dismissed EB-1A Case: Painting

(b)(6)
DATE: 
DEC 1 5 2014 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(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:Uwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on July 2, 2014. The petitioner, who is also the beneficiary, appealed the decision with the 
Administrative Appeals Office (AAO) on July 25, 2014. The appeal will be dismissed. 
According to the petition that the petitioner filed on March 31, 2014, the petitioner seeks 
classification as an alien of extraordinary ability in the arts, as an abstract landscape painter, 
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 aliens 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 determined that the petitioner has not 
established the sustained national or international acclaim necessary to qualify for this visa 
classification. 
On appeal, the petitioner files a brief with no additional supporting documents. The petitioner 
asserts that she meets the criteria under the regulations at 8 C.P.R. § 204.5(h)(3)(iii), (v), (vii) and 
(viii). For the reasons discussed below, we agree with the director that the petitioner has not 
established her eligibility for the exclusive classification sought. 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.F.R. § 204.5(h)(3)(i)-(x). As such, the petitioner has not demonstrated that she is one of the 
small percentage who are at the very top in the field of endeavor, and that she 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. Pri ority 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 m 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 
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NON-PRECEDENT DECISION 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
United States 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. 8 C.P.R. § 204.5(h)(2). 
The regulation at 8 C.P.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can 
demonstrate the alien's sustained acclaim and the recognition of the alien's achievements in the field 
through initial evidence of a one-time achievement (that is, a major, internationally recognized award). 
If the petitioner does not submit this evidence, then a petitioner 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) 
to meet the basic eligibility requirements. 
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.C. 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 users 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. Prior 0-1 Visa Petitions 
While USCIS has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the 
petitioner, the prior approval does not preclude users from denying an immigrant visa petition 
based on a different, if similarly phrased, standard. The regulatory requirements for an immigrant and 
non-immigrant alien of extraordinary ability in the arts are dramatically different. 
8 C.P.R. § 214.2(o)(3)(ii) defines extraordinary ability in the arts (including the performing arts) as 
simply "distinction," which is further defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
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The regulation relating to the immigrant classification, 8 C.P.R. § 204.5(h)(2), however, defines 
extraordinary ability in any field as "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." While the ten immigrant 
criteria set forth at 8 C.P.R. § 204.5(h)(3) appear in the nonimmigrant regulations, 
8 C.P.R. § 214.2(o)(3)(iii), they refer only to aliens who seek extraordinary ability in the fields of 
science, education, business or athletics. Separate criteria for nonimmigrant aliens of extraordinary 
ability in the arts are set forth in the regulation at 8 C.P.R. § 214.2(o)(3)(iv). The distinction between 
these fields and the arts, which appears in 8 C.P.R. § 214(o), does not appear in 8 C.P.R. § 204.5(h). As 
such, the petitioner's approval for a nonimmigrant visa under the lesser standard of "distinction" is not 
evidence of her eligibility for the similarly titled immigrant visa. 
B. Evidentiary Criteria2 
Under the regulation at 8 C.P.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 her evidence that she 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.P.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 .. r elating 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. The evidence in the record does not 
support the director's conclusion. 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 
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 P.3d 683 (9th Cir. 2003); see also Soltane v. U.S. 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 has submitted materials published in a number of publications, including 
_ _ 
and . Many of these materials, including materials 
published on · and J do 
not include information on the authors of the materials. In addition, the materials in · are 
advertisements for the · , and the materials in the and 
are gallery event listings. These types of materials are not published material about the 
petitioner and do not meet the plain language requirements of the criterion. 
2 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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Moreover, the petitioner has not shown that the remammg published materials are about the 
petitioner as relating to her work. Rather, the materials either do not mention the petitioner by name, 
as is the case for the materials published in and 
or the petitioner has not shown that the materials are published in professional or major trade 
publications or other major media, as is the case for the materials published in and 
-== . In her response to the director's request for evidence (RFE), the petitioner asserts 
that: is a "[g]eneral interest [publication] in the "with 
29,200 prints per week, and is a "luxury home design, landscape, architecture and 
lifestyle magazine" with a circulation of 90,000. The petitioner has not shown that these 
publications, based on their nature or circulation, constitute professional or major trade publications 
or other major media. 
Furthermore, the material in is not about the petitioner, because it consists of a 
photograph of the petitioner in front of her work, with the caption: "[The petitioner] at her exhibit, 
, of new landscapes at the 
_ 
. The 
exhibit runs until April 8." The petitioner has not shown that the photograph and its caption 
constitute material "about the alien ... relating to the alien's work," as required under the plain 
language of the criterion. Similarly, some published materials in the record include photographs of 
the petitioner's work. The petitioner, however, has not shown that these photographs, which do not 
discuss the petitioner or her work, meet the plain language requirements under the criterion. 
Accordingly, the petitioner has not presented published material about her in professional or major 
trade publications or other major media, relating to her work in the field for which classification is 
sought. The petitioner has not met this criterion. See 8 C.F.R. § 204.5(h)(3)(iii). 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The director concluded that the petitioner did not meet this criterion. On appeal, the petitioner, 
relying primarily on three reference letters, asserts that she meets this criterion. The evidence in the 
record does not support the petitioner's assertion. Specifically, the petitioner has not shown that her 
work constitutes contributions of major significance in the field. 
First, the petitioner has not shown that her involvement with the . including being 
selected as the artist for an inaugural solo exhibition at . t, 
second location, is indicative of her contributions of major significance in the field. The appellate 
brief asserts that "Ms. . galleries only showcase works by and international artists 
who have made a significance contribution to art." Unsupported assertions in an appellate 
brief do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); 
Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 
503, 506 (BIA 1980). The petitioner points to no evidence in the record to support this conclusory 
(b)(6)
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statement. Indeed, Ms. does not make such an assertion in her letter. Rather, 
states that "the showcases contemporary art and represents over 300 artists 
internationally" and that the gallery is "known for identifying trends, coaching and exhibiting some 
of the most tremendous talents, and also for bringing these talents and their artwork to the attention 
of discerning collectors and emerging art enthusiasts alike." Accordingly, the evidence in the record 
indicates that Ms. considers the petitioner as one of the artists whose artwork is worthy of 
being exhibited at her gallery. The evidence, however, does not establish that the petitioner has 
made contributions of major significance in the field as a whole. 
Similarly, the petitioner's participation in the 
� 
� Program, a collaborative 
project that involved : and the does not 
establish that the petitioner has made contributions of major significance in the field. The evidence 
shows that chose some of the petitioner's work to include in the program that wraps 
artwork around recycling bins in downtown to beautify public spaces. The evidence shows 
that Ms. considers the petitioner's work to be worthy of exhibiting not only in her gallery, 
but also in public spaces. The petitioner's participation in the program amounts to an exhibition of 
her work, which is something that many artists engage in, albeit in different venues. The petitioner's 
participation in the program does not, however, establish that she has made contributions of major 
significance in the field, such that her work has fundamentally changed or significantly advanced the 
field. See Visinscaia, 4 F. Supp. 3d at 134-35 (upholding a finding that a ballroom dancer had not met 
this criterion because she did not demonstrate her impact in the field as a whole). 
The record includes other evidence showing that the petitioner has displayed her work in galleries 
and other venues. These displays, absent evidence that the petitioner's work constitutes 
"contributions of major significance in the field," are not sufficient to establish that the petitioner 
meets this criterion. The regulations contain a separate criterion regarding evidence of the display of 
the petitioner's work, which is a criterion we conclude below that the petitioner meets. See 8 C.F .R. 
§ 204.5(h)(3)(vii). If the regulations are to be interpreted with any logic, it must be presumed that 
the regulation views contributions as a separate evidentiary requirement from display. As such, 
display of one's work is not sufficient evidence under the contributions criterion absent evidence that 
the display represents contributions of "major significance in the field." Cf Kazarian v. USCIS, 580 
F.3d 1030, 1036 (9th Cir. 2009), aff'd in part, 596 F.3d at 1115.2 At issue in considering whether a 
display is a contribution of major significance is the impact the display has in the field. 
Cf. Visinscaia, 4 F. Supp. 3d at 134-35. The evidence in the record is insufficient to show that the 
petitioner's display has had an impact consistent with contributions of major significance in the 
field. 
Second, the reference letters from Curatorial Assistant, Department of Modern and 
Contemporary Art, , do not establish that the petitioner meets this criterion. 
Ms. authored two reference letters for the petitioner. According to her first letter, the 
2 In 2010, the Kazarian court reaffirmed its 2009 holding pertaining to contributions of major significance. 596 F.3d at 
1122. 
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petitioner "has earned distinction and demonstrates a degree of skill (and recognition) substantially 
above that ordinarily encountered." Ms. states that the petitioner "is viewed by her peers as 
a leading figure in the art community. She is featured as a leading artist at pre-eminent galleries 
such as , , The _, and several 
others throughout the years. Many of her imagines are also found in the media." Ms. � first 
letter does not specifically state what the petitioner has done that constitutes contributions of major 
significance in the field. Instead, the letter indicates that the petitioner's work has been on display 
and has received praise and attention in the field, which are insufficient to show that she meets this 
criterion. 
The petitioner filed a second, undated letter from Ms. in response to the director's RFE. 
According to the second letter, the petitioner's work "meets the standard of outstanding significance 
due to her advancements in the field of abstract landscape painting." Ms. reference to "the 
standard of outstanding significance" relates to classification of "moveable cultural 
property that is of outstanding significance (OS) and national importance (NI) in the public domain." 
According to a December 2013 document entitled "Outstanding Significance and National 
Importance (OS/NI), Writing an Effective OS/NI Justification for the Certification of Cultural 
Property by the ," the OS/NI classification, unlike 
the exclusive classification that the petitioner seeks in this case, is given to an object, not a person. 
Moreover, the petitioner has submitted no evidence showing that the 
has specifically designated any of the petitioner's work as OS/NI. In addition, 
the December 2013 document indicates that "outstanding significance" can be shown through the 
object's "close association -vvith history or national life, its aesthetic quality, or its value in 
the study of the arts or science." The petitioner has not shown that the "outstanding significance" 
definition, as applied to an object, is analogous or similar to, as the petitioner suggests on appeal, 
"original ... contributions of major significance in the field," as applied to a person who seeks to 
establish her extraordinary ability in a field of endeavor. 
In her second le tter, Ms. l also states that "Painters such as _ and 
have utilized [the petitioner's] approach to a dappled representation, especially her palette. Both 
and have integrated a slightly more formal compositional approach to their landscape, 
but are clearly building on the influence of [the petitioner]. These artists are young 
painters whose careers are rising." Ms. states that she has "noticed a general trend among 
artists to utili[z]e this trademark stylistic approach." 
Although Ms. has identified two young, rising artists whose work the petitioner has 
influenced, Ms. has not stated that the petitioner's influence has been felt in the field as a 
whole. The petitioner has not shown that influencing two young, rising artists constitutes 
contributions of major significance in the field, as a whole, such that the petitioner's work has 
fundamentally changed or significantly advanced the field. Ms. conclusory statement that 
she has noticed "a general trend among artists to utili[z]e [the petitioner's] trademark stylistic 
approach" without providing specific information in support of her conclusion, in addition to the two 
young, rising artists she has referenced, is insufficient to show that the petitioner meets this criterion. 
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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, 16 5 (Assoc. 
Cornm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (R eg'l Comm'r 
1972)). 
In her appellate brief, the petitioner states that Ms. "likened [the petitioner's] abstract 
landscape paintings to that of the " and that this statement "indicates that [the 
petitioner] is regarded as an artist of high caliber amongst prominent figures in the area of 
contemporary art." The petitioner's assertion is not supported by Ms. letter. 
Specifically, Ms. second letter states: 
... Looking at painters working before [the petitioner], many employed a more 
faithful rendering [of] their subject and utilized a more naturalistic palette (think 
green to represent trees, as an example). Many painters of generations working 
before [the petitioner], one might think back to the iconic landscape painters from the 
1920's, the _ , used a method of representation that slightly abstracted 
what was an obvious landscape, whether it was a forest, mountain or lake. 
Painters in to this day have been influenced by the and have 
emulated their style. 
Ms. has not "likened" the petitioner's work to that of the • l. Rather, Ms. 
states that the _ carne before the petitioner and their work still influences 
artists today. Even if Ms. has put the petitioner's work on par with the work of 
the this comparison alone, shows Ms. overall opinion of the petitioner's 
work, and does not specifically identify contributions that the petitioner has made that are of major 
significance in the field, as required under the plain language of the criterion. 
Third, the demand of the petitioner's work is insufficient to show that she meets this criterion. 
According to President of , a publisher, manufacturer and licensor of 
exclusive works of art and framed art prints, the petitioner's "images are extremely marketable to 
[the company's] clients .. .. [The petitioner] has been a key artist included in [the company's] many 
catalogues, and as a testament to her importance with [the] organization, she is listed as an artist on 
[the] website and has four dedicated pages as well as many images in several artistic categories. 
[The petitioner's] work is in high demand. She has become one of [the company's] top selling 
artists, with thousands of her images having been sold to clients across and internationall y." 
According to an April 2009 article entitled " has more than 2,000 
exclusive images from some 200 artists. The evidence shows that the petitioner has contributed to 
the profitability of This contribution, limited in scope, is not a contribution of major 
significance in the field. Regardless of the field, the plain language of the phrase "contributions of 
major significance in the field" requires evidence of an impact beyond one's employer and clients or 
customers. See Visinscaia, 4 F. Supp. 3d at 134-35 (D .D .C. 2013) (upholding a finding that a 
ballroom dancer had not met this criterion because she did not demonstrate her impact in the field as 
a whole). 
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Finally, on appeal, the petitioner has not specifically explained how the remaining reference letters 
in the record establish that she meets this criterion. These remaining reference letters, mostly from 
ind ividuals who have purchased the petitioner's work, do not specifically identify what the petitioner 
has done that is consid ered contributions of major signific ance in the field_ Rather, the reference 
letters state in a general manner that the petitioner is a high caliber artist who has received 
compensation for her work, which is insufficient to establish that the petitioner meets this criterion. 
Vague, solicited letters from colleagues or clients that do not specifically identify contributions or 
provid e specific examples of how those contributions influenced the field are insufficient. 4 
Kazarian, 580 F.3d at 1036. The opinions of experts in the field are not without weight and have 
been consid ered. USCIS may, in its discretion, use as advisory op in ions statements submitted as 
expert testimony. See Matter of Caron Int'l, 19 I&N Dec. 791, 795 (C omm'r 1988). However, 
US CI S is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. /d. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USC IS may, as this decision has done, evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 
24 I&N Dec. 500, n.2 (B IA 2008) (noting that expert op inion testimony does not purport to be 
evidence as to "fact"). US CI S may even give less weight to an opinion that is not corroborated, in 
accord with other information or is in any way questio na ble. Matter of Caron Int'l, 19 I&N Dec. at 
795; see also Matter of Soffici, 22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 
14 I&N Dec. at 190); Visinscaia, 4 F. Supp. 3d at 134-35 (concluding that US C IS' decision to give 
limited weight to uncorroborated assertions from practitioners in the field was not arbitrary and 
capricious). 
According! y, the pet it io ner has not presented evidence of her original scientific, scholar! y, artistic, 
athletic, or business-related contributions of major significance in the field. The petitioner has not 
met this criterion. See 8 C. F.R. § 204. 5 (h)(3)(v). 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5 (h)(3)(vii). 
The director conclud ed that the petitioner met this criterion. The evidence in the record supports the 
director's conclusion. The petitioner has submitted evidence showing that her artwork has been on 
display at artistic exhibitions and showcases at 
the and 
-
Accordingly, the petitioner has presented evidence of the display of her work in the field at 
artistic exhibitions or showcases. The petitioner has met this criterion. See 8 C.F.R. 
§ 204. 5 (h)(3)(vii). 
4 In 2010, the Kazarian coun reiterated that our conclusion that "letters from physics professors attesting to [the alien's] 
contributions in the field" were insufficient was "consistent with the relevant regulatory language." 596 F.3d at 1122. 
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Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.P.R. § 204. 5(h)(3) (viii). 
The director conclud ed that the petitioner did not meet this criterion. On appeal, the petitioner 
asserts that she meets this criterion because selected the petitioner for its second 
locatio n's inaugural so lo exhibit in and because selected several of the 
petitioner's work to in clude in the . The petitioner has not shown 
that she meets this criterion. 
First, although the petitioner, as the artist of the solo exhibit, has perfor med a leading or critical role 
for the opening of second location, the petitioner has not 
shown that the event constitutes an organization or establishment. The , which hosted 
the event, is an organization or establi sh ment. The petitioner, however, has not shown that the event 
itself is an organization or establishment, as the ter ms are used in the criterion. In the alternative, 
even if the petitioner has shown that the gallery opening event constitutes an organization or 
establi sh ment, which she has not, the petitioner has not shown that the event had a distinguished 
reputation. The record includ es evidence that has a distinguished reputation, but 
lacks sufficient evidence showing that all events, includ ing the opening of 
, for which the petitioner has perfor med a leading or critical role, also have a 
distinguished reputation. Specifically, the petitioner has not shown that all events of an organization 
or establish ment that has a distinguished reputation also have a distinguished reputation. According 
to the owner and curator of the , the opening of 
"was we ll attend ed by respected personalities in the co m munity, and earned media attention 
and generated press." While the evidence shows that the event received so me attention in the field, 
it does not establish that the event had a distinguished reputation. 
Second , although the petitioner has shown that . has a distinguished reputation, she 
has not shown that she has perfor med either a critical or leading role for the gallery as a whole. 
According to Ms. , the petitioner's solo exhibit'' " received positive 
responses from patrons and "resulted in a near sell out of [the petitioner's] work." 
Ms. :states that at the opening of , the petitioner's "works were 
we ll received and most sold ." Although Ms. praises the petitioner's work and notes positive 
custo mer response to the petitioner's work, does not state that the petitioner has performed either a 
leading or critical role for the gallery. An art gallery, such as is in the business of 
displaying and selling art from different artists. The fact that the petitioner has been one of the 
artists whose work . has displayed and sold , does not establish the petitioner has 
performed either a leading or critical ro le for the gallery. Ind eed, according to a 2011 edition of 
. "regularly rotates the works of 400 artists." 
Third, the evidence in the record does not support the petitioner's assertion that the selection of her 
work for the _ _ is ind icative of her perfor ming a leading or critical role 
for Ms. states that the gallery selected several of the petitioner's work to 
includ e in the t. Ms. indicates that "one of the bins that 
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Page 11 
featured [the petitioner's] work was chosen by the executives to be placed directly across 
the street from the and was visible from its entrance." The petitioner has not 
submitted evidence relating to how many artists _ selected to participate in the 
program. According to a June 2008 letter from , Director of , the 
petitioner is not the only artist that _ chose to participate in the program. The 
petitioner has also not submitted evidence relating to how being selected to participate in this 
program constitutes performing a leading or critical role for Specifically, the 
petitioner has not presented evidence showing that the program and the are so 
inextricably tied that performing a leading or critical role for the program constitutes performing a 
leading or critical role for 
Fourth, the petitioner has not shown that she has performed a leading or critica l role for the 
. The petitioner has not provided information relating to how many artists 
were involved in the program. The petitioner has not shown that her role in the program, which 
included the work of an unspecified number of artists, is either leading or critical. The petitioner has 
not shown that every participating artist has performed either a leading or critical role for the 
program. According to Ms. May 2013 letter, the petitioner's paintings "were featured 
prominently on bins in the downtown core of including financial district" 
Assuming arguendo that the placement of the petitioner's work is indicative of her leading or critical 
ro le for the : , the petitioner has not shown that the program had a 
distinguished reputation. According to a January 2008 article from , the project 
involves ' 
" The petitioner has not submitted evidence relating to , that 
shows that an article in this publication is indicative of the program's distinguished reputation. 
Moreover, although , Chief Executive Officer (C E O), 
indicates in the article that the project is an "award-winning program," he does not indicate what 
award(s) the program has won. The petitioner similarly has not provided any information relating to 
what award(s) the project has won or the reputation of the project outside of individuals and groups 
who were involved in the project. 
Finally, the evidence in the record indicates that the petitioner has been involved with 
and . On appeal, however, the petitioner has not 
asserted that the role she has performed for these organizations or establishments meet this criterion. 
As such, the petitioner has abandoned this issue, as she did not timely raise it on appeal. Sepulveda, 
401 F.3d at 1228 n. 2; Hristov, 2011 WL 4711885 at *9. 
Accordingly, the petitioner has not presented evidence that she has performed in a leading or critical 
role for organizations or establishments that have a distinguished reputation. The petitioner has not 
met this criterion. See 8 C.P. R. § 204.5 (h)(3)(viii). 
C. Summary 
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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 . CO NCLU SIO N 
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 ind icating 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.P.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 satis fy the antecedent regulatory requirement of 
presenting evidence that satis fied 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 re ferenced in Kazarian, a review of the evidence in the aggregate supports a 
finding that the petitioner has not demonstrated the level of expertise required for the classi fication 
sought.5 
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 bene fit sought. Section 291 of the Act, 8 U. S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (B IA 2013). Here, that burden has not been met. 
ORDER: The ap peal is dismissed. 
5 We maintain de novo review of all questions of fact and law. See Soltane, 381 F.3d at 145. 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); DRS 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).