dismissed EB-1A Case: Visual Artist

identifying data deleted to 
prevent cka:."!}'lnwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: NOV 1 {; 2011 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.s. Department of Homeland Security 
U.S. Citizenship and Irrnnigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § I I 53(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, 
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 January 28,2010, 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 as a visual artist. 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. 
At the time of the initial filing of the petition, the petitioner submitted documentary evidence 
relating to the awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i), the 
published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the original 
contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v), and the artistic 
display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii). On December 22, 
2009, the director issued a notice of intent to deny the petition pursuant to the regulation at 8 
C.F.R. § 103.2(b)(8) describing each of the ten criteria under the regulation at 8 C.F.R. 
§ 204.5(h)(3) and determined that the petitioner failed to establish eligibility for any of the 
regulatory categories of evidence. In addition, the director indicated that the petitioner submitted 
no evidence of a one-time major award pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). 
In response, the petitioner submitted additional documentation and claimed eligibility for the 
awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i), the membership criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), the published material criterion pursuant 
to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the judging criterion pursuant to the regulation at 
8 C.F.R. § 204.5(h)(3)(iv), the original contributions criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(v), the artistic display criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(vii), the high salary criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix), and the commercial successes criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(x). Furthermore, the petitioner claimed that he has "received many major awards" 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). 
-Page 3 
In the director's decision denying the petition, the director determined that the petitioner failed to 
overcome any ofthe deficiencies in the notice of intent to deny and determined that the petitioner 
failed to establish eligibility for any of the regulatory categories of evidence. The director did 
not address the petitioner's eligibility as it pertained to the petitioner's receipt of "many major 
awards" pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). 
On Form 1-290B, Notice of Appeal or Motion, counsel claimed that the director's decision was 
erroneous regarding the awards criterion, the published material criterion, the high salary 
criterion, and the commercial successes criterion. In counsel's subsequently submitted brief, 
counsel mentioned the petitioner's artistic exhibitions pursuant to the regulation at 8 C.F.R. § 
204.5(h)(3)(vii). Furthermore, counsel referred to and submitted documentary evidence relating 
to the petitioner's design of a Latin American flag. As counsel failed to contest the decision of 
the director or offer additional arguments for the membership criterion and the judging criterion, 
the AAO will not further discuss these criteria on appeal. Although the director failed to discuss 
the petitioner's eligibility as it pertained to his eligibility for a major, nationally recognized 
award, counsel did not contest or address this issue on appeal. It is noted that the petitioner 
originally claimed eligibility for the major, nationally recognized award based on the same 
documentary evidence for which he claimed eligibility for the awards criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(i). It is further noted that on appeal, as will be discussed 
below, the petitioner failed to establish eligibility for this lesser awards criterion. As the 
petitioner failed to establish eligibility for the awards criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(i), he clearly failed to establish eligibility for the higher standard of a major, 
nationally recognized award based on the same documentary evidence. Accordingly, the AAO 
considers these issues to be abandoned. Sepulveda v. us. Att'y Gen., 401 F.3d 1226, 1228 n. 2 
(lIth Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 
(E.D.N.Y. Sept. 30,2011) (the court found the plaintiffs claims to be abandoned as he failed to 
raise them on appeal to the AAO). While counsel did not specifically contest or address the 
petitioner's eligibility for the original contributions criterion on appeal, the AAO will consider 
the petitioner's documentary evidence relating to the Latin American flag project under that 
criterion. 
Finally, the AAO acknowledges that counsel submitted five additional supplemental briefs, as 
well as additional documentary evidence, relating only to the Latin American flag project. The 
regulation at 8 C.F.R. § 103.3(a)(2)(i) provides that "[t]he affected party shall file the complete 
appeal including any supporting brief with the office where the unfavorable decision was made 
within 30 days after service of the decision [emphasis added]." Moreover, the regulation at 8 
C.F.R. § 103.3(a)(2)(vii) provides that "[t]he affected party may make a written request to the 
[AAO] for additional time to submit a brief. The [AAO] may, for good cause shown, allow the 
affected party additional time to submit one [emphasis added]." A review of the record of 
proceeding reflects that counsel submitted Form 1-290B on March 1, 2010, and indicated that a 
brief and/or additional evidence would be submitted within 30 days, which counsel did on March 
30,2010. However, as indicated above, counsel submitted five subsequent briefs with additional 
documentary evidence on June 21, 2010, November 5, 2010, January 7, 2011, February 15, 
2011, and October 1, 2011. Counsel's multiple and subsequent briefs and additional 
-Page 4 
documentary evidence do not comply with the regulation at 8 C.F.R. §§ 103.3(a)(2)(i) and (vii). 
Regardless, the subsequent briefs and documentary evidence, as well as the documentary 
evidence submitted with counsel's initial brief, relate almost entirely to the status and coverage 
of the petitioner's Latin American flag proj ect occurring after the filing of the petition. 
Eligibility must be established at the time of filing. Therefore, the AAO will not consider any 
arguments and documentary evidence relating to events occurring after the filing of the petition. 
8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 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. 169, 175 (Comm'r 1998). That decision further 
provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot 
"consider facts that come into being only subsequent to the filing of a petition." Id at 176. 
Furthermore, regarding the petitioner's documentary evidence relating to the Latin American 
flag project, the AAO will only consider the documentary evidence relating to events occurring 
on or before the filing date of the petition for the original contributions criterion. 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897,60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the 
field of endeavor. Id and 8 C.F.R. § 204.5(h)(2). 
-Page 5 
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 ofthe 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 III 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. 
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 
Page 6 
evaluation of evidence submitted to meet a given evidentiary criterion. l With respect to the criteria 
at 8 C.F.R. §§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." Id. 
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)." !d. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "fmal merits determination" as 
the corollary to this procedure: 
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). 
!d. 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 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
II. Translations 
While not addressed by the director in his decision, the regulation at 8 C.F.R. § 103.2(b) provides in 
pertinent part: 
(3) Translations. Any document containing foreign language submitted to USCIS 
shall be accompanied by a full English language translation which the translator 
has certified as complete and accurate, and by the translator's certification that he 
or she is competent to translate from the foreign language into English. 
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 
At the initial filing of the petition, the petitioner submitted numerous foreign language documents 
with translations that were not signed by the translator. Although the translator certified that the 
English language translations were true, accurate, and complete, the AAO cannot determine 
whether the evidence supports the petitioner's claims without the translator's certification and 
signature. Furthermore, the petitioner submitted several foreign language documents without any 
translations, let alone certified and signed translations. Finally, in response to the director's notice 
of intent to deny, the petitioner submitted translations that were not certified and not signed. 
Because the petitioner failed to comply with the regulation at 8 C.F.R. §103.2(b)(3), the evidence 
is not probative and will not be accorded any weight in this proceeding. 
III. Analysis 
A. Evidentiary Criteria 
This petition, filed on October 30, 2009, seeks to classify the petItlOner as an alien with 
extraordinary ability as a visual artist. 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 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." Moreover, it is the petitioner's burden to establish eligibility for every 
element of this criterion. Not only must the petitioner demonstrate his receipt of prizes and 
awards, he must also demonstrate that those prizes and awards are nationally or internationally 
recognized for excellence in the field of endeavor. In other words, the petitioner must establish 
that his prizes and awards are recognized nationally or internationally for excellence in the field 
beyond the awarding entities. 
At the initial filing of the petition, the petitioner submitted his curriculum vitae and claimed that 
he received the following awards: 
1. "1987 Honor Mention. Drawing Competition. North American Peruvian 
Cultural Institute"; 
2. "1990 Finalist , Competition for Young Artists"; 
3. "1993 I Bienal Diamond Weddings. National School of Fine Arts Peru. 
The Nation Museum. Lima, Peru"; 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 8 
4. "1994 Finalist II Bienal of National School of Fine Arts Peru. The Nation 
Museum. Lima, Peru"; 
5. "1995 Honor Mention ofthe II Painting Competition 'Johnny Walker' The 
Nation Museum. Lima, Peru"; 
6. "2000 Award of Excellence. North East Hispanic Catholic Center 
(NHCC) of New York"; 
7. "2000 Certificate of Appreciation 'United States Department of Justice 
Immigration and Naturalization Service.' In appreciation for your 
outstanding efforts and dedication towards the success of the New York 
District Multi-Cultural Diversity Celebration Hispanic Program held on 
September 27,2000"; 
8. "2000 Special Tribute and Congratulations in recognition of contribution 
as a member of The Community of Mural Artist. of the United 
States, House of Representatives. 
9. "2002 Recognition and Appreciation First Ibero-American Cultural 
Festival. New York"; and 
10. "2007 Selected 18th Annual Juried Exhibition. Viridian Gallery. New 
York City." 
The petitioner failed to submit any documentary evidence regarding items 1 - 5. In response to 
the director's notice of intent to deny, the petitioner claimed eligibility for the one-time 
achievement standard pursuant to the regulation at 8 C.F.R. § 204.5(h)(3) based on items 6, 7, 
and 9, as well as the following: 
11. "09119/2009 [New Jersey] Senate Citation 1 Praise for outstanding 
contribution to the Sixth Annual Arts & Crafts Festival"; 
12. "1011612009 [New Jersey] Senate Citation, Praise as of participation in 
Hispanic Heritage Month"; and 
13. "10116/2009 County of Hudson, State of NJI award upon the first annual 
Latin American Flag Raising Ceremony." 
In addition, the petitioner claimed eligibility for this criterion based on items 1 - 13. Again, the 
petitioner failed to submit any documentary evidence regarding items 1 - 5. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter o/Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Page 9 
Regarding item 6, the petitioner submitted a certificate from the NHCC reflecting that the 
petitioner was presented with "The Award of Excellence" at the Second Hispanic - American 
Religious Art Exhibit. On appeal, counsel submitted a screenshot from 
http://home.catholicweb.com welcoming viewers to NHCC's website. The petitioner failed to 
submit any documentary evidence regarding the petitioner's award, so as to establish that it is 
nationally or internationally recognized for excellence in the field. Merely submitting evidence 
of the petitioner's receipt of a certificate is insufficient to meet the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(i) without documentary evidence reflecting that the 
certificate is a nationally or internationally recognized prize or award for excellence in the field 
of endeavor. 
Regarding item 10, the petitioner submitted a flyer for the Viridan Artists 18th Annual luried 
Exhibition listing the petitioner along with 21 other artists for the "Director's Choice CD Show." 
There is no indication from the flyer that the petitioner received any prize or award, let alone a 
nationally or internati~ed prize or award for excellence in the field. In fact, the 
flyer speci~ ___ as winning first prize, as winning second 
prize, and __ as winning third prize. Regardless, the petitioner failed to submit any 
documentary evidence demonstrating that any prizes from the Viridan Artists 18th Annual luried 
Exhibition are nationally or internationally recognized for excellence in the field. 
Regarding the remaining items, the documentary evidence submitted by the petitioner reflects 
acknowledgement of the petitioner's participation and contributions at venues, events, and 
festivals rather than nationally or internationally recognized prizes or awards for excellence in 
the field. Documentary evidence recognizing participation, including Federal, State, and local 
government-related acknowledgment, is not tantamount to nationally or internationally 
recognized prizes or awards for excellence in the field. Again, the petitioner failed to submit any 
documentary evidence beyond the receipt of certificates to demonstrate that the certificates are 
nationally or internationally recognized prizes or awards for excellence in the field. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires 
"[d]ocumentation of the alien's receipt oflesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor." In this case, the petitioner failed to demonstrate 
that his documentary evidence equates to his receipt of nationally or internationally recognized 
prizes or awards for excellence. 
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. 
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 
Page 10 
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." 
At the initial filing of the petition, the petitioner submitted the following documentation: 
1. 
2. 
3. 
An uncertified translation entitled, '~~~~~=.An~d~t~h;e~c~o~m;Plex 
Labyrinthine Structural of Life," May 27, 2004, , El 
Nuevo Hudson; 
An uncertified translation entitled, "Painter Exhibits in 
Colombia," May 5, 1996, El Popular; 
An uncertified translation 
to Present the Magic Realms of 
publication; 
"Art From Latin America is Delighted 
From Peru," unidentified 
4. An article entitled, "Fingerpainting," January 27, 2002, 
The West New York Reporter; and 
5. Three articles without any translations. 
In response to the director's notice of intent to deny, the petitioner submitted four articles that 
were published 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 USCIS cannot "consider facts that come into being only subsequent to the 
filing of a petition." Id. at 176. Moreover, the petitioner submitted translations for all four 
articles that were not certified as required pursuant to the regulation at 8 C.F.R. § 103.2(b)(3). 
Furthermore, the petitioner submitted three foreign language documents without any translations 
as required pursuant to the regulation at 8 C.F.R. §§ 103.2(b)(3) and 204.5(h)(3)(iii). 
Regarding item 1, while the petitioner submitted the purported cover of the publication in which 
the article appeared, the petitioner failed to submit the actual article. In addition, the petitioner 
failed to submit a certified translation of the article as required pursuant to the regulation at 8 
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 of that county. 
Page 11 
C.F.R. § 103.2(b)(3). Finally, the petltIOner failed to submit any documentary evidence 
demonstrating that El Nuevo Hudson is a professional or major trade publication or other major 
media. 
Regarding item 2, the petitioner failed to submit a certified translation of the article as required 
pursuant to the regulation at 8 C.F.R. § 103.2(b)(3). Moreover, a review of the uncertified 
translation fails to reflect published material about the petitioner relating to his work. Instead, 
the uncertified translation reflects an interview conducted with the petitioner where he simply 
responds to the interviewer's questions and does not reflect published material about the 
petitioner relating to his work. Finally, the petitioner failed to submit any documentary evidence 
establishing that El Popular is a professional or major trade publication or other major media. 
Regarding item 3, the petitioner failed to submit a certified translation of the article as required 
pursuant to the regulation at 8 C.F.R. § 103.2(b)(3). Furthermore, neither the uncertified 
translation nor the original article identified where the article was published, let alone that it was 
published in a professional or major trade publication or other major media. 
Regarding item 4, the article is not published material about the petitioner relating to his work. 
Rather, the article is about the display of the work of the students of_at the West New 
York Public Library. While the petitioner is mentioned in the article as being a partner of. 
~, the fact remains that the article is not about the petitioner relating to his work. In addition, 
the petitioner failed to submit any documentary evidence reflecting that The West New York 
Reporter is a professional or major trade publication or other major media. 
Regarding item 5, the petitioner failed to submit any translations, let alone certified translations, 
as required pursuant to the regulation at 8 C.F.R. §§ 103.2(b)(3) and 204.5(h)(3)(iii). 
The AAO notes that on appeal counsel submitted a transcript of an interview conducted by 
Univision of the petitioner on October 12, 2009. However, as this regulatory criterion requires 
"published material" in professional or major trade publications or other major media and "the 
title, date, and author of the material," television interviews are clearly not published material in 
professional or major trade publications or other major media and do not meet the plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
As discussed above, 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 this case, 
the petitioner's documentary evidence fails to reflect published material about him relating to his 
work in professional or major trade publications or other major media. 
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 
Page 12 
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 artistic-related contributions "of major significance in the field." 
The phrase "major significance" is not superfluous and, thus, it has some meaning. Silverman v. 
Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28,31 (3rd Cir. 1995) quoted in APWUv. Potter, 
343 F.3d 619,626 (2nd Cir. Sep 15,2003). 
A review of the record of proceeding reflects that the petitioner submitted numerous samples of 
his work. However, the petitioner failed to demonstrate that any examples of his artwork are 
original contributions of major significance in the field. Merely submitting samples of the 
petitioner's artwork is insufficient to meet the plain language of the regulation at 8 C.F.R. § 
204.5(h)(3)(v) without documentary evidence demonstrating that his artwork has been of major 
significance in the field. The petitioner provided no evidence explaining, for example, how the 
petitioner's artwork has widely impacted or influenced the field, so as to establish that the 
petitioner has made original contributions of major significance in the field. 
Moreover, the record of proceeding contains a letter from 
for Local Project, who stated that "I am an artist, and I adore [the petitioner's] work, which has 
been shown to popular and critical acclaim throughout Peru and now in USA." Further, the 
petitioner submitted an unsigned letter from 
Art Critic, who stated that the petitioner is an perspective UVJ"HHU~"_H 
virtuosity of detail and his wonderful colorist style lead us to mentally travel his unreal worlds of 
architectural super realism." Although both individuals admire the petitioner's work, they failed 
to indicate that the petitioner has made original contributions of major significance in the field. 
In addition, assuming the petitioner's artistic skills are unique, the classification sought was not 
designed merely to alleviate skill shortages in a given field. In fact, that issue properly falls 
under the jurisdiction of the Department of Labor through the alien employment labor 
certification process. See Matter of New York State Department of Transportation, 22 I&N Dec. 
215, 221 (Comm'r 1998). This regulatory criterion not only requires the petitioner to make 
original contributions, the regulatory criterion also requires those contributions to be of major 
significance. The lack of specific information provided gives the AAO no basis to gauge the 
significance of the petitioner's present contributions. Further, 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 (Comm'r 1988). 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; see also Matter of V-K-, 24 I&N Dec. 500, n.2 
(BIA 2008). 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. 
-Page 13 
Finally, regarding the Latin American flag project, at the initial filing of the petition, the 
petitioner submitted a document entitled, "Latinamerican Flag Project," in which the petitioner 
described the history of his project, including why he decided to create a Latin American flag. 
The petitioner also submitted a "Proclamation" from Union City, New Jersey that honored the 
petitioner for the first annual Latin American Flag Raising Ceremony, as well as a press release 
of the event from the city and a DVD of the ceremony. As indicated under the published 
material criterion, the petitioner submitted a transcript of an interview conducted by Univision of 
the petitioner on October 12, 2009. A review of the transcript reflects that the petitioner 
described the history of the project and indicated that the first time the flag was going to be 
raised was the Union City, NJ ceremony on October 16,2009. 
While the petitioner's Latin American flag project may be considered as an original contribution, 
the petitioner failed to establish that it has been of major significance in the field. In fact, the 
documentary evidence reflecting events on or before the filing of the petition reflects that the 
Latin American flag has only been recognized by Union City, New Jersey. Such limited and 
local recognition does not reflect a contribution of major significance in the field. The petitioner 
failed to establish that the Latin American flag has been widely adopted or recognized, so as to 
establish an original contribution of major significance in the field. Again, the AAO notes that 
the petitioner submitted numerous documents regarding the Latin American flag on appeal, 
including supplemental submissions, which reflect 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 Izummi, 22 I&N Dec. at 175. 
That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, that USCIS 
cannot "consider facts that come into being only subsequent to the filing of a petition." Id at 
176. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of 
major significance in the field [emphasis added]." Without additional, specific evidence 
showing that the petitioner's work has been unusually influential, widely applied throughout his 
field, or has otherwise risen to the level of contributions of major significance, the AAO cannot 
conclude that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires "[e]vidence of the 
display of the alien's work in the field at artistic exhibitions or showcases." In accordance with 
Kazarian 596 F.3d at 1122, the petitioner submitted sufficient documentary evidence reflecting 
that he meets the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). Therefore, the 
AAO withdraws the findings of the director for this criterion. 
-Page 14 
Accordingly, the petitioner established that he meets the plain language of the regulation for 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 plain language of the regulation at 8 C.F.R. § 204.S(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]." In other words, the petitioner must not only submit evidence 
of remuneration for services but also submit evidence that his remuneration is significantly high 
when compared to others in the field. 
In response to the director's notice of intent to deny, the petitioner submitted the following 
documentation: 
1. A copy of the front side of a check, dated July IS, 2003, from_ 
to the petitioner for $6,000 for "payment 3 paintings"; 
2. An invoice from Union City, New Jersey reflecting that the city purchased 
the Latin American Flag for $1,000 and one digital nylon print for $660 on 
October 16, 2009; 
3. of the front side of a check, dated January 28, 2009, from_ 
to the petitioner for $11,000; and 
4. A copy of the front side of a check, dated January 3, 2010, from_ 
~o the petitioner for $2,SOO for "purchase of oil painting." 
While items 1 and 2 reflect that the petitioner received remuneration for his services, item 3 does 
not indicate why the petitioner received the check. Moreover, item 4 reflects a check that was 
written after the filing date 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 17S. That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114, 
that USCIS cannot "consider facts that come into being only subsequent to the filing of a petition." 
Id at 176. 
Nonetheless, the petitioner failed to submit any documentary evidence comparing his remuneration 
for services to others in the field, so as to establish that his remuneration is significantly high. 
Again, the plain language of the regulation at 8 C.F.R. § 204.S(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]." The petitioner's submission of documentary 
evidence simply reflecting that he earned remuneration for services is insufficient to meet the plain 
language of the regulation without documentary evidence comparing his remuneration to others in 
Page 15 
the field, so as to establish that the petitioner has commanded other significantly high remuneration 
for services. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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]." In response to the director's notice of intent to 
deny, the petitioner claimed eligibility for this criterion based on the previously discussed 
Univision interview on October 12, 2009, and the DVD of the Latin American Flag Raising 
Ceremony in Union City, New Jersey on October 16,2009. 
This criterion is for performing artists such as singers and actors rather than for visual artists like 
the petitioner. The ten criteria in the regulations are designed to cover different areas; not every 
criterion will apply to every occupation. Furthermore, the petitioner failed to submit "box office 
receipts" or "sales." Simply submitting DVDs of a television interview and of a government­
related flag raising ceremony are insufficient to meet the plain language of the regulation at 8 
C.F.R. § 204.5(h)(3)(x) without evidence of commercial successes in the form of "box office 
receipts or record, cassette, compact disk, or video sales." 
Accordingly, the petitioner failed to establish that he meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian OpInIOn, the AAO 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.S(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. § 11S3(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1115. The petitioner met the plain language for one of the criteria, of which at least three are 
required under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many of the deficiencies in 
the documentation submitted by the petitioner have already been addressed in the AAO's 
preceding discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating the AAO's final merits determination, the AAO must look at the totality of the 
evidence to determine the petitioner's eligibility pursuant to section 203(b)(1 )(A) of the Act. In 
this case, the petitioner has displayed his work at various venues and exhibitions and worked on 
a Latin American flag project. The personal 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 
-Page 16 
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)(1)(A)(i) ofthe Act, 8 U.S.C. § 1153(b)(1)(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 criteria at 8 C.F.R. § 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "a 
level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). 
The AAO cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of his 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). The petitioner claimed eligibility, in part, for the awards criterion pursuant 
to the regulation at 8 C.F.R. § 204.5(h)(3)(i) without submitting any documentary evidence. 
Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165 (citing 
Matter of Treasure Craft of California, 14 I&N Dec. at 190). Moreover, the petitioner claimed 
eligibility for the published material criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii) without submitting translations, let alone certified translations, pursuant to the 
regulation at 8 C.F.R. § 103.2(b)(3), as well as failing to submit any documentary evidence 
establishing that any of the material was published in professional or major trade publications or 
other major media. Furthermore, the petitioner claimed eligibility for the original contributions 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v) without demonstrating that he 
has made any original contributions of major significance in the field. In addition, the petitioner 
claimed eligibility for the high salary criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix) without submitting any documentary evidence comparing his remuneration to 
the remuneration of others in the field, so as to establish that the petitioner commanded a 
significantly high remuneration for his services. Finally, the petitioner relied heavily on 
documentary evidence that involved events occurring after the filing of the petition. Eligibility 
must be established at the time of filing. 8 C.F.R. §§ l03.2(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 USCIS cannot "consider facts 
that come into being only subsequent to the filing of a petition." Id. at 176. The AAO is not 
persuaded that such evidence equates to "extensive documentation" and is demonstrative of 
-Page 17 
eligibility for this highly restrictive classification. The truth is to be detennined not by the 
quantity of evidence alone but by its quality. Matter of Chawathe, 25 I&N Dec. 369 (AAO 
2010) citing Matter ofE-M- 20 I&N Dec. 77, 80 (Comm'r 1989). 
Moreover, even though the AAO found that the petitioner met the display criterion pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3)(vii), it is expected that a visual artist, such as the 
petitioner, would have his work displayed at exhibitions and showcases. 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 or drew significant crowds. The AAO is not persuaded that the mere exhibition of the 
petitioner's work is sufficient to establish 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)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. 
§ 204.5(h)(3). Similarly, the petitioner's submission of documentary evidence reflecting his 
participation at various events rather than his receipt of nationally or internationally recognized 
prizes or awards does not demonstrate that the petitioner has a career of sustained national or 
international acclaim. Likewise, the lack of published material about the petitioner relating to his 
work and the absence of evidence comparing the petitioner's remuneration to others in his field 
fail to reflect 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). 
The evidence of record falls short of demonstrating the petitioner's sustained national or 
international acclaim as a visual artist. The regulation at 8 C.F.R. § 204.5(h)(3) requires "[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." While the petitioner submitted documentation 
demonstrating that he has displayed and sold his work, the documentary evidence is not 
consistent with or indicative of sustained national or international acclaim. 
uscrs has long held that even athletes perfonning at the major league level do not automatically 
meet the statutory standards for immigrant classification as an alien of "extraordinary ability." 
Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994); 56 Fed. Reg. at 60899. 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 ability with that of all the hockey players at all 
levels of play; but rather,_ 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 tenn 8 C.F.R. § 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
Page 18 
The court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 
§ 204.5(h)(2) is reasonable. Likewise, it does not follow that the petitioner who has not offered 
any evidence that distinguishes him from others in his field, should necessarily qualify for 
approval of an extraordinary ability employment-based visa petition. 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." 
The conclusion the AAO reaches by considering the evidence to meet each category of evidence 
at 8 C.F.R. § 204.5(h)(3) separately is consistent with a review of the evidence in the aggregate. 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of that small 
percentage who has risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The 
petitioner seeks a highly restrictive visa classification, intended for individuals at the top of their 
respective fields, rather than for individuals progressing toward the top at some unspecified 
future time. While it is apparent that the petitioner is proud of his work with the creation of a 
Latin American flag, the petitioner has not established that his achievements at the time of filing 
the petition were commensurate with sustained national or international acclaim, or that he was 
among that small percentage at the very top of the field of endeavor. 
IV. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
petitioner's achievements set him significantly above almost all others in him field at a national 
or international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(1)(A) of the Act, and the petition may not be approved. 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
affd, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.