dismissed EB-1A Case: Visual Arts

DATE: OlTice: TEXAS SERVICE CENTER 
NOV 0 3 2012 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Sccurit)­
U.S. Citizenship and Immigration ServiL'es 
Administrative Apreals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2nt)U 
Washingt,'IIl, 1)( 20529·::U90 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(h)( I )(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)( I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed plcase 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 inyuiry that you might have concerning your case must be made to that office, 
If you helieve the AAO inappropriately applied the law in reaching its decision, ()f vou have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion (0 n:opcn in 
accordance with the instructions on Form J-29UB, Notice of Appeal or Motion, with a fcc of $630. The 
specific re4uirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do tlot file any motion 
directly with the AAO. Plcase he aware that 8 C.F.R. § 103.5(a)(I )(i) re4uires any motion to he filed within 
30 d((y~ of the dedsion that the motion seeks to reconsider or reopen. 
Thank you. 
Perry Rhew 
Chief, Administrative Appeals OlTicc 
www.uscis.gO\ 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(I)(A), specifically 
as a contemporary visual artist. The director determined the petitioner had not established the sustained 
national or international acclaim necessary to qualify for classification as an alien of extraordinary 
ability. 
Congress sct a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(I)(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 of a 
major, internationall y recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective 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, on behalf of the petitioncr, asserts that the petitioner submitted sufficient qualifying 
evidence under five of the ten regulatory categories. Considering the evidence in the aggregate, the 
petitioner has not established eligibility for the benefit sought by a preponderance of the evidence. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(I) Priority workers. -- Visas shall first be made available ... to qualified immigrants who 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. 
Page J 
U.S. Citizenship and Immigration Services (USClS) 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 IO I" Cong .. 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29,1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. Id.; 
8 C.F.R. ~ 204.5(h)(2). 
The regulation at 8 C.F.R. ~ 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
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. 20Hl). Although the court 
upheld the AAC),s decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion,l With respect to the criteria at 8 c.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry. the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sut1icient 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)). 
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. Contrary to counsel's assertions on appeal, this decision 
is not inconsistent with prior district court case law cited by counsel, namely Bllietini v. INS; 860 F. 
Supp. 1222, 1234 (E. D. Mich. S. D. 1994) and Mil/Ii v.INS, 891 F. Supp. 440, 443 (N.D. 111. 1995). As 
counsel acknowledges, the Bllietini court stated: 
Once it is established that the alien's evidence is suf1icient to meet three of the criteria 
listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability 
unless the INS sets forth .;pecific and substantiated reasons for its finding tfull the alien, 
despite having satisfied the criteria, does flot meet the extraordinary ahility standard. 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set fmth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.S(h)(3)(vi). 
Page 4 
Id. (Emphasis added.) As is clear from the italicized language, the Bllietini court considered the 
possibility that an alien can submit evidence satisfying three criteria and still not meet the extraordinary 
ability standard provided legacy Immigration and Naturalization Service explains its reasoning. 
The following year, the Mllni court included a final section entitled 'Totality of the Evidence" in which 
it evaluated whether the evidence submitted established national or international acclaim. The court 
expressly stated: "While the satisfaction of the three-category production requirement does not mandate 
a finding that the petitioner has sustained national or international acclaim and recognition in his field, it 
is certainly a start." MllIli, 891 F. Supp. at 445-46. Moreover, counsel has not explained how Kazarian 
results in a "heightened level of scrutiny"' rather than a reorganization of the analysis that USCIS was 
already ~erforming. See Rijal v. USC/S, 772 F. Supp. 2d 1339,1347 (W.O. Wash. 2011) a{rd 683 F.3d 
1030 (9
t 
Cir. 2(12). 
In this matter, the AAO will review the evidence under the plain language requirements of each 
criterion claimed. As the petitioner did not submit qualifying evidence under at least three criteria, the 
proper conclusion is that the petitioner has failed to satisfy the regulatory requirement of three types 
of evidence. Kazarian, 596 F.3d at 1122. 
II. ANALYSIS 
A. Prior 0-1 Visa 
While U.S. Citizenship and Immigration Services (USC IS) has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the petitioner, the prior approval does not preclude 
USCIS from denying an immigrant visa petition based on a different, if similarly phrased, 
standard. The regulatory requirements for an immigrant and non-immigrant alien of extraordinary 
ability ill the arts are dramatically different. 8 C.F.R. § 214.2(0)(3)(ii) defines extraordinary ability in 
the arts (including the performing arts) as simply "distinction," whieh is further defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation relating to the immigrant classification, 8 C.F.R. § 204.5(h)(2), however, defines 
extraordinary ability in any field as "a level of expertise indicating that the individual is on of that small 
percentage who have risen to the very top of the field of endeavor." While the ten immigrant criteria set 
forth at 8 C.F.R. § 204.5(h)(3) appear in nonimmigrant regulations, 8 C.F.R. § 214.2(0)(3)(iii), they 
refer only to aliens who seek extraordinary ability in the fields of science, education, business or 
athletics. Rather, separate criteria for nonimmigrant aliens of extraordinary ability in the arts are set 
forth in the regulation at 8 C.F.R. § 214.2(0)(3)(iv). The distinction between these fields and the arts, 
which appears in 8 C.F.R. § 214(0) does not appear in 8 C.F.R. § 204.5(h). As such, the petitioner's 
approval for a non-immigrant visa under the lesser standard of "distinction" is not evidence of his 
Page 5 
eligibility for the similarly titled immigrant visa. Regardless, each petition must be adjudicated on its 
own merits under the regulations whieh apply to the benetit sought. Thus, the petitioner's eligibility 
will be evaluated under the ten regulatory criteria relating to the immigrant classification, discussed 
below. 
Furthermore, it must be noted that many 1-140 immigrant petitions are denied after USCIS approves 
prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2(03); IKEA US v. US Dept. ofJllstice, 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, Ine. 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. 20(4) (finding that prior 
approvals do not precludc USCIS from denying an extension of the original visa based on a 
reassessment of petitioner's qualifications). 
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 Illternational. 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
suggcst that USCIS or any agency must treat acknowledged errors as binding precedent. SllSsex 
Engg. Ltd. v. MOlltgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore. the AA(Ys authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, 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.), aji'd, 248 F.3d 1139 (5th Cir. 20(1), cert. denied, 122 S.C!. 51 (2001). 
B. Translations 
As noted by the director in the requcst for cvidence, all foreign language documents must be 
accompanied by a full translation that the translator certifies pursuant to 8 C.F.R. § 103.2B)(3). That 
provision states: ""Any document containing foreign language submitted to USClS 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" The language utilized within the regulation implicitly precludes a single 
certification that validates several translated forms of evidence unless the certification specifically lists 
the translated documents. Without a single translator's certification for each foreign language form of 
evidence. or a translator's certification specifically listing the documents it is validating, the certification 
cannot be regarded to be certifying any specific form of evidence. The final determination of whether 
evidence meets the plain language requirements of a regulation lies with users. See Matter of Caron 
International, 19 I&N Dec. 791,795 (Comm'r 1988) (finding that the appropriate entity to determine 
eligibility is USClS). 
Page 6 
While not addressed by the director in his decision, throughout the record of proceeding the petitioner 
submitted numerous translations that were not each accompanied by a certified translation in 
accordance with the regulation, Instead with the initial petition filed in 2011 the submitted a 
photocopy of a blanket certification for the "attached translations" from dated 
November 28, 2008. The certification does not list the translations it purports to cprtif,v 
translations are of email messages dated in 2010 and 2011, an August 2011 letter from 
Ortiz, a February 15.2011 exhibit promotion, a 2011 assignment of rights and a 20W gift certificate 
from the petitioner, all of which postdate the 2008 date on the certification. In response to the request 
for evidence, the ~provided a single, blanket certification for all of the foreign language 
documents namin~as the translator. This document does not identify the specific translations 
to which it pertains. 
While the foreign language documents have no probative value because they lack translations that meet 
the requirements set forth at 8 C.F.R. § 103.2(b)(3), the AAO will consider this evidence as the director 
did not raise this concern in the final decision. 
C. Evidentiary Criteria 2 
Doclimentation 0/ the alien's receipt 0/ lesser nationally or internationally recognized prizes or 
awards jiJr exedlcnee ill the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The director found the petitioner did not establish this criterion. In making this determination, the 
director assessed evidence that the . submitted .with respe,:t to three purportedly qualifying 
the 
Upon reviewing the documentary evidence relating to the the director 
found that while the petitioner was nominated for this she did not actually receive the award. 
The director found that tbe nomination for tbe did not qualify as a prize 
or award under the regulation and counsel for tbe petitioner does not Challenge tbis determination on 
appeal. Accordingly, the petitioner has abandoned tbat claim. See Sepulveda v. US All ~v Gen., 401 
F.3d 1226, 1228 n. 2 (11th Cir.200S); Hristov v. Roark, No. 09-CV-2731, 2011 WL4711885 at *9 
(E.D. N.Y. Sept. 30, 2(11). 
As for on appeal counsel asserts that the director erred by finding that a competition 
that was limited to artists who had not yet "attained international consecration" does not indicate that 
the winner is one of that small percentage who have risen to the very top of the field of endeavor, as 
required by 8 C.F.R. § 204.5(h)(2). Counsel maintains in the appeal brief that "the top national and 
international competitions for visual artists" are "universally categorized by age as being the best of his 
The petitioner does not claim to meet or suhmit evidence relating to the regulatory calcgorics of evidence 
not discussed in this decision. 
Page 7 
or her generation ...... Counsel further states that "the ±ield does not want 25- to 35-year-old painters, 
violinists. and opera singers competing against older painters. violinists, and opera singers." 
First. the "award" certificate itself makes no mention of "first 
the petitioner was "selected to represent Colombia in the 
Visual Arts." Even assuming this certificate constitutes an "award" as claimed by 
Area Advisor of Visual Arts for the Colombian Ministry of Culture, according to the plain language of 
the regulation at 8 CF.R. ~ 204.5(h)(3)(i), the issue is whether the prize or award is nationally or 
internationally recognized. While the AAO does not discount that an age-restricted award could be 
nationally or internationally recognized. it is the petitioner's burden to demonstrate this recognition. In 
the response to the director's request for evidence, counsel asserts that the most prestigious prizes or 
awards in the visual and perfonning arts have restrictions and submitted a list of prizes or awards and 
identified those with age restrictions. However, there is nothing in the record to substantiate the claim 
that those prizes are the most prestigious in the field and even assuming they are, the existence of other 
age-restricted awards that are nationally or internationally recognized does not create a presumption that 
the Union Latina award, which is not only age-restricted but also restricted to those with no 
international exposure, is also nationally or internationally recognized. Therefore. the AAO agrees with 
the director that the petitioner has not established that the Union I~1tina is a prize that meets the plain 
meeting requirements of the regulation. 
The director also did not find the to be evidence that meets the requirements of the 
regulation. On appeal, counsel asserts that the director erroneously found that the Best Project Prize 
was not nationally recognized. Counsel points to various documents, including support letters and the 
2004 competition guidelines that demonstrate that the competition is without age restrictions and is 
open to citizens of Colombia and foreign nationals residing in Colombia. The AAO agrees that the 
documentation regarding the Best Project Prize sufficiently establishes that it is national in scope. 
However, national scope is not equivalent to national recognition and 8 CF.R. § 204.5(h)(3)(i) 
specifically requires that a prize or award be "nationally or internationally recognized .. (Emphasis 
added.) As such, the prize or award must be recognized at least nationally in the field beyond the 
organizing entity. The record contains no such evidence, such as independent media coverage of the 
award selections. Thus. the AAO agrees with the director that the petitioner has not established that the 
Best Project Prize qualifies as a lesser nationally or internationally recognized prize. 
For all of the reasons discussed above, the AAO must conclude that the petitioner failed to satisfy this 
criterion and aflinn the director's findings. 
Puhlished material ahout the alien in professional or major trade puhlicatiollS or olher major media, 
relating 10 Ihe alien \. work in Ihe field fiJI' which classificalion is so ugh I. Such evidence shall 
include Ihe title, date, and author of the material, and any necessary trallS/atioll. 8 CF.R. 
§ 204.5(h)(3)(iii). 
While not all of the evidence submitted to satisfy this criterion constitutes published material about the 
petitioner, the AAO affirms the director's finding that the petitioner satisfied this criterion. 
Page R 
Evidence o(lhe alien '.I' participation, either individually or on a panel, as ajudge of the work of 
others ill the same or an allied field of specificatio/l for which classificatio/l is sought. 8 C.F,R, 
~ 204.5(h)(3)(iv). 
The director determined that the petitioner failed to establish this criterion, To support her claim of 
nl~ under 8 C.F.R, ~ v), the petitioner submitted a letter from 
In describing the 
Smile,_ 
The work included the selection of the artists, collection of information about the art 
samples, classification of information such as, resumes and origin of the samples. Due 
to the large amount of mandatory information, the job required strict order, and an 
absolute clarity of the task and accordance with an extremely exact time frame. 
Critically, the letter from is the only document the petitioner submitted to establish 
that she satisfactorily met the requirements of this criterion,] The only portion of the letter that 
potentially relates to the petitioner acting as a judge for the event is the phrase ·'[tlhe work included the 
selection of the artists." This limited description leaves room for the possibility that the selection 
criteria for the artists could be based solely on factors unrelated to judging the artists' work, such as 
notoriety, general reputation, or availability. Such factors may be valid bases for selection of artists to 
the event, but they would not require the petitioner to have judged the work of the selected artists and 
the regulation clearly requires that an alien submit evidence of her participation as a judge of the work 
of others. The single document that the petitioner submitted regarding this criterion, because it is so 
vague in its description of what the criteria were for choosing the artists, is insufficient to satisfy the 
requirements of the regulation, The Board of Immigration Appeals has stated that where testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborating evidence. See Matter ofY-B-, 21 I&N Dec, 1136, 1139 (BIA 1998). Moreover, merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. 
Fedin Bros, Co., Ltd. v. SUVcl, 724 F. Supp. 1103, 1108 (E.D,N.Y. 1989), affd, 905 F, 2d 41 (2d. Cir. 
1990); Al'vrAssociates, fnc, v. Meissner, 1997 WL 188942 at *5 (S,D.N.Y.), Similarly, USCIS need 
not accept primarily conclusory assertions. 1756, fnc, v. The Attorney General of the United States, 
745 F, Supp. 9, IS (D,C. DisL 1990), 
On appeal. counsel asserts that "riln deciding on inclusion of artists in the auction, _ as an 
artist, clearly had to accept and reject artists after ~e work would garner the most 
attention and would bring in the most funds for --." but there is no independent 
1 Counsel in the appeal hrief references other documentation that purportedly relate to whether or not the 
petitioner judged the works of others, However, those documents merely convey background information 
relating to the event, and the venue and do not provide information on the function and 
duties that the petitioner performed for the event. 
Page l) 
documentation in the record to substantiate this statement. The assertions of counsd do not constitute 
evidence. Matter oj' Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BrA 19kO). Therefore, the AAO must conclude that the petitioner has failed to 
satisfy the plain language requirements of the regulation. 
!:"'iJence ojlhe dilp!ay ojlhe alien's work in thejie!d at artistic exhihitions or showcases. 1) C.F.R. 
~ 204.5(h)(3)(vii). 
The AAO affirms the director's finding that the petitioner established this criterion. 
Evidence that the alien has performed in a leadillg or critical role for organizatiolls or 
estab!ishmellls that have ([ distinguished reputatiolJ. k C.F.R. § 204.5(h)(3)(viii). 
This criterion anticipates that a leading role should be apparent by its position In the overall 
organizational hierarchy and that it be accompanied by the role's matching duties. A critical role 
should be apparent from the petitioner's impact on the organization or the establishment's activities. 
The petitioner's perf()fmance in this role should establish whether the role was critical for 
organizations or establishments as a whole. The petitioner must demonstrate that the organizations 
or establishments (in the plural) have a distinguished reputation. While neither the regulation nor 
precedent speak to what constitutes a distinguished reputation, Merriam-Webster's online dictionary 
defines distinguished as, "marked by eminence, distinction, or excellence."" Dictionaries arc not of 
themselves evidence, but they may be referred to as aids to the memory and understanding of the 
court. Nix v. Hedden, 149 U.S. at 306. Therefore, it is the petitioner's burden to demonstrate that 
the organizations or establishments claimed under this criterion are marked by eminence, distinction, 
excellence, or a similar reputation. The petitioner must submit evidence satisfying all of these 
elements to meet the plain language requirements of this criterion. 
The director determined that the petitioner 
appeal, counsel maintains that the 
distiuglJl"ICU 
meet the requirements of this criterion. On 
a critical role in four with 
are organizations with distinguished reputations, the petitioner 'U1.JIIIII 
Irom_ website and submitted a letter Irom the Manager of the attesting to 
the gallery's importance in Latin America. USCIS need not rely on the self-promotional affirmations. 
See BraJ;([ v. POll/OS, No. CY 06 5105 SJO (C.D. CA July 6, 2(07) a/rd 2009 WL 6(481)1) (9'h Cir. 
20(9) (concluding that the AAO did not have to rely on self-serving assertions on the cover of a 
magazine as to the magazine's status as major media). 
As for the 
they sell 
counsel maintains that that 
are two methods to determine 
, See hllp:j,\\Ww.mcrriarn-\Vcb"ler,clln1!llictil}l1aryjdis\il\£uhhe,I, [accessed on October 19, 2012, a copy of 
which is incorporated into the record of proceeding. I 
whether a gallery is excellent or eminent. The first is to determine which artists the gallery represents 
and the second is whether the gallery qualities to be juried into top international art fairs:' The AAO 
reiterates that the assertions of counsel do not constitute evidence. Matter of OhaiRbena, 19 I&N at 
534; Matter of Ramirez-Sanchez, 17 I&N at 506. There is no independent documentation in the record 
to otherwise substantiate counsel's claims. 
Furthermore, counsel claims that because the and the 
displayed or sold the petitioner's work she has a leading or critical role. The AAO finds 
that such an assertion is insutlieient to establish the petitioner's leading or critical role within those 
gallieries. Notably, the regulations contain a separate criterion for the display of artistic work, 8 C.F.R. 
~ 204.5(h)(3)(vii), a criterion the petitioner has satisfied. The AAO is not persuaded that being one of 
many artists whose works are either sold or displayed at a gallery amounts to a leading or critical role in 
addition to meeting 8 C.F.R. ~ 204.5(h)(3)(vii). 
Moreover, the petitioner has submitted several letters from individuals who are associated with the 
above galleries, and while those letters praise the petitioner or her work, their content does not extend to 
discussing how the petitioner has performed a leading or critical role for any of the galleries. 
Consequently. for all the above reasons, the AAO concludes that the petitioner has failed to demonstrate 
that she perf(lfmed in a leading or critical role in a distinguished reputation pursuant to the requirements 
in 8 C.F.R. ~ 204.5(h)(3)(viii). 
j/vidence {haT {he alien has commanded a hiRh salary or other siRnificall{ly hiRh remuneration for 
services, ill relation (o others ill the field. 8 C.F.R. § 204.5(h)(3)(ix). 
While the petitioner originally submitted evidence relating to this criterion with her Form 1-140, the 
director found that she failed to satisfy the requirements of the regulation, and the petitioner does not 
challenge the finding on appeal. Consequently, the AAO concludes that the petitioner has abandoned 
her claim regarding this criterion. See Sepulveda, 401 F.3d at 1228 n. 2 citing United States v. 
C/III11iIlRizalll, 161 F.3d 1343, 1344 (11 'h Cir. 1998); Hristov, 2011 WL 4711885 at *9. 
D. Summary 
The petitioner has submitted relevant, probative and credible evidence that qualifies under only two of 
the regulatory subparagraphs, 8 C.F.R. §§ 204.5(h)(3)(iii) and (vii). 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Page II 
Had the petttIoner submitted the reqUIsIte evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of thc[irJ tield of endeavor" and (2) "that the alien has sustained national or intemational 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
~§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or intemational acclaim, the AAO need not explain that conclusion in a 
final merits determinationS Rather, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. ld. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of Ihe 
Act, 8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed. 
'The AAO maintains de novo review of all questions of tact and law. See Soltane v. DOl, 381 F.3d 143, 145 
(3d CiT. 20(4). In any (ulure proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination as the office that made the last decision in this matter. 8 c:.F.R. § 103.5(a)( l)(ii). See also section 
103(a)(I) of the Act; section 204(h) of the Act; DHS Delegation Number 0150.1 (effective March 1,20(3): 
~ c:.F.R. * 2.1 (2003); H c:.F.R. § 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19 I~&-N, Dec. 45H, 460 (BiA 
19~7) (holding that legacy INS, now USClS, is the sole authorily with Ihe juriSdiction to decide visa 
petitions).