dismissed EB-1A Case: Unknown

• .I 
, 
identifying data deleted to 
prevent clearly unw~ted 
invasion of personal pnvac) 
PUBLIC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
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: DEC 2 0 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. § 1153(b)(1 )(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 I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 c.F.R. § 103.5(a)(l)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~
()eaJ r?ck/ 
'Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on May 16, 2009, and is now before the Administrative Appeals Office (AAO) on 
appeal. 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. Standard of Proof 
In addition, counsel argues: 
We respectfully submit that the Director has applied an incorrect standard of proof 
to the adjudication of this petition and, therefore, has subjected the petitioner to a 
higher standard of eligibility than required by applicable law. In the Notice of Intent 
to Deny (NOID), the Director stated that "the evidence must clearly demonstrate 
that the [petitioner] has sustained national or international acclaim and that the 
[petitioner's] achievements have been recognized as extraordinary by others in the 
field." (emphasis added; page 2 of the Notice of Intent to Deny, March 3, 2009). 
The appropriate standard of proof to be met for immigrant visa petitions is 
"preponderance of the evidence," not the more restrictive standard of clear and 
convincing evidence." According to Black's Law Dictionary (7th ed.), the clear and 
convincing standard is defined as "evidence indicating that the thing to be proved is 
highly probable or reasonably certain," which is a heavier burden than the 
"preponderance of the evidence" standard that applies here. 
We bring the Service's attention to the USCIS Adopted Decision in Matter of 
Chawathe, outlining the standard of proof to be met by the petitioner. The Adopted 
Decision confirms that the correct burden of proof by petitioners seeking 
Page 3 
immigration benefits is "preponderance of the evidence" and not any other standard 
We first note that Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) was initially decided on 
January 11, 2006, and designated as an "adopted decision" of USCIS, guiding USCIS officers in 
their administration of the immigration laws. It was not designated as precedent under the 
regulation at 8 c.F.R. § 1003.1(i) until October 20,2010. In accordance with Matter of Chawathe, 
in most administrative immigration proceedings, the petitioner must prove by a preponderance of 
the evidence that he or she is eligible for the benefit sought. 
We further note that counsel's argument is based on the director's notice of intent to deny and not 
on the director's denial of the petition. A notice of intent to deny is not the final decision of the 
director, but a proposed denial to afford the petitioner the opportunity to respond to any derogatory 
information and/or submit additional documentary evidence. 8 C.F.R. § 103.2(b)(8)(iii). In 
addition, counsel argues that the director required "the more restrictive standard of 'clear and 
convincing evidence'." A review of the director's notice of intent to deny reflects that the director 
stated that "[t]he evidence must clearly demonstrate that the [petitioner] has sustained national or 
international acclaim .... " The director did not state or require the higher standard of "clear and 
convincing." We are not persuaded that the director's use of "clearly" equates to "clear and 
convincing. " 
While we agree with counsel that the proper standard of proof in adjudicating the petitioner's 
extraordinary ability petition is the preponderance of evidence, we are not persuaded that the 
director's statement in the notice of intent to deny required a higher burden of proof contrary to 
Matter of Chawathe. In the director's notice of intent to deny, the director's statement referred to 
how he would consider the evidence, not the "standard of proof' being applied. In determining 
whether an alien has met the preponderance burden, the officer has the discretion to review any 
evidence he finds credible and relevant. Under Chawathe, the truth is to be determined not by 
the quantify of evidence alone but by its quality. [d. at 376. Additionally, the "preponderance of 
the evidence" standard does not relieve the petitioner from submitting specific objective 
evidence as required under the regulation at 8 C.P.R. § 204.5(h)(3). For these reasons, we are not 
persuaded by counsel's argument that the director erred in his decision regarding this matter. 
II. Specific Reasons in the Notice of Intent to Deny 
Counsel also argues: 
Counsel submits that the Director simply did not follow the applicable regulations. 
The Director provided no meaningful information whatsoever in his NOlD. He 
simply stated that "[t]his office is unable to complete the processing of your petition 
without further information" and then merely listed the ten regulatory criteria. He 
failed to specify why the evidence previously submitted was not satisfactory. He did 
not explain the type of additional evidence required, or the bases for the proposed 
Page 4 
denial sufficient to give petitioner adequate notice and sufficient information to 
respond. 
Even if the director had committed a procedural error in the NOrD, it is not clear what remedy 
would be appropriate beyond the appeal process itself. The director's denial specifically 
discussed the petitioner's eligibility as it pertained to the claimed criteria. Counsel has had an 
opportunity to present further arguments and evidence on appeal. Therefore, it would serve no 
useful purpose to remand the case based on a deficient NOrD when the director adequately 
discussed the petitioner's ineligibility in the denial. Nevertheless, on appeal, we will evaluate all 
of the petitioner's evidence as it relates to the petitioner's eligibility for the claimed criteria 
pursuant to the regulation at 8 C.F.R. § 204.S(h)(3). 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 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). 
III. 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 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 (USCrS) 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 HR. 723 101 st Cong., 2d 
Page 5 
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 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; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, III 
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. 
Page 6 
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. I 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. 
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 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 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 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). 
IV. 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. 
The regulation at 8 C.F.R. § 103.2(b) provides in pertinent part: 
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 7 
(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. 
At the time of the original filing of the petition and in response to the director's notice of intent 
to deny the petition, the petitioner submitted a single certification that purportedly related to 
numerous translations. It is unclear which document or documents, if any, to which the 
certification pertains. The submission of a single translation certification for multiple documents 
that does not identify the document or documents it purportedly accompanies does not meet the 
requirements of the regulation at 8 C.F.R. § 103.2(b )(3). 
Furthermore, the regulation at 8 c.F.R. § 103.2(b)(3) specifically requires a "full English 
language translation." However, the petitioner submitted numerous partial translations for the 
majority of his foreign language documents. 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. 
V. Primary Evidence 
While also not addressed by the director, the record of proceeding reflects that the petitioner failed 
to submit primary evidence of his eligibility for some of the criteria. 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 secondary 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 
govenunent 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 
Page 8 
statement from the relevant foreign authority may submit evidence that repeated 
good faith attempts were made to obtain the required document or statement. 
However, where USCIS finds that such documents or statements are generally 
available, it may require that the applicant or petitioner submit the required 
document or statement. 
As indicated above, the regulation at 8 c.F.R. § 103.2(b)(2)(i) provides that the non-existenc~ or 
unavailability of required evidence creates a presumption of ineligibility. According 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, while the 
petitioner submitted secondary evidence, such as screenshots from websites, newspaper and 
magazine articles, and photographs of ribbons, the petitioner failed to submit any documentary 
evidence demonstrating that primary evidence does not exist or cannot be obtained. 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 secondary evidence. Accordingly, the evidence is not probative and 
will not be accorded any weight in this proceeding. 
VI. Analysis 
A. One-Time Achievement 
At the time of the original filing of the petition and in response to the director's notice of intent to 
deny the petition, the petitioner failed to claim eligibility based on a one-time achievement. 
However, on appeal, counsel argues: 
The Director improperly evaluated the evidence and erred in concluding that the 
petitioner did not have a major internationally recognized award, even though he 
won a competition resulting in his art appearing on the very first Latin American 
conservation stamp. 
* * * 
In 1992, [the petitioner's] original artwork was selected for the first wildlife stamp in 
Latin America. [The petitioner] won the Best in Show Prize from the National 
Wildlife Galleries in the United States, in a competition to select the art that 
appeared on the very first Latin American conservation stamp and a print. The 
competition was internationally sponsored by The National Foundation of Wild Life 
(Costa Rica), the Ministry of Environment and Energy (Costa Rica), and the 
National Wildlife Corporation (United States of America). As a result of winning, 
[the petitioner's] work was featured on Costa Rica's 
_in 1992-1993. 
The Director did not give proper consideration to this single important international 
award, which satisfies the "one-time achievement" criterion. 
Page 9 
The director could not have erred as counsel only claimed the petitioner's eligibility regarding 
the one-time achievement for the first time on appeal. If it was counsel's contention that the 
petitioner met the one-time achievement at the time of the filing of the petition or in response to the 
director's notice of intent to deny the petition, counsel never provided such a statement or argument 
in that regard. The burden is on the petitioner to establish eligibility. It is not the director's 
responsibility to infer or second-guess the intended eligibility. 
As counsel is now claiming on appeal the petitioner's eligibility for the one-time achievement, we 
will review the petitioner's documentary evidence to determine if it is sufficient to meet the one­
time achievement requirement. On appeal, counsel claims the petitioner's eligibility for the one­
time achievement based on the following documentation: 
1. 
2. Screenshots from .!!...!.!...!.!..~~============ that the petitioner 
was credited artist for the 1992 
3. An article entitled, July 20,2001, _ 
_ www.nacion.com reflecting "[i]t was the first Latin-American Prize 
for the Reproduction in Lithographies and Philatelic Seals for Conservation, 
sponsored by the National Foundation of Wildlife of Costa Rica, and the 
National Wildlife Corporation of U.S." 
Regarding item 3, we note that in counsel's brief, she claimed that Exhibit B on appeal reflected 
"multiple articles describing the award." However, a review of Exhibit B only reflected one article 
that mentioned the award. We further note that some of the articles only contained partial 
translations and without full English language translations we cannot determine if the articles 
discussed the award. 8 C.F.R. § 103.2(b)(3). 
Nevertheless, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3) requires that "[s]uch 
evidence shall include evidence of a one-time achievement (that is, a major, international 
recognized award) (emphasis added)." While the 'tioner submitted sufficient documentation 
establishing that his artwork was selected for the the 
petitioner failed to establish that this demonstrates a major, award. 
Given Congress' intent to restrict this category to "that small percentage of individuals who have 
risen to the very top of their field of endeavor," the regulation permitting eligibility based on a 
one-time achievement must be interpreted very narrowly, with only a small handful of awards 
qualifying as major, internationally recognized awards. See H.R. Rep. 101-723, 59 (Sept. 19, 
1990), reprinted in 1990 U.S.C.C.A.N. 6710, 1990 WL 200418 at *6739. Given that the House 
Report specifically cited to the Nobel Prize as an example of a one-time achievement, examples 
of one-time awards which enjoy major, international recognition may include the Pulitzer Prize, 
Page 10 
the Academy Award, and (most relevant for athletics) an Olympic Medal. The regulation is 
consistent with this legislative history, stating that a one-time achievement must be a major, 
internationally recognized award. 8 C.F.R. § 204.5(h)(3). The selection of Nobel Laureates, the 
example provided by Congress, is reported in the top media internationally regardless of the 
nationality of the awardees, is a familiar name to the public at large and includes a large cash prize. 
While an internationally recognized award could conceivably constitute a one-time achievement 
without meeting all of those elements, it is clear from the example provided by Congress that the 
award must be global in scope and internationally recognized in the alien's field as one of the top 
awards in that field. However, the documentation submitted by petitioner fails to establish that the 
selection for a major, internationally 
recognized award. For example, while the petitioner won competition in 1992, the petitioner 
submitted a single article that briefly mentioned the award in 2001, approximately nine years 
after the petitioner won the competition. The lack of media attention and timeliness of the 
minute media coverage are not reflective of a major, internationally recognized award. 
Moreover, the documentary evidence reflects that the First of Latin America Costa Rica 
Conservation Stamp and Print was restricted to a national competition and is not demonstrative of 
an internationally recognized award. Finally, the documentary evidence reflects that the 
competition "was the first Latin-American Prize for the Reproduction in Lithographies and 
Philatelic Seals for Conservation." Given the fact that this was the first time this competition was 
conducted, the petitioner failed to show that any subsequent awards have been well-established 
in the field so as to demonstrate its major, international recognition. The mere submission of 
documentary evidence that only demonstrates the petitioner's receipt of an award is insufficient 
to establish eligibility for the one-time achievement requirement without documentary evidence 
reflecting that the award is a major, internationally recognized award. For these reasons, we are 
not persuaded that the selection for the First of Nation Waterfowl Conservation Stamp constitutes a 
major, internationally recognized award. The award will be further addressed below in our 
discussion of the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(i). 
B. Evidentiary Criteria 
The petitioner has submitted evidence pertaining to the following criteria under the regulation at 
8 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. 
The director found the documentary evidence submitted by the petitioner failed to establish 
eligibility for this criterion. On appeal, counsel argues: 
[The petitioner] has received numerous other national and international awards 
that he was received in recognition of his extraordinary contributions to the field 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 11 
of art, specifically paintings of wildlife, with naturalist, conservation and 
ecological themes. We included numerous newspaper articles confirming his 
receipt of these awards, and provided photographs of [the petitioner] receiving the 
awards from dignitaries including the First Lady of Costa Rica, and corporate 
executives such as from Pfizer Corporation. . .. At this time, we are also 
providing photographs of award ribbons he has received more recently. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentation: 
1. 
2. 
3. 
4. 
5. 
6. 
Screens hots from the petitioner's website, 
••••••••••••• reflecting approximately 21 awards; 
A letter from who stated: 
[The petitioner] is a very important artist in our country, 
with his hard work he tries to maintain the natural balance 
of our environment, making him the pioneer of this 
movement, winning important awards from the Costa Rican 
Art Museum, National Museum of Costa Rica, Historical 
Museum Juan Santamaria, Ministry of Nature and Energy 
and Museum of Jade from the National Institute of 
Insurances. 
Beyond our borders, he received a recogmtIOn for the 
cooperation in the Ecology Congress and Conservation of 
the Environment with his exhibition in the 
Museum, Jalisco, Mexico, 1998. 
A copy of a photograph with a caption reflecting" 1980 1 st Grand Prize -
Competition of Costa Rican endangered species art from 40 competing 
pieces from various national artists"; 
A copy of a photograph with a caption reflecting "1992 Pfizer Corporation 
Watercooler competition Costa Rica Union Club. One of Three 
Honorable Mention Awards"; 
Copies of three photographs with a caption reflecting "2005, March. 
Juried Contest Exhibition of 400 participating artists: Fair [illegible] Art 
Council, Mobile, Alabama, USA. Winner, People's Choice award"; 
~ial translation of an article entitled, 
_ November 24, 1986, unidentified author, La Prensa Libre, 
reflecting "[t]he painter [the petitioner] (right) winner of the first award of 
the contest 'Endangered animals of Costa Rica"'; 
Page 12 
7. 
8. 
9. 
~ translation of an article entitled, 
_ September 13, 1983, unidentified author, 
reflecting "[the petitioner] has won many awards from contests organized 
by the Costa Rican Art Museum and other cultural organizations"; 
A partial translation of an article entitled, 
November 17, 1992, unidentified author, reflecting "[a]fter a 
national contest in which participated 54 painters, the Foundation chose 
the sample of [the petitioner] as the most true to form representation of the 
'Piche careto"'; 
An article entitled, 
November 10, 2005, 
"[the petitioner] has received a prize in the Annual Jurist Contest 
Alabama and a mention of honor in the Festival of the Arts 2005 III 
Oregon"; 
10. An article entitled, 
November 2004, 
approximately 17 awards; 
11. A letter addressed to the petitioner who stated that the 
petitioner's artwork was "chosen to be a finalist in The Municipal Art 
League of Chicago [MALC]-Midwest Fine Art Competition"; 
12. A copy of a photograph of a document reflecting an honorable mention 
from the MALC 2008 Biennial Midwest Fine Art Competition. 
13. A certificate for 2008 Best of Show at the Lincolnshire Art Festival; 
14. who stated that "[the petitioner] won an award 
for Best of III Cantigny Art Festival, Best of Painting in the 
Joliet Art Festival and Best of Show in the Lincolnshire Art Festival for 
the year 2008"; and 
15. Photographs of various ribbons from the Joliet Fine Art Festive of the 
Masters, Joliet Fine Art Festival, Cantigny Fine Art Festival, and 
Lincolnshire Art Festival. 
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 for excellence 
in the field of endeavor." In general, a review of the documentary evidence submitted by the 
petitioner fails to reflect that he submitted primary evidence of his awards or evidence that 
primary evidence does not exist pursuant to the regulation at 8 C.F.R. § 103.2(b)(2). Instead, as 
Page 13 
evidenced above, the petitioner submitted photographs with captions claiming they represented 
his receipt of awards, photographs of ribbons, and articles, including partially translated articles. 
As such, the petitioner failed to demonstrate his "receipt" of prizes or awards. Moreover, the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires that the petitioner's prizes 
or awards be "nationally or internationally recognized" and "for excellence." It is the 
petitioner's burden to establish every element of this criterion. Even if the petitioner submitted 
primary evidence of his awards, which he did not, merely submitting documentary evidence 
reflecting receipt of awards is insufficient to establish eligibility for this criterion without 
documentary evidence establishing that the awards were nationally or internationally recognized 
for excellence. 
Regarding item I, without independent, objective, and primary evidence we cannot accept the 
petitioner's self-serving personal website as having any evidentiary weight in 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. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
Regarding item 2, the letter from generally indicated that the petitioner won 
"awards from the Costa Rican Art Museum, National Museum of Costa Rica, Historical Museum 
Juan Santamaria, Ministry of Nature and Energy and Museum of Jade from the National Institute 
of Insurances" without naming or describing the awards. the petitioner failed to submit 
primary evidence of the awards. Moreover, failed to establish that the awards 
were "nationally or internationally recognized prizes or awards for excellence." 
Regarding items 3 - 5, the petitioner failed to submit primary evidence of the claimed awards. 
Moreover, a review of the photographs fails to reflect any awards or prizes. In fact, the 
photographs merely reflect the petitioner with other individuals and the only mention of awards 
is in the accompanying captions. We simply cannot accept self-serving captions claiming to 
reflect awards as credible, objective evidence. Regardless, the petitioner failed to submit any 
documentary evidence establishing that the awards in the captions are nationally or 
internationally recognized prizes or awards for excellence. 
Regarding items 6 - 10, the petitioner also failed to submit primary evidence of the claimed 
awards. Instead, the petitioner submitted articles. Furthermore, regarding items 6 - 8, the 
petitioner submitted partial translations of the articles rather than full translations pursuant to the 
regulation at 8 C.F.R. § 103.2(b)(3). Even if we would accept these articles as evidence of the 
petitioner's receipt of awards, which we do not, the articles merely state that the petitioner 
received awards without discussing the significance of the awards in order to demonstrate the 
national or international recognition for excellence. For example, as evidenced above in item 9, 
the article stated that "[the petitioner] has received a prize in the Annual Jurist Contest of 
Alabama and a mention of honor in the Festival of the Arts 2005 in Oregon." The petitioner 
failed to submit any documentary evidence demonstrating that any prizes or awards from the 
Page 14 
Annual Jurist Contest of Alabama or the Festival of the Arts 2005 in Oregon are nationally or 
internationally recognized prizes or awards for excellence. 
Regarding items 11 - 15, the documentary evidence was submitted in response to the director's 
notice of intent to deny or on appeal. The petition was filed on May 7, 2008. However, a review 
of the documentary evidence refers to events occurring in 2008 and fails to reflect the specific 
dates, so as to demonstrate that they were received prior to the filing of the petition. Eligibility 
must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 
I&N Dec. 45, 49 (Regl. Commr. 1971). A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of [zummi, 22 I&N Dec. 169, 175 
(Comm'r. 1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 
(BIA 1981), that we cannot "consider facts that come into being only subsequent to the filing of 
a petition." [d. at 176. Nonetheless, the petitioner failed to submit any documentary evidence 
establishing that any of the awards are nationally or internationally recognized for excellence. 
We note, regarding item 12, that the petitioner failed to establish that an honorable mention 
equates to an award or prize for excellence. 
discussed selection of the petitioner's work for the 
the petitioner failed to submit sufficient documentary evidence 
demonstrating that it is a y or internationally recognized prize or award for excellence. 
Again, while the petitioner submitted sufficient documentary evidence that his artwork was selected 
for the , merely submitting evidence of his receipt of 
any award or prize is insufficient to establish eligibility for this criterion without documentary 
evidence reflecting national or international recognition for excellence. Furthermore, the plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(i) requires the petitioner to demonstrate his 
receipt of more than one award or prize. Therefore, even if we were to find that his selection for 
the qualified under this criterion, which we do not, 
the petitioner would only receipt of one award. As such, the petitioner 
failed to meet the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(i). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
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. 
A review of the record of proceeding reflects that the petitioner failed to claim eligibility for this 
criterion at the time of the original filing of the petition and in counsel's written response to the 
director's notice of intent to deny. Specifically, in response to the director's notice of intent to 
deny, counsel indicated that "[the petitioner] is not a member of any association in the field." 
However, in titling the petitioner's exhibits in the response to the notice of intent to deny, 
counsel indicated that the documentary evidence related to the membership criterion pursuant to 
the regulation at 8 C.P.R. § 204.5(h)(3)(ii). In reviewing counsel's written response to the notice 
Page 15 
of intent to deny, the documentary evidence was referred by counsel to the judging criterion 
pursuant to the regulation at 8 C.F.R. 204.5(h)(3)(iv). 
While it appears that counsel mistakenly labeled the petitioner's documentary evidence, we 
further note that counsel submitted a certificate reflecting that the petitioner is a member of the 
Municipal Art League of Chicago (MALC). In counsel's written response to the director's 
notice of intent to deny, counsel did not refer to the MALC certificate or claim the MALC 
certificate under any of the other criteria pursuant to the regulation at 8 C.P.R. § 204.5(h)(3). 
Further, the record contains no evidence regarding any membership requirements. Regardless, 
as counsel failed to contest the decision of the director, offer additional arguments, or claim the 
petitioner's eligibility for this criterion on appeal, we will not further discuss this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which 
classification is sought. Such evidence shall include the title, date, and author of 
the material, and any necessary translation. 
In the director's decision, he found that the petitioner failed to establish eligibility for this 
criterion. On appeal, counsel claims: 
[The petitioner's] work has been featured favorably on numerous occasions in 
national and international newspaper articles. We note that most of the articles 
submitted in support of this criterion are about the beneficiary and his art, and 
include his name in the title and often his photograph. Copies of the articles were 
included in the initial filing, and our response to the Notice of Intent to Deny and 
are included again here .. " We note that all of the publications include the title, 
date, author, circulation figures and any necessary English translations. 
Counsel respectfully takes issue with the Director's interpretation of the evidence 
not rising "to the level to satisfy the criterion." The plain language of the 
regulatory criterion simply asks for "evidence of the published material about the 
alien in professional or major trade publication or other major media, relating to 
the alien's work in the field for which classification is sought" and does not place 
any additional requirements on the petitioner other than supplying the title, date, 
author, and necessary translation. In other words, appearing in major media 
should satisfy this regulatory criterion, without having to demonstrate anything 
else. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentation: 
Page 16 
1. 
2. An article entitled, 
2001, www.nacion.com; 
3. An article entitled, 
4. An article entitled, 
www.nacion.com; 
5. An article entitled, 
November 10, 2005 
6. An article entitled, 
24,2007, 
August 25, 2000, _ 
October 30, 
July 20, 2001, 
November 11, 2003, 
June 
7. An article enti 
www.nacion.com; 
October 27, 2001, 
8. 
unidentified author, Tiempo; 
9. A partial translation of an unidentified title of an article, April 23, 1997, 
unidentified author, EIlnformador; 
10. an article entitled, 
November 24, 1986, unidentified author,_ 
11. A artial translation of an article entitled, 
12. 
13. 
14. 
December 3, 1998, unidentified author, Central 
America Weekly; 
A partial translation of an article entitled, 
_September 13,1983, unidentified 
~ translation of an article entitled, 
_ May 6,1998, unidentified author, 
A partial translation of an article 
November 17, 1992, unidentified 
Page 17 
15. A partial translation of an 
16. 
unidentified 
A partial article ",,,,,,,,",,,,, 
unidentified author, 
December 2002, 
17. A partial translation 
August 9, 1992, 
18. 
19. 
20. 
21. 
A partial translation of an article entitled, 
Columnas; 
article entitled, 
July 13, 1998, 
translation of an article 
June 14, 1999, 
June 1, 1994, 
22. A partial translation of an article entitled, 
June 27,2008, Hoy Chicago; 
23. A snippet October 25, 2007, 
24. 
25. 
26. 
27. 
28. 
unidentified author, Northwest Herald; 
A snippet entitled, 
author, www.renejos.com; 
A snippet 
25,2007, 
January 20, 2008, unidentified 
October 
An article with an non-translated title, March 2001 
and Houses; 
Styles 
An article entitled, 
Styles and Houses; 
An article entitled, 
author, unidentified source; 
anuary 2000, 
unidentified date, unidentified 
Page 18 
29. October 16, 
30. An article entitled, October 25, 
2007 
31. October 26, 
32. An article entitled, December 
20,2007, 
33. A blog entitled, March 16, 2009, 
1I .................. I:w~w~w~.p~lialrr·n~f~ie~lad~le~a~g~u~eJ.b~IQogg~sp~o~t~.c~olirrnl; 
34. An article entitled, 
35. An article 
October 4, 1989, 
36. An article 
November 
Prensa Libre; 
June 9,1994,_ 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[p]ublished 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." 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 New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers.3 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that 
"[s]uch evidence shall include the title, date, and author of the material, and any necessary 
translation." While counsel claims on appeal that "all of the publications include the title, date, 
author, circulation figures and any necessary English translations," numerous articles submitted 
by the petitioner, in fact, failed to contain the title, date, and author of the material. Furthermore, 
the petitioner submitted several articles that contained only partial translations. While on appeal 
counsel submitted two articles (items 34 and 35) with full translations that were previously 
3 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside ofthat county. 
Page 19 
submitted with partial translations, counsel also submitted on appeal several documents with 
only partial translations. 
We note here that the petitioner submitted several articles that were posted on the Internet. 
However, we are not persuaded that articles posted on the Internet from a printed publication are 
automatically considered major media. The petitioner failed to submit independent, supporting 
evidence establishing that the web sites are considered major media. In today's world, many 
newspapers, regardless of size and distribution, post at least some of their stories on the Internet. 
To ignore this reality would be to render the "major media" requirement meaningless. We are 
not persuaded that international accessibility by itself is a realistic indicator of whether a given 
website is "major media." 
Regarding items 1 - 6, a review of the Internet articles reflects material about the petitioner 
relating to his work. However, while the petitioner submitted documentary evidence regarding 
La Nacion, the petitioner failed to submit any documentary evidence demonstrating that 
www.nacion.comis a professional or major trade publication or other major media. Regarding 
item 7, the Internet article is not about the petitioner. Rather, the Internet article is about the 
Framework Jade Museum Fidel Tristan. Although the Internet article mentions the petitioner as 
inaugurating the art exhibition with his work, it remains that the article is not about the petitioner 
but primarily about the Framework Jade Museum Fidel Tristan. 
Regarding items 8 - 22, the petitioner submitted partial translations of the articles. In fact, the 
majority of the translations contain only a couple of sentences. For example, the translation for 
item 11 merely reflects "[t]o this editing the rumor of his quality arrived, of his pictures, 
brilliantly created and therefore we went to verify and really is true, He is an artist with capital 
letter." Because the petitioner submitted partial translations, we cannot determine if the articles 
reflect published material about the petitioner relating to his work. Furthermore, the petitioner 
failed to include the title, date, and/or author of the material for items 8 - 17 as required pursuant 
to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). We note regarding item 22 that the article was 
published on June 27, 2008, after the filing of the petition. Eligibility must be established at the 
time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter of Izummi, 22 I&N Dec. at 175. That decision further provides, citing Matter of 
Bardouille, 18 I&N Dec. at 114, that we cannot "consider facts that come into being only 
subsequent to the filing of a petition." Id. at 176. 
Regarding item 23 and 24, the petitioner failed to include the authors of the snippets. 
Furthermore, a review of items 23 - 25 fails to reflect published material about the petitioner 
relating to his work. In fact, the snippets merely reflect announcements of the petitioner's 
presence at the McHenry County College Shah Center. Moreover, the petitioner failed to submit 
any documentary evidence establishing that the Northwest Herald and www.ref1ejos.com are 
professional or major trade publications or other major media. 
Page 20 
Regarding item 26, the petitioner failed to include the translated title of the article. While a 
review of the articles for items 26 and 27 reflects material about the petitioner rei· to his 
work, we are not persuaded that a review of the 
~emonstrates a professional or major trade publication or other major media, based on 
the claim of "8,000 copies by edition." 
Regarding item 28, the petitioner failed to include the date and author of the material. In 
addition, the petitioner failed to identify where the material was published so as to establish that 
it was published in a professional or major trade publication or other major media. Further, the 
article is not about the petitioner. Rather, the article is about animals in art, and the petitioner 
was only mentioned one time. 
Regarding item 29, the petitioner failed to identify where the material was published so as to 
establish that it was published in a professional or major trade publication or other major media. 
Further, the article is not about the petitioner. In addition, the article was published on October 
16, 2008, after the filing of the petition. Eligibility must be established at the time of filing. 8 
C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of 
Izummi, 22 I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 
I&N Dec. at 114, that we cannot "consider facts that corne into being only subsequent to the 
filing of a petition." Id. at 176. 
Regarding item 30, the article . 
local artists' artwork at the 
Instead, the article is primarily about 
While the article mentions 
the petitioner's artwork twice, it remains that the article is not about the petitioner relating to his 
work. Again, the petitioner failed to submit any documentary evidence demonstrating that the 
Northwest Herald is a professional or major trade publication or other major media. 
Regarding items 31 and 32, a review of the articles reflect material about the petitioner relating 
to his work. However, the petitioner failed to submit any documentary evidence demonstrating 
that www.hoyintemet.com and www.pionecrlocal.com are professional or major trade 
publications or other major media. 
Regarding item 33, the blog was posted on March 16, 2009, after the filing of the petition. 
Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. Matter of /zummi, 22 I&N Dec. at 175. That decision 
further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, that we cannot "consider facts 
that corne into being only subsequent to the filing of a petition." Id. at 176. Moreover, the 
petItIoner failed to submit any documentary evidence establishing that 
www.plainfieldleague.blogspot.comis a professional or major trade publication or other major 
media. 
Page 21 
Regarding item 34, a review of the article fails to reflect that it is about the petitioner relating to 
his work. Rather, the article is about the extinction of wildlife in Costa Rica. While the 
petitioner's artwork is mentioned in the artwork as being displayed at the Art Gallery of the 
National Bank of Costa Rica, it remains that the article is not primarily about the petitioner 
relating to his work. Furthermore, the petitioner failed to submit any documentary evidence 
demonstrating that La Prensa Libre is a professional or major trade publication or other major 
media. 
Regarding item 35, a review of the article reflects material about the petitioner relating to his 
work. The petitioner submitted a screenshot from www.multimedia.com reflecting that La 
Republica is a daily newspaper in Costa Rica with a circulation of 27,737. We are not persuaded 
that such circulation statistics is demonstrative of a professional or major trade publication or 
other major media. 
Regarding item 36, a review of the article reflects material about the petitioner relating to his 
work. The petitioner submitted documentary evidence from www.fundacionamericana.com 
reflecting that Revista Costa Rican has a regular circulation of 5,000. We are not persuaded that 
such circulation statistics reflects a professional or major trade publication or other major media. 
As evidenced above, the petitioner submitted some articles and screenshots that reflect material 
about the petitioner relating to his work. However, the petitioner failed to demonstrate that the 
material was published in professional or major trade publications or other major media as 
required pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Furthermore, numerous 
documents were submitted without including the title, date, and author of the material, as well as 
full translations. The burden is on the petitioner to establish every element of this criterion. In 
this case, the petitioner failed to do so. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
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 specification for which 
classification is sought. 
The director found that the petitioner failed to establish eligibility for this criterion. Specifically, 
the director stated: 
You state, "[The petitioner] is an expert Fine ArtistlPainter ... He has lectured, 
presented workshops and given demonstrations on the subject to prestigious 
organizations and events." This statement does not indicate or imply that your 
[sic] participated, either individually or on a panel, as a judge of the work of 
others. The evidence does not satisfy this criterion. 
On appeal, counsel claims: 
Page 22 
[The petitioner] submitted evidence of his providing art instruction at a significant 
art school, Studio 56, dedicated to hyper-realism in Tibas, Costa Rica. In 
addition, evidence that he has lectured, presented workshops and given 
demonstrations on the subject to prestigious organizations and events was 
provided. 
* * * 
The plain language of the regulatory criterion of "judging the work of others" 
simply asks for "evidence that the foreign national has participated as the judge of 
the work of others" and does not place any additional requirements on the 
petitioner or beneficiary. The regulations, for instance, do not demand that the 
foreign national's participation as the judge be the result of his extraordinary or 
outstanding abilities. In other words, participation as the judge of the work of 
others through peer-review, teaching, advising or similar activities should satisfy 
this criterion. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentation: 
1. The previously mentioned article entitled, 
_ October 16, 2008, 
2. An advertisement entitled, •••••••••••••••••• 
_at on October 
18,2008; 
3. A letter from 
who thanked the petitioner for "presenting" his program; 
4. An e-mail from 
at the Morton Arboretum, who stated that the petitioner ' nr~'''Plnl 
work at the Nature Artists' Guild in October 2008; 
5. An e-mail from 
who req 
SCH on October 28, 2008; 
confirmation of the petitioner's presence at 
6. An advertisement for the petitioner's workshop at the LaGrange Art 
League from May 30 - 31,2009; and 
7. An article ,",H','U'~U. 
October 4, iililii 
Page 23 
petitioner "is regarded as an outstanding professor at Studio 56, in the 
Gallery of Art in Tibas and in his presentations at colleges in San Jose." 
At the outset, regarding items 1 - 6, the documentary evidence reflects events occurring after the 
filing of the petition. Eligibility must be established at the time of filing. 8 C.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of facts. Matter of [zummi, 22 
I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 
114, that we cannot "consider facts that come into being only subsequent to the filing of a 
petition." [d. at 176. 
Further, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence of 
the alien's pmticipation, either individually or on a panel, as a judge of the work of others in the 
same or an allied field of specification for which classification is sought (emphasis added)." 
Pursuant to Kazarian, 596 F.3d at 1121-22, we agree with counsel that the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iv) does not require the petitioner's "participation as the judge be the result of his 
extraordinary or outstanding abilities." However, the documentary evidence submitted by the 
petitioner fails to reflect that he has ever served "as a judge of the work of others." Regarding item 
7, the article merely reflects that the petitioner taught at Studio 56 and made presentations at 
colleges in San Jose. Based on the article, the petitioner failed to establish that participating as a 
teacher or presenter equates to "a judge of the work of others." The petitioner failed to submit 
sufficient documentary evidence that meets the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(h)(iv). The burden of proving eligibility for the benefit sought remains entirely with 
the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. 
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. 
The director found that the petitioner failed to establish eligibility for this criterion. On appeal, 
counsel argues: 
For over 30 years, [the petitioner] has taken innovative and important strides in 
the study and practice of painting hyper-realistic images with wildlife, naturalist 
and ecological themes. The fact that his work has garnered awards from top 
wildlife organizations like the National Foundation of Wild Life (Costa Rica), 
Ministry of Environment and Energy (Costa Rica), and the National Wildlife 
Corporation (United States of America), and from prestigious museums such as 
Costa Rican Museum of Art and the National Museum of Costa Rica, proves that 
the work is of major significance and original. 
* * * 
Page 24 
Besides government institutions, numerous Central American museums, including 
the National Gallery, Jade Museum, National Museum of Costa Rica, Historical 
Museum Juan Santamaria have also hosted solo exhibitions displaying [the 
petitioner's] artwork. These venues are not ordinary, rather they are the premiere 
venues in Costa Rica. 
It is noted that the petitioner's awards and the exhibition of his work fall under separate criteria 
and are discussed in-depth under those criteria. We will not presume that evidence relating to or 
references in letters discussing these facts is presumptive evidence that the petitioner also meets this 
criterion. To hold otherwise would render meaningless the regulatory requirement that a petitioner 
meet at least three separate criteria. 
The record of proceeding reflects that the petitioner submitted recommendation letters. We cite 
representative examples here: 
stated: 
stated: 
[The petitioner] is an artist who collaborated much with the Ministery [sic] of 
Environment in various ways for many years. He has realized through various 
exhibitions and gatherings of paintings of animals in danger of extinction, the 
distinction as the best representative of our country in this genre. 
* * * 
[The petitioner] has always been distinguished as a great collaborator with the 
Ministry of the Environment, and I have had the opportunity to closely know his 
great talent, as well as his personal fine behavior, which distinguishes him as a 
very kind person of enterprizing [sic] character, always with superior project and 
ideas; and above all a person with good feelings and huge sensibilities for nature. 
[The petitioner] has been an invaluable contributor of the General Direction of 
wildlife in the execution of the rubber stamp and printing program, for the 
conservation of the aquatic birds in or [sic] country. Therfore [sic] this direction 
will be grateful of any attention that you want to serve [the petitioner] in the 
development of his profession. 
I wish to leave proof that [the petitioner] is thought of as a very well known local 
Costa Rican artist. [The petitioner] has more than twenty years of painting in a 
Page 25 
very serious form. Although during all his career he has shown his interest for the 
Costa Rican landscape, he has more recently specialized, in landscapes and the 
animals that populate them, with meticulous work. To this cause, in the year 
2000, as the curator of Museums of the Central Bank, I included one of his works 
in a sample exhibition carried out in that Museum that has as name "Animals." 
We note here that the petitioner submitted several letters that were addressed to the petitioner 
regarding exhibitions of the petitioner's artwork from the following individuals: 
1. National Museum of Costa Rica; 
2. Museum of Sister Cities; 
3. - Guadalarja Zoo; 
4. - Amulfo Miramontes Romo de Vivar; 
5. Unsigned letter from the Guadalajara Country Club, A.c.; 
6. - Regional Museum of Tonala; and 
7. Guadalajara Zoo. 
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." In compliance with Kazarian, the AAO must focus on the plain 
language of the regulatory criteria. 596 F.3d at 1121. Here, the evidence must be reviewed to see 
whether it rises to the level of original artistic-related "contributions of major significance in the 
field." 
Regarding counsel's arguments on appeal regarding the petitioner's awards, they have already 
been considered under the regulation at 8 C.F.R. § 204.5(h)(3)(i). Furthermore, regarding 
counsel's arguments regarding the petitioner's exhibitions, as well as items 1 - 7, the regulation 
at 8 C.F.R. § 204.5(h)(3)(vii) provides a separate category for the display of the petitioner's work 
at artistic exhibitions and showcases that will be later discussed under that criterion. We will not 
presume that evidence relating to or even meeting the awards criterion or display criterion is 
presumptive evidence that the petitioner also meets this criterion. To hold otherwise would render 
meaningless the regulatory requirement that a petitioner meet at least three separate criteria. 
Regarding the three remaining reference letters, they fail to describe original artIstIC 
contributions of major significance to the field. The regulation at 8 C.F.R. § 204.5(h)(3)(v) does 
not merely require an alien to make contributions to the field but requires those contributions to 
be significant. Specifically, while indicated that the petitioner 
collaborated with the Ministry of Environment, he failed to explain how the collaboration has 
.' 
Page 26 
been of major s to the field as a whole and not limited to the Ministry of Environment. 
Moreover, the petitioner has been an "invaluable 
contributor." failed to explain the impact or influence of the 
rubber stamp or printing program so as to establish that they have been of major significance to 
the field as a whole. Finally, while indicated that the petitioner "has shown his 
interest for the Costa Rican landscape," she failed to explain how the petitioner's interest in 
landscapes and animals also demonstrates an original contribution of major significance to the 
field. 
In this case, there is no indication that the petitioner's work is both an original contribution and 
of major significance. As stated above, this regulatory criterion not only requires the petitioner 
to make original contributions, the regulatory criterion also requires those contributions to be 
significant. We are not persuaded by vague, solicited letters that simply repeat the regulatory 
language but do not specifically identify contributions or how those contributions have 
influenced the field. Merely repeating the language of the statute or regulations does not satisfy 
the petitioner's burden of proof.4 The lack of supporting 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 extensive documentation showing that the petitioner's work has been 
unusually influential, widely accepted throughout his field, or has otherwise risen to the level of 
original contributions of major significance, we cannot conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
In the director's decision, he found that the petitioner established eligibility for this criterion. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires "[e]vidence of the 
4 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.). 
Page 27 
display of the alien's work in the field at artIstic exhibitions or showcases." Pursuant to 
Kazarian, 596 F.3d at 1122, the petitioner submitted sufficient documentation establishing that he 
meets the plain language of the regulation at 8 c.F.R. § 204.5(h)(3)(vii). Therefore, we agee with 
the decision of the director for this criterion. 
Accordingly, the petitioner established that he meets the plain language of the regulation for this 
criterion. 
Evidence that the alien has peifonned in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The director found that the petitioner failed to establish eligibility for this criterion. On appeal, 
counsel argues: 
In his Denial, the Director states that the Petitioner submitted letters from various 
organizations "inviting you to exhibit your work" in support of this criterion, 
which "does not indicate that [the Petitioner] performed in a leading or critical 
role for organizations or establishments that have a distinguished reputation." 
Counsel respectfully takes issue with the Director's analysis and conclusion, as 
documentation in support of this criterion did not only take the form of letters 
inviting the Petitioner to exhibit his work. Rather, documentation was also 
submitted in the form of letters attesting to [the petitioner's] talent and 
accomplishments, publicity releases and promotional materials about his 
exhibitions, and documentation of the distinguished reputations at which his work 
was exhibited. 
* * * 
The very nature of "solo exhibitions" indicates a starring role. Participation in a 
"collective exhibition" may also include leading or critical role. A collective 
exhibition usually has a theme as selected by a museum curator or organizer. One 
or many pieces from different artists are selected to represent the theme or motif 
at the collective exhibition. Thus, [the petitioner's] contribution to a collective 
exhibition is a critical element and means he played a leading or critical role in a 
collective exhibition. 
In addition, on appeal, counsel listed various exhibitions and government institutions that 
showcased the petitioner's work and referred to the previously discussed recommendation letters 
and newspaper articles. We are not persuaded by counsel's arguments. We have already 
discussed the petitioner's eligibility as it pertained to the display of his work at artistic 
exhibitions and showcases pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii). As 
previously indicated, it would negate the regulatory requirements if we were to presume that 
evidence relating to or even meeting the display criterion is presumptive evidence that the petitioner 
also meets this criterion. 
" 
Page 28 
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 reputation [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. While the documentary evidence reflects that the petitioner 
exhibited his work, the petitioner failed to demonstrate that he has performed in a leading or 
critical role. The documentation submitted by the petitioner is simply reflective of the 
petitioner's participation at numerous events. The petitioner failed to submit sufficient 
documentary evidence that is demonstrative of a leading or critical role. The record of 
proceeding is absent evidence that distinguished the petitioner from other numerous exhibitors 
who also displayed their work at the same museums or venues so as to establish that the 
petitioner performed in a leading or critical role. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The director concluded that the petitioner failed to establish eligibility for this criterion. 
Specifically, the director found: 
You submitted evidence that in November of 2007 you made $10,800 and then 
annualized it to $129,600. You also submitted evidence that in April of 2008 you 
made $24,975 and then annualized it to $299,000. You clearly did not make 
$129,600 in 2007 and you did not make $299,000 in 2008. The evidence does not 
satisfy this criterion. 
On appeal, counsel argues: 
The Petitioner submitted documentation that his pamtmgs sell for $600 to 
$100,000 for large murals and $3,000 to $200,000 for sculptures. As additional 
evidence, we included a list price from a bank in Costa Rica is currently selling 
one of [the petitioner's] paintings titled for $12,000 
USD. . .. This is an extraordinary sum even in light of figures 
commanded by other artists, a consequence of today's market for highly sought­
after art pieces. In addition, [the petitioner's] award winning work sold as a 
stamp for up to $750. The marketplace has clearly acknowledged his 
extraordinary abilities in the field, as well as his prominent stature among the very 
top Fine ArtistslPainters employed in the industry. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentation: 
Page 29 
1. A check, dated April 17, 2008, addressed to the petitioner from 
_for $4,000; 
2. Two checks, dated March 22, 2008 and April 10, 2008, addressed to the 
petitioner from $500 each; 
3. Two checks, both dated January 31, 2008, addressed to the petitioner from 
for $5,000 each; 
4. Two checks, both dated December 10, 2007, addressed to the petitioner 
from for $5,000 each; 
5. Two checks, dated April 26, 2008 and April 29, 2008, addressed to the 
petitioner fro_or $12,725 and $12,250; 
6. Three checks, dated January 16, 2007, November 20 
7. 
22, 2007, addressed to the petitioner from 
$2,200, $2,600, and $2,000; 
Two checks, dated November 
addressed to the petitioner from 
November 18, 2007, 
$2,000 each; 
8. A check, dated November 17, 2007, addressed to the petitioner from 
$2,000; 
9. Two checks, dated October 15, 2007 and October 23, 2007, addressed to 
the petitioner from the $900 and $600; 
10. A screens hot from an unidentified website reflecting that the petitioner's 
artwork, is listed for $12,000; 
11. An agreement, dated April 24, 2008, reflecting that 
commissioned the petitioner to create original oil and acrylic paintings 
between 2008 and 2010; 
12. A screenshot from reflecting a Level 4 wage of 
$38,210 per year for the Chicago-Naperville-Joliet, Illinois area; and 
13. A screenshot from www.web.uccs.edu reflecting the median salary of fine 
artists is $35,260. 
The plain language of the regulation at 8 c.P.R. § 204.5(h)(3)(ix) requires "[e]vidence that the 
alien has commanded a high salary or other significantly high remuneration for services, in relation 
to others in the field [emphasis added)." We are not persuaded by counsel's assertions on appeal. 
Counsel failed to submit any documentary evidence supporting her assertions that "[t]he Petitioner 
" 
Page 30 
submitted documentation that his paintings sell for $600 to $100,000 for large murals and $3,000 
to $200,000 for sculptures." In fact, regarding items 1 - 10, the largest amount was item 7 for 
$12,725. We note that the documentary evidence fails to reflect if this amount reflects a single 
piece or multiple pieces of artwork. 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. 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). 
Regarding item 11, while the documentary evidence reflects that the artwork is listed for 
$12,000, the petitioner failed to demonstrate that he has sold the artwork for that amount. 
Regardless, the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires that the petitioner to compare his 
salary or remuneration for services "in relation to others in the field." In this case, the 
documentation submitted by the petitioner fails to reflect that his pieces of work have 
commanded a high selling price compared to other similar pieces of work. In other words, the 
petitioner failed to establish that he has commanded significantly high remuneration for services 
compared to others in his field. Merely submitting documentation that reflects a remuneration for 
services without evidence establishing that the petitioner has commanded significantly high 
remuneration for services compared to others in the field is insufficient to meet the plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(ix). The petitioner failed to establish that his 
remuneration in the sales of his artwork was significantly high. 
We note regarding item 11 that the agreement was dated on April 24, 2008, approximately two 
weeks prior to the filing of the petition and pertained to events occurring from 2008 to 2010. 
Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); Matter of 
Katigbak, 14 I&N Dec. at 49; Matter of Izummi, 22 I&N Dec. at 175; Matter of Bardouille, 18 
I&N Dec. at 114. Although the agreement pertains to events scheduled after the filing of the 
petition, there is no documentation demonstrating that the either party fulfilled the agreement. 
We further note regarding items 12 that the website reflects median wages of fine artists and 
painters in the Chicago-Naperville-loliet, Illinois area, and item 13 reflects median wages in 
general for fine artists. However, median regional wage statistics, including Level 4 (fully 
competent) do not meet this requirement. Accordingly, the petitioner has not established that his 
remuneration for services is significantly high in relation to other fine artists and painters as a 
whole and not limited to Chicago and surrounding areas for median wages. 
Finally, we note that we agree with the director in his assessment of annualizing the petitioner's 
salary. We are not persuaded that submitting selected checks for two months and then projecting 
the yearly earnings demonstrates the petitioner's actual annual earnings. The petitioner failed to 
submit, for example, income tax returns or other independent, objective evidence reflecting the his 
yearly earnings. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
.> 
Page 31 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In the director's decision, he found that "[t]he evidence submitted does not make a claim of 
commercial success in the performing arts." However, in response to the director's notice of 
intent to deny, counsel claimed the petitioner's eligibility for this criterion based on the claimed 
awards won by the petitioner. Again, we will not presume that evidence relating to or even 
meeting awards criterion is presumptive evidence that the petitioner also meets this criterion. 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) requires 
"[e]vidence of commercial successes in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales (emphasis added)." As the plain language of the 
regulation specifically refers to performing artists and not visual artists, such as the petitioner, 
this criterion does not apply to the petitioner. Moreover, this regulatory criterion requires 
evidence of commercial successes in the form of "box office receipts or record, cassette, compact 
disk, or video sales." As the petitioner failed to submit any evidence of "box office receipts or 
record, cassette, compact disk, or video sales," the petitioner failed to establish eligibility for this 
criterion. 
Finally, on appeal, counsel failed to contest the decision of the director, offer additional 
arguments, or claim the petitioner's eligibility for this criterion. Therefore, we will not further 
discuss this criterion on appeal. 
Accordingly, the petitioner failed to establish eligibility for this criterion. 
B. Comparable Evidence 
The regulation at 8 c.F.R. § 204.5(h)(3) provides that evidence of sustained national or international 
acclaim "shall" include evidence of a one-time achievement or evidence of at least three of the 
following regulation categories. The ten categories in the regulations are designed to cover 
different areas; not every criterion will apply to every occupation. For example, the criterion at 8 
C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual arts, and the criterion at 8 c.F.R. 
§ 204.5(h)(3)(x) expressly applies to the performing arts. We further acknowledge that the 
regulation at 8 C.F.R. § 204.5(h)(4) provides "[i]f the above standards do not readily apply to the 
[petitioner's] occupation, the petitioner may submit comparable evidence to establish the 
[petitioner's] eligibility." It is clear from the use of the word "shall" in 8 C.F.R. § 204.5(h)(3) that 
the rule, not the exception, is that the petitioner must submit evidence to meet at least three of the 
regulatory criteria. Thus, it is the petitioner's burden to explain why the regulatory criteria are not 
readily applicable to his occupation and how the evidence submitted is "comparable" to the 
objective evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In response to the director's notice of intent to deny, counsel claimed the petitioner's eligibility 
for comparable evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(4) based on the 
petitioner's reference letters. However, the regulatory language precludes the consideration of 
Page 32 
comparable evidence in this case, as there is no indication that eligibility for visa preference in 
the petitioner's occupation as a fine artist/painter cannot be established by the ten criteria 
specified by the regulation at 8 C.F.R. § 204.5(h)(3). In fact, as indicated in this decision, 
counsel claimed the petitioner's eligibility in response to the director's intent to deny the petition 
and on appeal that specifically addresses eight of the ten criteria at the regulation at 8 C.F.R. § 
204.5(h)(3). An inability to meet a criterion, however, is not necessarily evidence that the 
criterion does not apply to the petitioner's occupation. Counsel provided no documentation as to 
why the provisions under the regulation at 8 C.F.R. § 204.5(h)(3) would not be appropriate to the 
profession of a fine artist/painter. Where an alien is simply unable to meet or submit 
documentary evidence of three of these criteria, the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)( 4) does not allow for the submission of comparable evidence. Regardless, it is noted 
that the reference letters were thoroughly discussed under the original contributions criterion. 
C. 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)(1)(A)(i) of the Act, 8 U.S.c. 
§ 1153(b)(1)(A)(i), and 8 c.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The 
petitioner established eligibility for only one of the regulatory criteria, in which at least three are 
required under 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)(I)(A) of the Act. In this case, the 
petitioner has garnered some awards, attention from the media, and monetary compensation for his 
artwork. However, the accomplishments of the petitioner fall far short of establishing that he "is 
one of that small percentage who have risen to the very top of the field of endeavor" and that he 
"has sustained national 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)(I)(A)(i) of the 
Act, 8 U.S.c. § 1153(b)(I)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
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 criterion 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 
• • I 
Page 33 
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). 
While the petitioner failed to establish eligibility for the awards criterion pursuant to the regulation 
at 8 c.F.R. § 204.5(h)(3)(i), we also note that the some of the awards claimed by the petitioner 
appear to be from local competitions and festivals. A wards ~on by the petitioner in regional or 
local competitions do not indicate that he "is one of that small percentage who have risen to the 
very top of the field of endeavor." See 8 c.F.R. § 204.5(h)(2). There is no indication that the 
petitioner faced significant competition from throughout his field, rather than a limited 
competition. USCIS has long held that even athletes performing at the major league level do not 
automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Commr. 1994); 56 Fed. Reg. at 60899.5 Likewise, it does not follow that a painter in 
local competitions who has had limited success should necessarily qualify for an extraordinary 
ability employment-based immigrant visa. To find otherwise would contravene the regulatory 
requirement at 8 C.F.R. § 204.5(h)(2) that this visa category be reserved for "that small 
percentage of individuals that have risen to the very top of their field of endeavor." 
Similarly, as it relates to the regulation at 8 c.F.R. § 204.5(h)(3)(iii), we again note that the 
petitioner failed to demonstrate that he has any published material about him relating to his work in 
professional or major trade publications or other major media. It would be expected that a painter 
with sustained national or international acclaim would have substantial media attention reflecting 
that he "is one of that small percentage who have risen to the very top of the field of endeavor." 
Likewise, while the petitioner failed to establish eligibility for the judging criterion pursuant to the 
regulation at 8 c.F.R. § 204.5(h)(3)(iv), the petitioner claimed eligibility for this criterion based on 
conducting workshops at local venues and teaching students, rather than evaluating the work of 
accomplished painters such as, as a member on a national panel of experts. 
Moreover, while the petitioner failed to establish eligibility for the original contributions 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v) and the leading or critical role 
5 While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of 
Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is not a 
comparison of Racine's ability with that of all the hockey players at all levels of play; but 
rather, Racine's ability as a professional hockey player within the NHL. This interpretation is 
consistent with at least one other court in this district, Grimson v. INS, No. 93 C 3354, (N.D. 
Ill. September 9, 1993), and the definition of the term 8 C.F.R. § 204.5(h)(2), and the 
discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the 
court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. § 204.5(h)(2) is 
reasonable. 
· " ... 
Page 34 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii), we note that the petitioner's 
claims are based mainly on recommendation letters. While such letters can provide important 
details about the petitioner's role in various projects, they cannot form the cornerstone of a 
successful extraordinary ability claim. The statutory requirement that an alien have "sustained 
national or international acclaim" necessitates evidence of recognition beyond the alien's 
immediate acquaintances. See 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). See also Matter of Caron International, 19 I&N Dec. at 795. We 
further note that the reference letters were dated over ten years from the filing of the petition, 
which is not reflective of or consistent with the petitioner's sustained national or international 
acclaim. 
Furthermore, although the petitioner established eligibility for the display criterion pursuant to 
the regulation at 8 c.F.R. § 204.5(h)(3)(vii), it is expected that a painter, such as the petitioner, 
would have his work displayed at exhibitions and showcases. However, the record contains no 
evidence to show, for instance, that the petitioner's exhibitions garnered any attention in a manner 
consistent with sustained national or international acclaim. For example, the petitioner failed to 
submit any documentary evidence reflecting that the exhibitions brought any critical acclaim. We 
are not persuaded that the mere exhibition of the petitioner's work is sufficient to establish the 
sustained national or international acclaim required for this highly restrictive classification. 
Similarly, while the petitioner failed to establish eligibility for the salary criterion pursuant to the 
regulation at 8 c.F.R. § 204.5(h)(3)(ix), it is expected that a self-employed painter would sell his 
artwork to businesses and individuals to support himself. However, the petitioner failed to 
demonstrate that his artwork commands a significantly high selling price in the field. The 
petitioner failed to establish that the high value of his artwork is reflective of an individual who 
"is one of that small percentage who have risen to the very top of the field of endeavor." 
Finally, 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, 1991). In this case, the record of proceeding contains uncertified translations and 
partial translations. Furthermore, the petitioner failed to comply with the basic regulatory 
requirements such as providing the title, date, and author of the published material. Moreover, 
the petitioner claimed eligibility for the high salary criterion without offering any comparison of 
salaries of others in his field beyond a limited jurisdiction. Further, counsel made various 
assertions without any supporting evidence. Finally, the petitioner relies on secondary evidence 
without evidence demonstrating that primary evidence does not exist or cannot be obtained. The 
lack of primary evidence combined with the numerous deficiencies noted does not demonstrate 
the necessary "extensive documentation" and is not indicative of an alien with sustained national 
or international acclaim. 
Page 35 
The petitioner failed to submit evidence establishing 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 
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. 
VII. 0-1 Nonimmigrant Admission 
We note that the petitioner submitted documentary evidence reflecting that he was last admitted 
to the United States on April 25, 2008, as an 0-1 nonimmigrant visa petition for an alien of 
extraordinary ability in the arts. Although the words "extraordinary ability" are used in the Act for 
classification of artists under both the nonimmigrant 0-1 and the first preference employment-based 
immigrant categories, the statute and regulations define the term differently for each classification. 
Section 101(a)(46) of the Act states that "[t]he term 'extraordinary ability' means, for purposes of 
section 101(a)(15)(0)(i), in the case of the arts, distinction." The 0-1 regulation reiterates that 
"[e]xtraordinary ability in the field of arts means distinction." 8 c.F.R. § 214.2(0)(3)(ii). 
"Distinction" is a lower standard than that required for the immigrant classification, which defines 
extraordinary ability as "a level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the field of endeavor." 8 c.F.R. § 204.5(h)(2). The 
evidentiary criteria for these two classifications also differ in several respects, for example, 
nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 8 c.F.R. 
§ 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of nationally or 
internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear statutory and 
regulatory distinction between these two classifications, the petitioner's receipt of 0-1 
nonimmigrant classification is not evidence of his eligibility for immigrant classification as an alien 
with extraordinary ability. Further, we do not find that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each case must decided on a case-by-case basis 
upon review of the evidence of record. 
It must be noted that many r-140 immigrant petitions are denied after uscrs approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because uscrs spends less time reviewing 1-
129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are 
simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 
Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that 
prior approvals do not preclude USCIS from denying an extension of the original visa based on a 
reassessment of the alien's qualifications). 
• ,~I .. 
Page 36 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
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). 
VIII. 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. 
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 U.S.C. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
.'