dismissed EB-1A Case: Science

· Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac} 
PUBLIC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
TEXAS SERVICE CENTER 
u.s. Department of Homeland Security 
u.s. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: AUG 06 2010 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1 I 53(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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
• 
rry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" 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 )(1 )(A)(i) of the Act and 
8 C.P.R. § 204.5(h)(3). The implementing regulation at 8 c.P.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.P.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. 
At the outset, we note that the petitioner also filed an earlier petition in the same classification,_ 
which the director also denied. In filing the current petition, counsel referenced some of 
the director's favorable findings with respect to the first petition. The AAO's authority over the service 
centers is comparable to the relationship between a court of appeals and a district court. Even if a 
service center director had set forth favorable findings, the AAO would not be bound to follow the 
contradictory findings of a service center. See Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 at *3 (E.D. La.), affd, 248 P.3d 1139 (5th Cir. 2001), cert. denied, 534 U.S. 819 (2001). 
On appeal, counsel submits a brief. Por the reasons discussed below, we uphold the director's ultimate 
conclusion that the petitioner has not established her eligibility for the exclusive classification sought. 
Beyond the decision of the director, the petitioner has not submitted the required initial evidence 
mandated under 8 c.P.R. § 204.5(h)(5) regarding her intent to continue working in her field in the 
United States. 
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--
-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 1015t 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. Id; 
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 following ten categories of 
evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) 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; 
(iii) 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; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specialization for which classification 
is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
Page 4 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the 
court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion.l 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." Id. 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)." Id. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3». The court also explained the "final merits determination" as the corollary to 
this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both 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," 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international acclaim 
and that his or her achievements have been recognized in the field of expertise." 
8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
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.S(h)(3)(iv) and 8 C.F.R. 
§ 204.S(h)(3)(vi). 
Page 5 
national or international acclaim" are eligible for an "extraordinary ability" VIsa. 
8 U.S.c. § 1153(b)(1)(A)(i). 
!d. at 1119-20. 
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 reviewing Service Center decisions, the AAO will 
apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a 
new analysis if the director reached his or her conclusion by using a one-step analysis rather than the 
two-step analysis dictated by the Kazarian court. See 8 C.F.R. 103.3(a)(1)(iv); Soltane v. DOJ, 381 
F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003) (recognizing the AAO's de novo authority). 
II. Analysis 
A. Evidentiary Criteria2 
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 a 2002 foreign language article In Caras accompanied by a summary 
translation certified by the translator. to the translation, the article reports on the 
results of 
The director accepted that the competItIOn was qualifying but concluded that ••••••• 
We withdraw the implication that only a first place prize or award can be considered a 
lesser nationally or internationally recognized prize or award. The regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) does not distinguish between levels of prizes or awards provided they are nationally or 
internationally recognized. 
While we reject the director's dismissal of any prize or award below first place, we find no evidence 
that the competition is nationally or internationally recognized. We acknowledge 
that the results were announced in Caras. According to a foreign language document in the record, this 
magazine appears to have a circulation of 280,615. Nevertheless, additional information about 
competition would bolster the claim that it is recognized. The summary 
translation indicates that one of the judges does not indicate who 
is eligible to compete in the competition. 
Even if we accepted that the competition is nationally or internationally recognized, the regulation at 
8 C.F.R. § 204.5(h)(3)(i) requires evidence of qualifying prizes or awards in the plural, consistent with 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 6 
the statutory requirement for extensive evidence set forth at section 203(b )(1 )(A)(i). Significantly, not 
all of the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Specifically, the regulations at 
8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel or a single high 
salary. Thus, we 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. 3 
Counsel asserts that the petitioner's second prize or award is her "selection" Counsel 
references a letter and documentation about a "contest." of~ 
_ confirms that the agency represented the petitioner from March 2005 through April 2007 but 
does not suggest that this representation constitutes a prize or award and does not reference a "contest." 
The petitioner submitted Internet material about _ from Wikipedia that references a contest 
sponsored by the agency, the The record, however, contains no evidence that the 
petitioner won an award at such a contest. Regardless, there are no assurances about the reliability of 
the content from Wikipedia, an open, user-edited internet site.4 See Lamilem Badasa v. Michael 
Mukasey, 540 F.3d 909 (8th Cir. 2008). 
At best, the petitioner has demonstrated that _ represented her. A contract with a 
modeling agency, even a renowned competitive agency that, presumably, represents many models, is 
not an award or prize. 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(i). 
3 See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26,2008); Snapnames.com 
Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that 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 combination of academic credentials). 
4 Online content from Wikipedia is subject to the following general disclaimer: 
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 of knowledge in the relevant fields. 
See http://en.wikipedia.org/wiki/Wikipedia:General disclaimer, accessed on August 5,2010, a copy of which 
is incorporated into the record of proceeding. 
Page 7 
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 regulation at 8 C.F.R. § 204.S(h)(3)(iii) requires that the published material be "about" the 
petitioner relating to her work. The regulation requires the submission of the title, date and author of 
the material, revealing that published material is considered an article rather than a mere photograph. 
o~asserts that the petitioner "is quickly becoming one of the most 
recognized faces in the fashion world. Her consistent appearances on major magazine [sic] and her 
appearances for major fashion houses qualify her as a star." USCIS need not accept primarily 
conclusory assertions. 5 
The petitioner's photograph appears on the cover The 
certified translation of the caption indicates that the appears III custom 
clothes on the internet" and that the full article appears on page 12. None of the remaining material 
appears to include page 12 of this article, accompanied by a complete certified translation as required 
under 8 C.F.R. § 103.2(b)(3). As such, we cannot determine whether the full article in~ is "about" 
the petitioner relating to her work. 
The petitioner also submitted two pages from an unidentified newspaper in which the petitioner's 
photograph appears with a caption in which she is named. The petitioner did not submit translations of 
the captions or the surrounding articles. As such, we cannot determine whether the articles with which 
these photographs are associated are "about" the petitioner relating to her work. 
The petitioner further submitted pages from _ where she is pictured with a caption that provides 
her name. The photographs do not appear to be associated with articles that are "about" the petitioner 
relating to her work. 
As stated above, the petitioner also submitted the article in Caras about the 
competition. While the petitioner is mentioned in the article, it is about the competition and not about 
the petitioner. 
Finally, the petitioner submitted magazine pages where she appears as a model. She is not specifically 
identified in these photographs. As stated above, photographs do not constitute published material 
about the petitioner. 
The record contains no articles with complete certified translations that are "about" the petitioner 
relating to her work. As such, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements of the regulation at 8 C.F.R. § 204.S(h)(3)(iii). 
5 1756, Inc. v. The Attorney General o/the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Page 8 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field 
Counsel asserts that the petitioner's "unique style, talent and beauty" constitute a contribution of major 
significance because they contribute to the success of the fashion collections she models. We must 
presume that the word "original" and the phrase "major significance" are not superfluous and, thus, 
that they have some meaning. Moreover, the contribution must be to the field as a whole rather than 
to a specific client. It is the role of a fashion model to present the product being modeled. 
Contributing to the success of a client is not a contribution of major significance in the field as a 
whole. Rather, the petitioner must demonstrate her impact on the field of modeling. 
of affirms that the petitioner has "unique 
skills and knowledge in the competitive field of fashion." He further asserts she was one of the best 
models at _ and that she "attained national recognition for her vital contributions to the 
fashion world." He does not ~ecific contribution or explain how she has influenced the 
fashion industry. Similarly, _ merely provides general praise of the petitioner without 
identifying any specific contributions or their impact in the field. 
The opinions of experts in the field are not without weight and have been considered above. 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 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
Id The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may, as we have done above, evaluate the content of those letters as to whether 
they support the alien's eligibility. See id at 795. uscrs may even give less weight to an opinion 
that is not corroborated, in accord with other information or is in any way questionable. Id at 795; 
see also Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg'l. Comm'r. 1972)). 
The letters considered above primarily contain bare assertions of acclaim and vague claims of 
contributions without specifically identifying contributions and providing specific examples of how 
those contributions rise to a level consistent with major significance in the field. Merely repeating 
the language of the statute or regulations does not satisfy the petitioner's burden of proof. 6 The 
petitioner also failed to submit corroborating evidence in existence prior to the preparation of the 
petition, which could have bolstered the weight of the reference letters. 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements ofthe regulation at 8 C.F.R. § 204.5(h)(3)(v). 
6 Fedin Bros. Co., Ltd v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); 
Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS need not accept 
primarily conclusory assertions. 1756. Inc .. 745 F. Supp. at 15. 
Page 9 
Evidence of the display of the alien IS work in the field at artistic exhibitions or showcases. 
Counsel notes that the regulation at 8 C.F.R. § 204.5(h)(4) allows the submission of "comparable" 
evidence where the standards at 8 C.F.R. § 204.5(h)(3) are not readily applicable to the petitioner's 
occupation. Counsel then asserts that the "display of the work of [a] fashion model is exhibited in 
Fashion events," which counsel compares to an art exhibition. Counsel concludes that the petitioner's 
work "has been exhibited all over the world throughout the international media such as websites, 
magazines, fashion catalogues, airplane company's magazines and fashion events and [ a] video clip." 
Finally, counsel notes that the director previously concluded that the petitioner meets this criterion 
when adjudicating the prior petition. 
The unsupported assertions of counsel regarding where the petitioner's work has been exhibited do not 
constitute evidence. Matter ofObaigbena, 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). 
Moreover, as stated above, the AAO is not bound to follow the contradictory findings of a service 
center. See Louisiana Philharmonic Orchestra, 2000 WL 282785 at *3. 
_confirms that he worked with the petitioner and that she was one of the models represented 
by_ He does not reference any fashion shows. also confirms that he represented 
the petitioner and also does not mention fashion shows. Rather, he confirms only that she appeared in 
magazines. _ confirms that represented the petitioner from March 2005 through 
April 2007 but does not mention fashion shows specifically. As such, the record does not establish that 
the petitioner has ever appeared in a fashion show. Regardless, we do not agree that fashion shows are 
designed to exhibit the work of the models. Rather, their purpose is to exhibit the work of the fashion 
designers. The selection of participants for the show by its organizers is based on the talents of the 
designers, not the models. As such, we cannot conclude that fashion shows are artistic showcases or 
exhibitions of fashion models. 
The record does establish that the petitioner has appeared in print advertisements and contains what 
purports to be a frame of a "video clip." The record does not establish where this clip was broadcast. 
Advertisements are not artistic exhibitions or showcases. Thus, they cannot serve to meet this criterion. 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). Moreover, counsel has not explained how 
the print advertisements are comparable to artistic showcases or exhibitions. Nevertheless, in the 
interest of thoroughness, we will consider this evidence below in our final merits determination. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
Counsel asserts that the petitioner worked for top fashion agencies such as _ and _and 
"performed a critical role in promoting the fashion brands and generating high profits for fashion 
..•. -.-........ -.-.~--
Page 10 
companies such as _, the largest lingerie manufactory [sic] company in Brazil and an 
internationally recognized brand." Once again, counsel notes that the director found the petitioner had 
met this criterion in a decision involving a previous petition. 
We reiterate that the unsupported assertions of counsel regarding the petitioner's role for various entities 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec~ at 534, n.2; Matter of Laureano, 
19I&N Dec. at 3, n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. We also reiterate that the 
AAO is not bound to follow the contradictory findings of a service center. See Louisiana 
Philharmonic Orchestra, 2000 WL 282785 at *3. 
_ confirms that_represented the petitioner during an unknown period and_ 
confirms that ~ented the petitioner from March 2005 through April 2007. • 
_states that the petitioner "was one of the best Models in our organization." 
According to the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii), the petitioner must 
establish that she was selected for a role that is inherently leading or critical for an organization or 
establishment as a whole and the reputation of that organization or establishment. The . 
submitted results from a search on Google that contains phrases from 
indicating "is the world's most prestigious modeling network." 
Even assuming that enjoys a distinguished reputation, the petitioner has 
not established that she performed in a leading or critical role for the company. does not 
make this assertion and the record contains no evidence regarding the number of models the 
company represents or how they fit within the hierarchy of the company. 
The record contains no evidence establishing the reputation of_ Moreover,_does 
not indicate the number of models that _ represents and the record contains no evidence 
establishing how models fit within the hierarchy of the company. 
While the petitioner has appeared in several print advertisements, including a catalogue for 
_ the record contains no evidence that her work as a model for these clients constitutes 
~g a leading or critical role for these companies beyond the obvious need for these clients to 
advertise their products with models.7 
Assuming that the petitioner was affiliated with a major modeling agency, the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii) does not suggest that employment for a distinguished entity alone is sufficient; 
rather, the nature of the role within that organization is a second factor. Significantly, the 
supplementary information at 56 Fed. Reg. 60899 (Nov. 29, 1991) states that there is no blanket rule for 
7 The use of the petitioner's services demonstrates that the clients required a model, but the same could be said 
for any position. The existence of a position does not establish that it is a critical or leading role for the 
employer within the context of 8 C.F.R. § 204.S(h)(3)(viii). 
Page 11 
athletes playing on a major league team. Similarly, we find that there is no blanket rule for models 
represented by major modeling agencies. 
In light of the above, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field 
While counsel does not specifically assert that the record includes evidence relating to 8 C.F.R. 
§ 204.5(h)(3)(ix), the record contains a letter from in which he asserts that the petitioner 
receives "a top salary." As stated above, USCIS need not accept primarily conclusory assertions. 8 
The petitioner did not submit pay stubs or tax records documenting her actual salary or other 
remuneration. The petitioner also failed to submit evidence of the top modeling salaries in Brazil. 
As such, the petitioner has not submitted the required initial evidence necessary under 8 C.F .R. 
§ 204.5(h)(3)(ix). 
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
Counsel asserts: 
[The petitioner] has been modeling for the largest fashion brands in Brazil generating 
high revenue for the corporations. Her work directly generated commercial success and 
high profits to the companies and agencies she represented. [The petitioner] participated 
in the largest commercial advertisings in the field of fashion in Brazil as evidenced by 
the articles in the famous fashion magazines. 
She was elected among thousands of models to launch a new cosmetic line from 
_ the largest lingerie company in Brazil. 
As stated above, the unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez­
Sanchez, 17 I&N Dec. at 506. Counsel references the magazine advertisements as evidence to support 
these assertions. 
The regulation at 8 C.F.R. § 204.5(h)(3)(x), by its language, is limited to occupations within the 
performing arts. The regulation is extremely specific in the type of evidence that must be submitted 
under this criterion: box office receipts or evidence of media sales of the alien's performances. USCIS 
may not unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 
8 C.F.R. § 204.5. Kazarian, 596 FJd at 1221, citing Love Korean Church v. Chertoff, 549 F.3d 749, 
8 1756, Inc., 745 F. Supp. at 15. 
Page 12 
758 (9th Cir.2008). The record contains no box office receipts or evidence of media sales of the 
petitioner's "performances." 
Even if we concluded that evidence of the commercial success of the products marketed by a model 
was qualifying evidence under 8 C.F.R. § 204.5(h)(3)(x), and we do not, the record lacks such 
evidence. The magazine advertisements reflect that the petitioner modeled products but cannot 
demonstrate any commercial success or that the petitioner was responsible for that success. It is not 
apparent from the _ catalogue that the petitioner was advertising a new cosmetic. The record 
contains no confirmation of this role from any official at _ or evidence of the commercial 
success of the cosmetic in relation to its marketing through the petitioner. 
In light of the above, the petitioner has not submitted any qualifying evidence that meets the plain 
language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(x). 
Summary 
In light of the above, the petitioner has not submitted the requisite evidence under at least three of the 
evidentiary categories for which evidence must be submitted to meet the minimum eligibility 
requirements necessary to qualify as an alien of extraordinary ability. Nevertheless, we will review the 
evidence in the aggregate as part of our final merits determination. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). See Kazarian, 596 F.3d at 1119-20. 
While the petitioner won a second place award at the _ competition, the record 
contains no information about this competition other th~ras and featured _ 
_ as a judge. A competition limited to novices in the field is not indicative of national or 
international acclaim. 
As stated above, the record contains no evidence that the petitioner has been featured in an article. Her 
appearances in magazines, whether considered under 8 C.F.R. § 204.5(h)(3)(iii) or (vii), are 
commensurate with her occupation as a model. Assuming the petitioner has a "unique" style, the record 
contains no evidence that her style is influential at a level consistent with national or international 
acclaim. Finally, the petitioner must document her personal national or international acclaim and 
cannot rely on her affiliation with distinguished associations or clients. We note that the more elite 
modeling agencies are likely to represent a large number of models, not all of whom are among the 
---------------- .. ---.-.-.-~--.-------.-
-Page 13 
among the small percentage who has risen to the very top of the field. The fact that the petitioner was 
represented by a modeling agency, by itself, does not set her apart from other models able to make a 
living in the occupation. 
Finally, the petitioner earned her award in 2002. The most recent magazine advertisement that is dated 
is from 2007. indicates that _ only represented the petitioner through April 2007. 
The record does not establish when the petitioner was represented by . As 
such, the evidence is not indicative of or consistent with sustained national or international acclrum in 
May 2009 when the petition was filed. 
III. Job Offer 
The regulation at 8 C.F.R. § 204.S(h)(S) provides: 
No offer of employment required Neither an offer for employment in the United States 
nor a labor certification is required for this classification; however, the petition must be 
accompanied by clear evidence that the alien is coming to the United States to continue 
work in the area of expertise. Such evidence may include letter(s) from prospective 
employer(s), evidence of prearranged commitments such as contracts, or a statement 
from the beneficiary detailing plans on how he or she intends to continue his or her 
work in the United States. 
Counsel asserted that the petitioner "received several work proposes [sic] from large fashion agencies in 
the U.S. and her intention is to continue her fashion model career after the approval of her petition. 
Counsel does not reference any exhibits in support of this statement. The record does not contain 
letters from prospective employers, evidence of prearranged commitments such as contracts or even a 
statement from the petitioner detailing her plans on how she intends to continue her work in the United 
States. 
IV. 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. 
Review of the record, however, does not establish that the petitioner has distinguished herself as a 
model to such an extent that she may be said to have achieved sustained national or international 
acclaim or to be within the small percentage at the very top of her field. The evidence indicates that the 
petitioner shows talent as a model, but is not persuasive that the petitioner's achievements set her 
significantly above almost all others in her field. The record also lacks evidence supporting the 
petitioner's intent to continue working in her occupation. 
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For the above stated reasons, considered both in sum and as separate grounds for denial, the 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. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.