dismissed EB-1A Case: Scientific Filmmaking

identifying data deleted to 
prevent clearly unwarr~ted 
invasion of personal privacy 
PUBLlCCOPY 
DATI:: AUG 2 4 2012 
IN RE PctitioJll.:r: 
UCJll'i"iciary: 
t ...... I)t'P:lflHWflt lit lIOflll'iaml "H'Ulnt, 
I '~ ( : I, ,-'1,11.1' ;,:1\1 ill' ill.!..'.',1 ~,; d, -", I ' ' 
:\\!lTlllll'!rd~I'l ,-\I'f'\.,lh (lIlll-'_ (\,\(ll 
.:'1: .\"LI-",Il 1111',_ '", \\r. ,,\\ \'1" ",'I, 
\\ ",Ill :1"' ,'11 I); 'I'" 'II' if i 
u.s. Citizenship 
and Immigration 
Services 
OIlice: TEXAS SERVICE CENTER FILE: 
PETITION: Immig:ranl PCliliol1 for Alicn Worker a~ an Alicil of Extraordinary i\hilily Pur .... uant tu 
Section 21n(h)( I)(A) olthe Immigration and Nationality Act, K U.s.c. ~ 115](h)( I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclo:-.eu please find thc decision of the Administrative Appeals Office in your GL"L'. All of Ihe 
dnculllcllh fciall'd il) thiS malleT han: heen returned 10 the office 1hal nriginally dn:idcd y()llf (a"c. Plca .... l' 
he all\'ised that any rurther inquiry that you might have concerning your case must he malic t() lhat orrice. 
II' ~lIU hdie\'C the (\AU inapprllpriateiy arplictl the law in reaching its decisioll, nr you have additional 
inrlJrmatioll that you \\"i~h to have considefed, you may file a motion to reconsider Of <l motion to reopen 
ill ;H ... 'CllflbnL"l' with thL' instructions Oil Form 1-29013, Noticc of Appeal Of Motion, with a lec of $630. The 
:-.pccific requirements for tiling such a motion can he found at H C.F.R. * lOJ.5. Do not file any motion 
directly with the AAO. Plca,e he aware that ~ C.f.R. § 103.5(a)(I)(i) require, any nmti,," to he Iiled 
within 30 days lli" the decision lhat the motion seeks to reconsider or fcopen. 
Thank .'rOll, 
Perrv Rhew 
Chiel. Administrative Appeal, Ollice 
Page .2 
DISCUSSION: The employment-based immigrant vISa petttlon wa, denied by the Director, 
Texa, 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 sciences and arts, 
pursuant to section 203(b)( I )(A) of the Immigration and Nationality Act (the Act), g USc:. 
* 1153(b)( I )(A) as a scientific filmmaker and creator of the Imagine Science Film Festival.' 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. S"" section 203(b)( I )(A)(i) of the 
Act and g 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. t\ c:.F.R. * 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence under at least three of the ten regulatorv 
categories of evidence to establish the basic eligibility requirements. 
On appeal. counsel a"erts that the petitioner meets the regulatory categoric, of evidence at 
S C.F.R. ** 204.5(h)(J)(iii) - (v), (vi), (vii), and (x). For the reason' discussed below. the AAO 
will uphold tbe director's decision. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(I) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who arc aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
'Icclaim 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 
I According t() information on the Form 1-140, Immigrant Petition for Alien Worker, the pL'lilioncr wa~ last admillcd 
tll the United Slale" Oil Nm'l.'1llhcr 13, ::!() 10 as an F-l nonimmigrant student. 
(iii) the alien's entry into the United States will 
suhstantially 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 st,mdard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101" Cong .. 2d 
Sess. 'ilJ (llJlJO): ,)h Fed. Reg. AOX'J7. 608lJ8-99 (Nov. 29.1991). The teml "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. Id:?l C.F.R. ~ 2045(h)(2). 
The regulation at ?l CLR. ~ 204.'i(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 t\ c'F.R. ~ 204.5(h)(3)(i)-(x). 
In 20W. the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USC/S, 5911 F.3d Ill') (I)th Cir. 20 W). Although 
the court upheld the AAC),s decision to deny the petition. the court took isslIL' with the AAO's 
c\'alu'ltion of evidence submitted to mect a given evidentiary criterion 2 With respect to the criteria at 
t\ c'F.R. ~ 204.S(h)(J)(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 "tinalmerits detemlination." Ill. at 1121-22. 
The court stated that the /\;\0' s evaluation rested on an improper understanding of thc regulations. 
Instead of parsing the signilicance 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 ;\AO did)." and if the 
petitioner failed to submit sutlicient evidence. "the proper conclusion is that the applicant has biled to 
satisfy the regulatory reLjuirement of three types of evidence (as the AAO concluded)." !d. at 1122 
(citing to?l C.F.R. ~ 204.S(h)(J»). 
Thus. Kazariall 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 regulatory requirement of three types of evidence. Id. 
- Specifically, the U)[Jf[ ... [aled lh;n the ;\AO had unilaterally impo,>cd novel '>uh ... tanlivc or evidentiary requirement<, 
hCY(lIlLi th()<,l' <'l't forth in thl' fcgulalillll" al oS C.F.R. ~ 204.5(h)(3)(iv) and oS C'.F.R. * 2()..j..~(h)(.~)(\i). 
Page -l-
II. ANALYSIS 
A. Evidentiary Criteria' 
1'lIhlished nUl/erial ahlllit the alien ill professional or major trade pllhlicatio"s or 
other lila/or lIIedia. relatillg /0 the alien's work ill lhe field for which cla.lsljiC<l/ioll is 
sOllgizt. SlIch ('t'idellee shall illclllde the litle. dllte, and alllhor of the malerial. al1(l 
({IlY Ilcce\,\{{rr trallslatioll. 
In general, in order for published material to meet this criterion, it must be primarily about the 
petitioner and. as stated in the regulations, be printed 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 Nn,' York TiIlWI. nominally serve a 
particular locality but would qualify as major media because of significant national distribution. 
unlike small local community papers.' 
The petitioner submitted an October 200S article in .. hut 
there is no circulation evidence showing that 
Further. the article in docs not eve 
submitted a two-page December 4, 2009 article in 
and a two-page November 4. 20]() article in 
these two articles only mention the petitioner in passing. The plain lani,'lJage of the regulation at 
t\ C.F.R. & 204.5(h)(J)(iii) requires that the published material be "about the alien." See. e.g.. 
,\cuml Negro-I'IIIIII!,e t'. (Jkill. 2:07-CV-S20-ECR-RJJ at * 1, *7 (D. Nev. Sept. S. 20(8) (upholding 
a finding that articles about a show arc not about the actor). Com!,are S CF.R. * 204.5(i)(J)(i)(C). 
\\hieh requires evidence "ahout the alien's work." It cannot be credibly asserted that any or the 
preceding articles arc "about" the petitioner. 
submitted an article Irom 
01' ___ _ 
internet bing, but 
articks was not n age of the regulation 
* 204.5(h)(3)(iii). Further. there is no documentary evidence showing that the preceding internet 
sites qualify as professional or major trade puhlications or other major media, 
In light of the ahove, the petitioner has not established that he meets this regulatory criterion. 
~ On appl'lll, the petitioner d(ll'~ not claim to meet any of the regulatory categories of evidence not discussed in Ihis 
lkei"jon. 
! Even with naliunally-circulalcd IlCWSrapcrs, consideration must be given to the placement of the article. For 
example, ,til article that arrears in the lVlIsilinglOll Po\,!, but in a section that is distrihuted only in Fairfax County, 
Virginia. j(lr in"tallu:. Glnnol :-'(f\'C [0 spread an individual'..; reputation outside of that county. 
Fl'idellce o( Ihe Illim's I'llrliciplllioll, eilher illdividually or oil a !HIIIe!, liS {/ ./llIlJ;e o( 
Ihe work o( olhers ill Ihe sam" or WI allied field of specificalioll /fJr which 
classificalioll is Sllughl. 
purportedly written by 
but the letter was not signed. Without_ 
any evidentiary force. The unsigned letter 
For a decade and a half I have supported a national film program that includes grants to 
IcaulI:lg film schools as well as to the 
*" * * 
[The petitioner] has played a unique role in several aspects of our program. He has been 
a reviewer of proposals whose expertise as a scientist and filmmaker gives him a unique 
perspective. For this reason he was also chosen as one of a half dozen leading national 
representatives to serve on our prestigious Film Advisory Board and to evaluate the first 
decade of our program while making recommendations about the future. 
The limited information provided in the unsigned letter from _ docs not identify the 
specific proposals reviewed by the petitioner, their dates of completion, or the names of the 
proposals' authors. Merely submitting a letter claiming that the petitioner reviewed proposals 
without specifying the work he judged is insufficient to establish eligibility for this criterion. 
Further, the petitioner failed to submit documentary evidence of his participation on the_ 
or documentation showing his specitlc 
recommendations. Going on reeo supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Maller ,,(Soffici, 22 I&N Dec. 
ISS. IllS (Comm. 1l)l)S) (citing Maller of Tr('asure Craft of Cali jim Ii a, 14 I&N Dec. I'!() (Reg. 
Comm. IY72)). Moreover. if testimonial evidence lacks specificity, detail, or credibility, there is 
a greater need for the petitioner to submit corroborative evidence. Maller ofT-B-, 21 I&N Dec. 
IU/) (BIA lYYS). In this instance, there is no documentary evidence or the petitioner's 
participation in a formal judging capacity for either on a panel or 
individually as specified at S CF.R. ~ 204.5(h)(3)(iv). Regardless, as the preceding letter from 
is unsigned, it has no evidentiary value. 
In light of the above. the petitioner has not established that he meets this regulatory criterion. 
L,.idence o/Iile ,,/iell 's origillal scientific. scholarly. arlislic. "Ihielie. or hl/sinn.l­
relaled colllri/)[{li(JIls o(mojor sigllificallce ill Ihe field. 
I he plain language of the regulation at 8 l'.F.R. ~ 204.5(h)(3)(v) requires "Iclvidenee of the 
alien's original seientilic. scholarly. artistic. athletic. or business-related contributions of major 
signilicanee in the lieiJ." lIere, the evidence must be reviewed to sec whether it rises to the level 
Page () 
of original scientific or artistic contrihutions "of major significance in thc tield," The phrase 
"major significancc" is not sllperlluolls ancl. thus. it has some mcaning. Sill'(~rm{{11 v. 1:'ll.\lrich 
.~111/lil'/e fnvnlor FlInd. 1../'.,51 F. 3d 2K, 31 (3ed Cir. ILJLJ5) qlloled in Af'WU ,'. f'oller, 343 F,3d 
hll), h2h (2"d ('ir. Sep 15,20(3). 
The petitioner submitted various letters of support as evidence for this regulatory criterion. In 
evaluating the reference letters, the AAO notes that letters containing mere assertions of 
widespread acclaim and vague claims of contributions are less persuasive than letters that 
specifically identify contributions and provide specific examples of how those contrihutions have 
influenced the field . • ' solicited letters from local colleagues that do not specifically 
identify contributions or provide specific examples of how those contributions influenced the 
field arc insufficient. Kazarian ,'. USc/S, 5tlO F.3d 1030, Imh (9'h ('ir. 200'i) a/f'd ill film 
59h F.3d 1115 ('ith Cir. 2(111). In 2010, the Kazariall court reiteratcd that thc i\i\O's conclusion 
that "Idters li'ol11 physics proJessors attesting to Ithe alicn'sl contrihutions in thc lield" wcrc 
insuJ'iieient was "consistent with the relevant regulatory language." 5% l..ld at I I ~2. 
Furthermore, USCIS Illay. in its discretion, usc as advisory opinions stateillents submitted as 
expert testimony. See Maller ofCawn Ill/erna/iollal, 19 I&N Dec. 791. 795 (Collllll'r 1'i88). 
However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligihility ttlr the henefit sought. Id. The submission of letters from experts supporting 
the petition is not presumptive evidence of eligihility; USCIS may evaluate the content of those 
letters as to whether they support the alien's eligibility. See id. at 795-7%; see also Maller II/, V­
K-, 24 I&N Dec. 500, n.2 (13IA 2(08) (noting that expert opinion testimony docs not purport to 
he evidence as to "t'let"). Thus, the content of the experts' statements and how they became aware 
of the petitioncr's reputation arc impol1ant considerations. Even when written by independent 
experts, letters solicited by an alien in support of an immigration petition arc of less weight than 
preexisting, independent evidence that one would expect of a filmmaker or research scientist 
who has made original contributions of major significance in the field. 
at New 
I). states 
meillber in the MAl' It)r the lall 2009" and discusses the petitioner's teaching rcsponsihilities at 
NYl). _ comments that the pctitioncr "has a rare combination of skills as a research 
scientist. a lilm mai-.cr. and an dkctive communicator of science to the public." Assuming the 
petitioner's skills and background arc unique, the classification sought was not de,igned merely 
to alleyiate skill shortages in a given field. In fact, that issue properly falls under the jurisdiction 
of the Department of Labor through the alien employment certification process. See Maller o/' 
,\'('1[' )'o}'k SIU/e f)r',,'! oj f'l'lIl/SP, , 22 I&N Dec. 215, 221 (Comm'r I'iLJ8). In order to establish 
eligibility for this regulatory criterion, the petitioner must establish that his skills and expertise have 
already resulted in original contributions of major significance in the field. 
original scientific contrihutions stating: 
Page 7 
IThe petitioner'sl thesis work has been extremely innovative in the laboratory. Pushed 
by his creettive leaps and his desire to explore science as a visual narrettive. [the 
petitioner] devdoped early into his doctoral curriculum novel tools for studying cell 
morphology ,lIld behetvior. [The petitioner] arrived in my lab with a very singular project 
etnd with strong etmbitions. I Ie decided to develop his artistically coetted methods for cell 
visualization allowing him to perform and identify a novel complex 
involved in neu ItH cell 
visualization was PULJII"IIl:U 
imaging of photoreceptor apoptosis and development in Drosophila:' In his Ph.D. thesis 
work. [the petitioner[ also focused on the role of anti-oxidant proteins and specifically an 
iron metabolism complex known as ferritin in protecting neurons from damage. 
Currently in publication submission phase, [the petitioner's] work on ferritin in 
Drosophila will undoubtedly help us better understand the causes of devastating 
neurodegenerative disorders. 
~ asserts that the petitioner's article entitled imaging of 
photorcceptor apoptosis and development in Drosophila" was publishcd in January 20 II. but the 
copy of the articlc submitted by the petitioner does not support _ statement. The 
unpuhlished copy suhmitted hy the petitioner is marked "UNCORRLCTFD PROOF" and 
"ARTICLE IN PRI:SS." Further. the "ARTICLE INFO" section states "Available online 
XXXX" and docs not indicate the "Volume" or "Issue" of Dew/opmellla/lii%gr in which the 
article appeared. It is incumbent upon the petitioner to resolve any inconsistencies in the record 
by independent objective evidence. Any attempt to explain or reconcile such inconsistencies will 
not suffice unless the petitioner submits competent objective evidence pointing to where the truth 
lies . . 'vIall('/' o/"flo. IlJ I&N Dec. 582, )<JI-lJ2 (BIA 1 <J88). 
With regard to comments regarding petitioner's research publications. the 
regul<itions contain a separate criterion regarding the authorship of scholarly articles. 8 C.F.R. 
~ 2()4.S(h)(3)(vi). The AAO will not presume that evidence relating to or even meeting the 
scholarly articles 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 authorship of scholarly articles and original contributions of 
major significance. USCIS clearly docs not view the two as being interchangeable. To hold 
otherwise would render meaningless the statutory requirement for extensive evidence or the 
regul<itory requirement that a petitioner meet at least three separate criteria. Publications arc not 
sufficient evidence under 8 C.F.R. * 204.5(h)(3 )(v) absent evidence that they "ere of "major 
significance." Kazariall v. USClS, 580 F.3d 1030, 1036 (<J'h Cir. 20()'J) (/(ftl ill p"rl S% F.3d 
III) ('Jth Cir. 2(10). In 2()10. the Kazarian court reaffirmed its holding that the AAO did not abuse 
its discretion in finding that the alien had not demonstrated contributions of major significance. 'ilJ6 
F.3d at 1122. Thus. there is no presumption that every research article is an original contribution 
of major significance: rather. the petitioner must document the actual impact of his article. Here. 
the petitioner has failed to submit an extensive citation history for his articles or other 
documentary evidence showing that his work is majorly significant to his field. Further, _ 
_ does not provide specitle examples of how the petitioner's original tlndings have been 
PagL: X 
applied by other researchers in the field or otherwise equate to scientific contributions of major 
sit(nificance in the field. 
While the petitioner's Ph.D. thesis work is no doubt of value, it can be argued that any research 
must be shown to be original and present some benefit if it is to receive funding and attention 
from the scientific community. Any doctoral thesis or postdoctoral research, in order to be 
accepted for graduation. publication, presentation, or funding. must offer new and useful 
information to the pool of knowledge. It does not follow that every scientist who performs 
orit(inal research that adds to the general pool of knowledge has inherently made a contribution 
or "major significance" to the field as a whole. In this instance, there is no documentary 
e\·idcnec indicatint( that the petitioner's work is extensively cited by independcnt researchers or 
otherwise constitutes an original contribution of major significance in the field. 
Rq;arding the petitioner's original artistic contributions, _ states that the petitioner 
"Iaunched in October 21l1l1-1 the first ever full-fledged science film festival in New York called the 
Imagine Science Film Festival." 
states: 
Currently [the petitionerj is hard at work on a full-length feature film 
_" the story or Calvin Bridges, a legendary geneticist and unsung hero of the 20th 
century, whose interest in science was matched only by his obsession with women. 
Combining his intercsts in science and film, [the petitioner] has also foundec!thc Imagine 
Science Film Festival, whose goal is to showcase films with a unique focus on science 
and scientists. 
There is no evidence showing that the petitioner's lilm hac! heen completed, 
released. or distributed at the time of filing the petition on May 4. 2()11. Eligibility must be 
established at the time of filing. 1-1 CF.R. ** 103.2(b)(I), (12): Marler II/" Kalig/JlIk. 14 I&N Dec. 
45.49 (Reg'l C"IllIll'r 1971). A petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. Maller oj" izlllllllli, 22 I&N Dec. 169. 175 (Comll1'r, 
1l)l)K). That decision further provides, citing Maller II/" Bardlllli//e. IK I&N Dec. 114 (BIA 
flJK I), thai USCfS cannot "considcr facts that come into being only subseLjuelll to the filing of a 
petition." Id at 176. Regardless. there is no documentary evidence showing that the film "Thc 
1-'1" Room" is an original contribution of "major significance" in the field. 
I have known [the petitionerj for roughly three years. He is today an absolutely unique 
and ill\aluahle "resourcc" to hoth the worlds of science and cinema .... [Thc petitionerj 
has come up with the largest and most important "showcase" It)r their work with the 
Imagine Science Film Festival which he has created. There is a great need for him to be 
allowed to continue to develop this hugely successful film festival he has created. 
I know [the petitioneri through his work with the Imagine Science Film Festival. for 
which I have served as a judge. . .. [The petitioner) has created a unique cultural 
institution, a program that brings to New York a great number of creative filmmakers 
from around the world who are united in bringing science to film .... Imagine Science 
Films has been the subject of major media coverage, and it has won sponsorship from 
Niltllre, the world's leading science journal. 
The preceding letters 
petitioner as the creator 
significance of the festival. The petitioner also submitted articles about the festival in Village 
Voice and in renowned scientific journals such as Science and NllIllre. Accordingly, the AAO 
finds that the petitioner's creation of the Imagine Science Film Festival constitutes an original 
contribution of major significance in the field. The record, however, does not establish that the 
petitioner is responsible for any other original contributions of major significance in the field. 
The AAO notes that the plain language of the regulation at g C.F.R. * 204.5(h)(3)(v) requires 
"(,()l1trihlllioIlS of major significance" (emphasis added) in the plural. The use of the plural is 
consistent with the statutory requiremcnt for extensive evidence. Section 203(b)(I)(A)(i) of the 
Act. Significantly. not all of the criteria at g C.F.R. § 204.5(h)(3) are worded in the plural. 
Specifically. the regulations at g C.F.R. ** 204.S(h)(3)(iv) and (ix) only require servicc on a 
single judging panel or a single high salary. When a regulatory criterion wishes to include the 
singular within thc plural. it expressly docs so as when it states at t; C.F.R. * 204.5(k)(3)(ii)(13) 
that e\'idence of experience must be in the form of "Iettcr(s)." Thus, the AAO can inJ'er that the 
plural in the remaining regulatory critcria has meaning. In a different context, federal courts 
hmc upheld USC IS' abilit: to interpret significanec from whether the singUlar or plural is used 
in a regulation. See Maramiava v. USClS, Civ. Act. No. 06-21Sg (RCL) al 12 (D.C. Cir. March 
26, 200g): Sllapnames.CI!m 11lc' v. Chertof[, 2006 WL 3491005 at * 10 (D. Or. Nov. 30, 20(6) 
(upholding an interpretation that the regulatory requirement for "a" bachelor's degree or "a" 
foreign equivalent degree at g C.F.R. ~ 204.5(1)(2) requires a single degree rather than a 
combination of academic credentials). Thus, the plain language of this rcgulatory criterion 
requires evidence of more than one original contribution of major significancc in the field. Without 
additional, specific evidence of morc than one qualifying original contribution, the petitioner has not 
established that he meets the plain language requirements of the regulati(ln at t; C.F.R. 
* 2114.5(h)(J)(v). 
In light of the above. the petitioner has not established that he meets this regulatory criterion. 
I,'l'ii/ellce o( th" lllil'll's alllhorship o(sciwlarl\' articles in the FeI(/. ill proje.\siollal or 
maior trade I'lIhliclitioll\ or other maior media. 
The petitioner submitted a copy of a single article he coauthorcd cntitled "Two-color in vivo 
imaging of photoreceptor apoptosis and development in Drosophila," but there is no reliable 
evidence of its date of publication in Developmelltal Biologr. As previously discussed, the 
unpublished copy submitted by the petitioner is marked "UNCORRECTED PROOF'" and 
"ARTlCLE IN PRESS."' i'urther. the "ARTICLE INFO" section states '"Available online 
XXXX'" and docs Ilot indicate the '"Volume"" or ""Issue" of Developmental Biologv in which the 
article appeared. Evell if the petitioner had submitted evidence showing that the preceding 
artick had been puhlished at the time of filing the petition on May 4, 2011, which he has not, the 
plain language of the regulation at il C.F.R. * 204.5(h)(3)(vi) requires the petitioner's '"authorship 
of scholarly artici", in the field, in professional or major trade pllhlicatio/lS lH other major media"" 
(emphasis added) in the plural. As previously discussed, the usc of the plural is consistent with 
the statutory requirement for extensive evidence. Section 203(b)( I )(A)(i) of the Act. Therefore, 
'IS the plain language of the regulation at S C.F.R. § 204.5(h)(J)(vi) requires evidence of the 
petitioner's authorship of scholarly articles in more than one publication, his authorship of a 
single published article in [)('I'eiopmental Biology does not meet the plain language requirements 
of this regulatory criterion. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
/:"\'idena of 'h" <ii,ploy o! 'he olien"s \mrk in 'he field a' orlislie nhihilions or 
\Jun~'clls(,\. 
The petitioner suhmitted an internal program synopsis from University College Dublin (UCD) 
outlining for UCD Science Cinema to partner with the petitioner and his cOlllpany_ 
iii •••••• to for the 
in July 2012. The post-dates the petition's May 4, 
20 II filing date. As previously discussed, eligibility must be established at the time of filing. 
S C.F.R. ** 103.2(b)(I), (12): Matter of Katifihak, 14 
will not consider the petitioner's work at the July 2012 
this proceeding. Regardless, neither the petitioner 
petitioner's art work that was on display at or explained 
how assisting in the development of the festival equates to display at a visual art exhibit. Further. 
the plain language of the regulation at II CF.R. § 204.S(h)(3)(vii) requires evidence of exhibitions 
and showcases in the plural. As previously discussed, the use of the plural is consistent with the 
statutory requiremcnt for extensive evidence. Section 203(b)(I)(A)(i) of the Act. The petitioner 
has not submitted documentary evidence of more than one event prominently featuring him as the 
artist whose work is being exhibited or showcased. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
/:"\'idl'llCe of commercial Sllceelses ill the perj(Jrminfi ({rts, as showlI hv hox ollict' 
receipts or record, cassette. cOfl1pacf disk, or video sales. 
Thi, regulatory criterion focuses on volume of sales and box office receipts as a measure of the 
petitioner's commercial success in the performing arts, Therefore, the mere fact that the 
petitioner has produced or directed a film would be insufficient, in and of itself, to meet this 
regulatory criterion. The evidence must show that the volume of sales and box office receipts 
renect the petitioner's commercial success relative to other filmmakers in the performing arts, In 
Page 1 1 
this case. the petitioner h"s f"iled to submit documentary evidence of "sales" or "receipts 
showing that he h"s achieved commerci,,1 successes in the performing arts. Accordingly. the 
petitioner has not est"lllished th"t he meets this regulatory criterion. 
l3. Summ"ry 
The petitioner has failed to satisfy the antecedent regulatory requirement of three c"tegories of 
evidence. 
ilL CONCLUSION 
The documentation suiJmitted in support of a claim of extraordinary ability must clearly demonstrate 
th"t 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 Iwd submitted the requisite evidence under at least three evidentiary categories. 
in accordance with the Kazariall 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 thelirJ 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." S CER. 
** 204.5(h)(2) and (3): SI'I' "/SII Kazariall, 5lJ6 F.3d at IlllJ-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.' Rather. the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three categories of evidence. Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(I)(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, S U.S.c. ~ UbI. Here. the petitioner has not sustained that burden. Accordingly, the appeal 
will he dismissed, 
ORDER: The appeal is dismissed. 
, Thl' AAO ll1aintain~ de nov() fl'\'icw of all questions of facl and law. S(:'(' .So/rallt' t,', DOr. 3S1 F.3d 143, 14) (3J Cif. 
2()()4). In any future procecding, the AAO maintains the jurisdiction to conduct a finalmcrils Jelcflllin<ltion as the office 
Lh'll J11<ll!c the Lt"il liL'cisioJl in this maller. H C.F.R. * 103.S(a)(l )(ii). See also section [()3(a)( I) oj" the Act: SlTlioll 
211~(h) ,,( the Acl: tJlIS tJCicgilli(J1l NUl11her 111511.1 (effeclive March l, 20m): K C.VR. * 2.t (lllll.l): H C.F.R. 
~ J()3.l(f)(J)(iii) (2()().i); :H(/tter IJfAure/i(), [lJ I&N Dec. 4.')K. 46() (lilA 19K7) (holding lhal legal' v INS, no\"" 
l'S( 'IS, i" tIlL' sok ,11llhmity with thl' jurisdiction to dcciJc vi<.;a pditioll").