dismissed EB-1A Case: Makeup Art

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1'tTRT .lC COpy 
DATE: MAY 0 2 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. § IIS3(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.S(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.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, on December 16, 2010. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be summarily dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203 (b)(1 )(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b )(1 )(A), as an 
alien of extraordinary ability as a makeup artist. Congress set a very high benchmark for aliens of 
extraordinary ability by requiring through the statute that the petitioner demonstrate "sustained 
national or international acclaim" and present "extensive documentation" of his or her 
achievements. See section 203(b)(1)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). The 
implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can establish sustained 
national or international acclaim through evidence of a one-time achievement, specifically a major, 
internationally recognized award. Absent the receipt of such an award, the regulation outlines ten 
categories of specific evidence. 8 C.F.R. §§ 204.5(h)(3)(i) through (x). The petitioner must submit 
qualifying evidence under at least three of the ten regulatory categories of evidence to establish the 
basic eligibility requirements. 
In the director's decision, the director discussed the documentary evidence submitted by the 
petitioner and determined that the petitioner established eligibility for the awards criterion pursuant 
to the regulation at 8 C.F.R. § 204.5(h)(3)(i) but did not establish eligibility for the membership 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii) and the original contributions 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v). The petitioner did not claim 
eligibility for any of the other categories of evidence pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). Moreover, the director conducted a final merits determination in accordance 
with Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) and determined that the petitioner failed to 
demonstrate a (1) "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," 8 C.F.R. § 204.5(h)(2); 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." See section 203 (b)(1 )(A)(i) of the Act, 8 U.S.c. 
§ 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
On Form 1-290B, Notice of Appeal or Motion, counsel indicated in Part 2 that she was filing an 
appeal and her "brief and/or additional evidence will be submitted to the AAO within 30 days." 
In addition, in Part 3, counsel indicated that "[a]ll arguments will be discussed in the Legal Brief 
which will be filed with AAO within 30 days of the current filing." Counsel dated the appeal on 
January 13,2011. As of this date, approximately 15 months later, the AAO has received nothing 
further. 
On April 12, 2012, the AAO received a letter entitled "Supplemental Evidence" from counsel who 
stated: 
We believe that the extensive evidence submitted in support of the petition was 
sufficient to grant the approval of the petition. However, on 12116/2010 a denial of 
her petition was issued. On January 14, 2011 we filed an 1-290B appeal of the 
-Page 3 
petition denial and on February 14, 2011 we received notification that the case was 
transferred to your officer for further processing. 
We are hereby writing this letter to present to your attention some additional 
information which we believe might assist you in taking your decision. 
Counsel made no indication that she previously filed a brief in support of the appeal. Nonetheless, 
counsel submitted doc~e that the was approved for 0-1 
nonimmirant status on_ and , based on two separate petitions 
filed by l LLC and In addition, counsel submitted of the 
·tioner's paychecks from _ Inc. for pay l.I~l.lV'l", 
stated: 
and 
We urge you to consider the above information as additional evidence of [the 
petitioner's] extraordinary ability in the field of endeavor. We also urge you to 
consider the above information as evidence that [the petitioner] will be working in 
the future in her professional field as a makeup artist but not necessarily in the film 
and movie industry. Finally, we would like you to consider [the petitioner's] current 
compensation for services which is well above the normal in the field (please see the 
attached paychecks for [the petitioner's] current employment) and determine that 
[the petitioner] has satisfied the requirement for commanding "a high salary or other 
significantly high remuneration in relation to others in the field." 
Counsel does not challenge any of the director's specific findings regarding the membership 
criterion, the original contributions, and the final merits determination. Instead, as indicated above, 
counsel submits evidence of recent approvals for 0-1 nonimmigrant status. While USC1S has 
approved 0-1 nonimmigrant visa petitions filed on behalf of the petitioner, the prior approval does 
not preclude USC1S from denying an immigrant visa petition based on a different, if similarly 
phrased, standard. It must be noted that many 1-140 immigrant petitions are denied after USC1S 
approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 
25 (D.D.C. 2003); lKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin 
Brothers Co. Ltd v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USC1S spends less time 
reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant 
petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; 
see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) 
(finding that prior approvals do not preclude USC1S from denying an extension of the original visa 
based on a reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 191&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
suggest that USC1S or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Page 4 
Furthennore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Regarding counsel's reference to the high salary criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix), the petition was filed on November 12, 2010. However, the petitioner's 
employment with Keseff, Inc. commenced after the filing of the petition. Eligibility must be 
established at the time offiling. 8 C.F.R. §§ 103.2(b)(1), (12); Matter ofKatigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 
1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), 
that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." 
Id. at 176. Regardless, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires 
"[ e ] vidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field [emphasis added]." On appeal, counsel submitted no 
evidence that compared the petitioner's salary to others in her field. Rather, counsel claims that the 
petitioner's compensation "is well above the nonnal in the field." The unsupported statements of 
counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INSv. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). Counsel failed to establish that the 
petitioner meets the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix). Even if counsel 
were to prevail on this single issue, the petitioner still has failed to satisfy the antecedent regulatory 
requirement of three types of evidence. 
The regulation at 8 C.F.R. § 103.3(a)(I)(v) provides that "[a]n officer to whom an appeal is taken 
shall summarily dismiss any appeal when the party concerned fails to identify specifically any 
erroneous conclusion of law or statement of fact for the appeal." In this case, counsel has not 
identified as a proper basis for the appeal an erroneous conclusion of law or a statement of fact in 
the director's decision. Counsel offers no argument that demonstrates error on the part of the 
director based upon the record that was before her. 
As stated in the regulation at 8 C.F.R. § 103.3(a)(I)(v), an appeal shall be summarily dismissed if 
the party concerned fails to identify specifically any erroneous conclusion of law or statement of 
fact for the appeal. As counsel did not contest any of the specific findings of the director and offers 
no substantive basis for the filing of the appeal, the regulations mandate the summary dismissal of 
the appeal. 
ORDER: The appeal is dismissed.