dismissed EB-1A Case: Painting

(b)(6)
' ' . l . ·: . . U.S. Depart;ment . of Homeland Security 
U.S . Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washineton .. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: Office: . TEXAS SERVICE CENTER FILE: 
APR 0 9 2013 
IN RE: · Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to · 
Section 203(b)(l)(A) of the Immigr~tion 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 in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office: 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
_)10WnL 
('Ron Rosenberg . 
~ Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center, and 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" in the arts, pursuant to 
section 203(b)(l)(A) of the hnmigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A) as 
a painter. The .director determined that the petitioner had not established the requisite extraordinary 
ability and failed to submit extensive documentation of his sustained national or international 
acclaim. 
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. 
On appeal, counsel asserts th~t the petitioner meets the regulatory categories of evidence at 
8 C.F.R. §§ 204.5(h)(3)(iii), (v), (vii), and (viii). For the reasons discussed below, the AAO will 
uphold the director's decision. 
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, 
ar:ts, 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. 
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Page 3 . 
U.S. Citizenship and hnmigration Services (USCIS) . and legacy hnmigration 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. 723 101 st 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. ld; 8 C.F.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.F.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, 580 F.3d 1030 (9th Cir. 2009) aff d in 
part 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.F.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 "fmal 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)." ld. at 
1122 (citing to 8 C.F.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 fmal 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.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
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II. ANALYSIS 
. A. Evidentiary Criteria2 
Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their 
members, as judged by recognized national or international experts in their 
disciplines or fields. 
While the petitioner initially submitted letters stating that he was a member of various arts 
organizations, he did not assert a claim of eligibility under 8 C.F.R. § 204.5(h)(3)(ii) in response 
to the director's request for evidence. The director did not discuss the criterion in his decision and 
the petitioner made no further claim on appeal. The AAO, therefore, considers this issue to be 
. abandoned. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th .Cir. 2005); Hristov v. 
Roark, No.· 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court 
found the plaintiff's clai.rlls to be abandoned as he failed to raise them on appeal to the AAO). 
Accordingly, the petitioner has not established that he meets this regulatory criterion. 
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. 
The AAO withdraws the director's fmding that the petitioner meets this regulatory criterion. In 
general, in order for published material to meet this criterion, it must be about the petitioner and, as 
stated in the regulations, be printed in professional or major trade publications or other major media. 
The petitioner submitted a brief announcement in the "New Jersey Calendar'' section ofthe New 
York Times promoting an "eXhibit from the 
md including the petitioner's painting. The author of the material was 
not identified and the material was not about the petitioner as required by the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii). , The first paragraph of the "New Jersey Calendar" 
section explains that placement of an announcement in that section is open to the public and not 
indicative of independent journalistic media coverage. Specifically, the "New Jersey Calendar" 
material states: "A guide to cultural and recreational goings-on around the state. Items may be 
submitted by mail to New Jersey Calendar ... or by e-mail to njtowns@nytimes.com." 
The petitioner submitted a web video screenshot from the internet site of NY1, 
Time Warner Cable's 24-hour news channel in New York City. The web video is entitled 
and includes footage of the petitioner purportedly 
being interviewed. The petitioner, however, failed to submit the complete video recording of the 
segment featuring him or a copy of the transcript from the interview. As such, the petitioner has 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
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PageS 
not established that the coverage is about himself rather lJ:lan about the ". annual Art, Poetry 
and Prose event." Further, the plain language of this regulatory criterion requires "published 
material about the alien'' including "the title, date and author of the material." The web video 
screenshot from NYl does not meet these requirements. 
The petitioner submitted a article about hims'elf on pages of 
NY Arts magazine entitled ' _ ' but there is no documentary evidence showing 
that NY Arts is a major trade publication or some other form of major· media. In__addition, the 
petitioner submitted six sentences written by him appearing on page on the 
edition of NY Arts and posted on the NY Arts website. The six 
sentences posted online and appearing on page constitute material written by the petitioner 
about his own work rather than published material about himseif. 3 The petitioner also submitted 
a ·advertisement" in NY Arts promoting an exhibition of his work at the 
The material written by the petitioner and the promotional material advertising his exhibition do 
not meet the plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) .. 
The petitioner submitted articles about himself 
in The Korea Times (New York edition) entitled 
_ but author of the articles was not identified as required by the plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). The petitioner also submitted information from The 
Korea Times' website stating that the "news corporation publishes five different newspapers on a 
daily basis, with over 4 million in circulation." Rather than submitting circulation information 
specific to the New York edition of The Korea -Times, the petitioner submitted combined circulation 
data for the company's "five different newspapers." Further, with regard to the information 
submitted from the The Korea Times' own website, USCIS need not rely on self-promotional 
material. See Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 6, 2007) aff'd 317 Fed. Appx. 
680 (9111 Cir. 2009) (concluding that the AAO did not have to rely on self-serving assertions on the 
·cover of a magazine as to the magazine's status as major media). There is no objective 
documentary evidence demonstrating that The Korea Times (New York edition) qualifie,s as a 
form of major media in the United States or in any other country. 
The petitioner submitted articles about himself 
in The Korea Daily (New York edition) entitled 
"[The Qetitioner's] 
and "[The petitioner] and 
but author of the· articles was not identified as required by the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). The petitioner also submitted articles 
in The Korea Daily (New York edition) entitled ' 
.':: =:;:::::::::::::~===:-:=---
·------ · but author or the amc1es agam 
was not identified and they are not about the petitioner. Instead, the articles are about group 
3 The regulations contain a separate criterion regarding the authorship of scholarly articles. 8 C.F.R. § 204.5(h)(J)(vi). 
The petitioner does not claim to meet the authorship of scholarly articles criterion, nor does the material in NY Arts meet 
the plain language requifements of the regulation at 8 C.F.R. § 204.5(h)(3)(vi). 
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Page6 
exhibitions in which he participated. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii) requires that the published material be "about the alien ... relating to the alien's 
work in the field." Thus, an article that mentions the petitioner but is "about" someone or 
'something else cannot qualify under the plain language of this regulation. See Noroozi v. 
Napolitano:J. 1 CV 8333 PAE, 2012 WL 5510934 at *1, *9 (S.D.N.Y. Nov. 14, 2012); also see 
Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a 
fmding that articles about a show or a character within a show are not abput the performer). The 
petitioner also submitted information from The Korea Daily's website stating that the newspaper 
is the "most read Korean language general daily newspaper in the states"; is "published in 8 
metro areas: LA, NY, Washington DC, San Francisco, Chicago, Atlanta, Seattle, Hawaii"; and 
has a "258,000 estimated daily readership." Rather than submitting readership information 
specific to the New York edition of The Korea Daily, the petitioner submitted combined readership 
data for its eight different U.S. editions. Further, with regard to the information submitted from 
The Korea Daily's own website, as previously discussed, USCIS need not rely on self-serving 
assertions. There is no objective documentary evidence demonstrating that The Korea Daily (New 
York edition) is a form of major media. 
The etitioner submitted a micle about himself in The New York Ilbo entitled ' 
[the petitioner]," but the author of the article was not identified as required by the 
plain language of this regulatory criterion. The petitioner also submitted a captioned photograph 
in the l issue of The New York llbo. The plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(iii) requires "published material about the alien" including "the title, date 
and author of the material." The captioned photograph does not meet these requirements. 
Further, there is no evidence showing that The New York Ilbo qualifies as a form of major media. 
The · petitioner submitted article about himself in The Korean Bergen News 
entitled "[The petitioner's] ' but the 
author of the article was not identified as required by the plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(iii). The petitioner also submitted a article in The 
Korean Bergen News entitled 
The author of the article again was not identified and the article is not 
about the petitioner. Instead, the article was about the exhibition. Further, there is no 
documentary evidence showing that The Korean Bergen News is a form of major media. 
The petitioner submitted three articles in Huntington Arts Cultural News dated Fall-Winter 2010-
2011, Summer 2011, and Fall-Winter 2011-2012. The author of the articles was not identified as 
required by the plain language of this regulatory criterion. Further, none of the articles are about 
the petitioner. In addition,,-there is no documentary evidence · showing that Huntington Arts 
Cultural News qualifies as a major trade publication or some other form of major media. 
The petitioner submitted a two-sentence posting on the Long Beach Patch website entitled "[The 
petitioner] and but there is no evidence indicating that the 
Long Beach Patch website is a form of major media. 
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The peti~oner submitted a article in The Long Islander entitled ' 
The author of the . article was not identified as 
required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). In addition, the 
article is not about the petitioner. Instead, the article is about the Huntington Art Council's 
benefit auction. The . petitioner also submitted a three-sentence art show announcement in the 
"Community Calendar" section of The Long Islander entitled ' _ 
but the author of the material again was not identified as required by the plain 
language of this regulatory criterion. Further, there is no documentary evidence showing that The 
Long Islander qualifies as a form of major media. 
The petitioner submitted a article posted at TheAltemativePress.com entitled 
~ " but the 
author of the article was not identified as required by the plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(iii). In addition, the article is not about the petitioner. Instead, the article 
is about the exhibition. Further, there is no documentary evidence 
showing that TheAltemativePress.com is a form of major media. 
The petitioner submitted a uticle ·in SOKY happenings entitled'' 
The author of the article was not • identified as -
required by the plain language of this regulatory criterion. Further, the article is not about the 
petitioner. Instead, the article is about the In 
addition, there is no documentary evidence showing that SOKY happenings qualifies as a form of 
major media. 
The petitioner submitted an article about him in the Harborfields Public Library 
Newsletter, but the author of the article was not identified as required by · the plain language of 
the regulation at 8 C.P.R. § 204.5(h)(3)(iii). Further, there is no documentary evidence showing 
that the Harborfields Public Library Newsletter is a form of major media. 
The petitioner submitted a article in The Segye Times entitled ' . ~·~~P 
• - ~ 
9 
•• but the English language 
translation accompanymg the arttcle was not a ruu translatiOn as required by the regulation at 
8 C.P.R.§ 103.2(b)(3). Any document containing foreign language submitted to USCIS shall be 
accompanied by a full English langtiage translation that 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. /d. Further, the author of the article was not identified as 
required by the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii). Moreover, the 
article is not about the petitioner and only briefly mentions him. Instead, the article is about the 
group exhibition. In addition, there is no documentary evidence showing that The 
Jegye 1 tme:• qualifies as a form of major media. 
The petitioner submitted an article about himself in The Kukmin Daily entitled 
but the author of the article was not 
identified as required by the plain language of this regtilatory criterion. Further, there is no 
evidence demonstrating that The Kukmin Daily is a form of major media. 
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The petitioner sphn11ttPil PYrPrnt~: frnm thP. 1R7-n$IOP. $1)m$1nac Korean Art 2001 including an 
article on pages The English language translation 
accompanying the article was not a full translation as required by the regulation at 8 C.F.R. 
§ 103.2(b)(3). The petitioner is briefly mentioned along with numerous other artists in the almanac 
and there is no indication that the petitioner was the focus of the article. In addition, there is no 
objective documentary evidence showing that Korean Art 2001 is a major trade publication or 
some other form of major media. 
In light of the above, the petitioner has not established that he meets this regulatory criterion .. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
regulatory criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires 
"[e]vidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field." [Emphasis added.] Here, the evidence must be 
reviewed to see whether it rises to the level of original scholarly or artistic contributions "of 
major significance in the field." 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 inAPWUv. Potter, 343 F.3d 619,626 (2nd Cir. Sep 15, 2003). 
On appeal, counsel asserts that the director failed to consider documentation submitted by the 
petitioner in response to the director's request for evidence. 
The petitioner submitted a . 
magazine entitled 
article on pages 
that states: 
of NY Arts 
[The petitioner's] paintings are a quiet but weighty mantra, legendary truths where the 
imaginary is viable. He records dream worlds that beckon to materialize. 
* * * 
His paintings display a defmite mastery of material and medium. 
[The petitioner] works on a thin but strong traditional Korean paper called Hanji made 
from the bark of the mulberry tree. 
[The petitioner's] paintings silently, plaintively, express a drifting through a solitary 
fragmented existence. ~ 
uticle describes the petitioner's art work, but she fails to provide specific examples 
demonstrating that his original work is majorly significant to the field. As previously discussed, 
there is no evidence showing that NY Arts is a major trade publication or some other form of 
(b)(6)
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major media. As such, nticle fails to demonstrate that the petitioner's art work has 
attracted substantial attention beyond the New York metropolitan area at a level indicative of a 
contribution of major significance in the field. There is no documentary evidence demonstrating 
that the petitioner has significantly influenced other artists in the field, that any of his specific 
works are widely renowned as masterpieces of modem contemporary art, or that his work 
otherwise equates to original artistic contributions of major significance in the field. 
The petitioner also submitted excerpts from the 387-page almanac Korean Art 2001 including an 
article on pages entitled As previously discussed, the English 
language translation accompanying the article was not a full translation as required by the 
regulation at 8 C.P.R. § 103.2(b)(3). Further, there is no objective documentary evidence 
showing that Korean Art 2001 had substantial readership in the petitioner's field or otherwise 
qualifies as a major trade publication or some other form of major media. While the petitioner is 
briefly mentioned along with numerous other artists in the almanac, there is no indication that the 
petitioner's work is the main focus of the article. The submitted article does not set the petitioner's 
original work apart from that of the numerous other artists mentioned in the article and the author of 
the article does not sufficiently explain how the petitioner's original work was majorly significant to 
the field. As such, the petitioner has failed to demonstrate that his inclusion in Korean Art 2001 
is indicative of an original contribution of major significance in the field. 
Furthermore, with regard to the preceding articles in NY Arts and Korean Art 2001, the 
regulations contain a separate criterion· regarding published material about the alien. 8 C.P.R. 
§ 204.5(h)(3)(iii). The AAO will not presume that evidence relating to or even meeting the 
published material criterion is presumptive evidence that the petitioner also meets this criterion. 
Here it should be emphasized that the regulatory criteria are separate and distinct from one 
another. Because separate criteria exist for published material about the alien and original 
contributions of major significance, USCIS clearly does not view the two as being 
interchangeable. To hold otherwise would render meaningless the statutory requirement for 
extensive evidence or the regulatory requirement that a petitioner meet at least three separate 
criteria. 
The petitioner submitted a portfolio of his work entitled _ by [the etitioner]" that 
includes an introduction by Art Critic and Professor at 
The introduction, entitled ---_,. states: 
The series of [the petitioner's] works can be said to be of the windows of mind on a 
serene voyage from his meditation on the clue of life he has cherished without cease, 
asking about the solitary existence of modem people. 
Like the fate of whales that swim through the abysmal blue sea, yelling out something 
that cannot be· figure<} out, his works of meditation series carry the simplified silence 
created by the contemplation about human beings on a consecutive lonly [sic] journey 
with the titles of twilight, the Milky Way, an evening glow, a morning glow, song of 
birds, deep and blue night, serene voyage, etc. 
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* * * 
His works seem to be on the basis of virtual images of dreams .or frustration from the 
limited space produced by the sense of extinction and the alienation of humans in 
urbanized society. 
Professor comments on the petitioner's work, but Professo1 fails 
to provide specific examples of how the petitioner's original' artwork has impacted the field at a 
level indicative of contributions or major significance in the visual arts. It is not enough to be a 
talented artist and to have others attest to that talent. An alien must have demonstrably impacted 
his field in order to meet this regulatory criterion. 
The petitioner also submitted a letter o suooort from 
Associate Professor, Department of Art, 
Gallery Director and 
, stating: ___ ____, 
It was a pleasure and a delight to work with · [the petitioner] and to have his work 
. exhibited in our gallery. Our gallery is located within a heavily trafficked University 
building in the center of campus .... [The petitioner's] exhibition was easily one of the 
campus favorites, appreciated by artists for its conceptual blend of Eastern ·and Western 
influences, image~y and process, and appreciated by the "non arts folks" for its beauty, 
color, and technique. 
In addition to exhibiting his paintings, [the petitioner] provided a lecture for our campus 
community and a workshop for our Art Education students in traditional Korean painting. 
[The petitioner's] discussion of his own work, including his early Korean and later 
Western influences, increased our students' knowledge both of his unique process, but 
more importantly gave them a greater understanding of and appreciation for the broad 
and varied cultural experiences [the petitioner] shared with the audience. His lecture was 
delivered to a packed house, and I received many compliments on the exhibition and 
lecture from students, who were universally charmed and appreciative for the way in 
which [the petitioner] generously shared his knowledge of a process and culture so 
unfamiliar to their own. 
Finally, we were delighted and surprised by the gift to our College of a beautiful painting 
from [the petitioner] from his exhibition. A Korean watercolor painting entitled 
- -...-· - -· it was quickly requested by the Dean's office to be exhibited 
there permanently, on view for students, faculty and the administration to enjoy. 
Based on [the petitioner's] unique and important contribution to the field of painting 
which has been developed through study 9f both traditional Korean and Western 
methods, and 'based upon his generous desire to share this acquired knowledge as a 
teacher, I believe that granting the status of Permanent Resident of the United States of 
America to would greatly enrich our culture in general and the field of 
fme arts in particular. 
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Page II 
discusses the petitioner's visit to and comments on his "unique and important 
contribution to the field of painting," but she fails to provide specific .examples of how the 
petitioner's work has significantly impacted the field at large or otherwise equates to an original 
contribution of major significance in the field. dso states that the petitioner 
increased students' knowledge of "his unique process" and gave them a greater 
) understanding of his "cultural experiences." Assuming the petitioner's skills and experiences are 
unique, the classification sought was not designed merely to alleviate skill shortages in a given 
field. In fact, that issue properly falls under the jurisdiction of the Department of Labor thrQugh 
the alien employment certification process. See Matter of New York State Department of 
Transportation, 22 I&N Dec. 215,221 (Comm'r 1998). 
The opinions of the petitioner's references are not without weight and have been considered by 
both the director and the AAO. USCIS may, in its discretion, use as advisory opinions 
statements submitted· as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 
795 (Comm'r 1988). However, USCIS is ultimately r~sponsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of 
reference letters 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 id. at 
795-796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion 
testimony does not purport to be evidence as to "fact"). Thus, the content of the references' 
statements and how they became aware of the petitioner's reputation are important considerations. 
Even when written by independe~t experts, letters solicited by an alien in support of an 
immigration petition are of less weight than preexisting, independent evidence ·that one would 
expect of an aqist who has made original contributions of major significance in the field. 
Without additional, specific evidence showing that the petitioner's work has been unusually 
influential, has substantially impacted his field, or has otherwise 
risen to the level of artistic 
contributions of major significance, the AAO .cannot conclude that he meets this regulatory 
criterion. 
Evidf!nCe of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The AAO affirms the director's fmding that the petitioner's evidence meets this regulatory 
criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The etitioner submitted documentation showing that he participated in solo exhibitions at the 
and the The 
petitioner also submitted general information about the preceding galleries printed from their own 
websites. Once again, USCIS need not rely on self:.promotional material. There is no objective 
documentary evidence demonstrating that the aforementioned galleries have a distiriguished 
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Page 12 
repnt:~tion_ Accordin!!]v_ the AAO withdraws the director's fmding that the _j and 
the have a distinguished reputation. 
On appeal, counsel asserts that when an artist such as the petitioner "is invited to present a solo 
exhibition of his artworks, such an exhibition by the artist indisputably equates to having performed 
in a critical role for that particular gallery or art venue." The petitioner submits a D_ecember 7, 2012 
letter from Executive Direct~r. Huntmgton Arts Council, stating: 
This letter is submitted to unequivocally support the fme arts industry position that 
renowned artists, via solo exhibitions, play critical roles on behalf of galleries and other 
fme art venues. 
In essence, the sole purpose of the existence of galleries and fme arts venues is to present 
exhibitions to the public of artworks that are deemed original, aesthetic and meaningful, 
though at times they may be controversial or provocative. 
More important} y, galleries· strive to present solo exhibitions where a single, noteworthy 
artist presents a collection of his/her artwork for the public to view and purchase. This 
also is meaningful for the audience as they can see a wide range of work from an artist. 
[The petitioner] has presented his work in solo exhibitions ... at fme arts galleries/venues 
including 
asserts that "renowned artists, via solo exhibitions, play critical roles on 
behalf of galleries and other fme art venues," but 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). Further, 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, No. 95 
civ 10729, 1997 WL 188942 at *1, *5 (S.D.N.Y.). 
In general, a leading role is evidenced by the nature of the role itself and a critical role is one in 
which the individual was responsible for the success and standing of the organization or 
establishment. While the petitioner's participation may have been leading ·or critical to the 
temporary exhibitions in which he was the solo artist, such participation does not automatically 
translate to a leading or critical role for any particular gallery as a whole. This criterion has not been 
met because the submitted evidence does not indicate that the role the petitioner performed for the 
above galleries was leading or critical. For instance, states that she has 
"overseen over eighty exhibitions" and that the petitioner exhibited his work at a gallery "located 
within a heavily trafficked University building in the center of campus." and the other 
references, however, fail to adequately explain how the petitioner's role as a temporary exhibitor 
was leading or critical to the ongoing operation of their galleries. Further, the references' letters 
lack specific information demonstrating the impact of the petitioner's exhibitions relative to that of 
the other solo exhibitions held .at the galleries. While the petitioner's solo exhibitions lasted. a few 
(b)(6)
Page 13 
weeks and were. no doubt valued by the galleries that temporarily displayed his artwork, the 
documentation submitted by the petitioner does not differentiate him from the galleries' managers, 
directors or curators so as to demonstrate his leading role, and fails to establish that he was 
responsible for the galleries' success or standing to a degree consistent with the meaning of "critical 
role." 
further states: "In the future we wish to present [the petitioner] in a solo 
exhibition at the · -
, New York." There is no documentary 
evidence showing that the petitioner had exhibited his work at the at the 
time of filing. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b )(1), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at 
a future date after the petitioner become~ eligible under a new set of facts. Matter of /zummi, 22 
I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter of Bardouille, 
18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only 
subsequent to the filing of a petition." /d. at 176. Therefore, the AAO will not consider the 
petitioner's future exhibition at the as evidence to establish his 
eligibility. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
C. Prior 0-1 Nonimmigrant Visa Status 
The record reflects that the petitioner is the beneficiary of approved 0-1 nonimmigrant visa 
petitions for an alien of extraordinary ability in the arts. Although the words "extraordinary 
ability'' are used in the Act for classification of artists under both the nonimmigrant 0-1 and the first 
preference employment-based immigrant categories, the statute and regulations defme the term 
differently for each classification. Section 101(a)(46) of the Act states, 'The term 'extraordinary 
ability' means, for purposes of section 101(a)(15)(0)(i), in the case of the arts, distinction." The 
0-1 regulation reiterates that "[ e ]xtraordinary ability in the field of arts means distinction." 8 C.F .R. 
§ 214.2(o)(3)(ii). "Distinction" is a lower standard than that required for the immigrant 
classification, which defmes 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). The evidentiary criteria for these two classifications also differ in several 
respects, for example, nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 
8 C.F.R. § 214.2(o)(3)(iv)(A), but the immigrant classification requires actual receipt of nationally 
or internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear statutory 
and regulatory distinction between these two classifications, the petitioner's receipt of 0-1 
nonimmigrant classification is not evidence of his eligibility for immigrant classification as an alien 
with extraordinary ability. Further, the AAO does n~t find that an approval of a nonimmigrant visa 
(b)(6)
Page 14 
mandates the approval of a similar immigrant visa. Each petition must be decided on a c~e-by-case 
basis upon review of the evidence of record. 
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); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (O.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends les~ 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 (5th Cir. 2004) (fmding that prior approvals do 
not preclude USCIS from denying an extension of the original visa based on ,a reassessment of 
the alien's qualifications). ' 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approval~ that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). USCIS or any agency is 
not required to treat acknowledged errors as binding precedent. See Sussex Eng' g 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 has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 
2000 WL 282785, *1, *3 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(2001). 
Ill. 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 has risen to the very top of the field of endeavor. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a fmal 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.P.R. §§ 204.5(h)(2) and (3); see alsQ 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 fmal merits determination.4 Rather, the proper conclusion is that the 
' 4 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 
(b)(6)
. . 
Page 15 
., 
petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence. 
/d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the 
petition may not be approved. 
The AAO may deny an application or petition that fails to . comply with the technical 
requirements of the law even if the Service Center 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 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, at 145 
(noting that the AAO conducts appel~ate review on a de novo basis). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be d,ismissed. 
ORDER: The appeal is dismissed. 
that made the last decision in this matter. 8 C.F.R § l03.5(a)(1)(ii). See also section l03(a)(l) 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 
§ l03.l(f)(3)(iii)
1
(2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
· USCIS, is the sole authority with the jurisdjction to decide visa petitions).