dismissed EB-1A Case: Makeup Artist And Stylist

(b)(6)
JUN 0 1 2015 
DATE: 
IN RE: Petitioner: 
Beneficiary: 
FILE#: 
PETITION RECEIPT #: 
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 
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: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision. The Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
Thank you, 
. c-p 
�!f:;c-
Ron Rosenberg 
Chief, Administrative Appeals Office. 
REV 3/2105 www.uscis.gov 
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DISCUSSION: The Director, Texas 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 makeup artist and stylist, 
pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(A), which makes visas available to petitioners who can demonstrate their extraordinary 
ability through sustained national or international acclaim and whose achievements have been 
recognized in their field through extensive documentation. Section 203(b)(l)(A)(i) of the Act limits 
this classification to petitioners with extraordinary ability in the sciences, arts, education, business, 
or athletics. In response to the director's request for evidence (RFE), the petitioner asserted that he 
is "in the field in the Arts and Entertainment industry, particularly as a Make Up Artist/Stylist." The 
director determined that the petitioner had not satisfied the initial evidentiary requirements set forth 
at 8 C.F.R § 204.5(h)(3), which requires documentation of a one-time achievement or evidence that 
meets at least three of the ten regulatory criteria. 
On appeal, the petitioner asserts that he meets the criteria under the regulations at 8 C.P.R. 
§ 204.5(h)(3)(iii), (viii) and (x). For the reasons discussed below, we agree with the director that the 
petitioner has not established his eligibility for the classification. Specifically, the petitioner has not 
submitted qualifying evidence of a one-time achievement pursuant to 8 C.P.R. § 204.5(h)(3), or 
evidence that satisfies at least three of the ten regulatory criteria set forth in the regulations at 
8 C.P.R. § 204.5(h)(3)(i)-(x), or comparable evidence under the regulation at 8 C.P.R. § 204.5(h)(4). 
As such, the petitioner has not demonstrated that he is one of the small percentage who is at the very 
top in the field of endeavor, and that he has sustained national or international acclaim. See 8 C.P.R. 
§ 204.5(h)(2), (3). Accordingly, we will dismiss the petitioner's appeal. 
I. 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, 
� � ��- � ·��-� - - -· - � ��������------------
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(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 H.R. 723 101st 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. Jd.; 8 C.F.R. § 204.5(h)(2). 
· 
The regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can 
demonstrate his sustained acclaim and the recognition of his achievements in the field through 
evidence of a one-time achievement (that is, a major, internationally recognized award). If the 
petitioner does not submit this evidence, then he must submit sufficient qualifying evidence that 
meets at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) or f 
comparable evidence pursuant to 8 C.F.R § 204.5(h)(4). 'f 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination); see also Rijal v. 
USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of 
Kazarian), aff'd, 683 F.3d. 1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 
(D.D.O. 2013) (finding that USCIS appropriately applied the two-step review); Matter of Chawathe, 
25 I&N Dec. 369, 376 (AAO 2010) (holding that the "truth is to be determined not by the quantity of 
evidence alone but by its quality" and that USCIS examines "each piece of evidence for relevance, 
probative value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true"). 
II. ANALYSIS 
A. English Translations of Foreign Language Documents 
The record includes a number of foreign language documents. The petitioner has not submitted 
English translations for the foreign language documents that meet the regulatory requirements under 
8 C.F.R. § 103.2(b)(3). The regulation provides, "Any document containing foreign language 
submitted to USCIS shall be accompanied by a full English language translation which the translator 
has certified as complete and accurate, and by the translator's certification that he or she is 
competent to translate from the foreign language into English." In his initial filing and on appeal, 
the petitioner has submitted a Certification of Translator Competence. The version the petitioner 
... .. . · · -- - -- -- - --- - --- -- -� -- -----·-·-- -· ----------------------
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submits on appeal is a photocopy of the initial certificate. The certificate, however, does not affirm 
that the English translations provided are "complete," as required under the regulation. A review of 
the English translations in the record indicates that the translations are not full English translations or 
complete translations. For example, the English translation entitled "Advertisement," relating to a 
product called , does not include multiple sentences that 
appear in the foreign language document. Similarly, a review of the English translation entitled 
"Advertisement," relating to s foundation color wheel, shows that the translation lacks 
information - including a quote - that appears in the foreign language document. 
Moreover, as part of his initial filing, the petitioner submitted translations of materials that he 
asserted have appeared in . A comparison between the foreign language documents 
and the English translations show that the translations are not complete. For example, the translation 
entitled "' _ " provides only the petitioner's biographic information, while the 
foreign language document appears to include five other individuals' biographic information. The 
English translation of the document also appears to include content that does not appear in the 
foreign language document. Specifically, the English translation includes two paragraphs discussing 
the individuals serving on the jury of a competition. The foreign language document does not 
include these paragraphs. In addition, the English translations of the photographic materials that also 
appeared in omit credits that appear in the foreign language documents. The 
translations for these materials are all entitled, "Translation Excerpt," indicating that the translations 
are not complete. Similarly, the English translation for a article entitled " 
, "' is also an incomplete translation of the original foreign 
language material. Specifically, the foreign language document contains one-page of text with 
multiple paragraphs. The English translation. however. contains two full sentences. The petitioner 
has included an English translation entitled "' " The foreign language 
document includes five paragraphs. The English translation, however, has three paragraphs. This 
English translation also includes a "Translation Excerpt" notation. 
As noted, the regulation requires the petitioner to submit full English translations and a translator 
certificate affirming that the translations are complete and accurate. The petitioner has not submitted 
full English translations or a translator's affirmation that meet the regulatory criterion. In addition, 
while the single blanket certificate names the petitioner, it does not list the translations it certifies 
and the translations themselves bear no indicia of who completed them. As such, the certificate is 
not probative evidence that the translator of each of the translations in the record has certified the 
translation. Accordingly, the foreign language documents in the record, and the accompanying 
English translations, do not have any evidentiary weight and they do not constitute evidence 
establishing the petitioner's eligibility. In the alternative, as discussed below, even if we are to 
consider the deficient English translations, they do not establish the petitioner's eligibility for the 
classification. 
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B. Evidentiary Criteria1 
Under the regulation at 8 C.F.R. § 204.5(h)(3), the petitioner, as initial evidence, may present 
evidence of a one-time achievement that is a major, internationally recognized award. In this case, 
the petitioner has not asserted or shown through his evidence that he is the recipient of a major, 
internationally recognized award at a level similar to that of the Nobel Prize. As such, as initial 
evidence, the petitioner must present at least three of the ten types of evidence under the regulations 
at 8 C.F.R. § 204.5(h)(3)(i)-(x) to meet the basic eligibility requirements. 
Published material about 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. 8 C.F. R. 
§ 204.5(h)(3)(iii). 
The director concluded that the petitioner met this criterion. Had we considered the uncertified 
translations in the record, we would agree with the director that the petitioner has met this criterion. 
The petitioner has submitted uncertified translations for a number of published materials. For most 
of the submitted materials, the petitioner has not shown that they are about him, relating to his work, 
or that they are published in professional or major trade publications or other major media. The 
record does include uncertified translations for two articles entitled " 
' 
i '" and " " that are about the petitioner, relating to his work 
as a makeup artist and stylist. In his initial filing, the petitioner asserted that • is the Sunday 
of the newspaper 
· 
which according to 
.htm and http://www. com/ is one of the major 
in As discussed, however, as the petitioner has not submitted English 
translations that meet the regulatory requirements under 8 C.F.R. § 103.2( b)(3); the uncertified 
translations in the record do not have probative value. 
Accordingly, the petitioner has not submitted published material about him in professional or major 
trade publications or other major media, relating to his work in the field for which classification is 
sought. The petitioner has not met this criterion with probative evidence. See 8 C.F.R. 
§ 204.5(h)(3)(iii). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
The director concluded that the petitioner met this criterion. The evidence in the record does not 
support this conclusion. As noted, we may deny an application or petition that does not comply with 
the technical requirements of the law even if the director does not identify all of the grounds for 
1 We have reviewed all of the evidence the petitioner has submitted and will address those criteria the petitioner claims 
to meet or for which the petitioner has submitted relevant and probative evidence. 
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denial in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 
1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. Dep 't of Justice, 381 
F.3d 143, 145-46 (3d Cir. 2004) (noting that we conduct appellate review on a de novo basis). 
The petitioner asserts that he has performed a leading or critical role for 
which is part of . In support of this assertion he has submitted two letters from 
Manager Cosmetic Division for Both letters are dated December 20, 
2013. The letters, however, provide conflicting information on what position the petitioner held 
with the organization. According to the letter initially submitted in support of the petition and 
appearing on letterhead, Ms. states: 
[The petitioner] served as the Director of our Training Department in 2009 and 
continues to work with our company through his various endeavors. As our Director 
of Training, [the petitioner] helped develop and create new makeup as well as drive 
sales for our brand. His work was placed in the largest and most important pharmacy 
chains in and 
According Ms. 
stamp: 
' letter submitted on appeal and which is not on letterhead but bears a 
[The petitioner] served as the Director of our Entertainment Department in 2009 and 
continues to work with our company through his various endeavors. As our Director 
of Entertainment, [the petitioner] helped develop and create new makeup as well as 
drive sales for our brand. His work was placed in the largest and most important 
pharmacy chains in and 
According to the petitioner's resume, initially submitted in support of his petition, in 2009, he was 
an Entertainment Manager, "[a] Manager & Creator of the Entertainment Department of the 
in the area of Makeup and Sales for the biggest pharmacy chains in & 
" 
The petitioner has provided inconsistent evidence from two letters bearing the same date on what 
position he held with and/or its parent company in 2009. "[I]t is 
incumbent upon the petitioner to resolve the inconsistencies by independent objective evidence. 
Attempts to explain or reconcile the conflicting accounts [or evidence], absent competent objective 
evidence pointing to where the truth, in fact, lies, will not suffice." Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). The petitioner has provided no such evidence to explain or reconcile the 
inconsistent evidence. As the petitioner has submitted inconsistent evidence on the position he held, 
he has not shown that he has performed a leading or critical role for either or 
Moreover, the petitioner has not submitted sufficient evidence showing that. and 
. the petitioner's company, constitute organizations or establishments that have 
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a distinguished reputation. Specifically, the evidence submitted to show the reputation of_ 
is from the publication itself or individuals associated with the publication. Such self­
promotional evidence has minimal evidentiary value. See Braga v. Poulos, No. CV 06-5105 SJO 10, 
2007 WL 9229758, at * 1, 6-7 (C.D. Cal. July 6, 2007), aff'd, 317 F. App'x 680 (9th Cir. 2009) 
(concluding that we did not have to rely on the promotional assertions on the cover of a magazine as 
to the magazine's status as major media). The petitioner has not supported the self-promotional 
evidence with more independent evidence. Moreover, the petitioner has submitted evidence relating 
to , while he asserts that he performs a leading or critical role for . , which is 
localized edition in The petitioner has not shown that founded over 70 
years ago in Spain, shares the same reputation as , launched in 2012 in 
Similarly, the petitioner has not shown that his company, , is an organization or establishment 
that has a distinguished reputation. The evidence submitted to show the reputation of is from 
the petitioner's business partner and from a handful of· 's clients. including 
Editor in Chief of , Director of .; and , a 
disc jockey (DJ). Letters from a few of 's clients indicate that these clients are pleased with the 
company's work. They are, however, insufficient to demonstrate that has a distinguished 
reputation. 
Accordingly, the petitioner has not submitted evidence that he has performed in a leading or critical 
role for organizations or establishments that have a distinguished reputation. The petitioner has not 
met the criterion. See 8 C.F.R. § 204.5(h)(3)(viii). 
Evidence of commercial successes in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x). 
On appeal, the petitioner asserts that he meets this criterion. The plain language of the criterion 
indicates that the criterion applies only to individuals who are in the performing arts. The petitioner 
has not shown that his occupation as a makeup artist and stylist is in the performing arts. In 
addition, the plain language of the criterion requires evidence relating to "box office receipts or 
record, cassette, compact disk, or video sales." The petitioner has not submitted any of the types of 
evidence listed in the criterion. Accordingly, the petitioner has not presented evidence of 
commercial successes in the performing arts, as shown by box office receipts or record, cassette, 
compact disk, or video sales. The petitioner has not met this criterion. See 8 C.F.R. 
§ 204.5(h)(3)(viii). 
If the above standards do not readily apply to the beneficiary's occupation, the petitioner may 
submit comparable evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5( h)(4). 
In his initial filing, the petitioner asserted that he has presented comparable evidence. On appeal, the 
petitioner asserts that he meets the commercial successes in the performing arts criterion under 
8 C.F.R. § 204.5(h)(3)(viii) through the submission of comparable evidence. Specifically, the 
petitioner asserts that his involvement in a advertising campaign had resulted 
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in commercial success. The petitioner has not demonstrated that the criteria listed at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) do not readily apply to his occupation as a makeup artist and stylist. In his initial 
filing, the petitioner asserted that the commercial success in the performing arts criterion is not 
readily applicable to his occupation. We agree that this criterion does not readily apply to the 
petitioner's occupation because the criterion relates only to those who are in the performing arts, and 
a makeup artist and stylist is not in the performing arts field. 
Even allowing that the petitioner may submit comparable evidence based on a showing that only one 
criterion does not readily apply to his occupation, he has not shown that he has submitted evidence 
comparable to evidence that would meet the commercial successes in the performing arts criterion 
under 8 C.F.R. § 204.5(h)(3)(x). See 8 C.F.R. § 204.5(h)(4). 
According to Ms. ' two letters, both dated December 20, 2013, the petitioner's name and 
picture were used in .' s advertisement campaigns and printed on product 
packaging and resulted in "a major success for '' In the letter submitted on 
appeal, Ms. states "the actual placement of [the petitioner] on the packaging of products 
dramatically increased our sales for these products." Ms. , however, did not include this 
sentence in the letter initially submitted in support of the petition. Both letters further state that the 
petitioner "has repeatedly been [sicl helped propel our products into the top sellers." Other than the 
conclusory statements in Ms. :' letters, the record lacks specific evidence - evidence 
comparable to box office receipts or record, cassette, compact disk, or video sales - showing that the 
petitioner's involvement with certain advertisement campaigns and/or the use of the petitioner's 
name and picture on product packaging have resulted in commercial successes. Going on record 
without supporting documentary evidence is not sufficient for the purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) (citing 
Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The record includes a number of charts and diagrams. They relate to the overall sales of 
products. They do not provide specific information on the sale of products that the petitioner has 
promoted, endorsed or developed. offers a variety of products to consumers. Evidence 
relating to the overall sales of the company does not constitute evidence of commercial successes 
that could be attributed to the petitioner, who was involved in an unspecific and limited number of 
products and advertisement campaigns for 
The petitioner has also submitted evidence relating to ' According to a September 18, 2014 
letter from the petitioner's business partner, the petitioner secured five important 
clients for and "took to the next level in terms of commercial success." The letter further 
provides that "[t]hanks to the dedicated and professional efforts of [the petitioner], our business 
surpassed expectations in terms of revenue, achieving a 40% increase year after year." Neither Ms. 
nor the petitioner has submitted evidence comparable to box office receipts or record, 
cassette, compact disk, or video sales that demonstrates that the petitioner's involvement in the 
company resulted in commercial successes. The record lacks specific evidence relating to 's 
revenue or profits. A 40 percent annual increase in revenue, without actual revenue or profit figures, 
------------------- -------- -----------
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does not indicate that the business is a commercial success or that it is profitable. Similarly, 
acquiring clients, without evidence of revenue or profits derived from those clients, does not signify 
that the business is a commercial success. 
The petitioner has submitted letters from Mr. of, ; Mr. of • 
Ms. ; and of , stating that the 
petitioner's involvement in their businesses and/or projects resulted in commercial successes. The 
record, however, lacks evidence, such as financial statements of the businesses or projects, that 
supports the conclusory statements. Merely repeating the language of the statute or regulations does 
not satisfy the petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d Cir. 1990); Avyr Associates, Inc. v. Meissner, No. 95 
Civ. 10729, 1997 WL 188942 at *1, 5 (S.D.N.Y. Apr. 18, 1997). Similarly, USCIS need not accept 
primarily conclusory assertions. See 1756, Inc. v. United States Att'y Gen., 745 F. Supp. 9, 17 (D.C. 
Dist. 1990). 
Accordingly, the petitioner has not shown that as a makeup artist arid stylist, he may submit 
comparable evidence to establish his eligibility for the classification. In the alternative, the evidence 
he submitted is not comparable to evidence that meets the commercial successes in the performing 
arts criterion. See 8 C.F.R. § 204.5(h)(4), (3)(x). 
C. Summary 
For the reasons discussed above, we agree with the director that the petitioner has not submitted the 
requisite initial evidence, in this case, evidence that satisfies three of the ten regulatory criteria. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the petitioner has achieved sustained national or international acclaim and is one of the small 
percentage who have risen to the very top of his or her 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 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.F.R. 
§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. As the petitioner has not done so, the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of 
presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) 
and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final 
merits determination referenced in Kazarian, a review of the evidence on which the petitioner relies 
on appeal in the aggregate, including his employment as a makeup artist and stylist, and the work he 
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has done for : and , supports a finding that the petitioner has 
not demonstrated, through the submission of extensive evidence, the level of expertise required for 
the classification sought? 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
2 We maintain de novo review of all questions of fact and law. See So/lane v. United States Dep 't of Justice, 381 F.3d 
143, 145 (3d Cir. 2004). In any future proceeding, we maintain 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 INA§§ 103(a)(1), 204(b); DHS 
Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(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).