dismissed EB-1A Case: Model

(b)(6)
DATE: JUL 19 2013 
INRE: Petitioner : 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administr ative Appeals Office (AAO) 
20 Massa chusetts Ave., N.W., MS 2090 
Washingt on, 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 )(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http: //www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~1f-
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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NON-PRECEDENT DECISION 
Page2 
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 model, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(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)(l)(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. 
The petitioner's priority date established by the petition filing date is August 1, 2011. On February 17, 
2012, the director served the petitioner with a request for evidence (RFE). After receiving the 
petitioner's response to the RFE, the director issued his decision on June 11, 2012. On appeal, the 
petitioner submits a brief with additional documentary evidence. The petitioner identifies the director's 
broad error as abusing his discretion by not considering all of the evidence presented. The petitioner 
also identifies the director's error as a matter of law in that he "imposed additional requirements and 
failed to conduct his analysis of the petitioner's eligibility and comparable evidence in accordance with 
the applicable legal standards." For the reasons discussed below, the AAO upholds the director's 
ultimate determination that the petitioner has not established her eligibility for the classification sought. 
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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NON-PRECEDENT DECISION 
(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. !d.; 
8 C.P.R. § 204.5(h)(2). 
The regulation at 8 C.F.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 C.P.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 C.P.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 ." !d. 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)." !d. at 1122 (citing to 
8 C.P.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. !d. 
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.P.R. § 204.5(h)(3)(iv) and 8 C.P.R. 
§ 204.5(h)(3)(vi). 
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II. ANALYSIS 
A. Previously Approved 0-1 Petition 
While USCIS has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the petitioner, 
the prior approval does not preclude the agency 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 USCIS approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d 25 (D.D.C. 2003); IJ(EA 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 USCIS 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 USCIS 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, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
suggest that USCIS 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). 
Furthermore, 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 had approved the nonimmigrant 
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision 
of a service center as the law is clear that an agency is not bound to follow an earlier determination as to 
a visa applicant where that initial determination was based on a misapplication of the law. Glara 
Fashion, Inc. v. Holder, 11 CIV. 889 PAE, 2012 WL 352309 *7 (S.D.N.Y. Feb. 3, 2012); Royal Siam v. 
Chertoff, 484 F.3d 139, 148 (1st Cir.2007); Tapis Int'l v. INS, 94 F.Supp.2d 172, 177 (D.Mass.2000)) 
(Dkt.lO); Louisiana Philharmonic Orchestra v. INS, 44 F.Supp.2d 800, 803 (E.D.La.1999), affd, 248 
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
B. Preponderance of the Evidence Standard 
On appeal, counsel asserts that instead of applying the preponderance of the evidence standard of proof, 
the director "imposed novel substantive or evidentiary standards beyond those set forth in the 
regulations." The record does not support counsel's assertion that the director held the petitioner' s 
evidence to an elevated standard beyond that which is required by most administrative 
immigration 
cases; the preponderance of the evidence standard of proof. The most recent precedent decision related 
to the preponderance of the evidence standard of proof is Matter ofChawathe, 25 I&N Dec. 369 (AAO 
2010). This decision, and this standard, focuses on the factual nature of claims within evidence; not 
whether such claims satisfy a regulatory requirement. !d. at 376. The preponderance of the evidence 
standard does not preclude USCIS from evaluating the evidence. 
(b)(6)
NON-PRECEDENT DECISION 
PageS 
The Chawathe decision also stated: 
[T]he "preponderance of the evidence" standard does not relieve the petitioner or 
applicant from satisfying the basic evidentiary requirements set by regulation. There are 
no regulations relating to a corporation's eligibility as an "American firm or 
corporation" under section 316(b) of the Act. Had the regulations required specific 
evidence, the applicant would have been required to submit that evidence. Cf 8 C.P.R. 
§ 204.5(h)(3) (2006) (requiring that specific objective evidence be submitted to 
demonstrate eligibility as an alien of extraordinary ability). 
25 I&N Dec. at 375 n.7. The final determination of whether the evidence meets the plain language 
requirements of a regulation lies with USCIS. See Matter of Caron International, 19 I&N Dec. 791, 
795 (Comm 'r 1988) (finding that the appropriate entity to determine eligibility is USCIS in a scenario 
whereby an advisory opinion or statement is not consistent with other information that is part of the 
record). Ultimately, the truth is to be determined not by the quantity of evidence alone but by its 
quality. Matter ofChawathe, 25 I&N Dec. at 376 (citing Matter of E-M- 20 I&N Dec. 77, 80 (Comm'r 
1989)). As the director concluded that the petitioner 
had not submitted relevant and probative evidence 
satisfying the regulatory requirements, the director did not violate the appropriate standard of proof. 
The standard of proof issue is separate and distinct from counsel's assertion that the director may have 
gone beyond the regulatory requirements, which the AAO will address below. The AAO affirms the 
director's ultimate conclusion that the petitioner did not submit probative evidence to establish her 
eligibility. 
C. Comparable Evidence 
Several of the criteria are written in terms broadly applicable. 56 Fed. Reg. 60897-01, 60898. The 
regulation at 8 C.P.R.§ 204.5(h)(4) allows an alien to submit comparable evidence if the alien is able to 
demonstrate that he or she is unable to qualify for this classification because the regulatory criteria at 
8 C.P.R. § 204.5(h)(3)(i)-(x) do not readily apply to the alien's occupation . See also 56 Fed. Reg. at 
60898-99. It is the petitioner's burden to explain why the regulatory criteria do not readily apply to her 
occupation and how the evidence submitted is "comparable" to the objective evidence required at 
8 C.P.R. § 204.5(h)(3)(i)-(x). The petitioner has not established that the regulatory criteria do not 
readily apply in her occupation as a model. Where an alien is simply unable to meet or submit 
sufficient documentary evidence of 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. Significantly, 
counsel asserts that the published material criterion at 8 C.F.R. § 204.5(h)(3)(iii) is not applicable to the 
petitioner 's occupation, yet he also asserts within the proceeding that the submitted evidence satisfies 
this criterion's requirements. An additional example relates to the prizes or awards criterion at 8 C.P.R. 
§ 204.5(h)(3)(i), wherein counsel asserts this criterion is not applicable to the petitioner's occupation, 
yet the book titled The Modeling Life submitted under the published material criterion contains an entire 
section on modeling contests. Counsel mentioned evidence in the appellate brief or within the 
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proceedings before the director that specifically addressed at least five of the ten criteria at 8 C.F.R. 
§ 204.5(h)(3). As such, the petitioner has not met the requirements for submitting comparable evidence. 
D. Evidentiary Criteria2 
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. 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must be about the petitioner and the contents must relate to the petitioner's work in the field 
under which she 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 director determined that the petitioner failed to meet the requirements of this criterion. On appeal, 
the petitioner takes issue with the director's determination regarding material that a peared in the 
followin2: publications: 
Regarding the article titled, this article is about the 
petitioner and relates to her work in the field. This article served as the cover story, which included the 
petitioner's photograph on the cover. The petitioner also established that it appeared in qualifying 
media. As such, this article will contribute to the petitioner meeting the plain language requirements of 
this criterion. 
Regarding the article titled, that appeared in 
the evidence on record demonstrated that this published material is about the petitioner 
and is related to her work in the field. The petitioner provided circulation statistics relating to 
revealing that it has a weekly circulation sufficient to demonstrate that this publication is a 
form of major media? 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discusser! in this decision. 
3 Se ___, accessed on May 28, 
2013, a copy of which is incorporated into the record of proceeding. 
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In view of the foregoing, the petitioner has demonstrated her eligibility under this criterion and as a 
result, the AAO withdraws the director's adverse determination as it relates to this criterion. 
Evidence of the alien 's original scientific, 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) in her field. These 
contributions must have already been realized rather than being potential, future contributions. The 
petitioner must also demonstrate that her 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 or to an organization. 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 (2"ct 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 director determined that the petitioner failed to meet the requirements of this criterion. Initially, the 
petitioner explained her original contribution of major significance in her field as follows: "due to the 
very nature of the images and advertisements she creates ... she brings increased revenues, media and 
brand recognition to her clients and to the industry as a whole." The director determined that the 
petitioner's claims and her evidence were insufficient to satisfy this criterion's requirements and noted 
the deficiencies within the RFE. In response to the RFE, the petitioner reiterated her previous claims 
and introduced a new claim under this criterion. Specifically, counsel asserted that the petitioner "has 
changed the industry norm and proven that successful and highly sought after models don't have to be 
5' 1 0" or 5' 11, but can be 5 '6" and still land contract after contract with big companies." 
On appeal, counsel points out that the director incorrectly noted the number of support letters submitted 
as evidence under this criterion and infers that users should discuss each letter instead of reviewing all 
the letters, discussing a portion of them, and summarizing the remaining letters that are determined to be 
insufficient. While it is apparent that the director misstated the number of letters submitted under this 
criterion, users need not cite from each and every letter in support of a petition. Noroozi V. 
Napolitano, 11 CIV. 8333 PAE, 2012 WL 5510934 *8 (S.D.N.Y. Nov. 14, 2012) (citing Chen v. US. 
Dep't of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006)). 
Counsel quoted most of the letter from Head of 
office, within the initial statement and within the RFE response. extolled the petitioner's 
many accomplishments and high profile modeling jobs. While such accomplishments are notable, 
did not identify how such accomplishments were contributions that were "original" or "of major 
sigmtlcance" in the petitioner's field as a whole. As such, letter will not serve as a 
contributing piece of evidence that demonstrates the petitioner's eligibility under this criterion. 
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Page 8 
President of the stated: "[The petitioner's] contributions to my 
company , as well as to the fashion industry as a whole , have been completely original, as no one else in 
the world would be able to capture her exact look in any given photograph. As anyone would agree, 
originality is key in this industry, and very hard to come by." _ opinion of the petitioner's 
impact on the modeling field as a whole through an "exact look in any given photograph" is insufficient 
to establish her eligibility under this criterion. She did not discuss any aspect attributable to the 
petitioner 's work that was original beyond the fact that no two models look identical, or explain how the 
petitioner's look has impacted the petitioner's field such that it can be considered to be of major 
significance. Rather, she simply asserts that the petitioner has contributed to her company, which is not 
a contribution of major significance in the field, "as well as to the fashion industry as a whole" without 
providing any support for that broader assertion. USCIS need not accept primarily conclusory 
assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 
1990) 
a fashion photographer and co-owner of _ identified the petitioner's "impact on 
the fashion and advertising industries [to the extent] that she 
has actually raised the bar for models 
around the world." Such a description of intangible attributes without some corroborating evidence of 
an actual impact in her field due to her work does not amount to contributions in the petitioner's field 
that are both original and of major significance in accordance with the regulation. 
Vice President o indicated that the petitioner qualified 
as an alien of extraordinary ability because of her associations with prominent inrlivirlHals in the 
modeling community as well as her appearance in prominent advertising campaigns. also 
pointed to the petitioner's longevity in the modeling profession as "one of a very small percentage of 
models working in" the field. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. 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, 1997 WL 
188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept primarily conclusory assertions. 1756, 
Inc., 745 F. Supp. at 15. lso described the roles the petitioner performed for companies , but 
did not describe the manner in which this constituted as a contribution to the petitioner's field as a 
whole. Additionally, the regulations contain a separate criterion regarding the petitioner's leading or 
critical role performed for organizations or establishments that enjoy a distinguished reputation at 
8 C.F.R. § 204.5(h)(3)(viii). 
Director of sserts that as a " etite" model, the petitioner "has changed 
the industry norm." As an example, asserts that partnered with 
m 2009 when the lineup was all petite models. further asserts that ' 
stgneo the winner of the competition and concludes: "knowing [the petitioner's] reputation m mt: 
industry and seeing how well clients respond to her gave our agency confidence to offer a 
rP.nrP.sP.ntation and management contract to the winner of the 'short' season of 
does not assert that elected to run a season of shorter 
models based on the petitioner's influence in the field, only that gained confidence to 
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Page 9 
promote their new shorter model based on the petitioner's ability to work in the field. ietter 
does not affirm a wider influence in the field that rises to the level of a contribution of major 
significance. 
While the petitioner has enjoyed an enduring and successful career in modeling, the letters in support of 
her petition are not sufficient to satisfy this criterion's requirements. She has established her ability to 
continuously work in a competitive field; however, such an ability is not an original contribution of 
major significance in her field. 
The Board of Immigration Appeals (BIA) has stated 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 
Matter of M-D-, 21 I&N Dec. 1180 (BIA 1998); Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998); Matter 
of Dass, 20 I&N Dec. 120 (BIA 1989); see also Matter of Acosta, 19 I&N Dec. 211, 218 (BIA 1985)). 
The Board clarified, however: "We not only encourage, but require the introduction of corroborative 
testimonial and documentary evidence, where available." Matter of S-A-, 22 I&N Dec. at 1332. 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. at 1136. 
Within the appellate brief counsel cites to Muni v. INS, 891 F. Supp. 440, 444 (N.D. Ill. 1995) and 
states: "[T]he examiner cannot substitute his or her judgment for that of experts, nor can the examiner 
ignore evidence that clearly satisfies a category." In this matter, however, the content of the letters does 
not provide sufficient detail of the petitioner's impact in the field such that the petitioner has established 
that she has made contributions of major significance in the field. 
Within the RFE response, counsel cited to Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO 
2012) stating: "In the present matter, the RFE did not question the credentials of the experts, take issue 
with their knowledge of the [sic] [the petitioner's] skills and achievements, or otherwise find any reason 
to doubt the veracity of their testimony." Counsel asserted that since none of the aforementioned 
factors were present, the expert's testimony should be considered to be reliable, relevant, and probative. 
As noted in Matter of Skirball Cultural Center, 25 I&N Dec. at 805, the regulation at 8 C.P.R. 
§ 214.2(p)(6)(ii)(A) specifically permits a petitioner to satisfy that evidentiary requirement with 
affidavits, testimonials or letters. No such language appears at 8 C.P.R. § 204.5(h)(3)(v). Thus, that 
decision involved a different analysis. 
The submission of letters from experts supporting the petition is not presumptive evidence of eligibility; 
USCIS may evaluate the content of those letters as to whether they support the alien's eligibility. See 
Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988); see also Matter ofV-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact" but rather is admissible only if it will assist the trier of fact to understand the evidence or to 
determine a fact in issue). US 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 Soffici, 
22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N 
Dec. at 190). Additionally, each letter submitted in support of the petitioner's eligibility claim appears 
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to have been drafted in response to the petitioner's efforts in attaining either approval of an immigrant 
or a nonimmigrant petition in the United States. While letters authored in support of the petition have 
probative value , they are most persuasive when supported by evidence that already existed 
independently in the public sphere. 
Ultimately, the letters demonstrate that the petitioner is a successful model who is demonstrating the 
potential to be a successful model at her height. While suggests that the petitioner has 
opened up the field for shorter models, the record contains no evidence that the average height of 
models has decreased notably since the petitioner began modeling. Even if the petitioner had 
established such an influence and that it constitutes a contribution of major significance, it would only 
be one such contribution. The plain language of the regulation requires evidence of contributions in the 
plural. . The record contains no evidence of other original contributions of major significance in the 
field. 
In view of the foregoing, the petitioner has not submitted evidence that satisfies the 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. Generally, 8 C.F.R. 
§ 204.5(h)(3)(vii) is limited to the visual arts. This interpretation is longstanding and has been upheld 
by a federal district court in Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *7 (D. Nev. Sept. 8, 
2008) (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 artistic exhibitions or showcases 
(in the plural). Therefore, it is the petitioner's burden to demonstrate that the display of her 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. 
Initially, the petitioner claimed that evidence originating from "press and media coverage from major 
national news outlets" constituted qualifying evidence under this criterion. Subsequent to the director's 
RFE, the petitioner amended her claim to include "high-profile fashion events, runway shows, and other 
showcases 
related to her modeling work for major companies and advertisements, " and asserted that her 
evidence should be considered as comparable evidence. On appeal, she again claims that her evidence 
should qualify as comparable evidence. The director determined that the petitioner failed to meet the 
requirements of this criterion. As noted within this decision, the petitioner is not eligible to qualify for 
this immigrant classification based on comparable evidence as she has not demonstrated that the 
regulatory criteria are not readily applicable to her occupation. 
Even if USCIS were to consider the petitioner's claims of comparable evidence, "press and media 
coverage from major national news outlets" and "high-profile fashion events, runway shows, and other 
showcases related to her modeling work for major companies and advertisements" are not a display of 
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Page 11 
the petitioner's work; they are a display of a product that the petitioner is presenting on behalf of a 
person or a company. 
Consequently, the petitioner has not submitted evidence that meets the plain language requirements of 
this criterion, nor has the petitioner explained how modeling the artistic fashions of others is comparable 
to display of her own work. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
This criterion anticipates that a leading role should be apparent by its position in the overall 
organizational hierarchy and that it be accompanied by the role's matching duties. The petitioner also 
has the responsibility to demonstrate that she actually performed the duties listed relating to the leading 
role. A critical role should be apparent from the petitioner's impact on the organization or the 
establishment's activities. The petitioner's performance in this role should establish whether the role 
was critical for the organization or establishment as a whole. The petitioner must demonstrate that the 
organizations or establishments (in the plural) have a distinguished reputation. While neither the 
regulation nor precedent speak to what constitutes a distinguished reputation, Merriam-Webster's online 
dictionary defines distinguished as, "marked by eminence, distinction, or excellence.',4 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. at 306. Therefore, it is the petitioner's burden to demonstrate that the 
organizations or establishments claimed under this criterion are marked by eminence, distinction, 
excellence, or an equivalent reputation. The petitioner must submit evidence satisfying 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. Specifically, 
the director determined that the petitioner's performances were consistent with those of a professional 
model. The director also stated: "General statements about your work being 'leading' or 'critical' 
without any description of specific instances in which you performed in leading or critical capacities for 
a particular establishment is not sufficient to establish eligibility for this criterion." On appeal, counsel 
asserts that the director did not provide any specific examples of how the evidence was insufficient. 
On appeal counsel indicates that the director only named two of the 13 expert letters within the NOID. 
The onlv letter the petitioner references on appeal is from President and Founder of 
1erves as a full-service production and casting company for 
several companies, including Frederick's of Hollywood. ) sserted that the petitioner served 
in a leading or a critical role for does not explain how she is 
authorized to represent as the record lacks evidence that she is employed by 
the company. Additionally, ;tated: "I can firmly state that role has been absolutely 
critical to the success of each · ad campaign LSICJ sbe has appeared in, and 
4 
See http://www,merriam-webster.com/dictio:nary/distiuguish~_Q, accessed on May 28, 2013, a copy of which is 
incorporated into the record of proceeding. 
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ultimately, to our business as a casting and production company." (Emphasis in the original). That the 
petitioner was critical to the success of ad campaigns is not sufficient to satisfy this criterion's 
requirements. 
On appeal, counsel also asserts that the petitioner's work for ;atisfies this 
criterion and points to the evidence provided in the RFE response. This evidence consists of 
photocopies of catalog pages and website printouts containing photographs of what appears to be the 
petitioner, and website pages from As further evidence relating to the 
petitioner provided a second letter from : in which asserts 
that the 2etitioner performed in a leading role for tnrougn oeing the only model in the 
advertisements in the company's advert1smg campaign in 2011. The record does not 
document the manner in which is authorized to represent or speak on behalf of 
10r does it contain evidence from any individual who appears to be in a position to represent 
Consequently, this evidence is not sufficient to satisfy the plain language requirements 
of this criterion. 
Accordingly, the petitioner has not submitted evidence that satisfies this criterion's requirements. 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires the petitioner to submit 
evidence of a "high salary or other significantly high remuneration for services, in relation to others in 
the field." Average salary information for those performing work in a related but distinct occupation 
with different responsibilities is not a proper basis for comparison. The petitioner must submit 
documentary evidence of the earnings of those in her occupation performing similar work at the top 
level of the field. 5 
The petitioner initially provided U.S. Government statistics relating to average or median modeling 
wages and salaries , 2005 through 2010 Form 1040, U.S. Individual Income Tax Return (tax return) 
documents, multiple invoices for the petitioner's work completed in 1997 and 1998, and documentation 
that appears to be pay reports from an unidentified employer deriving from ' The director 
notified the petitioner that the submitted evidence was not sufficient within the RFE primarily noting 
the lack of evidence of the compensation of others with which to compare with the petitioner's claimed 
high remuneration examples. In response, the petitioner submitted a report from the U.S. Census 
Bureau reflecting median earnings of "models , demonstrators , and product promoters," a letter from the 
5 While the AAO acknowledges that a district court's decision is not binding precedent, the AAO notes that in 
Racine v. INS, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated, "[T]he plain reading of the 
statute suggests that the appropriate field of comparison is not a comparison of Racine's ability with that of all the 
hockey players at all levels of play; but rather, Racine's ability as a professional hockey player within the 
NHL. This interpretation is consistent with ... the definition of the term 8 C.P.R. § 204.5(h)(2), and the 
discussion set forth in the preamble at 56 Fed. Reg. 60898-99." 
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petitioner's modeling agency, and the petitioner's 2011 tax return. The comparative wage data derives 
from the Foreign Labor Certification (FLC) Data Center's Online Wage Library, which relies on the 
Bureau of Labor Statistics (BLS) Occupational Employment Statistics (OES) wage estimates. 6 The 
OES program collects data on wage and salary workers in nonfarm establishments in order to produce 
employment and wage estimates for about 800 occupations. The BLS produces occupational 
employment and wage estimates for over 450 industry classifications at the national level. The 
employment data are benchmarked to average employment levels? Moreover, footnote one states that 
the estimates "do not include self-employed workers." The petitioner's tax returns reflect that she 
receives modeling income as an independent contractor, listed on her schedule C. Thus, she has not 
established that the BLS statistics are representative of the modeling industry as a whole, which, as is 
apparent from the petitioner 's own tax returns, includes self-employed models. 
The plain language of the regulation requires the petitioner to establish the petitioner's salary is high or 
that her remuneration has been significantly high when compared to others in the field. As such, the 
evidence, consisting of average statistics limited to one particular geographic area, do not meet this 
requirement. 
On appeal, counsel asserts that the director abused his discretion and imposed additional requirements 
on the petitioner in the following manner: (1) requiring the petitioner to submit evidence of the 
"earnings of those in your occupation performing similar work at the top level of the field;" and 
(2) requiring the petitioner to submit evidence that she earned a high salary or significantly high 
remuneration "in comparison with those performing similar work during the same time period." 
(Emphasis in the original.) 
As stated by the director, the petitioner must submit evidence of earnings in comparison with those 
performing similar work. Matter of Price, 20 I&N Dec. 953, 955 (Assoc. Comm'r 1994); see also 
Grimson v. INS, 934 F. Supp. 965,968 (N.D. Ill. 1996) (consideringNHL enforcer's salary versus other 
NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N.D. Ill. 1995) (comparing salary of NHL 
defensive player to salary of other NHL defensemen). The Associate Commissioner in Matter of Price 
compared the alien's monetary earnings with his rankings among those in the top of his field 
performing similar work. Notably the Associate Commissioner compared the alien's 1991 winnings to 
the remaining Professional Golfers' Association Tour during the same year. Matter of Price, 20 I&N 
Dec. at 955. Therefore, the petitioner must compare her income 
with income earned by those in her 
field during the same time period for those in her field. 
Counsel's appellate brief also asserts that although USCIS policy states that some governmental 
statistics "may be helpful in evaluating" evidence under this criterion, that USCIS has "decided that it 
no longer will accept wage information published from the Department of Labor website when 
considering whether a petitioner's salary is high in relation to others in the field - even though the 
Department of Labor is the U.S. government's own agency and primary source of wage information 
6 http://www.tlcdatacenter.com/faq.aspx 
7 http://www.bls .gov/oes/ocs emp.htm#estimatcs 
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and statistics." The policy in place at USCIS does not state that its officers are to utilize the information 
contained on these websites as the determining factor regarding whether an alien has commanded a high 
salary or other significantly high remuneration in relation to others in the field; it merely states that the 
information contained in the websites "may" be helpful. In this matter, the BLS website is not helpful 
as it omits self-employed models such as the petitioner herself. 
In reference to the petitioner's tax returns, these documents are not accompanied by any Internal 
Revenue (IRS) Form W-2, Wage and Tax Statement documents (W-2s), or IRS Form 1099-MISC, 
Miscellaneous Income documents (1099s) that might serve to corroborate what amount of the monetary 
figures are attributable to the petitioner's salary or remuneration for her services as a model even though 
the director specifically requested IRS Form W-2s or IRS Form 1099s within the RFE. While the 
petitioner's schedule C indicates that her income listed on that form results from modeling, the 
petitioner did not submit the underlying IRS Forms 1099s. The invoices for the petitioner's work relate 
to the years covering 1997 and 1998 and cannot serve to corroborate any of the information from the tax 
returns from 2005 through 2011. Nevertheless, the petitioner provided two types of reports; one that 
appeared to report her earnings for one full calendar year, and a second report that reflected individual 
job assignments covering the period from November 18, 2008, through August 20, 2010. 
As the plain language of the regulation requires the petitioner to establish the petitioner's salary is high 
or that her remuneration has been significantly high when compared to others in the field, the report 
from the U.S. Census Bureau reflecting median eaminQS is_insufficient. as median statistics do not meet 
this requirement. Director of th~ stated: "Based on 
our current accounting reports, our highest earning models earn an average annual income of $40,000 -
$60,000." One company's assertion of its highest earning models is not sufficient to demonstrate that 
this figure is representative of the petitioner's field as a whole, and as such will not be considered 
representative of "a high salary or other significantly high remuneration for services, in relation to 
others in the field." 
Further, Vice President o1 stated: "Although wages and 
salaries vary amongst models, it is common industry knowledge that top models who have established 
reputations as the best, earn an annual salary exceeding $100,000. This six-figure salary is reserved for 
the top 10% of models working today." did not support he statement with any 
corroborating reports, nor did the petitioner provide evidence to support ontention that 
any model earning more than $100,000 is among the top ten percent m earmngs m the modeling 
industry. The materials the petitioner submitted from the Department of Labor's Occupational Outlook 
Handbook (OOH) state: "Hourly wages can be relatively high, particularly for supermodels and others 
in high demand." The petitioner has not compared her wages with supermodels and others in high 
demand. 
Ultimately, the plain language of the regulation requires the petitioner to establish the petitioner's salary 
is high or that her remuneration has been significantly high when compared to others in the field. As 
such, average statistics limited to one particular geographic area that do not include self-employed 
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Page 15 
individuals in a field with a significant percentage of self-employed members do not meet this 
requirement. 
Based on the foregoing, the petitioner has not submitted evidence that meets this criterion's 
requirements. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
This criterion requires a petitioner to establish eligibility through volume of sales or box office receipts 
as a measure of the petitioner's commercial success in the performing arts. Counsel claimed that the 
petitioner qualifies under this criterion based on comparable evidence. As discussed within this 
decision, the petitioner is not eligible to claim comparable evidence as she has not demonstrated that the 
regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not readily apply to her occupation. Moreover, 
counsel fails to explain how appearing in high-profile campaigns is comparable evidence of the 
petitioner's personal commercial success. Therefore, the petitioner has not submitted evidence that 
meets the plain language requirements of this criterion. 
E. 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 have 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.F.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 
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final merits determination. 8 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. !d. at 1122. It is briefly noted, however, 
that the published material is not recent and the most extensive coverage of the petitioner is in local 
publications. In addition, according to the OOH materials the petitioner submitted, creating public 
interest in buying products, displaying clothing and accessories, and appearing in printed publications 
and at fashion shows is inherent to the field of modeling. Finally, even if the petitioner established that 
her salary is within the top ten percent and is high pursuant to 8 C.F.R. § 204.5(h)(3)(ix), she has not 
compared her income with nationally or internationally acclaimed supermodels and others in high 
demand, including those who are self-employed, such that this evidence would be persuasive in a final 
merits detennination. See Matter of Price, 20 I&N Dec. at 955. 
The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and the petition 
may not be approved. 
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 of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
8 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 103(a)(1) 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).