable to 
her design work. Accordingly, the petitioner has not established that she meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate her 
receipt of a major, internationally recognized award, or that she meets at least three of the criteria 
that must be satisfied to establish the national or international acclaim necessary to qualify as an 
alien of extraordinary ability. 8 C.F.R. 5 204.5(h)(3). The conclusion we reach by considering the 
evidence to meet each criterion separately is consistent with a review of the evidence in the 
aggregate. Even in the aggregate, the evidence does not distinguish the petitioner as one of the small 
percentage who has risen to the very top of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). 
On appeal, previous counsel states that the September 11, 2008 letter from 
 and a 
September 10, 2008 letter fi-om 
 as comparable evidence pursuant 
to the regulation at 8 C.F.R. 5 
 states that he "had the opportunity to review 
[the petitioner's] work and portfolio" and that she "is a uni uel accomplished, highly skilled and 
very talented professional in Industrial Design." qy states: "What separates [the 
petitioner] from her peers is that almost all of her designs have been implemented, and either 
successfully produced and marketed, or are currently in production." The petitioner has not 
established that her ability to secure employment and to successfully perform the duties assigned by 
her clients are comparable to achievements and recognition consistent with sustained national or 
international acclaim at the very top of her field. Nevertheless, the regulatory language at 8 C.F.R. 
5 204.5(h)(4) precludes the consideration of comparable evidence in this case, as there is no 
indication that eligibility for visa preference in the petitioner's occupation cannot be established by 
the ten criteria specified by the regulation at 8 C.F.R. 5 204.5(h)(3). For instance, the petitioner does 
not specifically address why the "high salary" criterion at 8 C.F.R. 5 204.5(h)(3)(ix) does not readily 
apply to her occupation. 
In evaluating the reference letters, we note that letters from independent references who were 
previously aware of the petitioner through her reputation in the field of industrial design are far more 
persuasive than letters fi-om her local colleagues (such as her current supervisor at the Academy of 
Art University in San Francisco and the Chair of the San Francisco Chapter of IDSA) responding to 
a solicitation to review her design portfolio and to provide an opinion based solely on this review. 
Ultimately, evidence in existence prior to the preparation of the petition carries greater weight than 
new materials prepared especially for submission with the petition. An individual with sustained 
national or international acclaim should be able to produce unsolicited materials reflecting that 
acclaim. Vague, solicited letters from local colleagues or letters that do not specifically identify 
contributions or how those contributions have influenced the field are insufficient. Kazarian v. 
USCIS, 2009 WL 2836453, *5 (9'" Cir. 2009). While reference letters may provide useful information 
about an alien's qualifications or help in assigning weight to certain evidence, such letters are not a 
substitute for objective evidence of the alien's achievements and recognition as required by the statute 
and regulations. The nonexistence of required evidence creates a presumption of ineligibility. 8 C.F.R. 
5 103.2(b)(2)(i). Further, the classification sought requires "extensive documentation" of sustained 
national or international acclaim and recognized achievements in the field. See section 
203(b)(l)(A)(i) of the Act, 8 U.S.C. 4 1153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). The commentary 
for the proposed regulations implementing the statute provide that the "intent of Congress that a very 
high standard be set for aliens of extraordinary ability is reflected in this regulation by requiring the 
petitioner to present more extensive documentation than that required for lesser classifications. 56 
Fed. Reg. 30703, 30704 (July 5, 1991). Primary evidence of achievements and recognition is of far 
greater probative value than the opinions expressed by one's professional acquaintances. 
Review of the record does not establish that the petitioner has distinguished herself to such an extent 
that she may be said to have achieved sustained national or international acclaim or to be within the 
small percentage at the very top of her field. The evidence is not persuasive that the petitioner's 
achievements set her significantly above almost all others in her field at a national or international 
level. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(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. $ 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. US. 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). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.