remanded EB-1A Case: Chinese Painting And Calligraphy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 17, 2024 In Re: 29277225 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, an artist specializing in Chinese painting and calligraphy, seeks first-preference 
immigrant classification as an individual of extraordinary ability. See Immigration and Nationality 
Act (the Act), section 203(b)(l)(a), 8 U.S.C. § ll0l(b)(l)(a) . This classification makes immigrant 
visas available to those who can demonstrate their extraordinary ability through sustained national or 
international acclaim and whose achievements have been recognized in their field through extensive 
documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that although the record 
established the Petitioner met the initial evidentiary requirements for this classification, he did not 
demonstrate, as required, that he bas sustained national or international acclaim and is among the small 
percentage at the very top of his field. The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
Section 203(b)(1 )(A) of the Act makes immigrant visas available to noncitizens with 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 . The noncitizen must seek to enter the United States to continue work in the 
area of extraordinary ability and show that their entry into the United States will substantially benefit 
prospectively the United States. 
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." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate 
international recognition of their achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award). If a petitioner does not submit this evidence, then they must 
provide sufficient qualifying documentation that meets at least three of the ten criteria listed at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) (including items such as awards, published material in certain media, and 
commercial successes). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
rofile submitted with the etition the Petitioner is "a graduate of the 
'-----------------------------' and a well-known contemporary 
Sinologist, Painter, Calligrapher and Philanthropist." He initially claimed extraordinary ability as both 
a scholar in contemporary Confucianism and as an artist specializing in Chinese painting and 
calligraphy. He clarified in response to a request for evidence (RFE) that he intends to continue his 
work as an artist in the United States; therefore, the Director evaluated evidence related to the 
Petitioner's accomplishments as an artist. 
Because the Petitioner has not indicated or established that he received a major, internationally 
recognized award, he is required to satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director concluded that the Petitioner met four criteria by 
establishing that he received nationally recognized awards, participated as a judge of the work of others 
in the same field, displayed his work at artistic exhibitions, and commanded significantly high 
remuneration in relation to others in his field. See 8 C.F.R. § 204.5(h)(3)(i), (iv), (vii) and (ix). 
Although the Petitioner also claimed he could satisfy the criteria relating to published materials in 
professional publications or major media, memberships in associations that require outstanding 
achievements, and original contributions of major significance in the field, the Director concluded that 
he did not meet those criteria. 
Because the Petitioner demonstrated that he met the initial evidence requirements, the Director 
proceeded to a final merits determination. In a final merits determination, U.S. Citizenship and 
Immigration Services (USCIS) must analyze all of a petitioner's accomplishments and weigh the 
totality of the evidence to determine if their successes are sufficient to demonstrate that they have 
extraordinary ability in the field of endeavor. See section 203(b)(l)(A)(i) of the Act; 8 C.F.R. 
§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. In this matter, the Director determined 
that the Petitioner did not demonstrate he meets this very high standard. 
On appeal, the Petitioner contends that the Director did not correctly apply the two-part adjudicative 
approach required by Kazarian because they failed to consider all the submitted evidence together in 
the final merits determination. Specifically, he emphasizes that "USCIS did not discuss any of the 
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content in the Petitioner's multiple recommendation letters issued by experts in the same field," noting 
that such letters "clearly explained how Petitioner has sustained national acclaim." The Petitioner 
maintains that the Director's decision, because it "did not consider the totality of the evidence," did 
not sufficiently address why he did not establish his eligibility for the requested classification. 
The Petitioner also generally objects to the two-part adjudicative approach set forth in Kazarian and 
asserts that USCIS "improperly adopted" it. The Petitioner specifically highlights a pre-Kazarian U.S. 
district court decision, Buletini v. INS, 850 F. Supp. 1222 (E.D. Mich. 1994), which states that"[ o ]nee 
it is established that the alien's evidence is sufficient 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 [USCIS] sets forth 
specific and substantiated reasons for its finding that the alien does not have extraordinary ability." 
We note, however, that in contrast to the broad precedential authority of the case law of a United States 
circuit court ( such as with Kazarian), USCIS is not bound to follow the published decisions of a United 
States district court in cases arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 
(BIA 1993). The reasoning underlying a district court's decision will be given due consideration when 
it is properly before us; however, the analysis does not have to be followed as a matter of law. Id. at 
719. 1 The Petitioner's assertion that USCIS should rely on Buletini and other pre-Kazarian federal 
district court decisions rather than Kazarian and binding USCIS policy guidance is not persuasive. 
However, we agree with the Petitioner's claim that the Director's final merits analysis does not reflect 
their consideration of the totality of the evidence as required. Although the Petitioner submitted 
evidence relating to at least seven of the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), the final merits 
discussion addresses evidence related to only four of those criteria, rather than considering the 
evidence in its totality. Specifically, the Director's final merits analysis did not address the evidence 
relating to the Petitioner's memberships in associations, published materials about him, and 
contributions to his field and whether that evidence, individually or collectively, shows sustained 
national or international acclaim and demonstrates that he is among the small percentage at the very 
top of the field of endeavor. Further, as noted by the Petitioner, the record contains several letters 
from experts in his field which specifically address not only his contributions to the field, but also 
provide the authors' opinions regarding his recognition and stature in the field and are therefore 
relevant to the final merits determination. 
Because the Director did not properly consider all the Petitioner's evidence in the final merits analysis, 
the decision did not sufficiently address why he did not demonstrate his eligibility for the requested 
classification. See generally 6 USCIS Policy Manual F.2(B)(2), https://www.uscis.gov/policy-manual 
( stating that in the final merits determination, USCIS officers should evaluate all the evidence together 
when considering the petition in its entirety to determine if a petitioner has established, by a 
preponderance of the evidence, the required high level of expertise for the immigrant classification). 
1 Regardless, the Buletini decision does not clearly conflict with the Kazarian court's characterization of the adjudication 
process as including a final merits determination. The Buletini opinion indicates that the court considered the possibility 
that a petitioner can submit evidence satisfying three criteria and still not meet the extraordinary ability standard ifUSCTS 
provides specific and substantiated reasoning for its conclusion. See Buletini, 860 F. Supp. at 1234. The court in Buletini 
did not reject the concept of examining the quality of the evidence presented to determine whether it establishes a 
petitioner's eligibility for this immigrant visa classification. 
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I 
When denying a petition, the Director must explain in writing the specific reasons for denial. 8 C.F.R. 
§ 103.3(a)(l)(i). This explanation should be sufficient to allow the Petitioner a fair opportunity to 
contest the decision and to allow us an opportunity for meaningful appellate review. See, e.g., Matter 
of M-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully explain the reasons for 
denying a motion to allow the respondent a meaningful opportunity to challenge the determination on 
appeal). Here, the Director's decision did not satisfy this requirement. 
Accordingly, we will withdraw the Director's decision and remand the matter for further review and 
entry of a new decision. The new decision should include an analysis of the totality of the record, 
including the evidence submitted in support of all claimed initial evidentiary criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). 
Further, in conducting routine checks to verify the information submitted with the pet1t10n, we 
consulted Department of State (DOS) records relating to the Petitioner's prior visa applications. Those 
records indicate that the Petitioner provided information regarding his education and employment 
history on a Form DS-160, Online Nonimmigrant Visa Application, which appears to be inconsistent 
with claims made in support of the instant petition. As noted, the evidence submitted with the petition 
indicates that the Petitioner graduated from the._____________________ _. 
I The submitted personal profile describes him as a well-known scholar and artist, and the 
creator of "Contemporary Confucianism in the field of Sinology." The Petitioner indicated in his 
concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status, that he 
has been self-employed as an artist, painter, and author since 2011 and lists no other employment. 
However, on the Form DS-160 submitted in May 2015, the Petitioner stated that he was then currently 
employed in "business" and responsible for the management of a Chinese company located in Beijing, 
having previously worked as the general manager of a thermoelectrical materials company. He also 
indicated that he was a graduate of1 Iand listed no 
other education. 
The Director has not reviewed this potentially derogatory information and its relevance to the 
Petitioner's eligibility for the requested classification. Therefore, we find that further review of the 
record is warranted for this additional reason. If the Director finds the information from DOS records 
material to the Petitioner's eligibility, they must notify him of this information through an RFE or 
notice of intent to deny and allow an opportunity for explanation and rebuttal pursuant to 8 C.F.R. 
§ 103 .2(b)(l 6)(i) before issuance of a new decision. If a petitioner is unable to resolve discrepancies 
in the record with independent, objective evidence pointing to where the truth lies, USCIS may 
evaluate the reliability and sufficient of other evidence submitted in support of the immigration benefit. 
See Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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