dismissed EB-1A Case: Photography

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvacy 
P1TBLlC COpy 
DATE: SEP 0 4 2012 
IN RE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
u.s. Department of Homeland Securit) 
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)(I)(A) of the Immigration and Nationality Act, 8 U,S.c, § 1153(b)(I)(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 1-290B, 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)(I)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~/}--
Pef!)' Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition on August 18, 2010 and, on February 7, 20 II, reaffirmed that decision on motion. The matter 
is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification for the beneficiary as an "alien of extraordinary ability" in the arts, as 
a photographer pursuant to section 203(b)(1 )(A) of the Immigration and Nationality Act (the Act), 8 
U.S.c. § 1153(b)(1)(A). The director determined the petitioner had not established the sustained 
national or international acclaim necessary to qualifY for classification as an alien of extraordinary 
ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifYing evidence on behalf of the beneficiary under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, upon 
review of the entire record, including the evidence submitted on appeal, the AAO upholds the director's 
conclusion that the petitioner has not established eligibility for the exclusive classification sought. The 
AAO notes that the filing date of the original petition was February 16,2010. Therefore, as stated by 
the director in her affirmation of the previous denial, none of the evidence the petitioner submitted with 
the motion to reopen which reference events that occurred after the date of filing may be considered 
here. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Matter of 
Kaligbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Furthermore, the AAO notes that the original 1-
140 petition was denied, in part, due to the petitioner's failure to timely respond to the director's 
request for evidence. 
I. LAW 
Section 203(b) ofthe 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 --
Page 3 
(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. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 10 1st 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. Jd.; 
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. USClS, 596 F.3d IllS (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.' 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 "final merits determination." Jd. 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)." Jd. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). 
I 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). 
Page 4 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifYing 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfY the 
antecedent regulatory requirement of three types of evidence. Id. 
II. ANALYSIS 
A. Evidentiary Criteria2 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
In general, in order for published material to meet this criterion, it must be primarily about the 
petitioner and, as stated in the regulations, it must be appear in professional or major trade publications 
or other major media. To qualifY as major media, the publication should have significant national or 
international distribution. Some newspapers, such as the New York Times, nominally serve a particular 
locality ~ut would ~ualifY as major media because of significant national distribution, unlike small local 
communIty papers. 
On appeal, counsel asserts that an interview with the petitioner on "Closer to the Stars" which aired 
on Muz-TV satisfies this criterion. However, the petitioner submitted a certified translation for only 
"a portion" of the video which provides only "the gist" of the conversation. As such, the translations 
of the articles did not comply with the terms ofS C.F.R. § 103.2(b)(3): 
Translations. Any document containing foreign language submitted to [USCIS] 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. 
Furthermore, the record contains no evidence, such as viewership numbers, that Muz-TV qualifies as 
major media. A submitted printout from Wikipedia simply states that it "is a Russian music TV 
channel, broadcasting since 1996." The AAO also notes that with regard to information from 
Wikipedia, there are no assurances about the reliability of the content from this open, user-edited 
internet site. 4 See Lami/em Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 2008). 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
1 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. 
For example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
4 Online content from Wikipedia is subject to the following general disclaimer: 
Page 5 
On appeal, counsel also asserts that the petitioner's appearance on the show 
satisfies this criterion. As previously stated, this criterion requires the published material to be 
"about" the petitioner. The AAO will not presume that the appearance of the petitioner on a game 
show is equivalent to published material about the petitioner. 
Finally, on appeal, counsel references an article published on the internet by "the leading online daily 
business newspaper for Moscow Restaurants." The record contains no evidence, such as circulation 
information, that Menu.ru qualifies as major media. Furthermore, the AAO is unable to determine 
whether the "article" was actually a press release or advertisement. The AAO also notes that the 
certified translation does not list the name of the author, as required by the regulation. 
In light of the above, the petitioner has not established that he meets the plain language requirements 
of this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in thefield 
In the director's affirmation ofthe denial, she stated that in the director's request for evidence, "USeIS 
asked the petitioner to identify the specific contribution which he has made which has proven to be of 
major significance in his field." The director went on to say that the record contains no evidence "that 
any of those contributions have proven to be of major significance to the field of photography." Upon 
review of the entire record, the AAO affirms the director's finding. 
On appeal, counsel asserts that the above mentioned article from Menu.ru "discussed the unique detail 
and work" of the petitioner and that the classes he taught should satisfy this criterion, but fails to 
identify a single contribution of major significance. The Menu.ru article describes an exhibition; it 
does not suggest that the petitioner's work has impacted the field. While the course the petitioner 
taught may have been government approved, the AAO will not presume that this equates to an original 
contribution of major significance. 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone with 
an Internet connection to alter its content. Please be advised that nothing found here has necessarily 
been reviewed by people with the expertise required to provide you with complete, accurate or 
reliable information .... Wikipedia cannot guarantee the validity of the information found here. The 
content of any given article may recently have been changed, vandalized or altered by someone 
whose opinion does not correspond with the state ofknowledge in the relevant fields. 
See http://er1.\vikipedia.orgiwikilWikipedia:General disclaimer, accessed on July 26, 2012, a copy of which 
is incorporated into the record of proceeding. 
Page 0 
Finally, counsel asserts that the petitioner "created [a] 3-D effect with special [']Tube Shiff nozzles" 
which "enables some 3-[D] ret1ectors that enable lighting and shadowing." However, the record lacks 
documentary evidence, such as letters from other photography experts attesting to the fact that they 
have adopted his specific 3-D effect or articles about this special effect in professional or major trade 
publications or other major media, that might demonstrate the int1uence of the petitioner's original 
techniques consistent with a contribution of major significance3. 
Furthermore, consistent with the statutory requirement for extensive evidence, the plain language of Ihe 
regulation at tS C.F.R. ~ 204.5(h)(3)(v) requires ·'contributions." Significantly, not all of the criteria at 
8 C.F.R. ~ 204.5(h)(3) are worded in the plural. Specifically, the regulations at tS C.F.R. 
~~ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel or a single high salary. When 
a regulatory criterion wishes to include the singular within the plural, it expressly does so as when it 
states at 8 C.F.R. § 204.S(k)(3)(ii)(B) that evidence of experience must be in the f(1fI11 of" ··lcttcr(s)." 
Thus, the AAO can infer that the plural in the remaining regulatory criteria has meaning. In a different 
context, federal courts have upheld USCIS' ability to interpret significance from whether the singular 
or plural is used in a regulation.' 
The burden is on the petitioner to establish that he meets every element of this criterion. Withoul 
documentary evidence demonstrating that he has made more than one original contributioll of major 
significance in his field, the AAO cannot conclude that the petitioner meets this criterion. 
Evid('nce onhe display of the alien '.\' work in the field at artistic exhibitions or showcases. 
The director concluded that the petitioner met this criterion under 8 C.F.R. § 204.5(h)(3)(vii). Upon 
review of the entire record, the AAO aflirms the director's findings. 
Evidence thm Ih(' alim has performed in a leading or critical role jiJr orliallizatiOlls or 
('stahlishments that haw a distinliuished reputation. 
The director concluded that the petitioner met this criterion under 8 C.F.R. § 204.5(h)(3)(viii). Upon 
review orthe entire record. the AAO attirms the director's findings. 
Evidence that the alien has commanded a high salary or other significantly hilih remuneration fi)r 
services, in relation to others ill the field. 
The director discussed the submitted evidence and found that the petitioncr failed to establish that the 
evidence was qualifying. On appeal, thc petitioner does not contest the director's findings ftlr this 
5 See Maran/jaya 1'. USc/S, Civ. Act. No. 06~2158 (RCL) at 12 (D.C. Cir. March 20, 200S); Snaf!namn.CllIIl 
fne. v. Chertoli: 2006 WL 3491005 al *10 (D. Or. Nov. 30, 2006) (uphOlding an interpretation Ihat the 
regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) 
requires a single degree rather than a comhination of academic credentials}. 
Page 7 
criterion or offer additional arguments. The AAO. therefore, considers this issue to be abandoned. 
Sepulveda v. u.s. Alt'V Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2(05), citing Ullited Slatn ". 
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); see also Hristov v. Roark, No. 09--CV-273 120 II, 
2011 WL 4711885 at *1. *9 (ED.N.Y. Sept. 30. 2(11) (plaintiffs claims were abandoned as he failed 
to raise them on appeal to the AAO), 
C. Summary 
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 antecedent regulatory requirement of three types of 
evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has 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: (I) 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." il C.F.R. 
~~ 204.5(h)(2) and (3); sec also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits determination.'> Ultimately, the proper conclusion is that the petitioner has failed to satisfy 
the antecedent regulatory requirement of three types of evidence. ld. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, il U.S.c. * 1361. Here, the petitioner has not sustained that burden. Accordingly. the appeal 
will be dismissed. 
h The AAO maintains de novo review of all questions of fact and law. See Soltalle v. DOl, 3H I F.3d at 1-15. In 
any future proceeding. the AAO maintains the jurisdiction to conduct a final merits determination as the ollice 
that made the last decision in this mailer. H C.F.R. § IOJ.5(a)(l)(ii). See also section 103(a)( I) of the Act: 
section 204(h) of the Act; DHS Delegation Numher 0150.1 (effective March 1,20(3); i) C.F.R. § 2.1 (20m); 
H C.F.R. § 103. I (t)(3)(iii) (2003); Malter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy 
INS, now USUS, is the sole authority with the jurisdiction to decide visa petitions). 
Page K 
ORDER: The appeal is dismissed.