dismissed EB-1A Case: Miniatures Artist

identifying data deleted ta 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington. DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: LIN 06 080 52234 Office: NEBRASKA SERVICE CENTER DateJAN 0 3 2008 
IN RE: Petitioner: 
Beneficiary: 
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. 
J* t 1 ,* 1 I, ' 
Robert P. ~iemann, Chief 
' Administrative Appeals Office 
LIN 06 080 52234 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1 1 53(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualiQ for classification as an alien of extraordinary ability. 
On appeal, counsel submits a brief For the reasons discussed below, while we withdraw the director's 
determination that the petitioner has not met the artistic display criterion at 8 C.F.R. 8 204.5(h)(3)(vii), 
we concur with the director that the petitioner has not met at least three of the ten regulatory criteria as 
required for eligibility for the classification sought. 
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. 
Citizenship and Immigration Services (CIS) 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, 60898-9 (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 in his or her field of expertise are set 
forth in the regulation at 8 C.F.R. $ 204.5(h)(3). The relevant criteria will be addressed below. It 
should be reiterated, however, that the petitioner must show that he has sustained national or 
international acclaim at the very top level. 
LIN 06 080 52234 
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This petition seeks to classifL the petitioner as an alien with extraordinary ability as a miniatures 
artist. 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, 
international 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. Those criteria will be addressed below. At 
the outset, it is necessary to address counsel's assertions regarding the weight to be accorded the 
reference letters in this matter and evidence relating to achievements after the date of filing. 
First, the petition must be filed with the initial evidence required by regulation. 8 C.F.R. 5 103.2@)(1). 
The non-existence or other unavailability of required evidence creates a presumption of ineligibility. 
8 C.F.R. 5 103.2@)(2). 
The benefit sought in the present matter is not the type for which documentation is typically unavailable 
and the statute specifically requires "extensive documentation" to establish eligibility. See section 
203@)(l)(A)(i) of the Act. The regulations governing the present immigrant visa determination have 
no requirement mandating that CIS specifically accept the credibility of personal testimony, even if not 
corroborated. The regulations provide that eligibility may be established through a one-time 
achievement or through documentation meeting at least three of ten criteria. The commentary for the 
proposed regulations implementing this statute provides 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 (1991). The criteria require specific documentation beyond mere 
testimony, such as awards and published material about the alien. 
We note that in Matter of Price, 20 I&N Dec. 953 (Assoc. Comm. 1994), the petition was not only 
supported by impressive reference letters, but an "Official Statistics Profile" and "numerous articles" in 
national publications. The opinions of experts in the field, while not without weight, cannot form the 
cornerstone of a successful claim of sustained national or international acclaim. CIS 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, CIS 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; 
CIS may evaluate the content of those letters as to whether they support the alien's eligibility. See id. 
at 795. CIS 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 Sofici, 22 I&N Dec. 158, 
165 (Comrnr. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Regl. Cornmr. 
1972)). Thus, while we will consider the letters below as they relate to the ten regulatory criteria, 
vague assertions of ability or acclaim are insufficient. 
LN 06 080 52234 
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Second, Matter of Katigbak, 14 I&N Dec. 45,49 (Regl. Cornrnr. 1971), on which the director relies for 
rejecting evidence of achievements after the date of filing, has been incorporated into CIS regulations, 
8 C.F.R. 5 103.20>)(12), which requires that evidence submitted in response to a request for evidence 
establish "filing eligibility at the time the application or petition was filed." Moreover, we find that the 
reasoning behind Matter of Katigbak, 14 I&N Dec. at 49 is more widely applicable. That decision 
provides: 
If the petition is approved, he has established a priority date for visa number 
assignment as of the date that petition was filed. A petition may not be approved for a 
profession for which the beneficiary is not qualified at the time of its filing. The 
beneficiary cannot expect to qualify subsequently by taking additional courses and 
then still claim a priority date as of the date the petition was filed, a date on which he 
was not qualified. 
Section 204 of the Act requires the filing of a visa petition for classification under 
section 203(a)(3). The latter section states, in pertinent part: "Visas shall next be made 
available to qualiJied immigrants who are members of the professions." (Emphasis 
added.) It is clear that it was the intent of Congress that an alien be a recogmzed and 
fully qualified member of the professions at the time the petition is filed. Congress did 
not intend that a petition that was properly denied because the beneficiary was not at 
that time qualified be subsequently approved at a future date when the beneficiary may 
become qualified under a new set of facts. To do otherwise would make a farce of the 
preference system and priorities set up by statute and regulation. 
Id. The Regional commissioner continued this reasoning in Matter of Wing's Tea House, 16 I&N Dec. 
158, 160 (Regl. Comrnr. 1977). That decision reemphasizes the importance of not obtaining a priority 
date prior to being eligible based on future experience. In fact, this principle has been extended beyond 
the alien's eligibility for the classification sought. For example, an employer must establish its ability 
to pay the proffered wage as of the date of filing. Matter of Great Wall, 16 I&N Dec. 142, 144-145 
(Act. Regl. Cornmr. 1977). That decision provides that a petition should not become approvable under 
a new set of facts. Recognizing that Matter of Katigbak, 14 I. & N. Dec. at 49 was not "foursquare 
with the instant case" in that it dealt with the beneficiary's eligibility, Matter of Great Wall, 16 I&N 
Dec. at 145 still applies the reasoning. The decision provides: 
In sixth-preference visa petition proceedings the Service must consider the merits of 
the petitioner's job offer, so that a determination can be made whether the job offer is 
realistic and whether the wage offer can be met, as well as determine whether the 
alien meets the minimum requirements to perform the offered job satisfactorily. It 
follows that such consideration by the Service would necessarily be focused on the 
circumstances at the time offiling of the petition. The petitioner in the instant case 
cannot expect to establish a priority date for visa issuance for the beneficiary when at 
LIN 06 080 52234 
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the time of making the job offer and the filing of the petition with this Service he 
could not, in all reality, pay the salary as stated in the job offer. 
Id. (Emphasis in original.) Finally, when evaluating revisions to a partnership agreement submitted in 
support of a petition seeking classification as an alien entrepreneur pursuant to section 2030>)(5) of the 
Act, this office relied on Matter of Katigbak, 14 I. & N. Dec. at 49 for the proposition that "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 (Commr. 1998). That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that we cannot "consider facts that come into 
being only subsequent to the filing of a petition." Id. at 176. 
In the classification sought, the petitioner must establish that he enjoyed sustained national or 
international acclaim as of the filing date of petition. To hold otherwise would have the untenable 
result of an alien securing a priority date based on the speculation that his work might gain acclaim 
while the petition is pending. Thus, we concur with the director's conclusion that evidence of 
achievements after the date of filing cannot be considered in this matter. 
The petitioner has submitted evidence that, he claims, meets the following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in thejeld of endeavor. 
In 1994, the petitioner was selected as British Miniaturist of the Year during an annual competition 
originating in 1992. The competition was conceived by Marion Fancey and appears connected to "The 
Event," a British dollhouse and teddy bear fair. According to the materials submitted: "The 
competition encourages new talent. Indeed, although 'new professionals' can enter, those who have 
been established for some time are actually not allowed to enter." 
Among other concerns, the director concluded that the award was limited to emerging talents and could 
not be considered evidence of "recognition in the field at the highest level." On appeal, counsel 
incorrectly characterizes this concern, asserting that the director required that the award be 
internationally recognized. Counsel challenges such an interpretation, citing Buletini v. INS, 860 F. 
Supp. 1222 (E.D. Mich. 1994). 
In contrast to the broad precedential authority of the case law of a United States circuit court, the 
AAO is not bound to follow the published decision of a United States district court in cases arising 
within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning 
underlying a district judge's decision will be given due consideration when it is properly before the 
AAO; however, the analysis does not have to be followed as a matter of law. Id. at 719. 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
LIN 06 080 52234 
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Regardless, the director's decision does not contradict the reasoning expressed in Buletini. 
Specifically, we do not read the director's decision as dismissing the petitioner's award based on a 
national rather than international reputation, a position which we agree is not supported by the plain 
language of the regulation at 8 C.F.R. 8 204.5(h)(3)(i). Rather, the director was concerned that the 
award is limited to emerging talents in the field. 
Notably, the court in Buletini did not hold that the submission of evidence relating to a given 
criterion was sufficient. Rather, the court acknowledged that INS, now CIS, "must evaluate the 
quality, including the credibility, of the evidence presented to determine if it, in fact, satisfies the 
criteria." Buletini, 860 F. Supp. 1234. 
The evidence submitted to meet a given criterion must be indicative of or at least consistent with 
sustained national or international acclaim if that statutory standard is to have any meaning. We concur 
with the director that an award that excludes the most experienced and renowned members of the field 
fiom competition cannot serve to meet this criterion. Moreover, the petitioner has not explained how 
an award issued in 1994 is indicative of sustained acclaim as of the date of filing in this matter, 12 
years later. 
For each of the above reasons individually, we find that the petitioner has not established that he meets 
this criterion. 
Documentation of the alien's membership in associations in the field for which classiJication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
The petitioner submitted evidence that his company, Small Time, is a member of the British Toyrnakers 
Guild (BTG). In addition, the petitioner is a member of the British Watch and Clock Makers' Guild. 
Finally, the petitioner submitted evidence of his membership in the International Guild of Miniature 
Artists (IGMA). The petitioner submitted Internet materials providing the following membership 
information about BTG: 
Applicants for full membership submit examples of work for scrutiny by a Selection 
panel. The Guild has always insisted that it's [sic] members['] work meets its criteria of 
quality[.] This has ensured that the Guild maintains it's [sic] reputation among the trade 
and buying public as representing the creators of well-designed and well-made toys, 
gifts and miniatures. 
The Internet materials regarding the British Watch and Clock Makers' Guild state: 
Membershp [in] the British Watch and Clock Makers' Guild is by election and is 
available to those who are professionally engaged in any branch of horology and allied 
crafts. 
LIN 06 080 52234 
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The director concluded that the petitioner had not established that either guild requires outstanding 
achievements of its members. 
counsel references letters fiom 
 Guild Manager of the BTG and = 
who organizes the IGMA shows. 
 asserts that "member" is the highest tier of 
membership in the BTG and that selection for membership in the BTG demonstrates that the 
petitioner's "craftsmanship meets the highest standards both for design and manufacturin skills in his 
chosen field of creating miniature clocks and assorted miniature accessories." Ms. g asserts 
that she only invites "the highest quality artists to participate" in IGMA shows. She provides no 
information regarding membership in the IGMA itself 
We will consider the petitioner's show exhibitions below. At issue for this criterion, according to the 
plain language of the regulation at 8 C.F.R. 5 204.5 s the standard for membership in the 
associations of which the petitioner is a member. Ms. provides no information regarding the 
membership criteria for IGMA and the record contains no evidence relating to this issue.2 
Regarding Mr. 
 letters, the fact that 'member" is the highest tier of membershp in the BTG 
does not necessarily imply that all members must demonstrate outstanding achievements to secure full 
membership. Both his statement and the information in the Internet materials submitted by the 
petitioner reveal that the BTG does require that prospective members meet certain quality standards for 
membership. We are not persuaded, however, that meeting professional quality standards designed to 
ensure well-designed and well-made products is an outstanding achievement that places the petitioner 
within that small percentage at the top of the field. Rather, anythmg less would suggest a lack of 
competence in the occupation. 
Further, the regulation at 8 C.F.R. 5 204.5@)(3)(ii) requires evidence of the petitioner's membership in 
qualifying associations. The membership certificate fiom the BTG is issued to the petitioner's 
company. Thus, this membership cannot serve to meet the plain language of the regulatory criterion set 
forth at 8 C.F.R. 5 204.5(h)(3)(ii). 
Finally, the British Watch and Clock Makers' Guild appears open to those engaging in the profession or 
a related profession. 
In light of the above, the petitioner has not established that he meets this criterion. 
2 
 The petitioner submitted Internet materials from IGMA which reflects that their website, www.igma.org, 
includes a "Join IGMA" page. We have reviewed that page, which is publicly available on the Internet. It 
contains no suggestion that membership is exclusive to those who demonstrate outstanding achievements. 
The membership application, which is available for download, suggests that the only requirement for 
membership is the payment of dues, which is not an outstanding achievement in the field of art. 
LIN 06 080 52234 
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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 classz$cation is sought. Such evidence 
shall include the title, date, and author of the material, and any necessavy translation. 
The director concluded that the petitioner meets this criterion. While much of the published material is 
limited to photographs of the petitioner's miniatures rather than materials about the petitioner himself, 
the record does contain journalistic coverage of the petitioner relating to his work. Thus, we concur 
with the director's conclusion on this issue. 
Evidence of the alien's original scientz$c, scholarly, artistic, athletic, or business-related 
contributions of major signzfwance in the fleld. 
Initially, counsel referenced 15 letters attesting to the petitioner's talent to meet this criterion. The 
unique aspect of the petitioner's work is that he designs working miniature clocks and that he is able 
to work in 1124'~ scale in addition to the more traditional 1112~~. The director concluded that the 
petitioner had not established that his "original styles, methods or techniques . . . are recognized as 
having major significance to the field of miniature art." On appeal, counsel asserts: 
The director denies that [the petitioner] has made contributions of major significance 
to the field of miniatures, but the record is replete with references to [the petitioner's] 
unique contributions. Time and again the experts state that no one in the field is 
making working miniature clocks of nearly the same quality. There can be no greater 
contribution to an art form than to create unique pieces that are in demand by persons 
around the world. 
We will consider the letters below. As stated above, however, CIS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 
I&N Dec. at 795. However, CIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. 
In evaluating the reference letters, we note that letters containing mere assertions of widespread 
acclaim and vague claims of contributions are less persuasive than letters that specifically identify 
contributions and provide specific examples of how those contributions have influenced the field. 
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. 
Many of the letters are fi-om show organizers discussing the significance of attendance at their 
shows. Thus, these letters relate to the display criterion at 8 C.F.R. 5 204.5(h)(3)(vii) and will be 
considered below in that context. The authors' general assertions, however, that the petitioner can be 
LIN 06 080 52234 
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presumed to be at the top of his field through attendance at top shows are not evidence of 
contributions of major significance. 
, Director of the Kensington Dollshouse Festival, asserts that she first observed the 
petitioner's work at an exhibition and was impressed by the beauty of his clocks in addition to the 
working mechanisms that accurately keep time. She explains that "most clock makers would either 
make clocks that didn't work, or if they did work they would just put a watch face & movement in the 
clock, rather than the craftsman making the clock face and workings themselves." She asserts that no 
one else makes clocks at the petitioner's level and that he has "made a name for himself in this area." 
confirms that he was impressed with the petitioner's work and purchased a piece for his 
own private collection. Mr. 
 opines that the petitioner is among the finest in his field. 
asserts that the petitioner is the only artist, to her knowledge, that uses working clock 
mechanisms. She continues that he has also "designed and created clock chimes to be used in 
conjunction with his working clocks." She also praises his research and accuracy in reproducin 
Q 
famous clocks in miniature. Finally, she notes that the petitioner is capable of worlung in 1/24' 
scale, which is "finer and more delicate work than the more common industry norm of 1112~ scale." 
Other references affirm that the petitioner's work is sought after by collectors in the field. Some 
affirm purchasing the petitioner's work themselves for their private collections and have 
recommended the petitioner to other collectors, who have also been pleased with the petitioner's 
work. The letter writers also confirm the unique nature of the petitioner's design and creation of 
working miniature clocks. 
The reference letters adequately demonstrate that the petitioner's work is unique and original and 
deemed worthy of purchase by collectors. We note that the petitioner seeks an employment-based 
visa. Thus, his field includes only those making a living as a miniature craftsman and not hobbyists 
in general. As such, the ability to sell his work does not necessarily set the petitioner apart from 
others in his field. 
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. The record is absent evidence that the petitioner's 
creation of working miniature clocks is a contribution of major significance to the craft of miniature 
making. Such a contribution would need to go far beyond merely establishing his area of unique 
specialty. 
Without evidence of a significant influence on the craft of miniature making, the petitioner cannot 
establish that he meets this criterion. 
Evidence of the display of the alien's work in the$eld at artistic exhibitions or showcases. 
LIN 06 080 52234 
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founder and organizer of the London Dollhouse Festival, asserts that the petitioner 
has been accepted and invited to attend U.S. festivals "because there is no one at this time among the 
many talented~~ miniature makers who makes the same wide range of working miniature clocks." 
e asserts that the Kensington Dollshouse Festival exhibits the work of top miniaturists from 
around the world. The organizers review the work of each artist each year for admission. Ms. Stokoe 
confirms that the petitioner "has been exhibiting at the Festival for many years." 
, Senior Partner for Miniatura, affirms that demand for the show outstrips space 
available and that the petitioner is a regular exlubitor with the show. As stated above, Ms. - 
asserts that she only invites "the highest quality artists to participate" in IGMA shows. 
of Puppenhausmuseum in Basel, the largest museum of its kind in Europe, confirms that 
they purchased work by the petitioner "for the display of our museum [sic] ." 
In addition to the above letters, the petitioner submitted evidence that the petitioner's work has been 
purchased for private collections. Private collections cannot serve to meet this criterion in and of 
themselves. That said, the record contains several published dollhouse magazines that include photos 
fi-om private collections featuring the petitioner's work. The petitioner is credited in the captions. 
Given the evidence in the aggregate, we are satisfied that the petitioner meets this criterion. 
Evidence that the alien has commanded a high salary or other sign$cantly high remuneration for 
services, in relation to others in the4eld. 
Counsel did not previously assert that the petitioner meets this criterion. On appeal, however, counsel 
asserts that the director erred in failing to consider that the petitioner's work commands a high price. 
The record includes catalogs listing the prices for some of the petitioner's work, letters from expats 
affirming that the petitioner's work commands a high price and the petitioner's business plan, 
submitted as evidence of his intention to continue working in his field of expertise. Evidence that 
individual pieces made by the petitioner are priced "high" does not necessarily imply that the 
petitioner's ultimate remuneration is significantly high in relation to other miniaturists who make a 
living in the field. Fine art is generally "expensive" in comparison to factory created items to 
compensate for the supplies and the amount of time that work by hand requires. The record contains no 
evidence regarding the petitioner's compensation over time, such as an annual tax return. Moreover, 
the plain language of the regulation at 8 C.F.R. tj 204.5(h)(3)(ix) requires evidence that would allow a 
comparison of the petitioner's remuneration with that of other miniaturists. The record lacks evidence 
regarding the remuneration enjoyed by the top miniaturists nationally in Great Britain. 
In light of the above, the petitioner has not established that he meets this criterion. 
LIN 06 080 52234 
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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. For the reasons discussed above, while the 
petitioner has established that he meets two criteria, the evidence falls far short of meeting the 
necessary third criterion. 
Review of the record does not establish that the petitioner has distinguished himself as a miniaturist to 
such an extent that he may be said to have achieved sustained national or international acclaim or to be 
within the small percentage at the very top of his field. The evidence indicates that the petitioner shows 
talent as a miniaturist, but is not persuasive that the petitioner's achievements set him significantly 
above almost all others in his field. 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 burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.