dismissed EB-1A Case: Painting

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: VERMONT SERVICE CENTER Date: 
LIOV 2 1 1005 
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. 9 1 153(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. 
5 Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 3 1153(b)(l)(A), as an alien of extraordinary ability in the 
arts. The director determined that the petitioner had not established the sustained national or international 
acclaim requisite to classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 8 C.F.R. 8 204.5(h)(3). An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight gven to evidence submitted to fulfill the criteria 
at 8 C.F.R. tj 204.5(h)(3), or under 8 C.F.R. 8 204.5(h)(4), must depend on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained national or international acclaim at the very top of the 
alien's field of endeavor. A lower evidentiary standard would not be consistent with the regulatory definition 
of "extraordinary ability" 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." 8 C.F.R. 204.5(h)(2). 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the arts as a painter. The 
petitioner initially submitted supporting documents including evidence of his exhibitions in his native Nepal and 
abroad, newspaper articles purportedly about the petitioner, numerous certificates of his purported prizes from 
various exhibitions, seven letters of recommendation, and an unpublished portfolio of his paintings. Many of 
the documents submitted with the petition were printed in a foreign language. The regulation at 8 C.F.R. 
$ 103.2(b)(3) states, "Any document containing foreign language submitted to the Service shall be accompanied 
by a full English language translation which the translator has certified as complete and accurate, and by the 
translator's certification that he or she is competent to translate from the foreign language into English." The 
majority of documents submitted with the petition were in a foreign language and were accompanied by 
uncertified English translations. Because the petitioner failed to submit certified translations of the documents, 
we cannot determine whether the evidence supports his claim. See 8 C.F.R. 9 103.2(b)(3). Accordingly, the 
evidence is not probative and will not be accorded any weight in this proceeding. 
On appeal, counsel contends that the director did not give proper weight to evidence previously submitted and 
submits additional evidence including information about his income, the newspapers that purportedly published 
articles about the petitioner, and his more recent endeavors. Much of the evidence submitted on appeal arose 
after the petition was filed and consequently cannot be considered. The petitioner must establish eligibility at 
the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new 
set of facts. See 8 C.F.R. 5 103.2(b)(12), Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
We address the remaining evidence and counsel's contentions in the following discussion of the regulatory 
criteria relevant to the petitioner's case. The petitioner does not claim eligibility under any criteria not discussed 
below. 
(i) Documentation of the alien 's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in the field of endeavor. 
The petitioner submitted certificates and other evidence of his purported receipt of 12 prizes or awards for his 
painting in Nepal, nine of which were documented by materials submitted in a foreign language with uncertified 
English translations. Without certified translations of the documents, we cannot determine whether the evidence 
supports the petitioner's claim. See 8 C.F.R. 5 103.2(b)(3). Although one certificate entitled "Bicycle Rally 
'89" is printed in English, the record contains no documentation of how the petitioner's participation in a 
bicycle rally over 14 years before his petition was filed is related to his work as an artist. 
The petitioner submitted excerpts from three exhibition brochures printed in English that document his receipt 
of three prizes. The first brochure is for the "27' National Art and Craft Exhibition (2053)'' and includes 
photographs of the petitioner and his painting that was granted a "Contemporary Art Consolation Prize." The 
submitted excerpt includes a statement from Uttam Nepali of the Royal Nepal Academy Faculty of Fine Arts 
and Crafts who briefly describes the history of the exhibition, but does not explain the significance of the 
petitioner's consolation prize. The second brochure is for the "30' National Art and Craft Exhibition 2056," 
organized by the Nepal Association of Fine Art (NAFA) and held at the National Birendra Art Gallery. One 
page of this program features a photograph of the petitioner and his painting, which won the first prize in the 
Traditional Arts category. In an introductory essay, the Chairman of the organizing committee, Vijay Thapa, 
explains that awards were granted in three categories. Mr. Thapa comments on "the difficulty in the process of 
selection. There were many art objects that looked equally good and it was not easy to give the judgements. 
After serious discussions and consultations the jury selected the art objects for awards this year." The year of 
both the twenty-seventh and the thirtieth National Art and Craft Exhibitions are stated in a calendar that differs 
ftom the Gregorian calendar. Without an explanation and translation of this date we cannot determine if the 
petitioner's two prizes demonstrate sustained acclaim. The third brochure is for a "Paintings Exhibition" 
organized by the Commercial Artists' Association of Nepal (CAAN) and held at the Art Council Babarmahal in 
Kathmandu on August 17, 2001. The petitioner is pictured along with his painting that received the first prize. 
The submitted copy of the program contains an introduction by CAAN Central President I.B. Malla, which is 
partially cut off. 1.B. Malla states, "Commercial Artists' Association is a cornrnan [sic] organization of 
commercial artists. Around 15 thousands [sic] members are associated in this association. . . . [Tlhis exhibition 
shows a [ilbgible] and experience to participated artist[s] as well as other newcomer and followers members 
[sic]." 
I 
The record contains no other materials related to these exhibitions or any further documentation of their 
significant 4 . For example, the record contains no critical reviews or national media coverage of the exhibitions 
and the petitioner's prize winning works and none of the submitted recommendation letters discuss the 
petitioner's receipt of these awards. On appeal, counsel simply states that the petitioner "previously provided 
evidence of twelve awards that he has received in Nepal. Several of these award [sic] are recognizable national 
awards for excellence in Nepal . . . . In particular, Mr. Sharma received awards from the Nepal Association of 
Fine Arts and the Commercial Artists Association of Nepal, consisting of approximately 15,000 members." The 
record does not demonstrate that the petitioner's prizes from the NAFA and CAAN exhibitions are nationally 
recognized prizes that reflect susta~ned national or international acclaim. Accordingly, the petitioner does not 
meet this criterion. 
(ii) Documentation of the alien's membership in associations in thefield 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 does not claim eligibility under this criterion on appeal. However, with his petition, he submitted 
a copy of his "Artist Identity Card" issued by the Artists' Society of Nepal. The card identifies the petitioner as 
a "Gen. Member" in the category of "Con. Art" and is valid to "Sawan 2060." The record contains no evidence 
of the Society's membership criteria or any other evidence that outstanding achievements are prerequisite to 
Society membership. In addition, without a translation of the date into the Gregorian calendar, we cannot 
determine if the petitioner's membership is consistent with sustained acclaim. Accordingly, the petitioner does 
not meet this criterion. 
(iii) Published material about the alien in profe.rsiod or major trade publications or other major media, 
relating to the alien's work in the field for which classijication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessaly translation. 
The petitioner initially submitted six newspaper articles purportedly about him and his work. On appeal, 
counsel contends that three of these articles were published in leading, national Nepalese periodicals and 
submits additional evidence about these periodicals. Yet all of these articles were printed in a foreign language 
and were submitted with uncertified English translations. Without certified translations of the documents, we 
cannot determine whether the articles support the petitioner's claim. See 8 C.F.R. 5 103.2(b)(3). 
On appeal, the petitioner submits three additional newspaper articles that review a restaurant. The petitioner's 
painting of the goddess Kumari for this restaurant is seen in the background of photographs accompanying the 
reviews. These articles do not meet this criterion because they are not about the petitioner or his work and 
because they were published after the petition was filed. The petitioner must establish eligibility at the time of 
filing. See 8 C.F.R. 6 103.2(b)(12), Katigbak, 14 I&N Dec. at 49. Accordingly, the petitioner does not meet this 
criterion. 
(v) Evidence of the alien 's original scientific, scl~olarly, artistic, athletic, or business-related contributions of 
major signzficance in thefield. 
The director found that the record did not establish that the petitioner "has been recognized outside of his native 
country." While it is true, as counsel states, that the statute and the regulation do not require international 
recognition of an alien's contributions, the record does not demonstrate that the petitioner was recognized for 
making original artistic contributions of major significance in Nepal in a manner consistent with sustained 
national acclaim. On appeal, counsel states that the petitioner "previously provided significant evidence of the 
recognition he has received within his native country, in the form of awards, publications and recommendation 
letters from experts in the field. [The petitioner] has also been recognized outside of Nepal as evidenced by his 
invitations to display his work in India, Japan and the United States." 
As previously discussed under the first and third criteria, the record does not establish that the petitioner won 
awards or received media coverage consistent with sustained national acclaim in Nepal. The petitioner 
submitted seven letters of recommendation, two of which are accompanied by uncertified English translations 
and consequently cannot be considered. Without certified translations of the documents, we cannot determine 
whether the evidence supports the petitioner's claim. See 8 C.F.R. 9 103.2(b)(3). Five individuals involved 
with the fine arts in Nepal wrote the remaining letters. While such letters provide relevant information about an 
alien's experience and accomplishments, they cannot by themselves establish the alien's eligibility under this 
criterion because they do not demonstrate that the alien's work is of major significance in his field beyond the 
limited number of individuals with whom he has worked directly. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition cany less weight than preexisting, independent 
evidence of major contributions that one would expect of an alien who has achieved sustained national or 
international acclaim. Accordingly, we review the letters as they relate to other evidence of the petitioner's 
contributions. 
nother Nepalese artist, describes the petitioner as "highly energetic, serious to discipline 
highly impressed by his works, and I wish for a successful exhibition hoping he would - - 
be a well known artist in the field of art in the country." Mr. Mishra does not discuss any specific, major 
contributions that the petitioner has made to his field. 
Artistic Director of the Aarohan Theatre Group in Kathmandu, states that the petitioner has 
taught street children who live in the Aarohan hostel through a partnership project with UMCEF from 1994 to 
1995-_;i 
xplains that the "training was for the street children to express their feelings and make 
their own 1 entity through the painting." While this letter attests to the petitioner's commendable teaching, it -. 
does not establish that his work on the Aarohan-UMCEF project made an original, major contribution to his 
lso states that the petitioner designed posters for five Aarohan productions, but the record 
conta that these posters were recognized for their original and major contribution to the 
petitioner's field. 
a Nepalese artist, explains the difficulties faced by modern artists in Nepal and states, "I am 
very pleased to the efforts [sic] and ability of Sunil to conserve and promote the Nepalese arts despite the 
mentioned difficulties and problems; he has done it by self-study. . . . There is curiosity behind howeve; he has 
worked in different styles. I found he is energetic to let understand [sic] the modem Nepalese art. Though 
ignored by the national authorities, Sunil is well known as a successful artist and has impressed by [sic] his arts 
internationally. It can be taken as his bright future and the possible contribution we can expect through him." - 
of the Nepal Artists' Society, describes the "marvelous compositions" in the petitioner's work 
and states that "[als a highly potential [sic] artist, Sunil should be encouraged to go further so that his 
contribution would promote the modern art in ~e~al. of NAFA, states that the petitioner 
has woven "himself to be a milestone in the world of young artists. It is now no longer a specially new event 
when Mr. [Slharma receives rizes, but with a firm hope that he will introduce further new trends in the world 
of Nepales [sic] art." df the Durga Gallery, affirms that "[a]s done by the traditional artists, the 
efforts of Sunil Sharma to uromote the Nepalese art at international arena are highly appreciable. [He] doesn't - - 
abide to any specific style and medium. To learn new styles, it needs additional studies and feelings, he thinks, 
and which adds significant features in the arts. Next, he points to the importance of feelings and Nepalese 
ethnicity in arts." 
While most of these letters discuss the petitioner's promotion of Nepalese art, they do not specifically describe 
how he has done so or how his work has made original contributions of major significance to his field. In 
addition, all the letters describe the petitioner as a young artist and many of the letters discuss his future 
potential rather than his past accomplishments. As discussed below under the seventh criterion, the record 
shows that the petitioner consistently exhibited his work in Nepal and has conducted one exhibition in Japan and 
one in the United States. Yet the petitioner submitted little evidence regarding the significance of his 
exhibitions and the record does not establish that any of his exhibitions have made original, major contributions 
to his field in a manner consistent with sustained national or international acclaim. The record contains no other 
evidence that the petitioner has significantly influenced other visual artists in Nepal or abroad, or has otherwise 
had a major impact on his field. Accordingly, the petitioner does not meet this criterion. 
(vii) Evidence ofthe display of the alien 's work in theJield at artistic exhibitions or showcases. 
The record documents eight exhibitions of the petitioner's work in Nepal between 1995 and 2001, one solo 
exhibition in Tokyo in 2000 and one solo show in Washington, District of Columbia (DC) in 2002. Yet frequent 
display of one's artwork is inherent to the petitioner's profession. Duties or activities which nominally fall 
under a given regulatory criterion at 8 C.F.R. 5 204.5(h)(3) do not demonstrate national or international 
acclaim if they are inherent or routine in the occupation itself. Apart from the programs and postcards from the 
petitioner's exhibitions in Nepal and Japan, the record contains no evidence of these exhibitions or their 
significance. As discussed under the first criterion, the petitioner received honors for his work in two national 
exhibitions in Nepal, but the record does not establish that these accomplishments demonstrate sustained 
national acclaim. 
As documented by the record, the petitioner's exhibitions in Japan and the United States are also inconsistent 
with sustained international acclaim. In Japan, the petitioner held a solo exhibition at the Japanese Tea House in 
Tokyo in 2000. An introduction in the exhibition brochure describes and praises the petitioner's work, but the 
record contains no evidence that the exhibition was critically acclaimed, reported in national or international art 
publications or other media, that the Japanese Tea House is a prestigious artistic venue, or any other evidence of 
the significance of this exhibition. 
The record further shows that the petitioner personally paid for his exhibition at the Artists' Museum in 
Washington, DC. A "Rental Exhibition Contract" between the petitioner and the Artists' Museum states that 
the total cost of the "Rental Exhibition Package" was $2,100 and the attached terms of the contract state that the 
Artists' Museum "is a rental exhibition gallery." An exhibition procured through payment by the artist does not 
demonstrate the requisite sustained acclaim. In addition, the only stated selection criteria for the museum is "the 
prior review and acceptance of either the nature of or the specific artwork to be exhibited" and the record 
contains no evidence that the Artists' Museum is an exclusive or prestigious venue, exhibition at which would 
reflect national or intemational acclaim. 
In an undated letter, Rajendra Oli, President of the America Nepal Society, explains that this exhibition was part 
of the petitioner's plan to "travel and show his art-work [sic] in many big cities where there is a thnving Nepali 
community and Nepal loving people" and that the Royal Nepal Ambassador would inaugurate the petitioner's 
exhibition on November 17, 2002. Yet an October 31, 2002 letter from the Royal Nepalese Embassy in 
Washington, DC does not confirm that the Ambassador would inaugurate the exhibition, but simply requests the 
U.S. Embassy's assistance in facilitating the petitioner's visit to the United States. The submitted printout from 
the museum's website shows that the petitioner's work was shown at the museum on November 2-29, 2002. 
The petitioner also submitted an article from Spacetime that purportedly discusses this exhibition, but the article 
was submitted with an uncertified translation that misstates the date of the exhibition as November 17, 2003. 
Again, without a certified translation of the document, we cannot determine whether the evidence supports 
the petitioner's claim. See 8 C.F.R. 8 103.2(b)(3). 
On appeal, counsel contends that the petitioner meets this criterion, in particular, through his exhibitions at "the 
Artists [sic] Museum (now known as the Apex Gallery) in Washington DC; the Nepalese Embassy in 
Washington DC, and the Lalit Festival, which invited leading artists from Nepal to participate." The record 
does not support this statement. As discussed above, the record does not establish that the petitioner's 
exhibition at the Artists' Museum meets this criterion. The record also contains no evidence that the petitioner 
exhibited his work at the Nepalese Embassy. Finally, in his foreword contained in the Lalit ~estival-program, 
w 
Co-chairman of the festival, states that it is "very satis in to find that 47 leading artists in and 
epa have joined the exhibition of contemporary paintings.' fvo does not state that these artists 
were invited to participate in the festival or that exhibition at the festival was by invitation only. The record 
contains no other evidence of the significance of the petitioner's participation in the Lalit Festival. On appeal, 
the petitioner submits documentation that he displayed his work at another cultural festival in the United States, 
but we cannot consider this evidence because it arose after the petition was filed. The petitioner must establish 
eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(12), Katigbak, 14 I&N Dec. at 49. 
Although the record documents the display of the petitioner's work in Nepal, Japan and the United States, the 
evidence does not establish that the petitioner's solo exhibitions or his participation in group exhibitions reflect 
the requisite sustained acclaim, rather than the routine activities of a worlung visual artist. Accordingly, the 
petitioner does not meet this criterion. 
(ix) Evidence that the alien has commanded a high salary or other signzjkantly high remuneration for 
services, in relation to others in thefield. 
The petitioner initially submitted no evidence relevant to this criterion. On appeal, counsel claims the petitioner 
satisfies this category and submits evidence of sales of the petitioner's artwork. We cannot consider this 
evidence because it arose after the petition was filed; a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. See 8 C.F.R. 5 103.2(b)(12), Katigbak, 14 I&N Dec. at 49. 
Accordingly, the petitioner does not meet this criterion. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 3 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
intemational acclaim demonstrating that the alien has risen to the very top of his or her field. The evidence in 
this case does not establish that the petitioner had achieved sustained national or international acclaim as an 
artist placing him at the very top of his field at the time of filing. He is thus ineligible for classification as an 
alien with extraordinary ability pursuant to section 203(b)(l)(A) of the Act, 8 U.S.C. 3 1153(b)(l)(A), and his 
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. $ 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.