dismissed EB-1A Case: Makeup Artistry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 16, 2023 In Re: 28694371 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a makeup artist, seeks classification as an individual of extraordinary ability in the arts. 
See Immigration and Nationality Act (the Act) section 203(b)(l)(A) , 8 U.S.C. § 1153(b)(l)(A). This 
first preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition, concluding the record did not 
establish the Petitioner qualifies as an individual of extraordinary ability either as the recipient of a 
major, internationally recognized award, or at least three of the ten regulatory criteria listed at 8 C.F.R. 
§ 204.5(h)(3)(i) - (x). The matter is now before us on appeal. 8 C.F.R. § 103.3. The Petitioner bears 
the burden of proof to demonstrate eligibility by a preponderance of the evidence. Matter of 
Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de nova. 
Matter of Christo 's , Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will 
dismiss the appeal. 
1On appeal, the Petitioner submits a brief and additional evidence. She asserts the Director erred in 
finding she did not satisfy the criteria related to judging the work of others, publications about the 
Petitioner, high salary, membership in professional associations, playing a leading or critical role, and 
lesser-known awards.2 
1 USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit they seek at the time the petition 
is filed. See 8 C.F.R. § 103.2(b)(1). Therefore, we do not consider publications that postdate the petition filing as evidence 
that establishes the Petitioner's eligibility at the time of filin g. However, were we to engage in a final merits determination, 
we could consider this evidence as support for a finding of sustained acclaim. 
2 Although an introductory paragraph of the appellate brief states the Petitioner is eligible under the original contributions 
of major significance criterion, the brief contains no evidence or arguments addressing the Director's determination under 
this criterion. Therefore, we consider this issue to be abandoned. See Matter of R-A-M-. 25 l&N Dec. 657. 658 n.2 (BIA 
2012) (stating that when a filing party fails to appeal an issue addressed in an adverse decision, that issue is waived). See 
also Sepulveda v. U.S. Att'v Gen ., 401 F.3d 1226. 1228 n. 2 (11th Cir. 2005), citing United States v. Cunningham, 161 
F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 
30, 2011) (plaintiffs claims were abandoned as he failed to raise them on appeal to the AAO). 
We adopt and affirm the Director's decision. See Matter of Burbano, 20 l&N Dec. 872, 874 
(BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of 
adopting and affirming the decision below has been "universally accepted by every other circuit that 
has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) Uoining eight circuit 
courts in holding that appellate adjudicators may adopt and affirm the decision below as long as they 
give "individualized consideration" to the case). 
The Petitioner cites Buletini v. INS, 850 F. Supp. 1222 (E.D. Mich. 1994) for the proposition that the 
evidentiary criteria for establishing eligibility as an individual of extraordinary ability is more 
qualitative than a mere counting exercise.3 We do not disagree this contention. The Buletini opinion 
indicates the court considered the possibility that a petitioner can submit evidence satisfying three 
criteria and still not meet the extraordinary ability standard if USCIS provides specific and 
substantiated reasoning for its conclusion. See Buletini, 860 F. Supp. at 1234. The court in Buletini 
did not reject the concept of examining the quality of the evidence presented to determine whether it 
establishes a Petitioner's eligibility for this highly restrictive classification. 4 
The Petitioner asserts the Director applied the wrong standard when considering the criterion at 8 
C.F.R. § 204.5(h)(3)(viii), related to a leading or critical role for distinguished organizations; however, 
the Petitioner does not explain how specifically this occurred. Likewise, for the criterion at 8 C.F.R. 
§ 204.5(h)(3)(i), related to lesser nationally or internationally recognized prizes or awards, the 
Petitioner contends the record does not support the Director's conclusions, but she does not explain 
how or in what way. The Petitioner has not identified a specific error related to these criteria but rather 
broadly disagrees with the Director's conclusions of her eligibility under them. Moreover, she has not 
addressed the evidentiary deficiencies the Director identified. As such, she has not overcome the 
Director's determination under these criteria. 
Regarding the judging criterion at 8 C.F.R. 204.5(h)(3)(iv), the Petitioner asserts the Director erred in 
assuming the I !Academy was an educational institution with cosmetology and fashion 
curriculum where the Petitioner served in an instructor role. However, the Petitioner provided a letter 
from the founder of the academy, stating the Petitioner worked as "a make-up teacher." Therefore, 
we conclude the Director's assumption had some basis. Neve1iheless, the Petitioner states on appeal 
that she participated in a fashion project as a jury member or a makeup artist and relies upon the 
evidence previously provided, including the letter from the founder. Based upon the Petitioner's use 
of the word "or," it is unclear whether the Petitioner served in a jury role or a makeup artist role. In 
addition, the Petitioner does not address the evidentiary deficiencies the Director identified under this 
criterion and therefore she does not overcome them. 
3 In contrast to the broad precedential authority of the case law of a United States circuit court (such as with Kazarian v. 
USCIS, 596 F.3d 1115 (9th Cir. 2010)), we are not bound to follow the published decisions of a United States district court 
in cases arising within the same district. See Matter of K-S-, 20 l&N Dec. 715 (BIA 1993). The reasoning underlying a 
district judge's decision will be given due consideration when it is properly before us; however, the analysis does not have 
to be followed as a matter of law. Id. at 719. 
4 The Petitioner also cites Gulen v. Chertoff, No. 07-2148, 2008 WL 2779001 (E.D. Pa. July 16, 2008) to conclude that if 
a petitioner meets three criteria, it is contrary to law if USCIS concludes that such a petitioner is not an individual of 
extraordinary ability. However, as our decision explains, the Petitioner does not meet at least three criteria. In addition, 
even if this case were applicable to the Petitioner, it would still constitute a pre-Kazarian federal district court decision 
that we need not follow. 
2 
Regarding 8 C.F.R. § 204.5(h)(3)(iii), related to published material about the Petitioner in trade 
publications or other major media, the Petitioner asserts on appeal that Aquarelle is atrade publication 
or major medium. However, the Petitioner has not provided independent and objective evidence to 
support this claim. We will not rely upon the assertions of Counsel as evidence. See, e.g., Matter of 
S-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a brief, motion, or Notice of Appeal are not 
evidence and thus are not entitled to any evidentiary weight"). Nor will we rely on the publisher's 
self-promotional material. See Braga v. Poulos, No. CV 06 5105 SJO (C.D.C.A. July 6, 2007) ajf'd 
2009 WL 604888 (9th Cir. 2009) (concluding that a magazine cover's self-serving assertions regarding 
the magazine's status are not reliant evidence of a major medium); see also, e.g., Victorov v. Barr, No. 
CV 19-6948-GW-JPRX, 2020 WL 3213788, at *8 (C.D.C.A. Apr. 9, 2020). For the reasons the 
Director already explained, the Petitioner has not established eligibility under this criterion. 
Regarding 8 C.F.R. § 204.5(h)(3[°x), related to high salary, the Petitioner provides a letter from her 
accountant, I Although I I lists the Petitioner's salary and provides 
comparative salaries for Moldovan women working in "artists/entertainment and recreation," we 
conclude that, for numerous reasons, the letter does not overcome the deficiencies the Director 
identified. Some of the reasons include that it does not corroborate the Petitioner's annual income 
with evidence such as payroll, bank, or tax statements, nor does it include documentation explaining 
how the general category of "artists/entertainment and recreation" is the comparative "best match" for 
the Petitioner's occupation and field. It also does not describe howl Ihas a "personal" and 
"working" knowledge of average salaries for makeup artists in Moldova. 
Regarding 8 C.F.R. § 204.5(h)(3)(ii), related to membership in organizations that require outstanding 
achievements of their members, the Petitioner asserts the Director should have determined the 
evidence established eligibility because (1) the Theater Union of Moldova (UN ITEM) is a professional 
association; (2) its membership extends to makeup artists; and (3) the qualifying requirement of "any 
creative person" establishes that the association requires outstanding achievements of its members. 
Regarding (1), the documents in the record about UN ITEM state it is a "public association." There is 
little indication of what specifically the Petitioner relied upon for her conclusion that the association 
is "professional," nor does the Petitioner explain how UNITEM's purported professional nature 
establishes her eligibility under this criterion. Regarding (2), we reviewed the Petitioner's membership 
certificate and do not dispute the Petitioner's conclusion that makeup artists can be members of 
UNITEM. Regarding (3), the Petitioner states that the "creative person" qualifier "calls for 
discretionary decision voted by majority of Senate where prospective applicant must supply 
recommendation from at least three members of' UNITEM and that "creative" is a judgment in 
relationship to a prospective member for which "it is reasonable to conclude that an evaluator or rather 
a group of evaluators should be of advance knowledge (expe1is)" (errors in original). While we 
acknowledge these assertions, we conclude that the evidence is insufficient to establish eligibility 
under this criterion for the reasons the Director already articulated. 
For the reasons the Director discussed and those explained above, the Petitioner has not demonstrated 
eligibility as an individual of extraordinary ability. 
ORDER: The appeal is dismissed. 
3