dismissed EB-1A Case: Scientific Research

.~\.~ -i 
identifying data deleted to 
prevent clearly unw~ted 
invasion of per~nal pnvac} 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Ci tizenshi p 
and Immigration 
Services 
PUBLIC COpy 
FILE: Office: TEXAS SERVICE CENTER Date: FEB 0 9 2011 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act; 8 U.S.c. § 11S3(b)(l)(A) 
ON BEHALF OF PETITIONER: 
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 ys>ur dse. 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 I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 c.F.R. § 103.S(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, 
~
tJ€fAdndc . 
erry Rhew 
. Chief, Administrative Appeals Office 
www.lIscis.gov 
.. . 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on July 10, 2009. The director dismissed the petitioner's motion to reopen and 
motion to reconsider on November 16,2009. The matter is now before the Administrative Appeals 
Office (AAO). The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), as an 
alien of extraordinary ability. 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 "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203(b)(1)(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, specifically a major; internationally recognized award. Absent the receipt of such 
an award, the regulation outlines ten categories of specific 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 claims that the petitioner meets at least three of the regulatory criteria at 8 
C.F.R. § 204.5(h)(3). . 
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,_ 
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 ~ork in the area of extraordinary ability, and 
Page 3 
(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. 723 101 sl 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. [d. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 c.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her 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 lea:St three of the 
following ten categories of evidence. 
(i) Docum~ntation 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 fieldfcir 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 alierr'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 
cla~sification· is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(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 leadiI1g 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 orreq)rd, 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.) 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." Id. 
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 "fmal merits determination" as 
the corollary to this procedure: j-
If a p~titioner has submitted the re'quisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertisJe 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 recogilized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose. achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.c. § 1153(b)(1)(A)(i). 
Id. at 1119. 
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 reviewing Service Center decisions, the 
AAO will apply the test set fortl! 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 Spencer Enterprises, Inc. v. 
United States, 229 F.Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting' that the AAO conducts 
appellate review on a de novo basis). 
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 5 
II. Translations 
While not addressed by the director in his decision, the record of proceeding reflects that the 
petitioner submitted numerous non-certified English language translations and partial translations of 
foreign language documents.' The regulation at 8 C.F.R. § 103.2(b) provides in pertinent part: 
(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 [emphasis 
added]. 
As cited above; the regulation at 8 C.F.R. § 103.2(b)(3) specifically requires- a "full English 
\ language translation which the translator has certified as complete and accurate." Because the 
petitioner failed to comply with the regulation at 8 C.F.R. §103.2(b)(3), the AAO cannot 
determine whether the evidence supports the petitioner's claims. Accordingly, the evidence is 
not probative and will not be accorded any weight in this proceeding. 
III. Analysis 
A. Evidentiary Criteria 
This petition, filed on December 17, 2008, seeks to classify the petitioner as an alien with 
extraordinary ability as a creative director in advertising. The petitioner has submitted evidence 
pertaining to the following criteria Ul1der8 C.F.R. § 204.5(h)(3). 2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
At the time of the original filing of the petition, counsel claimed the petitioner's eligibility for 
this criterion based on the following claimed awards: 
1. 1996 Award of Excellence at the 
2. 1997 Silver Award at the 
3. 2000 A ward of Excellence at the 
4. 2002 Gold Award at 
5. 2003 A ward of Excellence at the and 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
( 
\ 
Page 6 
6. 2004 Silver Award at the 
In support of these claims, the petitioner submitted reference letters from three individuals: 
A. Silla University, who simply stated that the petitioner 
won the six awards "listed above (we note that the names of some of the 
awards are different than claimed by counsel and will be addressed later in 
our discussion of this criterion); 
B. Louisiana State University, stated: 
c. 
[The petitioner] received the 1996 Award of Excellence at the 
through his V,olvo Automotlves 
newspaper advertisement. 
The Kyung Hyang Advertising Awards are held by one of the three daily 
newspapers in Korea that were established in 1942. The first award was 
granted in 1992, and the nominees are annually chosen from the Kyung 
Hyang Daily newspaper and magazine advertisements. Advertising 
agency creative directors select on [sic] hundred 0 [sic] the more than ten 
thousand applicants. A group of renowned retirees experienced in the 
advertising field select ten of the previous one hundred. A group of 
advertising major" professionals select the winners of the grand prize, 
second, third, and fourth places, and honorable mention. The Kyung 
Hyang Advertising Awards are fourth highest ranked advertising award in 
Korea; and 
stated: 
[The petitioner] won the Silver Award at 1997' 
Tpe National Korean Advertising Awards are held by 
which was established in 1986. This 
award program is . ing companies and agencies that 
span twenty different categories. In 1994, a prestigious group of 
specialists in Korea, who continue to judge these awards, presented the 
first honors. Each of the more than one hundred advertising 'agencies in 
Korea selected five of their most outstand,ing projects to be submitted to 
the judging committee. The creative directors for each respective 
advertising agency choose one hundred of the submitted works in the first 
selection process. A group of renowned retirees experienced in, the 
advertising field select ten of the previous one hundred. A group of 
advertising major professionals select the winners of the grand prize, 
second, third, and fourth places, and honorable mention. The National 
Page 7 
Korean Advertising Awards are the premier advertising award program in 
Korean. 
I am aware that beyond this award, [the petitioner] has won many other 
awards. 
The director found that the petitioner failed to establish eligibility for this criterion. Specifically, 
the director found that "[a]wards based on achievement or other traits deemed praiseworthy by 
the awarding organization does not constitute nationally or intt:~rnationally recognized 'awards 
for excellence in the filed of endeavor. '" On motion, the petitioner submitted another 
reference letter from who also generally stated that the 
petitioner won the six awards listed in items 1 - 6 above. director dismissed the motion and 
found that "[e]vidence of the criteria necessary for the participation in and final selection of the 
awards was not provided by sources that are affiliated with the sponsoring entity." 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[dJocumentation of 
the alien's receipt of lesser nationally or internationally recognized prizes or awards for 
excellence in the field of endeavor [emphasis added]." The petitioner· failed to submit primary 
evidence of his receipt of the claimed awards, such as evidence from the awarding entities. The 
regulation at 8 C.F.R. § 103.2(b)(2) provides in pertinent part: 
\ 
(i) The non-existence or other unavailability or required evidence creates a 
presumption of ineligibility. If a required document, such as a birth _ or marriage 
certificate, does not exist or cannot be obtained, an applicant or petitioner must 
demonstrate this and submit secoiidary evidence, such as church or school records, 
pertinent to the fact at issue. If secondary evidence also does not exist or cannot be 
obtained, the applicant or petitioner must demonstrate the unavailability of both the 
required document and relevant secondary evidence, and submit two or more 
affidavits, sworn to or affIrmed by persons who are not parties to the petition who 
have direct personal knowledge of the event and circumstances. Secondary 
evidence must overcome the unavailability of primary evidence, and affidavits must 
overcome the unavailability of both primary and secondary evidence. 
(ii) Where a record does not exist, the applicant or petitioner must submit an original 
written statement on government letterhead establishing this from the relevant 
government or other authority. The statement must indicate the reason the record 
does not exist, and indicate whether similar records for the time and place are 
available. However, a certifIcation from an appropriate foreign government that a ' 
document does not exist is not required where the Department of State's Foreign 
Affairs Manual indicates this type of document generally does not exist. An 
applicant or petitioner who has not been able to acquire the necessary document or 
statement from the relevant foreign authority may submit evidence that repeated 
good faith attempts were made to obtain the required document or statement. 
I -
However, where USCIS fmds that such documents or statements are generally 
Page 8 
available, it may require that the applicant or petitioner submit the required 
document or statement. 
As indicated above, the regulati9n at 8 c.F.R. § 103.2(b)(2)(i) provides that the non-existence or 
unavailability of required evidence creates a presumption of ineligibility. Accordmg to the same 
regulation, only where the petitioner demonstrates that primary evidence does not exist or cannot be 
obtained may the petitioner rely on secondary evidence and only where secondary evidence is 
demonstrated to be- unavailable may the petitioner rely on affidavits. In this case, the petitioner 
relies on the submission of reference letters as evidence of his receipt of the claimed awards. The 
petitioner failed to submit any documentary evidence demonstrating that primary evidence and 
secondary evidence do not exist or cannot be obtained. Moreover, the petitioner submitted 
reference letters instead of affidavits. As such, the petitioner failed to comply with the regulation at 
8 C.F.R. §103.2(b)(2), and the AAO will not consider the petitioner's reference letters as 
evidence of his receipt of the clairried awards. Accordingly,· the evidence is not probative and 
will not be accorded any weight in ~is proceeding. 
Moreover, the petitioner al~o submitted the following documentation: 
(i. A and uncertified translation a document for the 
"bronze medal" for the· '. , 
11. translation of a document from 
that only lists in English the petitioner's name, 
111. A partial and uncertified translation of a document for the "Advertising 
year book Issue on 2005" claiming: 
a. an outstanding ·award for a 
at the 
b. 
c. 
2000; 
d. won a gold award for an 
Asiana Air Line advertisement at the 
-
Page 9 
e. "Sanagam Communications" won an outstanding award 
f. 
IV. A 
for a Bank Nonghup advertisement at 
Award"; and 
and 
in 2003; and 
a bronze 
at the 
translation of a 
01/03" clalllJLlilJ:; 
As indicated above, the petitioner failed to submit full and certified translations of the foreign 
language documents. Accordingly, the evidence is not probative and will not be accorded any 
weight in this proceeding. Notwithstanding, regarding item i, the document fails to reflect that 
the petitioner won the bronze medal at the ward." In fact, the uncertified and 
partial translation only credits the as receiving the bronze medal. 
Regarding item i' 
petitioner's name,. 
and uncertified translation only lists the 
The translation fails to 
-indicate exactly what the document represents. We note that counsel' in her 
.at the time of the original filing of the U~L1UVll"1 
to [the petitioner] in 2003 as the 
a marketing agency and subsidiary of 
the partial and uncertified translation fails to support the 
Regarding item iii, the partial and uncertified translation fails to reflect that the 
of the awards listed in items a - f. Instead, the document reflects that 
were credited with winning the awards. We note that items a - c indicate that 
was the copywriter or creative director. However, because the petitioner submitted partial 
translations, there is not enough information to establish that they were awarded to the petitioner. 
Furthermore, we cannot conclude· that awards that were riot specifically presented to the 
petitioner are tantamount to his receipt of natio~ally recognized awards. It cannot suffice that the 
petitioner was one member of a large group that earned collective recognition. 
Similarly, regarding item iv, the partial and uncertified translation credits 
as receiving the president award and not the petitioner. In fact, the 
ted in the translation. 
Again, counsel claimed the petitioner's eligibility for this criterion based on items 1 - 6 listed 
above. However, because the petitioner submitted partial and uncertified translations, the 
petitioner failed to establish that the claimed awards listed in items i - iv are the same awards 
P,age 10 
listed in items t - 6. For ~xample, counsel claims that the petitioner won the 
1996 Award of Excellence). '_ claimed that the 1J",.1U\,)'11"'1 
1996 Award of Excellence [emphasis 
claimed that the petitioner won the "1996 Award of Excellence at the 
Advertisements Awards . added]." _ claimed that the petitioner won the 
1996 Award of E~dded]," Item iii.a. reflects 
an "outstanding award [emphasis added]" at the_ (1996) [emphaSIS added]." 
Each document submitted by the petitioner has a different name of the award. 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. Matter oJ Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. [d. If USeIS fails to believe that a fa'ct stated in the petition' is 
true, USCIS may reject that fact. Section 204(b) of the Act, 8 U.S.c. § 1154(b); see also 
Anetekhai v. I.N.S., 876 F.2d 1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 
705 F. Supp. 7, 10 (D.D.C.1988); Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Notwithstanding the above, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) 
requires "[d]ocumentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards Jor excellence in the field of endeavor [emphasis added]." In other words, the 
petitioner must demonstrate that his awards are nationally or internationally recognized for 
. excellence. While counsel provided, background information regarding the awards listed in items 
1 - 6 in her cover letter at the time of the original filing of the petition and in support of the 
motion, counsel failed to submit' any. documentation supporting her assertions. Without 
documentary evidence to support rhe claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupport~d assertions of counsel do not constitute evidence. 
Matter oj Obaigbena, 19 I&N Dec. 533, 534 n.2, (BIA 1988); Matter oj Laureano; 19 I&N Dec. 
1,3 n.2 (BIA 1983); Matter oj Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not 
entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). 
Regarding the letter from ~hile he stated that the awards are "held by one of the three 
daily newspapers in Korea'.' and a "group of advertising major professionals select the winners," 
he failed to establish that the awards are nationally or internationally recognized for excellence. 
Moreover_ indicated that the awards "are the fourth highest ranked advertising award[s] 
in Korea" without explaining his claim or professional opinion. Likewise_ stated that 
the awards are "comprised of advertising companies and agencies that span twenty_ different 
categories". and are "the premiere advertising award program in Korea." However, ••• 1 
failed to explain why the awards are the premiere advertising award program. The central issue 
for this criterion is the national or international recognition for excellence of the awards and not 
the selection criteria for the awards. Simply submitting two reference letters that generally 
indicate that the awards are the fourth highest ranked or premiere awards are insufficient to 
establish the national or international recognition for excellence of the awards. 
Page 11 
Not only must the petItIOner demonstrate his receipt of awards and prizes, he must also 
demonstrate that those awards and prizes are nationally or internationally recognized for 
excelle~ce. Moreover,it is the petitioner's burden to establish eligibility for every element of 
this criterion. In this "case, for the reasons discussed above, the petitioner failed to demonstrate 
his receipt of the claimed awards, as well as establishing that the awards are nationally or 
internationally recognized for excellence in the field pursuant to the regulation at 8 C.F.R. 
§ 204;5(h)(3)(i). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
At the time of the original filing of the petition, counsel claimed the petitioner's eligibility for 
this criterion based on his "crucial and critical roles" for businesses and . such as_ 
We 
note that the regulations contain a separate criterion regarding the leading and critical role. 8 c.F.R. 
§' 204.5(h)(3)(viii). We will not presume that evidence relating to or even meeting the leading or 
critical role criterion is presumptive evidence that the petitioner also meets this criteripn. To hold 
otherwise would render meaningless the regulatory requirement that a petitioner meet at least three 
separate criteria. Regardless, the petitioner failed to establish that his roles at individual companies 
", establish original contributions" of major significance in the field as a whole and not limited to 
. companies in which· the petitioner was employed. Therefore, while the petitioner's leading or 
critical role claims will not be considered under this .criterion, they will be addressed under the next 
criterion. 
Counsel made numerous assertions at the time of the original filing of the petition and on motion 
without providing any independent, objective evidence beyond the petitioner's personal 
statement. The petitioner's unsupported statements are not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). We cite 
representative examples below: 
While working at. [the petitioner's] contributions were so influenti,al he was 
asked to create advertisements for Oriental Watches. In so doing, [the petitioner] 
worked on a specific product advertisement for· Korea's cultural wedding dowry 
project: Galaxy, a high-class watch to Koreans. During this process, [the 
petitioner] created two copyrights: "Nature is God's greatest masterpiece" and 
"Galaxy strives to be the masterpiece of a watch." The latter of the two was 
finalized, generating enormous revenues and resulting in a brand-name status. 
[The petitioner's] contributions throughout the aforementioned advertisement 
campaign were of great value, both creatively, and economically. 
Page 12 
* * * 
[The petitioner] played a crucial role in launching the copyright, 
The aforementioned slogan benefited 
_ to the extent used it for a. period of three years, an 
exceptionally lengthy amount of time to implement a campaign. The success of 
the aforementioned advertising campaign was so remarkable it is now widely and 
consistently use4 as a case study for advertising students. 
* * * 
One of [the petitioner's] most notable campaigns includes the work he 
successfully compl~ ioner] collaborated with 
top actresses such as mploying the copyright, 
"A woman's change is limitless ... " [The petitioner] and his team successfully 
generated revenues after advertising the high-class cosmetics to upper-
aged 'women. The concepts implicit in [the petitioner's] Cosmetics / 
campaigns are very much relevant, and certainly influential, 
advertising campaigns conducted today. 
As previously indicated, without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. 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. The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled .to any 
evidentiary weight. See INS v. Phinpathya, 464 U.S. at 189 n.6. 
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]." In compliance with Kazarian, the AAO must focus 
on the plain language of the regulatory criteria. 596 F3d at 1121. Here, the evidence must be 
reviewed to see whether it rises to the level of original contributions "of major significance in the 
field." Even if the assertions of counsel were supported by documentary evidence, the assertions 
only refer to the specific businesses and not to the field as a whole. Merely making an original 
contribution to a business or corporation is insufficient to meet the plain language of the 
I regulation at 8 C.F.R.· § 204.5(h)(3)(v) that requires the original contribution to be "of major 
significance in the field." . Counsel also made assertions without providing any specific examples 
such as the petitioner's statement that the "advertising campaign was so remark,able it is now 
widely and consistently used as a case study for advertising students." Counsel failed to provide 
a single a example- where the petitioner's advertising campaign is used as a case study for 
students. Moreover, counsel claimed that "similar advertising campaigns conducted today" use 
the concepts in the Ro Jae Cosmetics campaign without identifying a single campaignor any of 
the concepts. 
Page 13 
A review of the record of proceeding reflects that the petitioner submitted several reference 
letters. We cite representative examples here: 
stated: 
As a creative director, [the petitioner] produced many succes.sful campaigns. One 
of his successful jobs includes the Asiana Airlines campaign, "Beautiful. p~ople, 
Asiana Airlines," which began in 2002. Not only is this campaign still active 
today in 2008, but this campaign is well liked and acknow~hed its 
advertisement in 2002 with Korea's notable soccer coach_ 
Whil_ indicated an original contribution of the petitioner, the Asiana Airlines campaign, 
he failed to demonstrate that this advertisement campaign has been of major significance to the 
field and not limited to Asiana Airlines. 
stated: 
[The petitioner] has experiences of attending various seminars and advertising 
associations both in the country and overseas. '-
* * * 
I believe that these different.experiences and lessons gave [the petitioner] a very 
unique and insight toward his of work. I will give you an example through 
Korea's top food industry and its product, "Look Joy's" 
campaign. [The this campaign with the head 
copyright, "Eating the World." We filmed in three different countries with 
different national versions (Korean, Chinese, an,d Japan). From here, the Chinese 
episode was nominated as the 3rd popular commercials, resulting in· s.oaring 
profits. 
We are not persuaded that attending seminars and 'advertising associations around the world 
demonstrates original contributions of major significance in the field. Assuming that attending 
seminars and associations is unique to the petitioner's occupation, 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 through the alien employment certification 
process. See Matter of New York State Dep't. of Transp., 22 1. & N. Dec. 215, 221 (Commr. 
1998). Finally, Mr. Choi refers to the petitioner's impact solely on Cheong Jung Won rather 
than to the field as a whole. 
stated: 
As a creative director, [the petitioner] produced many successful pieces of work. 
For one example, there was a campaign in 2004 for a Korean ]ogurt company, 
Page 14 
Paldo. He hand, mix with 
campaign. This 
campaign helped make the product one of the top in its items. This campaign is a 
good example of how he incorporated both humor and humanism into the 
advertisement. 
Similar to the other reference letters, indicated an original contribution the petitioner 
specifically made to Paldo. However, failed to establish that the petitioner's 
contribution has been of major significance to the field as a whole not restricted to Pablo. 
stated: 
One of the advertisements for 
Together" is still considered very moving and warm. When the advertisement 
was made it was bit odd for senior· Korean couple to. be walking together holding 
their hands due to the culture. However, in the advertisement the senior couple 
holds hands and exchange beautiful smiles which is thought to have brought 
Korean advertising into more emotional direction. To further explain the visual 
the sdnioi man walk in the park with his wife following him 'from behind. As the 
camera moves, a young couple with a gentle grin and moves to his wife and holds 
her. hands. The senior couple walks together hol~ hands in the warm 
Spring day in the park. At the end, a narration of...- is with you in path 
taken together." This advertisement helped to increase senior couples as their 
clienteles for the ShinHan Life Insurance. All the advertisement we worked on 
together always brought great sense of warmth and sm,ile to the people watching 
the advertisement. 
Although_ indicated that it identified those individuals w~ht the petitioner's work 
brought Korean advertising into more emotional direction, __ failed to explain who 
"thought" of this direction and the impact or influence of the advertisement such as other 
advertisers copied or emulated the work of the petitioner to demonstrate the major significance. 
We acknowledge that the reference letters reflect that the petitioner has made original 
contributions to the' specific businesses in which he was employed as a creative director. 
However, the petitioner failed to establish, and the letters fail to reflect, that his original 
contributions have been of major significance to his field. For example, the petitioner failed to 
demonstrate that his work on limited advertisements have influenced or impacted the field 
beyond the employing businesses. The letters submitted on the petitioner's behalf fail to reflect 
original contributions of major significance in the petitioner's field and contain general 
statements that lack specific details. This regulatory criterion not only requires the petitioner to 
make original contributions, but also requires those contributions to be significant. We are not 
persuaded by vague, solicited letters that simply repeat the regulatory language but do not 
explain how the petitioner's contributions have already influenced the field. Merely repeating 
Page 15 
\ 
the language of the statute or regulations does not satisfy the petitioner's burden of proof.3 The 
lack of supporting documentary evidence gives the AAO no basis to gauge the significance of " 
the petitioner's present contributions. 
USCIS may, in its discretion, use as advisory opinion statements submitted as expert testimony., 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 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 of support from the petitioner's personal contacts 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. Thus, the content of the writers' 
statements and how they became aware of the petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in 
support of an immigration petition are of less weight than preexisting, independent evidence of 
original contributions of major significance. 
We must presume that the phrase "major significance" is not superfluous and, thus, that it has 
some meaning. Without additional, specific evidence showing that the petitioner's work has 
been original, unusually influential, or has otherwise risen to the level of contributions of major 
significance, we cannot conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has performed in a leading 'or critical role for organizations 
or establishments that have a distinguished reputation. 
As stated previously, counsel claimed that the petitioner performed in critical roles for businesses 
and such as 
The plain language of the regulation at 8 c.F.R. 
§ 204.5(h)(3)(viii) requires "[e]vidence that the alien has performed in a leading or critical role 
for organizations or establishments that have a distinguished reputatio.n [emphasis added]." In 
general, a leading role is evidenced from the role itself, and a critical role is one in which the 
alien was responsible for the success or standing of the organization or establishment. A review 
of the record of proceeding reflects that the' petitioner submitted partial and uncertified 
translations of advertising yearbooks for 1992, 1994 - 1997, and 2000 - 2004. Again, as the 
petitioner failed to comply with the regulation at 8 c.F.R. §103.2(b)(3), the AAO cannot· 
determine whether the evidence supports the petitioner's claims. Accordingly, the evidence is 
not probative and will not be accorded any weight in this proceeding. 
Regardless, a review of the partial and uncertified translations reflect that accord· 
advertisin~tioner was the copywriter for whose 
client was_ According to the 1994 and 1995 yearbooks, the petitioneri'Was the 
3 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (id. Cir. 1990); Avyr' 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Page 16 
copywriter for whose client was 
to the 1996 yearbook, the petitioner was the copywriter 
According 
whose client was 
1,",vvn ..... ,,,- to the 1997 "p<, .. n(~nV the petitioner was the copywriter for 
According to the 2000 - 20~ 
aQ'"er[ls{~ml~m campaigns from ~ 
However, the petitioner is not credited in the documentation as being 
involved in the advertising campaigns. According to the 2003 and 2004 yearbooks, the partial 
and uncertified translations to be advertisement campaigns from 
for 
The petitioner is 
involved in the advertising campaigns for any of the businesses. 
Because the petitioner submitted partial and ullcertified translations, the petitioner failed to 
establish that the advertisement that he ever let alone 
as well as other companIes, 
claimed by counsel and the 
petItIoner throughout this proceeding. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 I&N Dec. at 165 (Citing Matter of Treasure Craft of California, 14 I&N 
Dec. at 190. Without documentary evidence to support the claim, the assertions of counsel will 
. not satisfy the petitioner's burden of proof. 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. The unsupported statements of 
counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. at 189 n.6. 
Even if the petitioner established that he was employed by any of the claimed businesses, or he 
participated on their advertising campaigns, which lle did not, the petitioner failed to establish 
that he performed in a leading or critical' role. Merely submitting documentation indicating that 
he was the copywriter or creative director for an advertisement without evidence comparing his 
position to others in the company as a whole is insufficient to demon~trate the he performed in a 
leading or critical role. For example, the petitioner failed to submit any documentary evidence, 
such as an organizational chart, that compares· his position as a copywriter to that of other 
copywriters much less positions of greater responsibility in the company such as managers or 
supervisors. 
Finally, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires the lea~ing or 
critical role be "for organizations or establishments that have a distinguished reputation~" While 
the petitioner submitted documentary evidence regarding the reputation of some of the claimed 
employers such as the petitioner failed to submit any documentary evidence 
estab . the distinguished of the other organizations such as _ 
J 
Accordingly, the petitioner failed to establish that he meets this criterion. 
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." See section 203(b)(I)(A)(i) of the Act, 8 U.S.c. 
§ 1153(b)(I)(A)(i), and 8 C.F.R'. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The 
petitioner failed to establish eligibility for any of the criteria, in which at least three are required 
under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many of the deficiencies in the 
documentation submitted by the petitioner have already been addressed in our preceding 
discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating our final merits determination, we must look at the totality of the evidence to 
conclude the petitioner's eligibility pursuant to section 203(b)(1)(A) of the Act. In this case, the 
petitioner established that he has performed the routine duties of a copywriter and creative 
director for several advertisement campaigns. However, the personal and business 
accomplishments of the petitioner fall far short of establishing that he "is one of that small 
,percentage ~ho have risen to the very top of the field of endeavor" and that he "has sustained 
'natiqnal or international acclaim and that his or her achievements have been recognized in the 
field of expertise." See 8 C.F.R. § 204.5(h)(2), section 203(b)(1)(A)(i) of the Act, 8 U.S.c. 
§ 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). The petitioner has not distinguished himself 
from other copywriters or creative directors in his field of expertise. 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[a] petition for ,an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 C.F.R. § 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "a 
level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). 
We cannot ignore that the statute requires the petitioner to submit "extensive documentation" of 
the petitioner's sustained national or international acclaim. See section 203(b)(1)(A) of the Act. 
The commentary for the proposed regulations implementing section 203(b)(1)(A)(i) of the Act 
provide that the "intent of Congress that a very high standard be set for aliens of extraordinary 
ability is reflected in this regulation by requiring the petitioner to present more extensive 
documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 
Page 18 
1991). In .this case, the petitioner claimed eligibility for the awards criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(i) based on reference letters without submitting primary 
evidence of his awards. We are not persuaded that the petitioner could not submit primary 
evidence of nationally or internationally recognized awards for excellence. Furthermore, the 
petitioner claimed eligibility for the original contributions criterion pursuant to the regulation at 
8 C.F.R.. § 204.5(h)(3)(v) without demonstrating that his contributions have been of major 
significance to the field. We note that the self-serving letters of recommendation praising the 
petitioner cannot form the cornerstone of a successful extraordinary ability claim. Further, 
USCIS may, in its discretion, use as advis?ry opinion statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. at 795. However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit 
sought. Id. The submission of letters of support from the petitioner's personal contacts 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.' Finally, the petitioner claimed 
eligibility for the leading or critical role~riterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii) based on documentation that failed to demonstrate that he performed in a 
leading or critical role. We also note that counsel made various assertions without providing any 
supporting documentation or based on the petitioner's personal statement. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sojfici, 22 I&N Dec. at 165 (citing Matter of Treasure 
Craft of California, 14 I&N Dec. at 190. Without documentary evidence to support the claim, 
. the assertions of counsel will not satisfy the petitioner's burden of proof. 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 pee. at 3 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not 
entitled to any evidentiary weight. See INS v. Phinpathya,\464 U.S. at 189 n.6. In addition, the 
petitioner submitted numerous foreign language documents that failed to contain full and 
certified English language translation pursuant to the regulation at 8 C.F.R. § 103.2(b)(3). We 
are not persuaded that such evidence with the numerous deficiencies noted equate to "extensive 
documentation" and is demonstrative of an individual with sustained national or international 
acclaim. The truth is to be determined not by the quantity of evidence alone but by its quality. 
Matter of Chawathe, 25 I&N Dec. at 376 citing MCftter of E-M- 20 I&N Dec. 77, 80 (Comm'r. 
1989). . ( 
The petitioner failed to submit evidence demonstrating that he "is one of that small percentage who 
have risen to the very top of the field." In addition, the petitioner has not demonstrated his "career 
of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723,59 (Sept. 19, 
1990). 
The conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the petitioner as one of the small percentage who has risen to the very top of the field of 
endeavor. The documentation submitted in support of a claim of extraordinary ability must clearly 
Page 19 
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. 
IV. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)( 1 )(A) of the Act, and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO 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 at 1043, 
affd, 345 F.3d at 683; see also Soltane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). , 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 V.S.c. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
J