dismissed EB-2 NIW Case: Motion Picture Producer And Director

identifYIng data deleted to 
prevent clearly unwarr.::nted 
invuion of personal pnvacy 
PUBLlCCOPY 
DATE: JUL 23 2012 
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 
OFFICE: TEXAS SERVICE CENTER 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration and 
Nationality Act, 8 U.S.C. § I I 53(b)(2) 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of$630. The specific 
requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not me any motion directly with 
the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed within 30 days of the 
decision that the motion seeks to reconsider or reopen. 
Thank you, 
"."Q(g~ ... ~ 
\J Perry Rhew 
Chief, Administrative Appeals Office 
'WWW.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The petitioner appealed that decision to the Administrative Appeals Office (AAO). The AAO 
withdrew the director's decision and remanded the matter for a new decision. The director again denied 
the petition and certified the decision to the AAO for review. The AAO will affirm the director's decision 
to deny the petition. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.c. § I I 53(b)(2), as an alien of exceptional ability in the arts. The petitioner seeks 
employment as a motion picture producer and director. The petitioner asserts that an exemption from the 
requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. 
The director found that the petitioner does not qualify for classification as an alien of exceptional ability in 
the arts, and has not established that an exemption from the requirement of a job offer would be in the 
national interest of the United States. 
The petitioner filed the Form 1-140 petition on December 30, 2005. The director denied the petition on 
July I, 2006, stating that the petitioner had not established eligibility for the national interest waiver. 
The director, in the 2006 decision, did not say whether or not the beneficiary qualified for the 
underlying immigrant classification. The petitioner appealed the decision. The AAO remanded the 
petition to the director on June 20, 2007, stating that the director had issued an incomplete decision 
with no substantive discussion of the evidence of record. The director again denied the petition on 
May 31,2012, and the petitioner has filed a timely response to the certified denial notice. 
In response to the certified denial, the petitioner submits a brief from counsel and supporting exhibits. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced deb'TeeS or their equivalent or who because 
of their exceptional ability in the sciences, arts, or business, will substantially benefit 
prospectively the national economy, cultural or educational interests, or welfare of the 
United States, and whose services in the sciences, arts, professions, or business are sought 
by an employer in the United States. 
(B) Waiver ofJob Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in the 
national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer in 
the United States. 
EXCEPTIONAL ABILITY IN THE ARTS 
Page 3 
The first issue in this proceeding is whether the petitioner qualifies for the immigrant classification 
sought, either as a member of the professions holding an advanced degree or as an alien of exceptional 
ability in the sciences, arts or business. The petitioner has not claimed to be a member of the 
professions holding an advanced degree, and so the AAO need not offer any analysis in that regard. 
The petitioner, through counsel, claims to be an alien of exceptional ability in the arts. 
The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. § 204.S(k)(3)(ii) states 
that, to show that the alien is an alien of exceptional ability in the sciences, arts, or business, the 
petition must be accompanied by at least three of the following: 
(A) An official academic record showing that the alien has a degree, diploma, 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing that 
the alien has at least ten years of full-time experience in the occupation for which he or 
she is being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
In addition to satisfying at least three of the above standards, the petitioner's evidence must show that the 
petitioner meets the regulatory definition of exceptional ability. The regulation at 8 C.F.R. § 204.S(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered" in a 
,,>iven area of endeavor. 
Where the petitioner fails to submit the requisite evidence, the proper conclusion is that the petitioner 
failed to satisfY the regulatory requirement of three types of evidence. See Kazarian v. USCIS, 596 F.3d 
1115 (9th Cir. 2010) (a decision pertaining to section 203(b)(1)(A) of the Act but containing legal 
reasoning pertinent to the classification in the current matter before the AAO). If the petitioner has 
submitted the requisite evidence, USCIS makes a final merits determination as to whether the evidence 
demonstrates "a degree of expertise significantly above that ordinarily encountered." Id. at 1121, 1122, 
ajJ'd Rijal v. USCIS, --- F.3d ----, 2012 WL 2130884 (C.A.9 (Wash.)). 
The AAO now turns to the petitioner's evidence relating to the six criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
With respect to the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A), the petitioner's only claimed academic 
Page 4 
degree is in civil engineering, a field unrelated to motion picture direction and production. The petitioner 
makes no claim of licensure or certification under the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C). The 
petitioner, through counsel, has claimed throughout this proceeding that he meets the remaining four 
criteria. The director concluded that the petitioner meets none of them. 
Evidence in the form of lel/er(s) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or she 
is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
The petitioner's initial submission included Form ETA-750B, Statement of Qualifications of Alien. 
Section 15 of that fom1, "Work Experience," instructed the petitioner to "list any ... jobs related to the 
correct. 
two jobs, both in Seoul, South Korea: as a _ 
January 1, 1988 to December 31, 1990, and as a 
JaIllualCY I, 1991 to present. The petitioner signed the Form 
penalty of perjury that the information on that form is true and 
In a brief accompanying the initial filing, counsel cited exhibits I, II and 13 to show the petitioner's 
"fifteen year career as a film director." The materials include a filmography going back to 1992, but 
no evidence to show that his experience has been full-time as the regulation requires. The identified 
exhibits are not letters from current or former employers, as required by the plain language of the 
regulation. Exhibit 13 is the petitioner's own curriculum vitae for 2004 and 2005, and exhibits I and 
II are brochures prepared by (or the The various exhibits, taken together, indicate that 
the petitioner began working as and as an_ in 1991, before becoming 
"a Freelancer" in 1996 and in 2000. 
~al submission also included a letter from 
~ who stated that the petitioner "joined the III 
1991" as a "Director." The letter identified projects both before and after 1991, but did not specify 
how long the petitioner worked for_ or whether the petitioner worked full-time. 
The USCIS regulation at 8 C.F.R. § I 03.2(b )(2)(i) reads: 
The non-existence or other unavailability of required evidence creates a presumption of 
ineligibility. If a required document, such as a birth or marriage certificate, does not 
exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit 
secondary evidence, such as church or school records, pertinent to the facts at issue. If 
secondary evidence also does not exist or cannot be obtained, the applicant or petitioner 
must demonstrate the unavailability of both the required document and relevant 
secondary evidence, and submit two or more affidavits, sworn to or affirmed by persons 
who are not parties to the petition who have direct personal knowledge of the event and 
circumstances. Secondary evidence must overcome the unavailability of primary 
evidence, and affidavits must overcome the unavailability of both primary and 
secondary evidence. 
Page 5 
The petitioner did not explain why letters from current or former employers were not available. 
Therefore, the petitioner's initial submission did not conform to the regulatory requirement at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). 
The exceptional ability criteria did not resurface in the proceeding until after the AAO's remand notice 
of June 20, 2007. In a request for evidence (RFE) dated December 6, 2011, the director instructed the 
petitioner to submit "[ e ]mployment verification letters on official employer letterhead" from his 
various employers, specifying dates of employment and the duties the petitioner performed. 
In response, the petitioner submitted six new certificates, showing the 
television director and then, since 2003, as chief executive officer of 
IVVV lll" employment first as a 
====~============~~~-=E~m~p~l~o~ym~e~n~t~d~at~e~s _____ 1IIIIIIIIIIIIII 
12115/1984-4/24/1991 5/2/1990-12127/1990 
5/111991 - 511511996 2/411992 - 2/1911996 
[not specified] 4119/1997 - 11115/1998 
[not specified] 311412001 - 11912003 
[not specified] 513112003 - 3116/2006 
[not specified] 7/29/2006 - 7/1 0/20 II 
~o submitted a letter from chieffinanci~ent of 
__ ., stating that the petitioner "has been employed with~ from 
December 01, ~sent as our Executive ProducerlDirector. Since July 01,2004, he also 
served as our _" None of the letters and certificates specified continuous, full-time 
employment of the petitioner. ~oadcast dates include lengthy intervals between 
programs. The certificate from~ for instance, indicated that one of the petitioner's 
television programs aired until June 8, 1997; his next named project did not begin to air until nine 
months later, on March 7, 1998. The certificates do not indicate what, if anything, the petitioner was 
doing between those dates. Certainly there is a lag between completion of filming and broadcast, but 
that also means that the petitioner was not necessarily working on days when the networks broadcast 
his programs. The AAO notes that the certificate from _ indicated that the petitioner started 
working there as a director in 1984, but it did not identify any of the petitioner's work broadcast before 
1990. 
In the certified denial decision of May 31,2012, the director stated that the employment certificates do 
not match the employment that the petitioner previously claimed on Form ETA-750B. On that form, 
the petitioner claimed employment at_from January 1988 to December 1990, and at_ 
thereafter, with no other employment claimed. One of the certificates from. however, shows 
employment from December 1984 to April 1991 and several certificates are from employers not 
named on Form ETA-750B. The letter from indicated that the petitioner's 
employment there began in December 2000, nearly a decade later than the date that the petitioner 
claimed on Form ETA-750B. The director concluded that the petitioner's contradictory claims lacked 
credibility, and therefore the petitioner had not satisfied the requirement at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B). 
Page 6 
The director cited Matter ofHo, 19 I&N Dec. 582 (BIA 1988), which states that inconsistent claims 
undermine the petitioner's overall credibility and that it is the petitioner's responsibility to provide 
reliable evidence to establish where the truth lies. See id. at 591-92. The director also cited Matter of 
Leung, 16 I&N Dec. 12 (BIA 1976), which states that newly-claimed employment not listed on the 
labor certification or visa petition is not credible. See id. at 14-15. 
In response to the certified denial notice, for 
the inconsistencies but some of the experience 
a freelance basis that overlapped other experience IS 
why the petitioner submitted documents containing "clerical errors," either knowing 
contained incorrect information, or without examining them first for accuracy. 
Counsel attempts to distinguish the two cited precedent decisions from the present proceeding, and 
observes that Matter of Leung has been overturned and superseded by Matter of Lam, 16 I&N Dec. 
432 (BIA 1978). The AAO notes that Lam overturned Leung specifically over the question of whether 
an alien can qualify for labor certification based on unlawful prior employment in the United States. 
See Matter of Lam, 16 I&N Dec. 434. The Lam decision does not address the ancillary finding in 
Leung that newly-claimed employment, not listed on a petition or labor certification, lacks credibility. 
Counsel asserts that, in both Leung and Ho, the credibility issues arose from "sparse records," whereas 
the petitioner, counsel claims, has submitted ample evidence that "clearly establishes [the petitioner's] 
more than 20 years of experience in his field." Counsel seems to imply that, as long as there is 
evidence going back more than ten years, that evidence need not be internally consistent in order to 
satisfy the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(B). Counsel does not explain why contradictory 
evidence is more credible than "sparse evidence." Counsel cannot simply dismiss the inconsistencies 
by attributing them to "clerical error" without elaboration and without submitting, as Ho demands, 
objective, reliable evidence to show where the truth lies. 
The petitioner has submitted evidence of a film career that spans more than ten years, but he has not 
submitted letter(s) from current or former employer(s) showing that the alien has at least ten years of 
full-time experience in the occupation for which he or she is being sought. The submitted evidence 
does not show ten years of full-time employment (as opposed to intermittent bursts of activity 
spanning a period of at least ten years), and the petitioner has not resolved the credibility issues that 
inevitably result from contradictory or inconsistent claims. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D) 
included a September 21, 2005 "Certificate of Income" from the 
in both K~ indicating that the petitioner's total income 
for 2004 was KRW 1,419,159,877. A __ indicated: "The currency exchange rate for 
the Korean won has been stable over the past two years approximately 1100 won to the U.S. dollar. 
The 1.4 billion won earned by [the petitioner] in 2004 is approximately $1.3 million." 
Page 7 
The above evidence, however, fails on two points. First, the petitioner submitted nothing to show that 
he received the above amount as a salary or other remuneration for services as a film director and/or 
producer. Second, the petitioner provided no evidence to allow for a comparison between his income 
and that of other motion picture director/producers. Therefore, the petitioner established his earnings 
for 2004, but did not show that the amount constitutes salary or other remuneration which 
demonstrates exceptional ability. 
In the December 2011 RFE, the director noted that the "Certificate of Income" "does not report the 
beneficiary's occupation or source of income." The director instructed the petitioner to "[s]ubmit 
independent objective evidence that the 1.4 billion won was paid to the beneficiary for his work as a 
director" and "independent objective evidence of the average salary for a director in South Korea." 
The director also requested independent verification of the claimed currency exchange rate. 
In response, the petitioner submitted a new "Certificate of Income" for 2010, which did not address the 
director's concerns about the previous certificate. A printout from a currency exchange rate web site 
substantiated the prior claim about the won-dollar exchange rate, showing fluctuations between 1,130 
and 1,180 won to the dollar during December 2011 and early January 2012. 
who "'Q'HH."U 
higher than average TV series directors while he directed TV series since 1990." The P"LLLlUH"1 
not submit documentary evidence to corroborate these general figures, or to show that 
has sufficient reliable knowledge of television director pay rates to be able to draw the stated 
conclusion. The record does not show what proportion of the petitioner's income is from television 
production/direction, or provide baseline figures for average earnings in those fields in South Korea. 
In the certified decision of May 2012, the director found that "the petitioner failed to submit evidence 
that the wages earned by the beneficiary in 2004 were earned for work in the area of exceptional 
ability," and that the letter from _ lacked "specific information, such as the amount of wages 
earned by the beneficiary, and the average amount of wages earned by directors in Korea." The 
director also noted that the petitioner submitted exchange rate information for 2011, rather than for 
2004. The director, therefore, concluded that the petitioner had not satisfied the requirement at 
8 C.F.R. § 204.5(k)(3)(ii)(D). 
In response, the petitioner submits exchange rate information showing that, in 2004, a United States 
dollar was worth roughly 1,100 won as claimed previously. The petitioner has overcome this element 
of the director's finding, but there remains the director's more serious observation that "the 
Certification of Income and Taxes does not report the beneficiary'S occupation or source of income." 
Counsel maintains that "[t]he 2004 tax record already establishes that [the petitioner's] annual income 
is in excess of $1 million .... The 2010 income record demonstrates that [the petitioner] continues to 
earn a high income." The income figures for 2004 and 2010 do not demonstrate or imply that the 
petitioner earned similar sums in other years. The petitioner has not shown that the 2004 and 2010 
figures are typical of his annual earnings in other years, let alone that those earnings came entirely or 
mostly from his film work. 
Page 8 
Counsel states that the director's finding "penalizes [the petitioner] for the fact that South Korean 
income records apparently do not set forth the source of earnings." This assertion would have more 
weight if counsel were somehow able to prove that the Certificates of Income are the only available 
documentation of the petitioner's earnings. The petitioner has not submitted copies of checks, bank 
records, contracts, or any other documentation to show who paid him, and for what. He has not 
established that the year-end tigure for 2004 represents remuneration for his work as a 
producer/director. 
The petitioner does not overcome the director's finding that the petitioner failed to provide information 
to allow a comparison between the petitioner's earnings and those of others in the field in South Korea. 
Counsel's only comment on this matter is to state: "We submit that a director who makes two to ten 
times as much as other directors has demonstrated remuneration consistent with exceptional ability and 
that the average earnings of directors (a statistic that exist) is not required to make this 
determination." Counsel, here, treats the claim letter as an accepted fact. Counsel, 
thus, simultaneously makes two conflicting earns more than other directors, 
and it is impossible to say how much other directors earn. 
It remains that did not explain the source of the "2 to 10 times" figure. Either this 
information came a source that can be identified and documented, or it is an arbitrary 
estimate with no demonstrated basis in fact. The lack of supporting documentation, even after the 
director's request for it, is not a trivial matter. 
The AAO affirms the director's finding that the petitioner has not submitted evidence that the alien has 
commanded a salary, or other remuneration for services, which demonstrates exceptional ability. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The petitioner's initial submission included three certificates intended to 
certificate confirms that the 
"'" lILl""'" shows that the petitioner is a member of the 
The third certificate does not establish the 
petitioner's membership in any association. Rather, it reads, in part: 
Certificate of Nomination 
Upon recommendation of the organization here by confers upon 
The imperfect CII;t;m;II 
purpose, but 
professional association. 
_ he etitioner] 
of the production 
lIU1Jlt:U certificate makes it difficult to determine the certificate's exact 
appears to be a television network rather than a 
Page 9 
In the December 2011 RFE, the director noted the petitioner's submission of two membership 
certificates, and stated: 
The petitioner did not submit evidence concerning the associations .... [T]he petitioner 
did not show that the associations are professional associations. In addition, the 
petitioner did not show that the associations are associations for film directors. 
The director instructed the petitioner to submit "[ d]ocumentary evidence which shows the associations 
are professional." In response, the petitioner submitted the following materials: 
• that the petitioner belonged to the _ 
from December IS, 1984 to May 15, 
1996. 
• A translated excerpt from the_ web site, describing the association. 
• A_membership certificate dated 23,2011. 
• Background information describing the 
• An English-language printout from web site, identifYing the 
association as "the leading collective management organization for the musical 
works in Korea," looking after "music copyright which represents music creators' 
rights." 
Most of the above materials concern newly-claimed organizations that the petitioner did not mention in 
his initial submission. The certificate from the. dates from several years after the petition's 
December 2005 filing date, and it does not state when the petitioner joined the association. Therefore, 
it is not evidence that the petitioner already belonged to the _ at the time of filing the petition. An 
applicant or petitioner must establish that he or she is eligiN:;""for the requested benefit at the time of 
filing the benefit request. 8 C.F.R. § 103.2(b)(1). USCIS cannot properly approve the petition at a 
future date after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Reg' 1 Comm'r 1971). 
In all, the petitioner's initial submission and his response to the 2011 RFE show three memberships as 
of the petition's filing date or earlier, in the_, the _ and the •. 
In the May 2012 certified decision, the director found that the petitioner had only established that one 
of the above three associations is a professional association in the field of television production and/or 
direction. The director observed that the _ deals with "musical works," and found: "The 
petitioner has not established that an association for musical works is a professional association for 
movie producers and directors." The director also found that the petitioner submitted no information 
about the_ Therefore, the director concluded that the petitioner had established membership in 
one professional association, rather than the plural "associations" required by the plain wording of the 
regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E). 
In response to the certified denial Uto';ISl'UIl, 
September 9, 2005 from the this 
certificate accompanied the initial submission and the director failed to take it into consideration. 
Page 10 
The initial submission contains nothing from the 
and the exhibit list that accompanied the initial submission did not mention such a certificate. Counsel 
refers to the new submission as "an additional copy," but the certificate is an original document in 
black ink, with a stamp in red ink that has partially bled through the page; it is not a "copy" of a 
previously submitted document. 
The previously submitted certificate from the_ is also dated September 9,2005. Both certificates 
show the same street address, and the names of the two organizations are similar enough that they 
could conceivably be variant translations of the same Korean organization name. There are also very 
significant differences, however. The two certificates show the same street address, but the earlier 
certificate places the on the" 15th FL.," whereas the new certificate places the _ in "6F" -
either a suite identifier or a reference to the sixth floor. The two certificates show different telephone 
and facsimile ("fax") numbers. 
Furthermore, it is far from clear ~n organization would issue two very different membership 
certificates on the same date. (The_ certificate shows an "Entry Date" of June 18, 2004, meaning 
that September 9, 2005 is the date of the certificate, not the date membership commenced.) Also, the 
certificate does not indicate that the petitioner is a member of the organization. Rather, it says: 
is currently a member of _' and that the petitioner is the 
organization's ~~serltalive Hence, the_ members are companies rather than individuals. 
In sum, the raises more questions than it answers. All of the director's concerns 
about the lack about the_also apply to the _ 
With respect to the director's observation that the _ is an organization of songwriters, not 
producer/directors, counsel states that "music is an essential element of both motion pictures and 
television" and therefore the petitioner's membership in the_ "is clearly membership in a field 
within his industry." This ad hoc argument is tenuous and unpersuasive. The issue is not whether 
"music" and "film" are somehow related, but whether membership in a songwriter's association has a 
direct, rational connection to film production or direction. The AAO observes~tioner 
claims, quite apart from his film work, to have written the lyrics~lar song_. The 
AAO therefore concludes that the petitioner belongs to the _ not because he is a film 
producer/director, but because he is a songwriter. 
Nevertheless, the AAO notes that the plain wording of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(E) 
simply requires "[ e ]vidence of membership in professional associations"; it does not require those 
associations to be in the petitioner's area of claimed exception. I abilit . Therefore, the appropriate 
course of action would have been to grant that the petitioner's membership qualifies under 
the strict wording of the regulation, but that it cannot survive a final merits determination because 
membership in an organization devoted to music copyrights does not demonstrate "a degree of 
expertise significantly above that ordinarily encountered" in the field of film production/direction. The 
petitioner's consideration of the issue as a basic evidentiary matter, rather than a final merits issue, 
amounts to harmless error. See Rijal v. USCIS, 772 F. Supp. 2d 1339, 1347-48 (W.D. Wash. 2011) 
afJ'd, --- F.3d ----, 11-35249, 2012 WL 2130884 (9th Cir. June 13, 2012). See also Kazarian v. 
USCIS, 596 F.3d 1122. 
Page 11 
Although the petitioner has submitted no evidence about the natur~ on its face it appears 
to be a professional association of broadcast producers. The ~wise appears to be a 
professional association, which is all that the regulation requires. The director acknowledged the 
petitioner's membership in_ Therefore, under the two-part Kazarian test affirmed in _ the 
petitioner has established membership in professional associations. If the petitioner meets two other 
regulatory standards of exceptional ability, then a final merits determination will be necessary in order 
to evaluate the evidence submitted. 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F) 
Counsel cited initial exhibits 1,3,7,8,9 and 10 as evidence under the above regulation. Exhibit 3 is a 
list of awards that the petitioner claims to have received between 1988 and 2004. As previously noted, 
exhibit I is a brochure the That brochure includes of three J..OU!SU>U­
~certificates: a 
_from the 
certificate (no category sm:Cltled 
peltlti<)m:r's name is not on any of these certificates. 
Not all of the claimed awards were in the field of directing or producing motion pictures. One award 
was for writing song lyrics, and another was for writing a "Bestseller." Awards in fields other than 
film production and direction cannot establish exceptional ability in film production and direction. 
The brochure includes photographs of other award certificates and statues, all in the Korean language 
without the complete, certified translation required by 8 C.F.R. § \03.2(b )(3). Also in the brochure 
were photographs of untranslated articles from unidentified Korean-language magazines and/or 
newspapers. 
Exhibits 7 through 10 are witness letters, two of which mention specific recognition for achievements 
and contributions (the other two letters offer more assertions of acclaim). The AAO has 
previously mentioned the letter from who stated: "In I 
received 
The director, in the December 2011 RFE, stated that the petitioner's submission of "pictures of awards 
and partial articles concerning the awards" was not sufficient to establish qualifYing recognition. The 
director requested additional documentary evidence to establish the nature of the awards and the 
petitioner's receipt thereof, and to corroborate prior witnesses' claims. 
Page 12 
In response, the petitioner submitted larger copies of the two certificates from and 
the certificate from the New York Festivals, along with explanatory documents uncertam ongin 
about each certificate. The documents do not appear to be from the festival organizations themselves; 
all three share a common fonnat and feature general infonnation about the festivals in grammatically 
correct English, and infonnation about the films in grammatically poor English. The 
infonnation about document, for example, reads: 
is a story of a but got over it by 
patie;iiiice - the rototype of typical old day's Korean woman (Mother). 
The have renown globally again, after it won the New York Festival in 
199 . 
As before, nothing from the festival organizations states that the petitioner received any award. 
The petitioner also submitted translations offour certificates from which do show his name: 
• Outstanding Evaluation Award: Perfonnance 
• Outstanding Evaluation Award: Individual f'r<vh,,,,'r 1994 
• Production A ward (Outstanding perfonnance) 
• Production A ward (Outstanding perfonnance) 
Company presented an 
(apparently a variant spelling of _) Broadcasting 
to the production team behind _ in 1990. 
The director, in the May 2012 certified decision, found the above evidence to be insufficient because 
"the petitioner failed to submit evidence that shows the criteria used to give the prizes or awards; the 
significance of the prizes or awards ... ; the reputation of the organization granting the prizes or 
awards; who is considered for the prizes or awards ... ; how many prizes or awards are awarded each 
year; and media attention [for] the prizes or awards." 
In response to the decision, counsel states: "The denial decision recognizes [the petitioner's] receipt of 
numerous international (New York and Houston Film Festivals) as well as recognition in ••• 
multiple years." The evidence, however, does not show that the petitioner 
awards. The film festival award materials themselves mention only the titles 
and the network _ that broadcast them, not the petitioner, and the explanatory 
documents show no evidence of preparation or issuance by the United States entities that held the film 
festivals. 
Counsel protests that the petitioner identified the web sites for the festivals in the United States 
(http://www.worldfest.org and http://www.newyorkfestivals.com), but "[a]pparently, the adjudicator 
did not bother to visit the actual website addresses." The AAO searched the two web sites. The sites 
Page 13 
contain background infonnation about the awards, as counsel claims. It is significant, however, that 
the site identified for the New York Festivals contains no infonnation about the petitioner or _ 
_ and does not indicate that. or any other Korean entrant won any award in 1996. It is not 
clear whether the database marked includes finalists.! The _ site 
and _ as a winner of one of_ 
, but there no petitioner 2 Counsel maintains that the 
petitioner's connection with the television programs makes him the recipient of the awards, but the 
record contains no evidence that either WoridFest or the New York Festivals recognized the petitioner 
for achievements or contributions to the industry or field. 
Despite the ambiguity of the evidence regarding the petitioner's claimed United States awards, he has 
submitted more definitive evidence of recognition from _ A number of the director's concerns 
about the specifics of the petitioner's awards are more properly addressed as final merits concerns, 
because the plain wording of the USCIS regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F) requires only 
evidence of recognition. The AAO finds that the petitioner has satisfied the plain wording of the 
regulation. 
The AAO also tinds, however, that even under the two-part Kazarian test, the petitioner has met only 
two of the six regulatory criteria. Specifically, the petitioner has documented membership in 
professional associations (8 C.F.R. § 204.5(k)(3)(ii)(E)) and recognition for achievements or 
contributions to the industry or field (8 C.F.R. § 204.5(k)(3)(ii)(F)). For reasons already explained, the 
petitioner's evidence of past employment (8 C.F.R. § 204.5(k)(3)(ii)(B)) and salary or remuneration (8 
C.F.R. § 204.5(k)(3)(ii)(D)) is deficient and does not meet the regulatory threshold. 
Had the petitioner submitted the required 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 "a degree of expertise 
significantly above that ordinarily encountered" in his field. 8 C.F.R. § 204.5(k)(2); see also Kazarian, 
596 F.3d at 1119-20. While the AAO concludes that the evidence does not demonstrate the required 
degree of expertise, the AAO need not explain that conclusion in a final merits detennination 3 Rather, 
the proper conclusion is that the petitioner has failed to satisfY the regulatory requirement of three types of 
evidence. Id. at 1122. For the reasons discussed above, the AAO affinns the director's finding that the 
petitioner has failed to establish exceptional ability in the arts as a producer/director of motion pictures. 
NATIONAL INTEREST WAIVER 
1 The search 
2 Sources: (excerpts 
added to . I 
3 The AAO maintains de novo review of all questions off act and law. See Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits detennination as 
the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(I)(ii). See also section 103(a)(1) of the Act; 
section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1,2003); 8 C.F.R. § 2.1 (2003); 8 
C.F.R. § 103.I(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (RIA 1987) (holding that legacy INS, 
now uscrs, is the sole authority with the jurisdiction to decide visa petitions). 
Page 14 
The second and final issue under consideration in this proceeding concerns the petitioner'S application 
for an exemption, in the national interest, of the statutory job offer requirement. The petitioner cannot 
qualify for the national interest waiver if he does not also qualify for the underlying immigrant 
classification, but the director addressed the waiver claim in detail and the AAO will do so here. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of "in the national interest." The Committee on the Judiciary merely 
noted in its report to the Senate that the committee had "focused on national interest by increasing the 
number and proportion of visas for immigrants who would benefit the United States economically and 
otherwise .... " S. Rep. No. 55, IOlst Cong., 1st Sess., II (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 56 
Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now USCIS] believes it appropriate to leave the application of this test as 
flexible as possible, although clearly an alien seeking to meet the [national interest] 
standard must make a showing significantly above that necessary to prove the 
"prospective national benefit" [required of aliens seeking to qualify as "exceptional."] 
The burden will rest with the alien to establish that exemption from, or waiver of, the 
job offer will be in the national interest. Each case is to be judged on its own merits. 
In re New York State Dept. o{Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), has set forth 
several factors which must be considered when evaluating a request for a national interest waiver. First, 
the petitioner must show that the alien seeks employment in an area of substantial intrinsic merit. Next, 
the petitioner must show that the proposed benefit will be national in scope. Finally, the petitioner seeking 
the waiver must establish that the alien will serve the national interest to a substantially greater degree than 
would an available United States worker having the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish that 
the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish 
prospective national benefit. The intention behind the term "prospective" is to require future contributions 
by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, and 
whose benefit to the national interest would thus be entirely speculative. 
The AAO also reiterates that notes that USCIS defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered" in a given area of endeavor. 8 C.F.R. § 204.5(k)(2). 
By statute, aliens of exceptional ability are generally subject to the job offer/labor certification 
requirement; they are not exempt by virtue of their exceptional ability. Therefore, an alien cannot 
qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily 
encountered in his or her field of expertise. 
Counsel, in his introductory statement, stated: 
[The petitioner's] films have been immensely successful throughout Asia .... 
Page 15 
[The petitioner] will film dramas in the United States for a primarily 
Scenes will be shot at locations well-known and of interest to a 
Although by necessity 
Korean actors actresses star opportunities will abound for 
English-speaking roles, extras, technical workers, and an entire supporting workforce .. 
The record in this case is clear that [the petitioner] has achieved a status in his 
profession significantly above his professional peers. This is the conclusion reached by 
each of the four distinguished persons who have contributed opinion letters and is 
further supported by the numerous and significant awards and recognitions garnered. 
Counsel, as quoted above, indicated that the waiver application largely rested on four witness letters 
that accompanied the initial filing of the petition. The AAO has already discussed some of these 
letters. stated: 
[The petitioner] is one of _most prominent [The petitioner] is 
known worldwide for his hugely successful .. , which were 
hits throughout East Asia including Japan, China, Hong Kong, Indonesia, Vi·e :tnalm, 
the He is known his counterparts in the industry as 
culture, and lifestyle to the rest of the 
world. In 1992, he which became the most popular drama 
seri es [ in] China. . . . 
Through [the petitioner's] efforts, the beauty of Korean culture and lifestyle has been 
spread to a world audience and has transformed from a domestic 
Korean powerhouse network into a global force .... 
As colleagues of [the petitioner], we have eye witnessed his immense contributions to 
our industry and can state that his stature and reputation among his peers is of the 
highest order. 
chairman and chief executive officer of 
[The petitioner] is an internationally acclaimed whose work has received 
both critical and popular acclaim here in Japan and throughout Asia .... 
in Japan for a book version 
in 2004. The publication far 
exceeded all initial expectations over copies (typically, books selling 
over I~sidered "bestsellers" in Japan). As a television drama 
series, __ was consistently rated the top popular television drama 
amongst the general public in Japan. 
Page 16 
[The petitioner's] talent emanates 
internationall y. 
from his constant focus on projects that deliver 
.... [His] two most popular projects __ 
have rightfully earned him a reputable name 
petitioner "is recognized as the first 
PIL'UULOLHJll' to the Chinese domestic market," and 
identified as highly popular productions._ asserted: 
"Especially in China, these Korean films and dramas have brought understanding and brotherhood 
between these two countries that historically always seem to clash culturally. [The petitioner] can be 
directly credited for contributing to the harmony and new familiarity between the Korean and Chinese 
people." 
writer/producer/director 
I have known [the petitioner] for many years and I've """"'.N 
good taste as a consummate craftsman in his field. Of all the 
by far the most pr fin:anciall I ~ I I -
his beautiful films 
received with high acclaim. 
stated: 
It is [the petitioner's] desire to direct films in the US, bringing with him his knowledge 
and experience in Korean culture and artistic endeavors. He intends to direct films that 
combine the cultural heritage of S. Korea with American topics. It will create a new 
source of work for American actors and technicians, while cementing the relationships 
between the two nations. To fulfill this plan, we need the talents of a director well 
versed in Korean customs and traditions, and r cannot think of anyone more qualified 
than [the petitioner]. 
The letters quoted above contain numerous claims of fact unsupported by primary evidence. The 
has held that testimony should not be disregarded simply because 
IVlu·ltel ofS-A-, 22 I&N Dec. 1328, 1332 _ 2000) (citing cases). The 
however: "We not only encourage, but require the introduction of corroborative 
testimonial and documentary evidence, where available." Id. If testimonial evidence lacks specificity, 
detail, or credibility, there is a greater need for the petitioner to submit corroborative evidence. Matter 
o{Y-B-, 21 I&N Dec. 1136 (BIA 1998). 
The opinions of experts in the field are not without weight and have received consideration 
above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, 
uscrs is ultimately responsible for making the final determination regarding an alien's eligibility for 
the benefit sought. Id. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; uscrs may, as above, evaluate the content of those letters as to 
whether they support the alien's eligibility. USCIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. See id. at 795; see also 
Page 17 
Matter of V-K-, 24 l&N Dec. 500, 502 n.2 (BlA 2008) (noting that expert opinion testimony does not 
purport to be evidence as to "fact"). See also Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft o{Cali{ornia, 14 I&N Dec. 190 (Reg' I Comm'r 1972)). The letters 
considered above primarily contain claims of the petitioner's wide-ranging influence, for which 
supporting documentary evidence ought to be readily available. Such evidence, however, is not to be 
found in the record. 
On May 19, 2006, the director issued an RFE, instructing the petitioner to submit evidence to meet the 
guidelines set forth in _. In response, the petitioner submitted evidence about the film industry 
to establish its intrinsic merit and national scope. With respect to the petitioner as an individual, 
counsel quoted the four previously submitted witness letters and listed the awards documented in the 
initial submission. 
The director denied the petition on July I, 2006, stating: "Although the petitioneribeneficiary has been 
shown to be a competent; [sic 1 a leading film director whose skills and abilities are of value, it has not 
been established that a job offer waiver based on national interest is warranted." The petitioner 
appealed that decision, protesting (through counsel) that the decision did not contain "a single sentence 
of analysis" to explain the grounds for denial. The AAO agreed with counsel that the decision was 
insufficient, and withdrew the director's decision on June 20, 2007, remanding the matter for a new 
decision. The AAO raised several points for the director to consider: 
As the national interest contemplates a prospective national benefit, the director shall 
consider whether the petitioner, in the United States pursuant to a nonimmigrant treaty 
investor visa, has the intent and means to produce the proposed movies in the United 
States. For example, the director may wish to inquire as to whether the petitioner has a 
producer, funds and screenplays to make future movies. While Citizenship and 
Immigration Services (CIS) may waive the alien employment certification / job offer in the 
national interest, the visa classification is still an employment based visa classification and 
the waiver hinges on the alien's intent and ability to pursue the work claimed to be in the 
national interest. The bare, general assertion that petitioner intends to make movies cannot 
and does not have the same weight as documentary evidence showing that specific plans 
(and funding) are in place for specific projects. 
Even if the petitioner is able to provide evidence of the intent and means to pursue movie 
directing in the United States, simply identifying a particular film project or projects will 
not, by itself, demonstrate eligibility for the waiver. There exists no blanket waiver for 
filmmakers, and therefore it cannot suffice for the petitioner simply to claim that he will 
benefit the United States by making movies here. Among other issues the director may 
choose to raise, the director shall consider whether the petitioner has a track record of 
success, not just as a movie director, but providing the type of national benefit he alleges 
will accrue from his work in the United States, promoting the areas where the movies are 
filmed. 
Finally, it is noted that the petitioner seeks permanent residence to complete what appears 
to be proposed short-term or temporary projects. The director may inquire as to why 
nonimmigrant visa categories, such as the one that allowed the petitioner to film a previous 
movie in the United States, do not provide the petitioner the necessary means for 
completing these short-term projects. 
The director raised several of the above points in a second RFE, issued December 6, 2011. The 
director emphasized that the petitioner must submit evidence to support any claims about the past or 
future benefit arising from the petitioner's work. 
In response, counsel stated: 
The record as now augmented establishes that [the petitioner] has a long record of 
achievement in the field of film directing. His production company has an established 
record of international success (see Exhibit "H"). His film projects have benefited the 
economies of the filming locations (see Exhibit He has received international 
such as the and • 
It is clear that his past record justifies projections 
of future benefit to the nation. 
The record as now augmented shows a concrete business plan for the formation of a 
permanent drama production [company] in the United States headquartered in_ 
to continuously produce TV mini-series targeting both the 
markets (see Exhibit "A"). Evidence has been provided of 
arranged funding for film projects (see Exhibit "F"). A detailed plan for creating 
employment for U.S. workers has been developed (see Exhibit "0"). Evidence has also 
been provided of economic benefit flowing to the local economics [sic] of shooting 
locations through increased tourism following past filming projects (see Exhibit "I"). 
Evidence has also been provided in the form of U.S. Department of Commerce statistics 
demonstrating that visitors from South Korea are already the second highest spending 
group from Asian countries such that it is a reasonable assumption that spending will 
increase as South Korean viewers become more familiar with U.S. landmarks. 
The AAO notes that the named by counsel above, is not the same as the 
Exhibit H is a spreadsheet-style document showing "total oversea sales actual" figures for various 
films by the petitioner (mostly _productions) from 2003 to 2011. Various certifications and 
documents support the that international licensing and 
broadcasts have About half of that amount, • 
The petitioner submitted no evidence to allow a meaningful comparison 
between the above figures and those for other television programs marketed internationally in East 
Asia. 
Exhibit H also included copies of Korean-language news with uncertified excerpt translations, 
most of them describing the popularity of the petitioner's television series. As 
noted above, incomplete and/or uncertified translations cannot suffice under the regulation at 8 C.F.R. 
Page 19 
§ I 03.2(b )(3). There is no evidence of news coverage in Japanese, Chinese, or the languages of any of 
the other countries where, counsel claims, the petitioner's work has been highly popular. 
Exhibit I consists of additional uncertified, incomplete translations of various Korean-language 
documents. According to the translations, some of the articles indicate that a theme ~ 
experienced an increase in visitors after the petitioner filmed several scenes of ___ 
there. 
Figures from visits in the summer of 2011 more than 
doubled from the previo~ an letter stated that the 
increase occurred "after _ [sic 1 sponsored An 
uncertified translation of a news article indicated that a particular brand of cosmetics saw a 23% 
increase in revenue after an actor portrayed an executive of the company on one of the petitioner's 
television programs. 
Apart from the lack of adequate translations of the documents, the articles do not show how the 
economic impact of the petitioner's work compares to that of others in his field. The idea of product 
placement, whether for a commercial product or for a tourism destination, is not a new one. Indeed, 
the industry abbreviation for "product placement," "PPL," appears repeatedly in the record. The 
petitioner cannot show he qualifies for the waiver simply by participating in product placement in this 
way. The articles also do not indicate whether the petitioner chose the most representative examples, 
or the most pronounced examples, of the claimed economic impact of his work. 
Exhibit A is the petitioner's business 
_tonm,lnN> 
petitioner's 
times, anticipating 
not clear. 
The plan indicates that the 
"is expected to increase 5 
antici:pated five-fold revenue increase is 
Despite counsel's earlier statement that the petitioner "will film Korean language dramas in the United 
States for a primarily South Korean " the new business plan indicates that "English will be 
the main language" of the project, and that the petitioner's "local production 
company will ... continuously both US market and Asian market." The 
business plan further indicates "will re-spark the public's interest in 
Taekwondo," a Korean martial art. This significant shift in emphasis indicates that the petitioner's 
plans are not what counsel described at the time of filing the petition. A petitioner may not make 
material changes to a petition that has already been filed in an efTort to make an apparently deficient 
petition conform to USCIS requirements. See Matter of" izummi, 22 I&N Dec. 169, 175 (Comm'r 
1998); Matter of" Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which require that beneficiaries 
seeking employment-based immigrant classification must possess the necessary qualifications as of the 
filing date of the visa petition. 
Exhibit F is a "Letter of Intent to Invest in the Production & 
indicating that 
of the show's proJ 
of 
in the series, covering 70% 
prcljec:ted run of three ten-episode 
Page 20 
seasons. Exhibit D is a table, indicating that the 
actors and production crew members. 
project intends to employ 2,065 
The petitioner has submitted some evidence to indicate that his films, broadcast in South Korea, have 
contributed to tourism within South Korea, but this does not readily extrapolate to the conclusion that 
those same South Korean viewers will travel to the United States to visit sites depicted in his films. On 
this point, it is not necessary to rely on speculation. The record shows that the petitioner has filmed in 
the United States before. The submitted evidence, however, does not show the economic impact of his 
past work in the United States, either in terms of tourism or in terms of temporary employment of 
United States workers in the cast and crew. 
In the certified denial notice of May 31, 2012, the director noted that the petitioner's RFE response 
showed plans that differ fundamentally and substantially from what the petitioner had initially 
described. The director observed that much of the petitioner's evidence lacked translations that meet 
USCIS standards, and concluded that the petitioner had not shown how short-term filming projects 
would consistently serve the national interest. 
In response to the certified decision, counsel asserts that the petitioner did not change his business 
plan, because "[t]he 1-140 petition did state that [the petitioner] would direct films in the United States 
for viewers in South Korea .... The business plan submitted in 2012 ... augments the 1-140 petition 
rather than changing anything in the 1-140 petition." That plan indicates that __ will 
be a primarily English-language project, and that the petitioner intends to ~ US 
market." Elements of the business plan resemble and overlap with what the petitioner described 
earlier, but this does not mean that the plan is unchanged. 
Counsel contends that "[t]he opinions of multiple experts that corroborate each other can absolutely be 
the cornerstone of an argument for a waiver of labor certification." Counsel evidently refers, here, to 
the four witness letters that accompanied the petitioner's initial submission. The record does not show 
that these four letters represent any kind of consensus within the petitioner's field. 
Furthermore, the letters contain numerous claims of fact that lack corroborating evidence. Labeling a 
witness an "expert" does not give the witness's letter the weight of primary, documentary evidence. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter o{Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing 
Matter o{Treasure Crafi o{California, 14 I&N Dec. 190 (Reg'l Comm'r 1972». Unsupported claims 
are equally lacking in weight whether they come from the petitioner himself or from one of the 
witnesses he selected. As previously noted, some letters show shared language, raising questions 
about who actually wrote the letters. 
Counsel states that "there is additional corroboration in the form of numerous awards and recognition 
and a high level of compensation." The AAO has already described the deficiencies in that evidence. 
With respect to the translated documents, counsel does not dispute the director's conclusions. Instead, 
counsel asserts that, even without the translated documents, the record would still contain sufficient 
evidence to establish the petitioner's eligibility for the waiver, and for the underlying classification of 
an alien of exceptional ability in the arts. 
Page 21 
The record indicates that the petitioner is an 
This occupation has substantial intrinsic merit, and provides are "'''''v''w, 
the nationwide broadcasting of television programs and distribution of motion pictures. The petitioner, 
however, has not provided sufficient evidence to allow a meaningful comparison between himself and 
other television directors in order to show that he possesses a degree of expertise significantly above 
that ordinarily encountered in his field, or to meet the higher threshold of eligibility for a national 
interest waiver of the statutory job offer requirement. The petitioner has not overcome the grounds for 
denial set forth in the certified decision, and therefore the AAO will affirm that decision. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.c. 
§ 1361. The petitioner has not sustained that burden. 
ORDER: The director's decision to deny the petition is affirmed.