remanded EB-1A Case: Arts

(b)(6)
DATE: JUL 1 5 2013 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office 
in your case. 
Thank you, 
~'tf----
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
\YWW. uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
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 AAO will 
withdraw the director's decision; however, because the petition is not approvable, it will be remanded 
for further action and consideration. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). 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 set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. 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 of a 
major, internationally 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. 
The petitioner's priority date established by the petition filing date is February 2, 2012. On August 7, 
2012, the director served the petitioner with a request for evidence (RFE). After receiving the 
petitioner's response to the RFE, the director issued his decision on January 7, 2013. On appeal, the 
petitioner submits a brief. As noted by counsel on appeal, in the final decision, the director indicated 
the petitioner met three of the claimed criteria, but he failed to perform 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 her achievements have been recognized in the field of 
expertise." 8 C.P.R. § 204.5(h)(3). See Kazarian, 596 F.3d at 1119-20. Accordingly, the director's 
decision dated January 7, 2013, will be withdrawn. 
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 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
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 101st Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. !d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.P.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. 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. 1 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 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.P.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. 
1 
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). 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
II. ANALYSIS 
In this matter, the director first counted the evidence, concluding under three separate criteria (8 C.P.R. 
§§ 204.5(h)(3)(iv), (vii) and (ix)) that the petitioner had satisfied the requirements for those criteria but 
then ultimate~y concluding that the petitioner had not established eligibility because she failed to satisfy 
at least three ' criteria. Based on these contradictory conclusions, the AAO withdraws the director's 
decision and remands for further consideration taking into account the following issue. 
Specifically, the regulation at 8 C.P.R. § 204.5(h)(3)(vii) pertaining to the display of the alien's work in 
the field at artistic exhibitions or showcases is generally limited to the visual arts. This longstanding 
interpretation has been upheld by a federal district court in Negro-Plumpe v. Okin, 2:07-CV-820-ECR­
RJJ at *7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing artist 
do not fall under 8 C.P.R. § 204.5(h)(3)(vii)). Thus, the director may wish to reconsider whether the 
petitioner's concert performances as one member of a large orchestra performing the music of others 
meet the plain language of that criterion. 
In light of the above, the AAO will remand the matter to the director first to consider whether the 
petitioner has satisfied at least three of the claimed criteria. If the director's determination is that the 
petitioner has satisfied at least three of the evidentiary criteria, he must also consider the petitioner's 
evidence in the totality in accordance with Kazarian, 596 F.3d at 1119-20. 
III. SUMMARY 
Therefore, this matter will be remanded. The director must issue a new denial notice, containing 
specific findings that will afford the petitioner the opportunity to present a meaningful appeal. The 
burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (citing Matter of Brantigan, 
11 I&N Dec. 493 (BIA 1966)). The petitioner has not met that burden. 
ORDER: The director's decision dated January 7, 2013 is withdrawn; however, the petition is 
currently unapprovable for the reasons discussed above. Because the petition is not 
approvable, the petition is remanded to the director for issuance of a new, detailed 
decision which, if adverse to the petitioner, is to be certified to the AAO for review.