dismissed EB-2 NIW Case: Visual Arts

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of persona\ pnvac) 
PUBLIC COpy 
DATE: JUN 06 2.011 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N. W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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. § 1153(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 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, 
~J /',' ) [J. /1/(n' I, f, . - \. \;"\ \r 'l il.--
f"'P~rry Rhew 
t, Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § 11S3(b)(2), as an alien of exceptional ability in the arts and as a member of the 
professions holding an advanced degree. The petitioner seeks employment as a visual artist and 
was a product desi 
She now works for 
also in New York. 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 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 requirement of a job offer 
would be in the national interest of the United States. 
On appeal, the petitioner submits a brief from counsel and several exhibits, many of which duplicate 
prior submissions. 
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 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 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. 
The director's sole stated ground for denial concerns whether the petitioner has established that a waiver 
of the job offer requirement, and thus a labor certification, is in the national interest. 
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 
Page 3 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (lMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (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" 
Irequired 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. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 1998), has set forth 
several factors which must be considered when evaluating a request for a national interest waiver. First, 
it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must 
be shown 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 U.S. worker having the same minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly 
must be established 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 inclusion of the term "prospective" is used 
here 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. 
We also note that the regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that 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. 
The petitioner filed the Form 1-140 petition on March 18,2009. The director, in the denial notice, 
did not elaborate on which (if any) of the three prongs of the national interest test that the petitioner 
has met. The intrinsic merit of the fine arts is not in dispute here. The petitioner satisfies this 
requirement. Likewise, fine artists in most media have at least the potential for national scope, 
through exhibition of their work and, for the most prominent artists, media coverage. The petitioner 
therefore meets this requirement as well, although this finding is not a stipulation that the 
Page 4 
beneficiary, as an individual, has in fact had national impact as an artist. The national scope finding 
concerns artists in general, not the petitioner in particular. 
There remains the third prong of the national interest test, specific to the individual alien and 
therefore immune to generalized appeals regarding the overall merit of a given occupation. 
The initial submission included 16 letters from artists, gallery officials, and university-level art 
instructors. All but one of those letters are virtually identical apart from identifying information 
about the signatory of each letter. (Much of the same language also appears in counsel's cover 
letter.) The AAO will give due consideration to the claims in this letter, but any factual claims have 
negligible evidentiary weight if not supported by documentary evidence .. Multiple submissions of 
basically the same letter, with only minor variations, do not add to the intrinsic weight or credibility 
of the claims in that letter. Because all of these witnesses are based in New York City or have 
demonstrable prior ties to the petitioner, their collective signatures do not support the claim that the 
petitioner's work has earned her international recognition. 
There follow selected common passages from the letters: 
[The petitioner] has demonstrated outstanding talent and abilities in the creative and 
unusual areas of intaglio, relief/woodcutting, monotypes and screenprinting .... [The 
petitioner] generates innovative and unusual artwork that pushes the boundaries of 
these medi[aJ, some of which have antiquated roots dating back to the 15th century. 
She is part of a small group of Artists who successfully merge old printmaking 
methods with contemporary practices, making works on paper that simultaneously 
pay homage to the past and are relevant to today's society. For instance, she has 
integrated spray-paint, stickers, digital printing and crushed up silicon solar cells into 
her prints. 
Moreover, [the petitioner] integrates her passion for the environment through her 
inventive and pioneering work. For example, [the petitioner] has created several 
pieces that are solar powered. [The petitioner's] MFA thesis "Heliotropia," was so 
innovative that she was invited to exhibit it [at] a show at Seton Hall University in 
New Jersey. This critically acclaimed work is an interactive sculptural installation 
where viewers can activate functioning photovoltaic cells imbedded into prints to 
power small, rotating motors .... 
l The petitioner] has also channeled her exceptional abilities as an Artist and her 
support of environmental issues into teaching and promoting an environmentally 
friendly way of life .... [The petitioner] currently teaches workshops about how to 
use safer and non-toxic printmaking inks. She has taught high school students, 
school-teachers and adults in a continuing education setting .... [The petitioner I is 
one of the few successful Artists in the world having extensive experience working 
with water-based printmaking inks. 
Page 5 
... The contributions that [the petitioner] has made and will continue to make to the 
United States in the area of the visual arts as well as environmental causes will 
definitely foster the national goals of development of the Arts, Culture and 
Humanities in the United States as well as attract international visitors to view [the 
petitioner's] unique and innovative works of art, a fact that will also contribute to the 
U.S. economy. 
Some letters contain occasional, small variations from the above wording, but they generally share 
the same traits, such as the word "Heliotropia" in bold type and the arbitrary capitalization of the 
word "Artist." The shared language refers to an art piece called _ Some letters show the 
name as consistent with electronically copying and pasting language into a font 
that does not support the ",," character. 
include the shared language. Nevertheless, 
imparting basically the same information in the 
includes the following passage: 
provided the only initial letter that did not 
to have used that letter as a template, 
same order. For example, the shared language 
[The petitioner's] background and impressive credentials are truly outstanding. lThe 
petitioner] received her BA magna cum laude in Visual Studies from the prestigious 
University of Toronto. Here, [the petitioner] earned a total of nine academic 
awards. This is almost unheard of even among the very top Artists in the world. 
One of the awards [the petitioner] received is the John Wolfe McColl Memorial 
Award in Fine Arts. This prestigious award is given to Specialists in Visual Studies 
who display a combination of advanced artistic insight, achieve high academic merit, 
and make invaluable extracurricular contributions to the department. 
(Emphasis in original.) letter imparts the same information in different words: 
[The petitioner's] background and impressive credentials are equally outstanding. 
She received her Bachelor of Arts magna cum laude in Visual Studies from the 
prestigious University of Toronto. Most impressively, during her studies she earned a 
total of nine academic awards. This is most unusual, even among the most elite of 
artists. One of the more prestigious awards she received is the 
_hich is presented to artists who display a combination of ance 
artistic insight, high grade-point average, artistic merit and valuable extracurricular 
contributions to the department. 
(Emphasis in original.) The petitioner did not submit sixteen distinct witness letters. She submitted, 
in effect, the same letter signed by sixteen people. 
Page 6 
In terms of objective evidence, the petitioner submitted photographs and other materials relating to 
exhibitions of her work. These materials show that the exhibitions took place, but they do not 
inherently distinguish her work, or its impact, from that of countless other artists who likewise place 
their work on public display. 
Promotional materials for "Queens International 4," a 2009 art exhibition, do not list the petitioner 
among the participating artists. A handwritten notation indicates that the petitioner "participated as 
a[ n I SP weather data interpretation artist" for a piece by The 
petitioner's involvement with that exhibition appears to have been peripheral at best. 
The exhibitions, simply by taking place, do not establish the significance or impact of the 
petitioner's work. It is, therefore, necessary to consider the evidence surrounding critical and public 
reaction to the exhibited works. The petitioner submitted copies of articles from local media, 
announcing and/or reviewing various exhibitions. Many of the articles do not mention the petitioner 
at all. 
A post from blogchelsea offers brief comments on a number of pieces in the "Protest Space" 
exhibition, including the observation that the petitioner's "Little Brown Barf Bag is the perfect zing 
at materialist culture." A notice from Philadelphia Weekly Online, promoting the then-upcoming 
"Art at LA V A" show, listed participating artists and noted that the beneficiary is "best known for her 
tricky solar-powered creations." A paragraph in Eye announced the opening of the beneficiary's 
nine-day solo exhibition, "Several Incidents of Mushroom Poisoning." The college newspaper The 
Varsity reviewed the group student exhibition "All-Inclusive," devoting a paragraph to a description 
of the petitioner's "series of cyanotype prints in murky shades of blue." In another Varsity review, 
the same reviewer discussed the group show "Exhibit A," including the petitioner's photo 
collages involving 
"Repeat After Me, 
that show "plays on the 
planet by tiny machines, 
The petitioner did not show how the coverage of her work in local and student publications sets her 
apart as an artist. The submitted materials contain mention of many other artists as well, and do not 
show that the petitioner's work has attracted attention beyond the community level. 
In a request for evidence (RFE) dated November 20, 2009, the director requested "additional 
documentary evidence to establish that the beneficiary has a past record of specific prior 
achievement, which justifies projections of future benefit to the national interest." 
In response, counsel stated: 
[The petitioner's] academic and professional career as a Visual Artist and Printmaker 
as well as an Educator is truly illustrious as evidenced by the numerous awards and 
accolades she has received. In addition to the nine academic awards [the petitioner] 
Page 7 
has garnered, she most recently won two additional awards, namely the Brooklyn 
Arts Council Grant and the Jurors Award. The awards, honors and acclaim she 
has received are clear evidence that [the petitioner] has received are clear evidence 
that [the petitioner] is a talented and extraordinary Artist who is skilled well beyond 
her years. 
The record shows many of the claimed "awards" to be student financial aid, with little or no 
indication that the aid was contingent on the petitioner's talent or accomplishments as an artist. 
Furthermore, recognition for achievements is a criterion of exceptional ability under the USCIS 
regulation at 8 C.F.R. § 204.S(k)(3)(ii)(F). By statute, aliens of exceptional ability in the arts are 
generally subject to the job offer requirement. Clearly, evidence that provides partial support for a 
claim of exceptional ability cannot suffice to show eligibility for an additional benefit over and 
above that immigrant classification. 
Counsel states that the petitioner serves the national interest because her "unique and brilliant body 
of work ... achieves the artistic and educational goals of our nation" and "allows the United States 
to equal, if not, surpass the abilities of artists throughout the world, thereby enabling the U.S. to be 
regarded as one of the most prominent countries in the field of visual art." 
The petitioner's response to the 2009 RFE included letters from nine new witnesses, each containing 
various passages copied from the same template used in the letters from the original submission, 
such as the doubly-emphasized reference to "nine academic awards" and the sometimes-garbled 
references to the petitioner's art installation. Many of these witnesses, unlike the earlier 
witnesses, hail from outside New York City, but the petitioner adds little of substance to the record 
by having witnesses in Miami and Toronto repeat language already in the record of proceeding. 
The petitioner also submitted new letters from five of the individuals (all based in New York) who 
provided the first set of witness letters. This time, the letters do not rely on copied, shared language. 
Carla Aspenberg, an artist and curator, stated: 
Although I have worked with other artists, I consider my experience wit~ l the 
petitioner] one of the best. I was honored to co-curate the exhibit titled "Repeat After 
Me" at the Flux Factory gallery space in New York City .... The theme of self­
replication was [the petitioner's] original thought provoking idea that allowed artists 
to explore pertinent issues surrounding the evolution of technology. 
[The petitioner] is also one of the few outstanding visual artists in the United States 
who applies non-toxic techniques to traditional forms of printmaking methods. 
stated: 
[The petitioner's] influence has already and will continue to reach far beyond any 
border and/or state lines. Her power and impact in the field of visual arts is truly 
Page 8 
. international. In addition to creating work that moves people and attracts widespread 
attention, [the petitioner] is also educating and inspiring a new generation of artists 
and her uniqueness, excellent credentials and abilities make her capable of producing 
a widespread positive contribution to the arts as well as our nation's cultural identity. 
The petitioner submitted no objective evidence to show that her work "attracts widespread 
attention." Rather, the petitioner submitted letters from close associates making claims to that effect. 
program director at LESP, stated: 
As Programs Director, I have had the honor of reviewing approximately 1000 
applications each year from individual artists . . . for a place in our residency 
programs alone. Based on this experience and my background, I would like to 
reiterate that [the petitioner's] extensive body of work has achieved widespread 
acclaim and recognition. 
It is in recognition of her extraordinary abilities in printmaking that she was awarded 
the Printshop's prestigious Keyholder residency. 
The letter quoted above is on printed letterhead, sho~~ of 
Information on that site contradicts _ claim that the petitioner's 
Keyholder residency demonstrates the petitioner's expertise and "widespread acclaim and 
recognition": 
The Keyholder Residency Program offers emerging artists free 24-hour access to 
printmaking facilities to develop new work and foster their artistic careers. 
Residencies are free and one year long, starting on April 1st and October 1 st each 
year, and they take place in the shared Artists' Studio, including the solvent/etching 
area and the darkroom. 
Keyholders work independently, in a productive atmosphere alongside other 
contemporary artists. Artists from all disciplines are eligible to apply; print-making 
skills are not required, but some familiarity with the medium is recommended. Basic 
instruction in printmaking techniques is available for new Keyholders. Technical 
assistance is not included in the program, but is available at additional cost. 
http://printshop.org/web/Create/KeyholderRcsidenceslindex.html (printout added to record May 31, 
2011). If "print-making skills are not required" to qualify for the Keyholder residency, then it is far 
from self-evident that the beneficiary received the residency "in recognition of her extraordinary 
abilities in printmaking." 
Furthermore, "Keyholder Residencies are limited to emerging artists only. The Printshop defines 
emerging artists as under-recognized and under-represented artists at early stages in their careers." 
Page 9 
http://www.printshop. org/web/Create/KeyholderResidences/Guidelincs .html (printout added to 
record May 31, 2011). This indicates that "widespread acclaim and recognition" would disqualify 
an applicant for the residency. 
Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N 
Dec. 582, 591 (BIA 1988). The above claims that contradict the _own information 
compound the credibility issues that arose from the petitioner's submission of multiple letters 
containing the same language. 
hired the 
petitioner as a master printer "to create a special edition of fifty prints" for a charity event: 
l The petitioner I was able to teach me about the printing process and printmaking 
techniques that I continue to use and teach. She instructed me through every step of 
the screenprinting process from buying the correct materials, burning the screens, 
mixing the inks, achieving accurate registration of the image, to pulling the 5-color 
prints. It was indeed a long and challenging process that I could not have completed 
without [the petitioner's] adept guidance. 
the petitioner "was awarded the prestigious Jurors Award from 
the Longwood Art Gallery at Longwood University" (emphasis in original) The record documents 
the petitioner's receipt of the award, but no evidence to support the subjective description of the 
award as "prestigious." Noting that the petitioner "has several permanent installations of her work 
across the US and Canada" (emphasis in original), nakes the unsubstantiated claim that 
"rtlhis is unheard of among artists at her age." 
Several witnesses note that New York is a center of the art world, and therefore art students, 
collectors and enthusiasts from around the country encounter the petitioner's work when they come 
to New York. The same can be said of countless other artists and art teachers in New York. Rather 
than provide any concrete demonstration of the petitioner's influence in comparison to that of other 
working artists, the witnesses have provided anecdotal accounts of their own encounters with the 
petitioner and/or her work. These assertions do not show how the petitioner stands out from other 
artists and art educators, to an extent that she should receive an immigration benefit that is not 
automatically available to workers in her field. 
The director denied the petition on February 4, 2010, stating that the petitioner had not submitted 
independent reviews or other evidence to establish the prestige or influence of the petitioner's work 
in comparison with the work of other artists. 
On appeal, counsel repeats prior assertions about "the petitioner's unique and brilliant body of work" 
and states: "the Director overlooked or failed to consider the compelling evidence of petitioner's past 
achievements and abundant evidence that the petitioner would serve the national interest to a greater 
Page 10 
extent than the majority of her peers." In the appellate brief, counsel charged: "the Director failed to 
consider the overwhelming evidence submitted by the petitioner which clearly confirmed the 
petitioner's important achievements, influence in her field, and outstanding stature as a Visual Artist, 
Printmaker, and Educator." Merely calling the evidence "compelling" and "overwhelming" does not 
make it so, notwithstanding counsel's assertion that "[t]he petitioner's record of achievement is 
exemplary and speaks for itself." The AAO will therefore consider counsel's arguments in support 
of this claim. 
Counsel asserts: "The petitioner/applicant's impressive body of work has been universally 
acknowledged as exceptional and she has commanded the respect of leading experts in the field." 
The petitioner has not shown that her selection of witnesses comprise "leading experts in the field," 
or so broad a consensus as to represent "universal" acknowledgment of her reputation. Favorable 
claims do not become "universal" merely through verbatim repetition in some two dozen letters. 
Counsel lists the 24 witnesses, and claims that "the writers based their judgments on their 
independent observations." This claim is patently and obviously false, because the letters clearly 
contain substantial, identical passages. To assert that each of these 24 witnesses independently 
arrived at the same wording and emphasis defies credulity. At best, some witnesses have 
embellished the template to somewhat personalize the text. 
Counsel spells out the ways that the petitioner purportedly benefits the United States: 
Petitioner's innovative works which promote environmentalism and sustainability are 
recognized as being at the forefront of an international art movement integrating art, 
lifestyle, and consciousness of important issues affecting our nation and its 
environment. Further, the petitioner's groundbreaking work which promotes 
awareness of important environmental issues affecting our nation and utilizes eco­
friendly materials, present new and effective methods to educate the public about 
emergent environmental concerns. Similarly, the petitioner's groundbreaking 
teaching of the methods and importance of the use of non-toxic inks and other non­
toxic materials by artists, in general, and by teachers and students in the school 
system where children may be at higher risk, present new and effective methods of 
educating the public about important health concerns, as well as present important 
solutions for avoiding health risks. The petitioner's exceptional knowledge, teaching 
and contributions relating to older printmaking techniques that are known by only a 
very limited number of artists worldwide such as petitioner, assists in both 
revitalizing interest in, and preserving the knowledge and tradition of, these special 
methods. 
The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533,534 n.2 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). Counsel quotes from witness letters to support the above claims, 
but factors already discussed severely limit the evidentiary value of those letters. Indeed, many of the 
Page 11 
quoted passages, attributed to a particular witness, are common passages that appear in numerous other 
letters. 
The record demonstrates the petitioner's commitment to creating and promoting more environmentally 
responsible art. Nevertheless, the record is devoid of objective, verifiable evidence that the petitioner is, 
as claimed, an influential leader at the forefront of that movement. 
Counsel submits information about various exhibitions that have included the petitioner's work. 
Many of the exhibitions took place after the petition's March 2009 filing date. An applicant or 
petitioner must establish that he or she is eligible for the requested benefit at the time of filing the 
application or petition. 8 C.F.R. § 103.2(b)(1). Therefore, subsequent events cannot cause a 
previously ineligible alien to become eligible after the filing date. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Regl. Commr. 1971). 
Furthermore, the information provided, even on its face, fails to support counsel's claims. For 
example, counsel emphasizes that "Philagrafika 2010 will be one of the largest art events in the 
United States" (counsel's emphasis). The exhibition's own materials stress the expansive size, 
stating that the event incorporates the work of "more than 300 artists." By definition, such an event 
must be especially inclusive, rather than exclusive; otherwise, it could not be "one of the largest art 
events." The petitioner's inclusion in an exceptionally large group exhibition points away from, 
rather than toward, her claimed uniqueness and standing in her field. 
Counsel observes that some of these exhibitions were the focus of media attention, thereby 
highlighting their importance. The petitioner has not, however, shown that her work in particular 
has attracted such attention. The petitioner cannot establish eligibility by association, through 
attachment to a movement that is, overall, nationally significant. 
The AAO agrees with the director's finding that the petitioner has not established eligibility for the 
national interest waiver. 
Beyond the director's decision, the record reveals an even more fundamental basis for denial of the 
petition. The AAO may deny an application or petition that fails to comply with the technical 
requirements of the law even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
Apart from the question of whether the beneficiary qualifies for a national interest waiver, a more 
fundamental issue is the beneficiary's eligibility or otherwise for the underlying immigrant 
classification, either as a member of the professions holding an advanced degree or as an alien of 
exceptional ability in the arts. 
Page 12 
The director, in the denial notice, stated: "USCIS accepts that an advanced degree or exceptional 
ability is required by the occupation, and that the petitioner holds the requisite advanced degree." 
The director deemed the question of exceptional ability "moot." The AAO disagrees with this 
finding, and therefore will withdraw it. 
The USCIS regulation at 8 C.F.R. § 204.S(k)(2) includes the following definitions: 
Advanced degree means any United States academic or professional degree or a 
foreign equivalent degree above that of baccalaureate .... 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(a)(32) of the 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. 
The petitioner's initial submission focused on the claim of exceptional ability in the arts. In 
response to the RFE, however, counsel claimed that the petitioner "is both an Advanced Degree 
Professional and an Alien of Exceptional Ability. [The petitioner] holds a Master's of Fine Arts 
degree ... from Brooklyn College." Possession of an advanced degree, however, is not sufficient to 
show eligibility for classification as a member of the professions holding an advanced degree, 
because one may hold an advanced degree without working in a profession. In this instance, section 
lOl(a)(32) of the Act does not list artists, and the petitioner has not shown that a United States 
baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
petitioner's occupation. 
Section 10 1 (a)(32) of the Act lists "teachers in elementary or secondary schools, colleges, 
academies, or seminaries." The limiting reference to "schools, colleges, academies, or seminaries" 
indicates that teaching is not always presumed to be a profession, regardless of context. In this 
instance, the petitioner identifies herself as, among other things, an educator, but the petitioner does 
not teach at a school, college, academy or seminary. Also, the petitioner has not shown that she is 
and will be, first and foremost, a teacher (as opposed to an artist with some ancillary teaching 
functions). The petitioner has not shown that her intended principal endeavor qualifies as a 
profession. The petitioner, for example, has created and shown art works at several exhibitions, but 
the record contains no evidence that the exhibitors will only show works by artists holding at least a 
baccalaureate degree. 
As late as the appeal, counsel erroneously claims that the petitioner is a member of the professions 
holding an advanced degree merely because she holds an advanced degree. Counsel makes no 
attempt to show how she meets the other half of the description as a "member of the professions." 
Page 13 
For the above reasons, the AAO withdraws the director's finding that the beneficiary's advanced 
degree qualifies her for the classification sought. As a result, the AAO must now turn its attention to 
the question of exceptional ability. 
In an introductory brief, counsel asserted that the petitioner "qualifies for classification as an Alien 
of Exceptional Ability in the Arts pursuant to 8 C.F.R. § 204.5(k)(3)(ii)." Counsel did not, however, 
explain how the petitioner meets the specific requirements under that regulation. Counsel instead 
relied on general assertions that the petitioner "has most definitely risen to the top of the field of art," 
"[ u]nquestionably ... has achieved a degree of expertise significantly above that ordinarily 
encountered," and "has tml y set herself apart and has garnered sustained recognition and acclaim." 
The cited 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) 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 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; 
(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 
organizati ons. 
If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit 
comparable evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3 )(iii). 
If a petitioner has submitted the requisite evidence, 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 first counted and then considered in the context of a final merits 
determination. While involving a different classification than the one at issue in this matter, the 
Page 14 
similarity of the two classifications makes the court's reasoning persuasive to the classification 
sought in this matter. 
Counsel stated that the petitioner satisfied clauses (A) and (F) above, and claimed "other comparable 
evidence showing eligibility, for example the fact that [the petitioner] has been awarded many artistic 
grants and awards and has been asked to judge the work of others." 
To invoke the "comparable evidence" clause at 8 C.F.R. § 204.5(k)(3)(iii), the petItIOner must 
demonstrate that "the above standards do not readily apply to the beneficiary'S occupation." If the 
standards do apply to that occupation, the beneficiary's personal inability to meet those standards does 
not trigger the comparable evidence clause. In this instance, the petitioner has neither claimed nor 
demonstrated that clauses (B), relating to experience, or (D), relating to remuneration, do not readily 
apply to the petitioner's occupation. At least four of the six regulatory standards readily apply to the 
petitioner's occupation. Therefore, the petitioner has not justified recourse to the comparable evidence 
clause at 8 c.F.R. § 204.5(k)(3)(iii). 
Counsel does not explain (and the petitioner does not prove) which of the six regulatory standards do 
not readily apply, or show how the proposed alternatives are comparable to those clauses. The 
petitioner cannot unilaterally exempt herself from the listed evidentiary standards and declare her own 
accomplishments to be "comparable evidence." In the final merits determination, the AAO will 
examine any evidence outside of the specified standards that reasonably demonstrates exceptional 
ability, but the AAO notes here that the petitioner claims to meet only two of the six defined regulatory 
standards for exceptional ability. 
The AAO agrees that the beneficiary's academic degrees satisfy the standard at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A). The petitioner has claimed numerous awards as evidence of recognition under 
8 C.F.R. § 204.5(k)(3)(ii)(F). Most of these claims fail to withstand scrutiny (for example, one 
claimed award was actually a letter regarding the beneficiary'S eligibility for reimbursement of 
travel expenses), but the record documents the petitioner's receipt of the Jurors Award at the 
Sustainable Source National Exhibition at Longwood University, Farmville, Virginia. The 
beneficiary was never a student at that university, and her studies were complete well before she 
received the award in 2008. The record does not support the sometimes hyperbolic claims about the 
significance of this award, but it nevertheless demonstrates recognition of the type contemplated in 
the pertinent regulation. 
The petitioner satisfies two of the six regulatory standards listed at 8 C.F.R. § 204.5(k)(3)(ii), and 
has not claimed to satisfy any of the other four. This, on its face, is an insufficient claim of 
exceptional ability in the arts. 
In terms of what counsel deems "comparable evidence," counsel cited the beneficiary'S receipt of 
awards. Awards, however, already fall under the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(F) as 
evidence of recognition. The petitioner cannot claim them again as comparable evidence. 
Page 15 
Elaborating on the assertion that the petitioner "has been asked to judge the work of others," counsel 
stated: "It is tml y a mark of [the petitioner's] reputation in the field as well as her outstanding 
acumen that she has been invited to be a guest curator." This unproven assumption would not be 
sufficient, even if other credibility issues did not already plague the record of proceeding. 
Counsel, on appeal, states that "the exceptional ability classification ... was surely never intended to 
be unduly restrictive and reserved only for a few household names in the field." The AAO agrees, 
but finds nothing in the director's decision to the contrary. The petitioner need not be a "household 
name" to qualify as an alien of exceptional ability in the arts. Nevertheless, the record contains 
numerous claims as to how important and influential the petitioner is within her field. Having made 
those claims, the petitioner must support them, and fails to do so at her credibility's peril. 
The petitioner satisfies only two of the regulatory standards for exceptional ability at 8 C.F.R. 
§ 204.S(k)(3)(ii). Counsel's claims regarding comparable evidence are not persuasive, and the 
petitioner has made no attempt to show that the other regulatory standards do not readily apply to her 
occupation (which is necessary before USCIS can begin to entertain "comparable evidence" claims). 
Therefore, the AAO finds that the petitioner has not shown that she qualifies for classification, either 
as a member of the professions holding an advanced degree or as an alien of exceptional ability in 
the arts. Furthermore, on the basis of the evidence submitted, the petitioner has not established that a 
waiver of the requirement of an approved labor certification will be in the national interest of the United 
States. 
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 appeal is dismissed.