dismissed EB-1A Case: Make-Up Artist

identifying tJata deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
I'UBLICCOPY 
DATE: MAR 3 0 2012 
Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
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, 8 U.S.c. § 1153(b)(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 matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.goy 
-Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an alien of extraordinary ability as a make-up artist, pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary to 
qualify for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's 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 of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective 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, the petitioner submits a brief with additional documentary evidence. For the reasons 
discussed below, the AAO upholds the director's ultimate determination that the petitioner has not 
established his eligibility for the classification sought. 
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 (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if--
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
-Page 3 
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. 723 WIst Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. Id.; 
8 CF.R. § 204.5(h)(2). 
The regulation at 8 CF.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 one-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 CF.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. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court 
upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion. 1 With respect to the criteria at 8 CF.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." Id. 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)." Id. at 1122 (citing to 
8 CF.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. 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 c.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
-Page 4 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish his eligibility. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda v. U.S. Atty Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, 
No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the court found the 
plaintiffs claims to be abandoned as he failed to raise them on appeal to the AAO). Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion. 
Pllblished material abollt the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must primarily be about the petitioner and the contents must relate to the petitioner's work in 
the field under which he seeks classification as an immigrant. The published material must also appear 
in professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or international distribution and be published in a 
predominant national language. The final requirement is that the petitioner provide each published 
item's title, date, and author and if the published item is in a foreign language, the petitioner must 
provide a translation that complies with the requirements found at 8 C.F.R. § 103.2(b )(3). The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
The petitioner provided two articles titled: 
for the Perfonning Arts ... "; a segment on a news 
magazines featuring models for whom the petitioner applied the make-up. The director detennined that 
the petitioner failed to meet the requirements of this criterion. 
Regarding the article titled, ' the article is primarily about a Filipino-
nominee, While the petitioner is briefly mentioned within the article, 
IS not about him relating to his work in the field. Consequently, this article will not serve to 
meet the plain language requirements of this criterion. Regarding the article titled, "Showcase 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discussed in this decision. 
Page 5 
Academy for the Performing Arts ... ," the article is primarily about a performing arts academy, 
Showcase Academy. The petitioner is in a photograph accompanying the article, but the article is not 
about him relating to his work in the field. Articles that are not about the petitioner do not meet this 
regulatory criterion. See Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 1, 7 (D. Nev. Sept. 8, 2008) 
(upholding a finding that articles about a show are not about the actor). The petitioner is not even 
mentioned in the article itself. Instead, the article contains a photograph with a caption identifying the 
petitioner within the photograph. A caption accompanying a photograph that merely identifies the 
petitioner in the photograph is not published material about the petitioner relating to his work in the 
field. 
The petitioner also provided a news segment from news program 
based in California. Much like the article titled, the news clip is 
as she prepared for the Oscars. Although the petitioner's image appears in the clip, 
the reporter fails to even mention his name. As such, the material is not about the petitioner and his 
work in the field. Within the response to the director's request for evidence (RFE), counsel states, "the 
said video featured petitioner [ sic] Maximo as a world class talent and a well known Hollywood make­
up artist." (Emphasis in original.) As the petitioner is not highlighted, or even mentioned in the news 
segment, the petitioner's notoriety is not apparent in the video as counsel asserts. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Assoc. Cornrn'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Cornrn'r 1972)). 
Regarding the four photographs appearing in magazines, the regulation at 8 C.F.R. § 204.5(h)(3)(iii), 
plainly states, "Such evidence shall include the title, date, and author of the material, and any necessary 
translation." (Emphasis added.) The submitted evidence lacks all of the elements required by the last 
sentence of this criterion as these are not the type of titled, authored published material contemplated 
under this criterion. The plain language of the regulation requires an author, title, and date of the 
published material, which are present in written published works. The petitioner fails to provide 
documentary evidence of these required elements thereby disqualifying the submitted evidence. The 
petitioner did not submit any articles that are about him relating to his work in the field in one of the 
requisite publication types, including the title, date, and author of the material. 
In response to the director's RFE the petitioner also submitted two articles bearing the same text and 
title, "Maxi: Make Up Artist Extraordinaire." These articles both postdate the petition's filing date of 
August 27, 2009. A petitioner must establish eligibility at the time of filing; a petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Cornrn'r 1971). Therefore, a petitioner may not make material 
changes to a petition that has already been filed in an effort to make an apparently deficient petition 
conform to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1998). 
At the time of filing, the petitioner had not submitted evidence demonstrating eligibility under this 
criterion. 
-Page 6 
Additionally, even if one form of evidence listed above satisfied the plain language requirements of this 
criterion, the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires evidence of published material in 
"professional or major trade publications or other major media" in the plural, which is consistent with 
the statutory requirement for extensive evidence. Section 203(b)(I)(A)(i) of the Act. 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. USCIS, Civ. Act. No. 06-2158 (RCL) at *1, 
*12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at *1, *10 
(D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory requirement for "a" bachelor's 
degree or "a" foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) requires a single degree rather than a 
combination of academic credentials). 
Consequently, the petitioner has not submitted evidence that meets the plain language requirements of 
this criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same or an allied field of specification for which classification is sought. 
The director determined that the petitioner satisfied the plain language requirements of this criterion, of 
which the AAO concurs. 
Evidence of the alien's original scienttfic, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The plain language of this regulatory criterion contains multiple evidentiary elements that the petitioner 
must satisfy. The first is evidence of the petitioner's contributions (in the plural) to his field. These 
contributions must have already been realized rather than being potential, future contributions. The 
petitioner must also demonstrate that his contributions are original. The evidence must establish that the 
contributions are scientific, scholarly, artistic, athletic, or business-related in nature. The final 
requirement is that the contributions rise to the level of major significance in the field as a whole, rather 
than to a project, to an organization, or to a person. The phrase "major significance" is not superfluous 
and, thus, it has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 
(3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). Contributions of 
major significance connotes that the petitioner's work has significantly impacted the field. The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
The petitioner provides photos of and information relating to celebrities, the "published works in well­
known magazines" that the petitioner also claims under the published material criterion, certificates and 
Page 7 
letters of appreciation, and compact discs depicting some of the petitioner's work. Much of the 
evidence that the petitioner submitted relating to this criterion originates from Wikipedia. With regard 
to information from Wikipedia, there are no assurances about the reliability of the content from this 
open, user-edited internet site? See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 2008). 
As such, the AAO will not accept the evidence originating from Wikipedia as probative. The director 
determined that the petitioner failed to meet the requirements of this criterion. 
Regarding the evidence deriving from "published works in well-known magazines" that the petitioner 
also claims under the published material criterion, the regulations contain a separate criterion regarding 
published material. 8 C.F.R. § 204.5(h)(3)(iii). The AAO will not presume that evidence relating to or 
even meeting the published material criterion is presumptive evidence that the petitioner also meets this 
criterion. The regulatory criteria are separate and distinct from one another. Because separate criteria 
exist for published material and original contributions of major significance, uscrs clearly does not 
view the two as being interchangeable. To hold otherwise would render meaningless the statutory 
requirement for extensive evidence or the regulatory requirement that a petitioner meet at least three 
separate criteria. Thus, there is no presumption that every published work in a well-known magazine is 
a contribution of major significance in the field. 
Regarding the letter from at Black 
Entertainment Television (BET), indicates that the petltloner has provided his expert 
services on several shows and specials under the BET banner. She also indicates that BET's corporate 
communications department relies on the petitioner's experience. This reflects an impact on a single 
department, while the regulation requires contributions of major significance in the field as a whole. 
The letter from 
indicates that the petitioner is "the" make-up artist for her company. 
and projects in which she claims that the petitioner performed his work. This work reflects an impact 
on projects or for her company, while the regulation requires contributions of major significance in the 
field as a whole. She asserts that the petitioner "is one of the very few make-up artists in America who 
has gain [sic] wide-spread recognition for perfecting the craft of high definition makeup [sic] 
application and airbrushing." _ does not indicate that the petitioner developed this technique; 
therefore it is not considered an original contribution attributable to the petitioner. Additionally, the 
record lacks any evidence demonstrating that the petitioner's airbrushing technique is of major 
3 Online content from Wikipedia is subject to the following general disclaimer, "WIKIPEDIA MAKES NO 
GUARANTEE OF VALIDITY. Wikipedia is an online open-content collaborative encyclopedia, that is, a 
voluntary association of individuals and groups working to develop a common resource of human knowledge. 
The structure of the project allows anyone with an Internet connection to alter its content. Please be advised that 
nothing found here has necessarily been reviewed by people with the expertise required to provide you with 
complete, accurate or reliable information. . .. Wikipedia cannot guarantee the validity of the information found 
here. The content of any given article may recently have been changed, vandalized or altered by someone whose 
OpllllOn does not correspond with the state of knowledge in the relevant fields. See 
.bJJp:llen.\.Yik~gi.£!.,.QfglyyikiLJYik!pt;;Qill:Q.f::.nt;;r£!Ui.iscl~!i.ms:x, [accessed on March 20, 2012, a copy of which is 
incorporated into the record of proceeding.] 
-Page 8 
significance in the field or that it has influenced the field as a whole. Furthermore, the petitioner failed 
to provide documentary evidence to corroborate _ assertions of the petitioner's "wide-spread 
recognition for perfecting the craft of high definition makeup." Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter ofSoffici, 22 I&N Dec. at 165. 
The petitioner also submitted several additional reference letters praising his talents as a make-up artist 
and discussing his activities in the field. Talent and experience in one's field, however, are not 
necessarily indicative of original artistic contributions of major significance in the petitioner's field. 
Assuming the petitioner's make-up application 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 certification process. See Matter 
of New York State Dep't. of Transp., 22 I. & N. Dec. 215, 221 (Assoc. Comm'r 1998). It is not enough 
to be skillful and knowledgeable and to have others attest to those talents. An alien must have 
demonstrably impacted his field in order to meet this regulatory criterion. The reference letters 
submitted by the petitioner briefly discuss his skills as a make-up artist, but they do not provide specific 
examples of how the petitioner's work has significantly impacted or influenced the field at large or 
otherwise constitutes original contributions of major significance in the field. 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "self-serving." See, e.g., Matter of S-A-, 22 I&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 (BIA 1998). 
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. USCIS, 
580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010). In 2010, the Kazarian 
court reiterated that the AAO's conclusion that "letters from physics professors attesting to [the alien's] 
contributions in the field" was insufficient was "consistent with the relevant regulatory language." 596 
F.3d at 1122. The opinions of experts in the field are not without weight and have been considered 
above. While such letters can provide important details about the petitioner's skills, they 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 (Comm'r 1988). However, USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters from 
experts supporting the petition is not presumptive evidence of eligibility; USCIS may, as this decision 
has done above, 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 2008) (noting that expert opinion 
testimony does not purport to be evidence as to "fact"). USCIS may even give less weight to an opinion 
that is not corroborated, in accord with other information or is in any way questionable. Id. at 795; see 
also Matter of Soffici, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 
Page 9 
at 190). Thus, the content of the writers' 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. 
None of the letters from those in the entertainment industry indicates that the petitioner is the exclusive 
make-up artist that each celebrity uses. As celebrities take part in numerous engagements using 
different make-up artists at each event, it serves that not every make-up artist who applies make-up to a 
celebrity has inherently made a contribution of major significance to the field. It remains the 
petitioner's burden to document the actual impact of his work. The remaining photos, information 
relating to celebrities, and compact discs depicting the petitioner's work fails to demonstrate the manner 
in which the petitioner has impacted his field. 
In view of the foregoing, the petitioner has not submitted evidence that meets the plain language 
requirements of this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
This criterion contains multiple evidentiary elements the petitioner must satisfy. The plain language of 
this criterion requires that the work in the field is directly attributable to the alien. Additionally, the 
interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and has been 
upheld by a federal district court. See Negro-Plumpe, 2:07-CV-820-ECR-RJJ at 7 (upholding an 
interpretation that performances by a performing artist do not fall under 8 C.F.R. 
§ 204.5(h)(3)(vii)). The alien's work also must have been displayed at an artistic exhibitions or 
showcases (in the plural). While neither the regulation nor existing precedent speak to what constitutes 
an exhibition or a showcase, Merriam-Webster's online dictionary defines exhibition as, "a public 
showing (as of works of art).',4 Merriam-Webster's online dictionary also defines showcase as, "a 
setting, occasion, or medium for exhibiting something or someone especially in an attractive or 
favorable aspect."s Dictionaries are not of themselves evidence, but they may be referred to as aids to 
the memory and understanding of the court. Nix v. Hedden, 149 U.S. 304, 306 (1893). Therefore, it is 
the petitioner's burden to demonstrate that the display of his work in the field claimed under this 
criterion occurred at artistic exhibitions or at artistic showcases. The petitioner must satisfy all of these 
elements to meet the plain language requirements of this criterion. The director determined that the 
petitioner failed to meet the requirements of this criterion. 
The record does not establish that the locations where artists have appeared wearing the petitioner'S 
make-up, including television shows, parties and award ceremonies, are artistic exhibitions or 
showcases. As the petitioner is not one who has displayed his work at artistic exhibitions or showcases 
4 http://www.merriam-wcbstcr.com!dictionary!cxhibition. [accessed on March 20, 2012, a copy of which is 
incorporated into the record of proceeding.] 
5 hup.;L!.~~~,merri':lIJ)=~~J;?§J~I,corDiQj.\::.t!Q1!!!.O'!shQ_W,\;<:t~, [accessed on March 20, 2012, a copy of which is 
incorporated into the record of proceeding.] 
Page 10 
of make-up, he has not submitted qualifying evidence that meets the plain language requirements of the 
regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
Counsel's appellate brief asserts for the first time that the totality of the petitioner's eligibility claims 
constitutes evidence that the petitioner has performed in a leading or critical role for organizations that 
have a distinguished reputation. Counsel references the petitioner's roles for individuals and their 
projects. The plain language of this criterion, however, requires that the role be leading or critical for 
organizations and establishments, not simply individuals or their projects. Counsel does not identify the 
organizations or establishments for which the petitioner has performed in a leading or critical role. A 
review of the record of proceeding fails to reflect that the petitioner claimed eligibility for this criterion 
when filing the petition or in response to the RFE. The burden is on the petitioner to establish his 
eligibility and not on the director to infer or second-guess the intended criteria. As such, the director did 
not err in his decision as it relates to this criterion. As the director lacked the opportunity to evaluate 
and address the petitioner's leading or critical role claims, the AAO will not consider an issue that the 
petitioner raises for the first time on appeal. 
The purpose of the request for evidence is to elicit further information that clarifies whether the 
petitioner has established eligibility for the benefit sought as of the filing date of the petition. See 
8 C.F.R. §§ 103.2(b )(8) and (12). The director's RFE stated, "You may submit any available additional 
documentary evidence of acclaim which meets the criteria listed under 8 CFR 204.5(h)(3) & (4)." In 
the present matter, the director put the petitioner on notice that he could submit additional evidence that 
meets the criterion listed in 8 C.F.R. § 204.5(h)(3)(viii). If the petitioner had wanted the director to 
consider the submitted evidence under this criterion, he should have made that request in response to the 
director's request for evidence. See generally Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); 
Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Regardless, the AAO has already considered the 
evidence under the criteria to which the evidence directly relates. The AAO will not presume that 
evidence directly relating to one criterion is presumptive evidence that an alien meets a second criterion. 
Such a presumption would negate the statutory requirement for extensive evidence and the regulatory 
requirement that an alien meet at least three criteria. 
B. Comparable Evidence 
The regulation at 8 C.F.R. § 204.5(h)( 4) provides "[i]f the above standards do not readily apply to the 
[petitioner's] occupation, the petitioner may submit comparable evidence to establish the [petitioner's] 
eligibility." The petitioner requested that the director and the AAO consider the recommendation letters 
as comparable evidence. In order to properly claim comparable evidence, a petitioner must demonstrate 
that he is unable to qualify for this highly restrictive immigrant classification due to the nature of his 
occupation. The petitioner must explain why he is unable to submit evidence that satisfies the 
minimum number of regulatory criteria at 8 C.F.R. § 204.5(h)(3), and he must explain how the criteria 
are not directly relevant to his occupation. The petitioner may not simply claim comparable evidence in 
Page 11 
an attempt to garner a favorable determination on an additional regulatory criterion in an effort to 
bolster the number of criteria that he has satisfied. The regulatory language precludes the consideration 
of comparable evidence in this case, as there is no indication that eligibility for visa preference in the 
petitioner's occupation as a make-up artist cannot be established by the ten criteria specified by the 
regulation at 8 C.F.R. § 204.5(h)(3). In fact, the petitioner has claimed that numerous criteria directly 
apply to his occupation as follows: (1) at the time of the initial filing, the petitioner claimed that at least 
four of the criteria directly applied to his occupation; (2) in response to the RFE the petitioner claimed 
at least five criteria directly applied to his occupation; and (3) on appeal he again claims five criteria 
directly apply to his occupation. As a result, the petitioner has not demonstrated that he may claim 
comparable evidence in the present petition. 
Additionally, the petitioner must explain how the submitted evidence is comparable to the objective 
evidence required at 8 c'P.R. § 204.5(h)(3)(i)-(x) and he must specify under which criterion his 
evidence is comparable. Even if the petitioner was not precluded from claiming comparable evidence, 
he did not specify under which criterion the comparable evidence applies. Therefore, the AAO is 
unable to determine if the evidence is in fact comparable to the standards listed at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). Where an alien is simply unable to meet or submit documentary evidence 
satisfying at least three of these criteria, the plain language of the regulation at 8 c'P.R. § 204.5(h)(4) 
does not allow for the submission of comparable evidence. The AAO notes that the petitioner's 
recommendation letters were considered under the original contributions criterion pursuant to the 
regulation at 8 c'P.R. § 204.5(h)(3)(v). 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. 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. 
Had the petitioner 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 demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" 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.P.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 
Page 12 
final merits determination. 6 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(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 291 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. 
(, The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination 
as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section l03(a)(l) of 
the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 
(2003); 8 C.F.R. § 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that 
legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).