dismissed EB-2 NIW Case: Visual Arts/Sociology

(b)(6)
.DATE: 
FEB 2 0 2013 
INRE: Petitioner: 
Beneficiary: · 
OFFICE: TEXAS SERVICE CENTER 
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 
PETITION: Imrillgrant 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. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF -REPRESENTED 
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 originaily 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 nJ.ay 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 file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider. or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: ·.The Director, Texas Service CeQter, denied the employment-based- immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal from that 
decision. The matter is now before the AAO on a motion to reopen. The AAO will grant the motion 
and reaffirm the dismissal of the appeal. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the arts and/or a member of the 
professions holding an advanced degree. The p~itioner initially described his occupation as that of a 
''visual artist/writer/sociologist." The petitioner asserts that an exemption from the requirement of a job 
offer, and thus of a labor certification, is in the national inter~st of the United States. The director found 
that the petitioner qualifies for classification as a member of the professions holding an advanced 
degree, but that the petitioner has not established that an exemption,from the requi,rement of a job offer 
would be in the national interest of the United· States. The AAO affirmed the director's finding 
regarding the national interest waiver, but withdrew the finding that the petitioner qualifies for 
classification as a.member of the professions holding an advanced degree. 
On motion, the petitioner submits witness letters and other supporting exhibits. 
Section 203(b) ofthe 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 degrees 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 of Job Offer-
(i) ... the Attorney General may, when the Attorney General deeins 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. · 
The petitioner filed the Form 1-140 petition on October 3, 2011. The director denied the petition on 
February 6, 2012, and the AAO dismissed the appeal on October 11, 2012. The AAO incorporates 
its October 2012 decision by reference, and will quote excerpts from that decision as nec_essary. 
There are three issues in this motion, specificaliy whether the petitioner qualifies f<?r: (1) 
classification as a member of the professions holding an advanced degree; (2) classification as an 
(b)(6)Page 3 
alien of exceptional ability in the sciences, the arts or business; and (3) the national interest waiver . 
. The AAO will consider each of these three issues in tum. 
MEMBER OF THE PROFESSIONS HOLDING AN ADVANCED DEGREE 
The USCIS regulation at 8 C.F.R. § 204.5(k)(2) includes tlie following definitions: 
Advanced degree means any United States academic or professional degree or a 
foreign equivalent degree above that ofbaccalaureate. A United State's baccalaureate 
degree or a foreign equivalent degree followed by at least five years of progressive 
experience in the specialty shall be considered the equivalent of a master's degree .. If 
a doctoral degree is customarily required by the specialty, the alien must have a 
United States doctorate or a foreign equivalent degree. 
Profession means one ofthe occupations listed iri section 101(a)(32) ofthe Act, as 
well as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry into .the occupation. 
In its dismissal notice, the AAO stated: 
The petitioner's initial submission included untranslated certificates relating to his 
·education in Mexico. In th~ request for evidence, the director instructed the petitioner 
to "submit a detailed advisory evaluation of the beneficiary's · [educational] 
credentials ... in terms ·of equivalent education in the United States." The 
petitioner's response included a capsule translation of his diploma, but no formal 
evaluation ofhis degree. Instead, the petitioner submitted a Spanish-language letter 
from and an uncertified, 
unsigned English translation. The English letter indicated that the petitioner "finished 
his Maior in sociolol!v" and then earned "another diploma ... 
·named - (emphasis in 
original).· 
. The petitioner has n~t submitted evidence to show how his Mexican degrees compare 
to degrees from United States institutions. Likewise, the petitioner has not shown at 
least five years of progressive post-baccalaureate experience in the specialty. His 
only claimed work experience was as the owner of his own "art academy and graphic 
design facility," which is somewhat related to, but distinct from, his subsequent. 
endeavors in the United States. Therefore, the record does not oontain sufficient 
evidence to show that the petitioner holds an advanced degree or its defined 
equivalent. 
Furthermore, the record does not show that the petitioner intends to engage in a 
profession. O*NET, the Department of Labor's ·online guide to ·occupational 
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Page4 
inforrriation, does not 
indicate that creative writing or visual arts qualify as . 
professions. Rather, employment in either field is available ·to individuals with no 
college education. 
' · 
The AAO acknowledged that sociology is a profession, and that the petitioner claimed to be a 
sociologist, but the AAO concluded that the petitioner's intended duties do not closely resemble the 
(largely research-based) duties of a sociologist. 
Noting that the AAO withdrew the director's favorable finding on this point, the petitioner states: · 
''That is absurd if we take in consideration that the .law is or:tlY one, and should not vary from office 
to office." The AAO's authority bver the service centers is comparable to the relationship between· a 
court of appeals and a district court. Even if the service center director had made a finding in the 
petitioner's favor, the AAO would not be bound to leave that finding undisturbed. Cf Louisiana 
Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), 
cert. denied, 122 S.a. 51 (2001). Furthenpore, it would be absurd to suggest that USCIS .or any 
agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 
F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). In this instance, the AAO did 
not arbitrarily reverse the director's finding. Rather, the AAO explained in detail why the director's 
decision was in error. · 
The petitioner, on motion, submits "a new,_ more concise and formal statement about the validity of 
the translations about [his] academic record, experience and professional license." This motion 
repreSents the petitioner's first real opportunity to address these issues, and therefore the AAO will 
consider them here. In order to warrant a reversal of the AAO's decision, and a restoration of the 
director's initial finding, the petitioner must establish (1) that his intended occupation qualifies as a 
profession, and (2) that he holds an advanced degree or its defined equivalent. 
On motion, the petitioner does not directly address the AAO's conclusion that he had not shown that 
his intended · occupation qualifies · as a profession. & 
who "Graduated from the with a "Major in 
Pedagogy," stated: "I understand that [the petitioner] is intending to develop .a course of art teaching 
along with relaxation techniques for people that is [sic] mentally ill. In my opinion this task requires 
multidisciplinary abilities versed in: arts and social studies." The petitioner had previously submitted 
an unsigned copy of this letter; the version submitted on motion has a signature. This general 
statement does not show that the petitioner seeks employment in an occupation that mee~s the 
regulatory defmition of a profession. . 
The petitioner resubmits previously submitted translations of various degrees and certificates that he 
earned ·in Mexico, along with a new declaration from who attested to the 
competence of the translators. In· a separate statement, discu8sed the petitioner's 
academic history, but she did not establish that the petitioner earned degrees equivalent to a United 
States baccalaureate degree .or higher. indicated only that he earned "diplomas" and 
"certificates." 
(b)(6)
I 
Page 5 
The petitioner, on motion, has not shown that the AAO erred in its previous decision. His newly 
submitted evidence does not warrant reversal of that decision. 
EXCEPTIONAL 
ABILITY 
In the dismissal notice, the AAO stated: ''The record contains at least a skeletal claim by the 
petitioner th~t he qualifi~ for classification as an alien of exceptional ability in the arts. The director 
did not make. any determinatiqn based on this claim, and the AAO, as an appellate body, will not 
make _the initial determination in that regard." 
On motion, the petitioner states that the AAO "overpassed this section by giving . . . ambiguous 
answers" rather than a definitive conclusion as to whether or not the petitioner qualifies for the 
classification. The petitioner further pursues the matter on motion. 
The USCIS regulation at 8 C.F.R. § 204.5(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) ~ official academic record showing that the alien has a degree, 
diploma, certificate, or similar award from a college, university, school, or 
other institution oflearning relating to the area of exceptional ability; 
(B) Evidence . in the form of letter(s) from current or former employer(s) 
showing that the alien has at least ten years <;>f full-ti,me 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 retpuneration 
for services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
l 
(F) Evidence of recognition for achievements and significant contributions 
to the industry or field by peers, governmental entities, or professional or 
· business· organizations. 
When the petitioner frrst appealed the denial of the petition, he .set forth a skeletal claim of 
exceptional ability, stating: 
' 1. I possess an advanced degree 
2. I possess 10 years of experience · 
(b)(6)
Page6 
3. I possess a professional license. 
The above assertions correspond to the regulatory standards at 8 C.F.R. § 204.5(k)(3)(ii)(A), (B) and 
(C). On motion, the petitioner submits new evidence to support the above claims. 
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/earning 
relating to the area of exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(A) 
The petitioner's degree in sociology from the does not satisfy 
the· regulatory standard because, as the AAO previously explained, sociology is a research-based 
academic discipline concerning ''the understanding of human social behavior." In contrast, the 
petitioner is an artist and writer ·Who plans, in the future, ''to deveiop [an] arts-therapy teaching' 
program." For similar reasons, a diploma showing the petitioner's proficiency in English is not 
relevant to the. area of exceptional ability. 
The petitioner earned a three-year degree in methods· and techniques of visual arts from the 
He also completed five courses during a five-month session at 
the These materials satisfy the plain wording of the regulation. 
Evidence in the form of 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. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
The petitioner, on appeal, had stated that the appeal included · a "[d]ocument that proves the 
implementation of [the petitioner's] academic program from 2000 to 2010." The petitioner did not 
identify the document, but the appeal included a translated letter from 
(identified elsewhere as the petitioner's mother and, apparently, his main source of financial 
support). The translation itself did not include a translator's certification that the translation was 
complete and accurate,' and that the translator was competent to translate from the foreign language 
into English. Prior to the appeal, the director had advised the petitioner that the regulation at 
8 C.F.R. § 102.3(b)(3) requires such a certification. The appeal included an unsigned statement that 
read, in full: "All this documentation was properly translated. from Spanish to English by certified 
translators." This blanket statement does not satisfy the regulatory requirements. 
On motion, the petitioner's submission of a O:ew declaration from appears to be an 
attempt to establish the credentials of the translators. The AAO will not accept this submission at 
such a late date. The director had advised the petitioner of the requirements in a request for 
evidence, thereby providing the petitioner with an opportunity to correct the record before the 
issuance of the denial decision. The petitioner did not submit the required materials at that time. 
The purpose of a motion to reopen is to submit previously unavailable evidence, not to correct errors 
or deficiencies that the petitioner should have addressed at a much earlier stage in the proceeding. 
(b)(6)
Page7 
Even disregarding the concerns about the translations, letter indicates that 
"owned and directed a graphic design/art academy_ facility" where the petitioner 
"performed as a graphic designer/art teacher" from 2000 to 201 o: The letter does not indicate 'that 
this employment was full-time, as the plain wording oft~e regulation requires. (Another letter from 
the same witness identifies as a pediatrician.) Therefore, the letter is procedurally 
deficient and facially insufficient to meet the regulatory requirements. · 
Also defiCient, for the same reasonS as those discussed above, is a translated letter from. 
indicating that the petitioner· "collaborated with us in one of our educational 
programs in reference to the learning of visual. arts and group therapy." The letter in<licated that the 
"[p]rogram took place between the. years of "2003-2008," qut ·did not specify the dates of the 
petitioner's claimed involvement in that program. 
A license to practice the profession or certification for a particular profession or 
occupation. · _8 C.F.R. § 204.5(k)(3)(ii)(C) 
The petitioner had previously described his "professional license" as a "license tci work at the social 
sciences," "issued by the , , This license appears to relate to 
, his sociology degree. As the AAO has already explained, the petitioner has not established that he 
seeks employment as a sociologist. He has not demonstrated that his work as an artist and his 
intended work in art therapy constitute ''work [in] the ·social sciences." The petitioner, therefore, has 
not established that his licensure is relevant to his claim of exceptional ability. 
If a petitioner has submitted the evidence required under the regulation, then USCIS determines 
. whether the evidence demonstrates ·"a degree of expertise significantly above that ordinarily 
encountered" in the 
arts. 8 C.F.R. § 204.5(k)(2). Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), 
sets forth a two-part approach where the evidence is frrst counted and theri considered in.the context 
of a final merits determination. While involving a different classification than the one at issue in this 
matter, the similarity of the two classifications makes the court's reasoning persuasive and 
applicable to the classification sought in this matter. Specifically, the regulations state a regulatory 
standard and provide a list of suggested types of evidence, of which the petitioner must submit a 
certain number. Significantly, USCIS may not unilaterally impose novel substantive or evidentiary 
requirements beyond those set forth at 8 ·C.F.R. § 204.5. Kazarian, 596 F.3d at 1221, citing Love 
Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir.2008). Thus, ifthe regulatorystandard is to 
have any meaning, USCIS must be able to evaluate the quality of the evidence in a final merits 
determination. In the present instance, the petitioner. has not shown that he meets the plain wording 
of at least three oftheregulatory standards listed at 8 C.F.R. § 2Q4.5(k)(3)(ii). Therefore, there is no 
need to proceed to the second step (the final merits determination). 
The petitioner has not shown that the AAO erred by failing to find that he qualifies for classification 
as an alien of exception ability in the sciences, the arts or business. 
NATIONAL INTEREST WAIVER 
(b)(6)
. ' ~· . 
P(lge8 
-· 
In reNew York State Dept. of Transportation (NYSD01), 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 miniinum 
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 t~e 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 int~tion 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 discussed the petitioner's national futerest waiver claim extensively in its October 2012 
dismissal notice, and need not revisit that discussion in detail here. The petitioner had stated that he 
has a permanent arrangement to display his work, free of charge, at which 
"represents artists that struggle · with mental illness, and is supported by a 
prestigious institution that has its headquarters in NY City." The petitioner added: 
·I'm seeking to develop my arts-therapy teaching program along with 
of which I'm now a permanent member. will open a new health 
wing, so I plan to start my visual arts teaching program there as a volunteer instructor. 
offers help in housing, affordable meals, medications, and many 
other programs to its members. Besides this, I can fmance the launch ofthe project 
until I can introduce it in NY schools. 
The AAO, in discussing these plans, stated: 
The petitioner did not submit evidence of any commitment from to 
fund his work, or from the New York public school system to implement an arts 
teaching program~ When the petitioner's future plans are contingent on the actions of 
organizations that the petitioner does not control, then the petitioner must submit 
evidence from those' organizations to show that those a~tions have taken, are taking, 
or will take place. 
On motion, the petitioner states that his "relation[ ship] with has become stronger in 
these recent months," and claims "new personal achievements." The petitioner lists 14 "main 
achievements as a cultural artist," six of which occurred after the petition's October 3, 2011 filing 
date. An applicant or petitioner must establish that he or she is eligible for the requested benefit at 
the time of filing the benefit request. 8 ·C.F.R. § 1 03.2(b )(1 ). US CIS cannot properly approve the 
(b)(6)
. . . ... 
Page9 
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'l Comm'r 1971 ). 
Even then, the petitioner has not shown. that the new achievements would have qualified him for the 
wai~er had they_ occurred prior ·to the petition's filing date. He simply lists 11 art shows where his 
work appeared and three books that he illustrated. The petitioner also noted that he had sold two 
paintings. The petitioner does not explain why these activities qualify him for the waiver or other 
·immigration benefits. Creating art works for display, sale, and/or publication is not a noteworthy 
achievement for an artist; it is, rather, fundamental to the nature of what an artist does. 
The petitioner states that his achievements "must 
be judged in their own capacity and circumstances 
(for example, being considered in the category of young creative artist under 40)." The petitioner 
cannot arbitrarily assign "categories" in this way, in Ofd~r to show his . achievements in a more 
favorable light. Similarly, the petitioner cannot unilaterally decide on the importance of his 
achievements, such as when he states: "I think my most commendable success as [a] visual artist if 
having achieved the free for life representation of a professional gallery here in New York City. I· 
[do not know] how many artists can say that, but I assure you that just a few f can do so]." As the 
AAO previously noted, the gallery carrying the petitioner's work is the , which only 
shows art by artists with mental illnesses. This limiting factor makes it difficult to compare the 
petitioner's arrangement with with other artists' arrangements with other galleries, 
', even if the petitioner had _submitted evidence of such arrangements. 
The petitioner, on motion, states that he is engaged in a project "[t]o help people that live[] with 
mental illness on their recovery, t[h]rough the learning of the vi!!ual arts, and Spanish language." 
The petitioner contends that this project is "supported by ·and 
The petitioner maintains that ''this activity requires professional tniinmg in 
sociology," but does not elaborate or corroborate this claim. The .petitioner had discussed this 
project previously, and the AAO had stated: ''The record contains scant evtdence about the. 
petitioner's 'project,' much-less any information about how it would provide sufficient income to 
support the petitioner." The petitioner does not remedy these faults on motion; he simply repeats the 
claim that the project exists. As ·the AAO previously informed the petitioner, going on record 
without supporting documentary evidence is not sufficient for purposes of meetirig the ·burden· of 
. proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 · (Comm'r 1998) (citing Matter 
ofTreasure Craft of California, 14.I&N Dec.-190 (Reg'l Comm'r 1972)). 
The AAO will affirm its prior decision to dismiss the appeal for the above stated reasons, with each 
considered as an independent and alternative basis for denial. In visa petition proceedings, the 
burden of proving eligjbility for the benefit sought remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. § 1361. The petitioner has not menhat burden. 
ORDER: -The AAO's decision of October 11, 2012 iS affirmed. The appeal remains dismissed.