sustained EB-1A Case: Arts

'identifying data deleted to 
prevent clearly unwarranted 
invasion of personal pnvacy 
l'UBLlC COpy 
FILE: Office: NEBRASKA 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 
Date: HAR 11 2011 
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)(I)(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, 
~~~ 
~erryRhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
, 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO), dismissed a subsequent appeal. The matter is 
now before the AAO on a uscrs motion to reopen whereby the petitioner was afforded 30 days to 
respond to the AAO's motion to reopen. Upon review of the petitioner's response, the decision of the 
AAO will be withdrawn, and the petition will be approved. 
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 (the 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)(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, 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 AAO upheld the director's decision. On January 12, 
2011, the AAO reopened the matter to consider the evidence consistent with the approach advocated in 
a Ninth Circuit Federal Court decision. Counsel responded with a brief. 
On motion, counsel notes that the correct standard is preponderance of the evidence and concludes that 
the substantial evidence submitted shows that "it is more than 50% likely that [the petitioner 1 meets 
seven of the evidentiary criteria outlined in 8 CFR § 204.5(h)(3)." We acknowledge that the standard 
of proof is preponderance of the evidence. The "preponderance of the evidence" standard, however, 
does not relieve the petitioner from satisfying the basic evidentiary requirements required by the 
statute and regulations. Therefore, if the statute and regulations require specific evidence, the 
application is required to submit that evidence. See section 203(b)(1 )(A)(i) of the Act; 8 C.F.R. 
§§ 204.5(h)(2), (3). 
In reviewing the record on motion and considering the evidence in the aggregate, the petitioner has 
established his eligibility for the benefit sought by a preponderance of the evidence. 
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): 
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(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 hnmigration Services (USCIS) and legacy hnmigration 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. [d.; 
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 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; 
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(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in 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. 
As noted by counsel on motion, 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.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 sufficient evidence, "the proper conclusion is that the applicant has failed to satisfY the 
regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 (citing to 
8 C.F.R. § 204.5(b)(3». The court also explained the "final merits determination" as the corollary to 
this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 
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.S(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
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8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.S.c. § 1153(b)(1 )(A)(i). 
Id. at 1119-20. 
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 a previous decision used a one-step analysis rather than the two-step analysis dictated by 
the Kazarian court. See 8 C.F.R. § 103.3(a)(1)(iv); Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), 
ajJ'd, 345 F.3d 683 (9th Cir. 2003) (recognizing the AAO's de novo authority). 
II. Analysis and Conclusion 
The petitioner personally received a "2004 One Show Design" Golden Pencil and three plaques from 
the Art Directors Club (ADC) Flir Deutschland E.V. The petitioner also served as the credited art 
director on several award-winning projects. The awards include Cannes Lions, Clio awards, an 
AME Grand Award trophy, a Mobius Award, a Bronze Clapper plaque, a Clapper trophy and a 
Design Award of the Federal Republic of Germany. The petitioner's advertisements have been 
featured on nationally televised shows, including the Tonight Show and Tarrant on TV. The awards 
and media attention, in addition to other evidence of record, support a finding of the critical nature of 
the petitioner's role for his distinguished employers. Finally, the petitioner demonstrated that he has 
earned a high-end salary in the occupation nationally. 
Not all of the petitioner's evidence carries the weight imputed to it by counsel. Nevertheless, 
consistent with Matter of Price, 20 I&N Dec. 953 (Act. Assoc. Comm'r. 1994), we find the evidence of 
record, including evidence not discussed above, sufficient to establish that the petitioner has 
demonstrated his eligibility for the classification sought. Specifically, upon careful review of the 
record, it is concluded that the petitioner has demonstrated by a preponderance of the evidence that he 
is within the small percentage of individuals who have risen to the very top of the field of advertising 
art direction. The evidence submitted establishes that the petitioner has sustained national or 
international acclaim and that his achievements have been recognized in his field. As a result, the 
petitioner qualifies as an alien of extraordinary ability. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. The petitioner has sustained that burden. 
ORDER: The AAO's decision of June 29, 2009 is withdrawn, and the petition is approved.