dismissed O-1A Case: Business

, 
identifying data deleted to 
vent clearly unwarr~nted 
:asion of personal pnvac} 
PUBLlCCOPY 
DATE:APR 15 2011 Office: 
IN RE: 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 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(O)(i) of the Immigration 
and Nationality Act, 8 U.S.c. § IlOI(a)(I5)(O)(i) 
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)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director,_ Service Center, denied the nonimmigrant visa petition and dismissed 
the petitioner's subsequent motion to reopen. The matter is now before the Administrative Appeals Office 
(AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this petition seeking to classify the beneficial)' as an 0-1 nonimmigrant pursuant to 
section 101(a)(IS)(0)(i) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(lS)(0)(i), as an 
alien of extraordinaty ability in the field of business. The petitioner states that it operates exclusive retail 
stores in the United States and 
Branding for a period of one year. 
It seeks to employ the beneficial)' in the position of Director of 
The director denied the petition concluding that the petitioner failed to establish that the beneficial)' has 
received "sustained national or international acclaim" or to demonstrate that he is one of the small percentage 
who has risen to the vel)' top of his field of endeavor. Specifically, the director determined that the evidence 
submitted did not satisfy the criteria set forth at 8 C.F.R. § 214.2(0 )(3)(iii)(A) or at least three of the eight 
criteria set forth at 8 C.F.R. § 214.2(0)(3)(iii)(B). The director dismissed the petitioner's subsequent motion 
to reopen on March 18, 20 I 0, concluding that the motion did not meet the requirements at 8 C.F.R. 
§ 103.5(a)(2). 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO. On appeal, counsel asserts that the petitioner's motion was wrongly denied, and that a 
review of the evidence in its entirety will establish that the beneficiaty meets three of the evidentiaty criteria at 8 
C.F.R. § 214.2(0)(3)(iii)(B). Counsel asserts that the director undervalued the testimonial evidence in the record. 
Specifically, counsel emphasizes that the letters submitted conform to the "form of documentation" requirements 
set forth at 8 C.F.R. § 214.2(0)(2)(iii)(B), and should have been given full weight. 
For the reasons discussed below, the AAO will uphold the director's decision and dismiss the appeal. 
I. The Law 
Section 10 l(a)(1S)(O)(i) of the Act, 8 U.S.c. § 110 l(a)(lS)(O)(i), provides for the classification of a qualified 
alien who: 
has extraordinal)' ability in the sciences, arts, education, business, or athletics which has been 
demonstrated by sustained national or international acclaim ... and whose achievements 
have been recognized in the field through extensive documentation, and seeks to enter the 
United States to continue work in the area of extraordinaty ability .... 
The regulation at 8 C.F.R. § 214.2(0)(3)(ii) defines, in pertinent part: 
Extraordinaty ability in the field of science, education, business, or athletics means a level of 
expertise indicating that the person is one of the small percentage who have arisen to the vel)' 
top of the field of endeavor. 
Page 3 
The extraordinary ability provisions of this visa classification are intended to be highly restrictive for aliens in 
the fields of business, education, athletics, and the sciences. See 59 FR 41818, 41819 (August 15,1994); 137 
Congo Rec. S18242, 18247 (daily ed., Nov. 26, 1991) (comparing and discussing the lower standard for the 
arts). 
In a policy memorandum, the legacy Immigration and Naturalization Service (INS) emphasized: 
It must be remembered that the standards for 0-1 aliens in the fields of business, education, 
athletics, and the sciences are extremely high. The 0-1 classification should be reserved only for 
those aliens who have reached the very top of their occupation or profession. The 0-1 
classification is substantially higher than the old H-l B prominent standard. Officers involved in 
the adjudication of these petitions should not "water down" the classification by approving 0-1 
petitions for prominent aliens. 
Memorandum, Acting Ass!. Comm'r., INS, "Policy Guidelines for the Adjudication of 0 
and P Petitions" (June 25, 1992). 
The regulation at 8 C.F.R. § 214.2(0)(3)(iii) states, in pertinent part: 
Evidentiary criteria for an 0-1 alien of extraordinary ability in the fields of science, education. 
business, or athletics. An alien of extraordinary ability in the fields of science, education, 
business, or athletics must demonstrate sustained national or international acclaim and 
recognition for achievements in the field of expertise by providing evidence of: 
(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or 
(B) At least three of the following forms of documentation: 
(1) Documentation of the alien's receipt of nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(2) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their 
members, as judged by recognized or international experts in their disciplines or 
fields; 
(3) Published material in professional or major trade publications or major media 
about the alien, relating to the alien's work in the field for which classification is 
sought, which shall include the title, date, and author of such published material, 
and any necessary translation; 
Page 4 
(4) Evidence of the alien's participation on a panel, or individually as a judge of the 
work of others in the same or in an allied field of specialization to that for which 
classification is sought; 
(5) Evidence of the alien's original scientific, scholarly, or business-related 
contributions of major significance in the field; 
(6) Evidence of the alien's authorship of scholarly articles in the field, in professional 
journals, or other major media; 
(7) Evidence that the alien has been employed in a critical or essential capacity for 
organizations and establishments that have a distinguished reputation; 
(8) Evidence that alien has either commanded a high salary or will command a high 
salary or other remuneration for services, evidenced by contracts or other reliable 
evidence. 
(C) If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence in order to 
establish the beneficiary's eligibility. 
Additionally, the regulation at 8 C.F.R. § 214.2(0)(2)(iii) provides: 
The evidence submitted with an 0 petition shall conform to the following: 
(A) Affidavits, contracts, awards, and similar documentation must reflect the nature of the 
alien's achievement and be executed by an officer or responsible person employed by the 
institution, firm, establishment, or organization where the work was performed. 
(B) Affidavits written by present or former employers or recognized experts certifying to the 
recognition and extraordinary ability ... shall specifically describe the alien's recognition 
and ability or achievement in factual terms and set forth the expertise of the affiant and the 
manner in which the affiant acquired such information. 
The decision of U.S. Citizenship and Immigration Services (USerS) in a particular case is dependent upon the 
quality of the evidence submitted by the petitioner, not just the quantity of the evidence. The mere fact that the 
petitioner has subm itted evidence relating to three of the criteria as required by the regulation does not 
necessarily establish that the alien is eligible for 0-1 classification. 59 Fed Reg at 41820. 
In determining the beneficiary's eligibility under these criteria, the AAO will follow a two-part approach set forth 
in a 2010 decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kazarian v. USClS, 2010 WL 
725317 (9th Cir. March 4, 2010). Similar to the regulations governing this nonimmigrant classification, the 
Page 5 
regulations reviewed by the Kazarian court require the petitioner to submit evidence pertaining to at least three 
out of ten alternative criteria in order to establish a beneficiary's eligibility as an alien with extraordinary ability. 
Cf 8 C.F.R. § 204.5(h)(3). 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. Instead of 
parsing the significance of evidence as part of the initial inquiry, the court stated that "the proper procedure is to 
count the types of evidence provided (which the AAO did)," and if the petitioner failed to submit sufficient 
evidence, "the proper conclusion is that the applicant has failed to satisfy the regulatory requirement of three 
types of evidence (as the AAO concluded)." Id. at 1122 (citing to 8 C.F.R. § 204.S(h)(3)). The court also 
explained the "final merits determination" as the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence 
demonstrates both a "level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top ofthe[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2), 
and "that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(3). Only aliens 
whose achievements have garnered "sustained national or international acclaim" are eligible for 
an "extraordinary ability" visa. 8 U.s.c. § I I 53(b)(1)(A)(i). 
Id. at *3. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if qualifying under at 
least three criteria, considered in the context of a final merits determination. The AAO finds the Kazarian court's 
two part approach to be appropriate for evaluating the regulatory criteria set forth for 0-1 nonimmigrant petitions 
for aliens of extraordinary ability at 8 C.F.R. § 214.2(0)(3)(iii), (iv) and (v). Therefore, in reviewing Service 
Center decisions, the AAO will apply the test set forth in Kazarian. See Spencer Enterprises, Inc. v. United 
States, 229 F. Supp. 2d 1025, 1043 (ED. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. 
DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO conducts appellate review on a de novo basis). 
In the present matter, the petitioner has submitted evidence pertaining to several of the evidentiary criteria, but has 
not established that the beneficiary has risen to the very top of his field or that he has achieved sustained national 
or international acclaim. 8 C.F.R. §§ 214.2(0)(3)(ii) and (iii). 
II. Discussion 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on December 11,2009. The petitioner 
describes its business activities and the beneficiary's proposed position as "Director of Branding" as follows: 
[The petitioner] operates exclusive retail stores in the petitioner] 
is now in the process of introducing and developing the 
United States and expanding it to offer a total lifestyle corlcel)t irlcllidillg 
furnishings and appointments, and life-style consulting. is one ofthe 
Page 6 
world's finest luxury/couture men's apparel brands, and retailers of high-fashion clothing and 
accessones. 
* * * 
In the position of Director of Brand [the beneficiary] will utilize 
his vast skills and knowledge of the art and retail world to assess viable markets; develop 
business plans and contacts; coordinate distribution, marketing and advertising resources; and to 
provide overall brand management during the start up and initial growth phases of this aspect of 
our business. He will also be instrumental in identifYing business partners who will be able to be 
reliable suppliers to sustain the growth of the brand. Finally, [the beneficiary] will coordinate 
brand management operations with other senior level management of [the petitioning company]. 
The petitioner stated that the beneficiary "has extensive experience in high end retail design, development and 
operations throughout the world, with a particular focus on art galleries and upscale boutiques." 
The record consists of: the Fonn 1-129 petition and supporting evidence, the director's request for evidence dated 
December 16,2009 and the petitioner's response; the director's decision dated February 4,2010; the petitioner's 
motion to reopen and supporting evidence; the director's decision dismissing the motion dated March 18,2010; 
and the petitioner's appeal. The AAO has reviewed the evidence of record in its entirety in reaching its decision. 
A. The Beneficiary's Eligibility under the Regnlatory Criteria 
If the petitioner establishes through the submission of documentary evidence that the beneficiary has received 
a major, internationally recognized award pursuant to 8 C.F.R. § 214.2(0)(3)(iii)(A), then it will meet its 
burden of proof with respect to the beneficiary's eligibility for 0-1 classification. The regulations cite to the 
Nobel Prize as an example of a major award. Id. The petitioner does not claim that the beneficiary can meet 
this criterion. 
As there is no evidence that the beneficiary has received a major, internationally recognized award, the 
petitioner must establish the beneficiary's eligibility under at least three of the eight criteria set forth at 8 
C.F.R. § 214.2(0 )(3)(iii)(B). The petitioner has submitted evidence relating to the criteria at 8 C.F.R. 
§ 214.2(0)(3)(iii)(B)(2), (3), (7), and (8). The petitioner also requests that USCIS consider testimonial 
evidence that "addresses the beneficiary's standing in the industry and his worldwide reputation." The AAO 
will consider this evidence under 8 C.F.R. § 214.2(0 )(3)(iii)(B)(5). The petitioner has not submitted any 
evidence relating to the criteria at 8 C.F.R. § 214.2(0 )(3)(iii)(B)(l), (4), and (6), and raises no objection to the 
director's detennination that these criteria have not been met. The remaining five criteria will be discussed 
below. 
Documentation of the alien's membership in associations in thefieldfor which classification 
is sought, which require outstanding achievements of their members as judged by recognized 
national or international experts in their disciplines or fields. 
Page 7 
In order to demonstrate that membership in an association meets the criterion at 8 C.F.R. 
§ 214.2(0)(3)(iii)(B)(2), a petitioner must show that the association requires outstanding achievement as an 
essential condition for admission to membership. Membership requirements based on employment or activity 
in a given field, minimum education or experience, standardized test scores, grade point average, 
recommendations by colleagues or current members, or payment of dues, do not satisfy this criterion as such 
requirements do not constitute outstanding achievements. Further, the overall prestige of a given association 
is not determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
In a letter submitted in support of the petition, the petitioner noted that the beneficiary has been admitted "to 
the prestigious emphasized 
individual as an expert on which art gallery owners, customers of high end art, appraisers and insurance 
companies around the world rely." The petitioner submitted a copy of the beneficiary's _ (or 
membership credentials. 
The petItIOner also submitted a letter dated October 12, 2009 from an owner of a 
contemporary art gallery in __ noted that the beneficiary was admitted to the _. as a 
result of his "recognized level of expertise and extraordinary ability." She noted that "[m]embership in 
_ is only available to recognized experts in specific fields of art and recognized the career 
achievements of an individual, and their standing among their peers." 
In the request for evidence issued on December 16, 2009, the director acknowledged the petitioner'S 
contention that the beneficiary'S _ membership meets the requirement at 8 C.F.R. 
§ 214.2(0 )(3)(iii)(B)(2), but noted that "the record lacks documentary evidence that such association is limited 
to those individuals who possess outstanding achievements, as judged by recognized national or international 
experts." The director instructed the petitioner to provide: (I) evidence of the minimum requirements and 
criteria used to apply for membership in the association, along with any other conditions or requirements of 
membership; and (2) evidence of national or international experts who make 
determinations regarding membership in 
In response to the RFE, the petitioner submitted an English translation of the beneficiary's _ 
credentials indicating that the beneficiary holds "expert membership" with a specialization in modem 
paintings. The petitioner also provided general information about the organization from its website, including 
an explanation of the organization'S goals and ethics guidelines. In a letter dated January 26,2010, counsel 
stated: 
[T]he enclosed documents establish that the purpose of the_is precisely to serve as 
a board of recognized experts in the field. As such, membership is limited to individuals who 
possess outstanding achievements. 
Page 8 
Counsel indicated that the petitioner was awaiting a letter of explanation from the director of the ••••• 
that had yet to arrive. The supporting evidence did not include specific information describing the 
membership application process for_ Counsel's assertion that "membership in this organization is 
limited to recognized experts in their field" is insufficient to meet the plain language of the regulatory 
criterion at 8 C.F.R. § 214.2(0)(3)(iii)(B)(2). Without documentary evidence to support the claim, the 
assertions of counsel will not satisty the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 
I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Similarly,. 
_ has not established that she possesses the knowledge and authority to address the _ 
membership requirements, thus her unsupported statement that membership is limited to recognized experts 
with outstanding achievements is insufficient to meet the petitioner's burden under this regulatory criterion. 
We note that the petitioner did not contest the director's finding on motion or appeal, nor has it submitted the 
above-referenced letter from the director of the _ Therefore, we concur with the director's 
determination that the petitioner failed to submit evidence to satisty the criterion at 8 C.F.R. 
§ 214.2(0)(3)(iii)(B)(2). 
Published material in professional or major trade publications or major media about the 
alien, relating to the alien's work in the field for which classification is sought, which shall 
include the title, date, and author of such published material, and any necessary translation 
In general, in order for published material to meet the criterion at 8 C.F.R. § 2I4.2(0)(3)(iii)(B)(3), it must be 
primarily "about" the beneficiary and, as stated in the regulations, be printed in professional or major trade 
publications or other major media. To quality as major media, the publication should have significant national or 
international distribution. An alien would not earn acclaim at the national level from a local publication. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would quality as major media 
because of significant national distribution, unlike small local community papers.' 
The petitioner did not submit evidence relating to this evidentiary criterion at the time of filing the petition. In 
respons~for evidence, the petitioner submitted two articles. The first was an article from the 
websit~published on February 6, 2005. The article 
is about the preview opening of where the bellefici:ary 
gallery director. The beneficiary is briefly mentioned in the article, and appears in a photograph that accompanies 
the article. 
The second article submitted as from the June 2005 issue of The article 
mentions the recent opening of the. Art Gallery in Washington, DC. The short article identifies the 
beneficiary as the gallery owner, mentions his relocation from _ to __ and notes that the gallery 
features original contemporary works from all over the world, as well as master works. 
, Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Page 9 
The director detennined that the above-referenced evidence was insufficient to meet the plain language of the 
regulatory criterion at 8 C.F.R. § 214.2(0)(3)(iii)(B)(3). Specifically, the director observed that "[w]hile the 
beneficiary's name has appeared in print, the petitioner must also establish that such publications [that] write 
about the beneficiary are professional or major trade publications or major media." The director noted that the 
petitioner failed to provide evidence that qualifY as "major media." 
The petitioner has not contested the director's finding with respect to this criterion in its subsequent motion or 
appeal. Thus, it appears that the petitioner concedes that it has not provided and cannot provide evidence of 
published material in major media about the beneficiary. We concur with the director's detennination that, 
based on the evidence submitted, neither Planete Quebec nor The West End Guide qualifies as "major media." 
The petitioner has not submitted evidence that meets the criterion at 8 C.F.R. § 214.2(0)(3)(iii)(B)(3). 
Evidence of the alien's original scientific, scholarly, or business-related contributions of major 
significance in the field 
The petitioner has not specifically claimed that it was submitting evidence to satisfY the criterion at 8 C.F.R. 
§ 214.2(0)(3)(iii)(B)(5), but it does seek to rely on testimonial evidence that "addresses the beneficiary's 
standing in the industry and his worldwide reputation." 
The petitioner submitted several letters of support from the beneficiary's professional contacts. We cite 
representative examples here. 
At the time of filing, the petitioner submitted a letter dated November 3, 2009 from 
independent sales representative for American of __ states: 
I have known [the beneficiary] for over ten years in the professional art community and have 
had the opportunity to work with [the beneficiary] on numerous art purchases. [The 
beneficiary] has been instrumental in negotiating art purchases for me from the _ 
_ and [T] rely on his extensive professional experience and knowledge. I find [the 
beneficiary] to be professional, responsible, a devoted family man who takes his professional 
seriously. 
I have been requested to provide an assessment of the qualifications of [the beneficiary]. In 
addition to my own involvement in the international art world, my professional background is 
in the commercial furniture business, having worked with hotels around the world for the past 
twenty-five years .... 
Given my background and knowledge, I can attest to the fact that [the beneficiary] IS an 
individual of extraordinary ability well known for his accomplishments and expertise in the 
international art community. From my background in the commercial furniture industry, I 
also can attest that [the beneficiary is] recognized for his ability to combine the world of fine 
art with high end retail stores in the lifestyle market. This is proven by the fact that [the 
an 
Page 10 
beneficiary] has extraordinary expertise all over the world with such well established names 
as 
exclusive art galleries in 
and with 
[The beneficiary] 
has been responsible for establishing art galleries, organizing international exhibitions, and 
representing both buyers and sellers in the exclusive art world. I personally have experienced 
and witnessed the knowledge and experience of [the beneficiary], and benefitted from his 
standing in the industry. 
The petitioner also submitted the above-referenced letter from owner of 
states that the beneficiary "is an individual of extraordinary ability who is recognized in 
the international art community for this accomplishments and expertise," and "well known for his ability to 
combine the world of fine art with high end retail stores in lifestyle market." As discussed above, 
noted the significance of the beneficiary's membership In _ She further states 
[The beneficiary] has well over twenty years of high level professional expenence In 
the with exclusive art galleries in 
_ In his positions with the art galleries, [the beneficiary] has been responsible for 
establishing the galleries, organizing and developing relationships with artists of international 
renown, organizing and developing relationships with artists of international renown, 
organizing and overseeing international exhibitions, and directing business negociations [sic] 
with artists and clientele. As a result of this international experience, [the beneficiary] is 
recognized throughout the international art world for his extraordinary level of expertise and 
skill. 
The other letters submitted at the time of filing were experience letters from the beneficiary's prior employers 
and more appropriately considered under the criterion at 8 C.F.R. § 214.2(0 )(3)(iii)(B)(7). 
In the request for evidence, the director noted that the petitioner's evidence failed to establish that the 
beneficiary has made an original business-related contribution of major significance in this field. The 
petitioner's response to the RFE did not address this criterion, and the director determined that the evidence 
submitted was insufficient to satisfy the criterion at 8 C.F.R. § 214.2(0 )(3)(iii)(B)(5). 
In support of its subsequent motion, the petitioner submitted four additional testimonials which are claimed to 
meet the requirements at "8 C.F.R. § 214.2(0 )[2](iii)" in that they "specifically describe the alien's 
recognition and ability or achievement in factual terms and set forth the expertise of the affiant and the 
manner in which the affiant acquired such information." The petitioner submitted a letter 
_ President and CEO of the_Organization. 
owner of a major retail development' a trustee and board member at several 
museums. With respect to the beneficiary, he states: 
Page I I 
As an avid art collector, I have had the of meeting [the beneficiary] when visiting 
the _ Art Gallery in I found [the 
beneficiary] to be incredibly knowledgeable in many facets of Fine Art and an acute eye, 
which is rare to find in many art dealers. The quality of the art was exceptional and [the 
beneficiary] was extremely charming. 
On the basis of my professional background and experience, I can attest to the fact that [the 
beneficiary] is an individual of exemplary quality, possessing great knowledge and expertise 
in the international art community. 
The petitioner also provided a letter and president of a _ jewelry 
distribution company. _states that he has known the beneficiary personally and professionally for 
many years. With respect to the beneficiary's credentials, he states: 
Professionally he has extensive expertise in the retail management business. He covered 
major roles for some of the most important companies in the fashion industry, such as 
In addition, he has many years of experience in the art field, 
having dealt with well known galleries all over the world, as well as, in the United States. As 
an art collector myself, I have had the opportunity of testing his expertise and deep 
knowledge of this market. I have often resorted to his valuable advice in the process of 
acquiring several artworks. 
_ indicates that the beneficiary's "experience in the retail industry, combined with his talent and 
taste in the art field, gives him unique and valuable credentials." 
The petitioner submitted a third letter from 
LLP, a law firm specialized in international 
managing partner of _ & Associates, 
knowledge and experience in the art world due to the firm's relJreSerlta·tions 
states that he has "extensive 
major artists in their dealings, 
with art galleries, museums and art exhibitions, both in the United States and internationally." With respect to 
the beneficiary, states: 
I have reviewed the background of [the beneficiary] and can attest that his experience in the 
high end retail industry, as well as with private art galleries around the world, places him in 
an exclusive category of individuals in his field. I have appreciated and personally observed 
the talent of [the beneficiary] in connection with several businesses. The knowledge and skill 
possessed by [the beneficiary], and his connections in this international retail world as well as 
in the art community are at an elite level, rarely found in the United States. 
concludes that the beneficiary is "an individual of extraordinary talent and expertise" who "is 
well known for his accomplishments in the international retail and art community." 
Page 12 
Finally, the petitioner submitted a letter serves as a senior for the petitioning 
company. _ indicates that he and the beneficiary work together for 
-states: 
I remember our first buying trip in _ in the summer of 2008, we spent an entire day 
visiting every boutique as [the beneficiary] taught me about high-end menswear. The lesson I 
got that day is invaluable. It truly opened my eyes because I understood that even though I 
have been a buyer for 10 years, high-end menswear is very particular and more complex than 
any ready-to-wear that I bought in the past. Because menswear focuses on the quality of the 
fabrics and the craftsmanship of the garments, attention to detail is a must in this field. 
While I am analyzing selling reports and forecasting next year's budgets, [the beneficiary] is 
studying each piece of the collection, every detail of each garment. 
_ is not a classic menswear line. Every jacket, shirt or shoe is particular and exclusive, 
like a piece of art. It requires the expertise of someone like [the beneficiary] who can 
appreciate and translate this art into retail. Spending a lot of time in the boutique, I have 
observed him display this extensive knowledge and expertise daily with his clients and his 
team. 
_ concludes that the beneficiary "is an individual of extraordinary ability, well known for his 
accomplishments and expertise in the high-end fashion." 
Upon review, the preceding letters of recommendation demonstrate that the beneficiary's work has earned the 
respect and admiration of those with whom he has collaborated and consulted, but these letters do not 
establish that he has made original business-related contributions of major significance in his field. 
According to the regulation at 8 C.F.R. § 214.2(o)(3)(iii)(B)(7), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not superfluous 
and, thus, that it has some meaning. While the petitioner is admired for his skills in the fields of fine art and 
high-end retail management, and has on projects that benefited his clients and employers, there is no evidence 
demonstrating that he has made original contributions of major significance in his field. For example, the 
record does not indicate the extent of the petitioner's influence on others in his field nationally or 
internationally, nor does it show that the field has somehow changed as a result of his work. 
In this case, the letters of recommendation submitted by the petitioner are not sufficient to meet this criterion. 
The opinions of experts in the field, while not without weight, cannot form the cornerstone of a successful 
extraordinary ability claim. 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 (Commr. 1988). However, 
USCIS 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; USCIS may evaluate the content of those letters as to whether they support the alien's 
eligibility. See id at 795. Thus, the content of the experts' statements and how they became aware of the 
Page 13 
petitioner's reputation are important considerations. Even when written by independent experts, letters solicited 
by an alien in support of an immigration petition are of less weight than preexisting, independent evidence of 
original contributions of major significance that one would expect of a business executive who has sustained 
national or international acclaim. Without extensive documentation showing that the beneficiary's work has 
been unusually influential, highly acclaimed throughout his field, or has otherwise risen to the level of 
original contributions of major significance, we cannot conclude that he meets this criterion. 
Evidence that the alien has been employed in a critical or essential capacity for organizations 
and establishments that have a distinguished reputation 
The director determined that the petitioner submitted evidence to satisty the criterion at 8 C.F.R. 
§ 214.2(0)(3)(iii)(B)(7). 
The record includes evidence that the has served in a critical or essential role as a gallery director 
~ at its locations in sufficient evidence to establish that 
_ Gallery, which operates fine art galleries in major cities worldwide, has a distinguished reputation. We 
concur with the director's finding. As such, the petitioner has established that the beneficiary meets this single 
criterion. 
Evidence that alien has either commanded a high salary or will command a high salary or other 
remuneration for services, evidenced by contracts or other reliable evidence 
The petitioner has offered the beneficiary an annual salary of $11 0,000 for the proffered position of Director of 
Branding. In the request for evidence, the director advised the petitioner that it must submit evidence, such as a 
statistical comparison of salaries in the beneficiary's field of endeavor from the Economic Research Institute or 
like organization, to establish that the alien has commanded or will command a high salary. 
In response to the RFE, the petitioner submitted salary information for the occupation of "Curator, Art Gallery" 
from Payscale (www.payscale.com). The information provided indicates that the beneficiary's salary of 
$110,000 is in the 99th percentile, while the average salary in the field is $42,105. The petitioner also provided 
salary data for the occupation of "Art Gallery Manager" from Salary Expert. The data provided is for ten major 
U.S. cities and indicates that the average salary for the occupation ranges from $53,512 to $94,087. 
Finally, the petitioner submitted salary data for the occupation of "Art Directors" from the Department of Labor's 
2006 edition of the Occupational Outlook Handbook. The information provided indicates that, as of May 2006, 
median annual earnings for art directors were $68, I 00, while the middle 50 percent of salaried workers earned 
between $49,480 and $94,920. According to the Handbook, the highest 10 percent of art directors earned more 
than $135,090 as of May 2006. 
The director acknowledged receipt of all three sources of salary information, noting that the beneficiary's salary 
must be evaluated on a national level and should not be restricted to data for certain localities. With respect to the 
figures provided in the Occupational Outlook Handbook or OOH, the director stated: 
Page 14 
The 2006 edition of the OOH states that the highest ten percent of art directors earned more than 
$135,090.00 that particular year. The beneficiary's proposed annual salary of $110,000.00 is 
well below what the highest ten percent of individuals were earning or able to command in 2006. 
However, the 2006 data found in the OOH is quite dated. The 2010-11 version of the OOH is 
presently available and offers an updated analysis regarding wages in the beneficiary'S field. 
After performing a search for an "art director" in the most recent version of the OOH, current 
data shows that the highest ten percent of art directors in the field are commanding at least an 
annual salary of $1 54,840.00, well above the beneficiary's proposed annual salary. 
On motion, the counsel stated that the petitioner was submitting additional evidence relevant to the criterion at 8 
C.F.R. § 214.2(0)(3)(iii)(B)(8) which demonstrates that the salary offered to the beneficiary is "10% higher than 
the highest level of prevailing wages for comparable positions." The petitioner noted that the new information 
was published by the Economic Research Institute and the U.S. Department of Labor. 
The petitioner has submitted the following additional evidence: 
• Geographic Assessor data published by the Economic Research Institute (ERI) for the 
position of ·'Brand or Product Sales Manager" for 
According to this data, the "Level 4" wage for this occupation in the stated locality is 
$102,586. Although published by ERI, the document contains an "Actual Extract from the 
Occupational Employment Statistics Data (ET AlBLS) Data as of November 2005 -
November 2008 for use in the Period 7/1/09-6/30/1 0." 
• O'Net Online Summary Report for Sales Managers, which reports a national median 
annual wage of $97,260 for 2008. 
The director dismissed the petitioner's motion to reopen based on a finding that the wage data could not be 
considered "new" pursuant to 8 C.F.R. § 103.5(a)(4). Upon review, the AAO concurs with the director's finding 
that the evidence submitted prior to the adjudication of the petition was insufficient to establish that the 
beneficiary'S proffered annual salary of $110,000 is a "high salary" for the position of "Director of Branding." 
Furthermore, even if the director had accepted the evidence submitted on motion, we note that the above­
referenced documentation would be insufficient to meet the petitioner's evidentiary burden. As emphasized by 
the director, the petitioner is required to submit national wage data. Therefore, evidence relating to the average 
salaries for the position need not be considered. With respect to the national data published 
by the U.S. Department of Labor's O'Net Occupational Information Network, the petitioner once again provided 
an outdated figure. Moreover, the beneficiary'S salary of $110,000 is not significantly higher than the listed 
median figure of $97,260, and has not been shown to be significantly high compared to the highest percentiles of 
wages reported in the occupation. 
Page 15 
Finally, we note that the petitioner has provided wage data for no less than four different occupational titles in an 
attempt to establish that the beneficiary earns a high salary. Of these, the occupation of "Brand or Product Sales 
Manager" appears to be the appropriate classification for the beneficiary's proffered position. According to the 
Bureau of Labor Statistics, Occupational Employment Statistics, the national median annual wage for the 
occupation of "Sales Manager" as of May 2009 was $96,790, with the 75"' percentile wage reported is $141,430. 
The mean annual wage for this same period was $111,5702 Based on national data for the relevant occupation 
and time period, we can conclude that the beneficiary's proffered salary is approximately average among 
similarly employed individuals. 
In light of the above, the petitioner has not submitted the initial required evidence necessary to meet the plain 
language requirements of this criterion. 
Summary 
In this case, we concur with the director's determination that the petitioner has failed to demonstrate the 
beneficiary's receipt of a major, internationally recognized award, or that he meets at least three of the eight 
categories of evidence that must be satisfied to establish the minimum eligibility requirements necessary to 
qualify as an alien of extraordinary ability. 8 C.F.R. § 214.2(0 )(3)(iii). 
Comparable Evidence 
The regulation at 8 C.F.R. § 214.2(0)(3)(iii) provides that an alien of extraordinary ability in the fields of science, 
education, business or athletics must demonstrate sustained national or international acclaim and recognition for 
achievements in the field of expertise by providing evidence of receipt of a major internationally recognized award 
pursuant to 8 C.F.R. § 214.2(0)(3)(iii)(A), or by submitting evidence to satisfy at least three of the eight forms of 
documentation set forth at 8 C.F.R. § 214.2(0)(3)(iii)(B). We further acknowledge that the regulation at 8 C.F.R. 
§ 214.2(0)(3)(iii)(C) provides "[i]f the criteria in paragraph (0)(3)(iii) of the section do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's 
eligibility." It is clear from the use of the word "must" in 8 C.F.R. § 214.2(0)(3)(iii) that the rule, not the exception, 
is that the petitioner is required to submit evidence to meet at least three of the regulatory criteria. Thus, it is the 
petitioner's burden to explain why the regulatory criteria are not readily applicable to the beneficiary's occupation 
and how the evidence submitted is "comparable" to the objective evidence required at 8 C.F.R. 
§ 214.2(0)(3)(iii)(B)(1) through (8). 
The petitioner has not specifically claimed eligibility under the "comparable evidence" regulation, but we note 
that the director appeared to consider the petitioner's testimonial evidence under this criterion, according to 
statements made in the request for evidence. On motion and on appeal, counsel emphasizes that the testimonial 
evidence in the record meets the requirements of the regulation at 8 C.F.R. § 214.2(0 )(2)(iii)(B), in that it the 
petitioner has provided "affidavits written by present or foreign employers or recognized experts certifying to 
2 See "Occupational Employment and Wages, May 2009, 11-2022 Sales Managers" (accessed on April 11, 
2011, copy incorporated into the record of proceeding); http://www.bls.gov/oes/current/oesI12022.htm. 
Page 16 
the recognition and extraordinary ability" which "specifically describe the alien's recognition and ability or 
achievement in factual terms and set forth the expertise of the affiant and the manner in which the affiant 
acquired such information." Counsel cites to no authority for consideration of such evidence under 8 C.F.R. 
§ 214.2(0)(3)(iii)(C) as comparable evidence of the beneficiary's eligibility. The testimonial letters have been 
considered above with respect to the beneficiary's business-related contributions to his field, and with respect to 
the beneficiary's employment in a critical or essential capacity. 
While the petitioner appears to claim eligibility under the "comparable evidence" regulation, it has also claimed 
eligibility under 8 C.F.R. §§ 214.2(0 )(3)(iii)(B)(2), (3), (7) and (8). The regulatory language precludes the 
consideration of comparable evidence in this case, as there is no indication that eligibility for 0-1 classification 
in the beneficiary's occupation as a brand director cannot be established by submitting documentation relevant 
to at least three of the eight criteria at 8 C.F.R. § 214.2(0)(3)(iii)(B). In fact, as indicated in this decision, the 
petitioner specifically indicates that it is submitting evidence relating to four of the eight criteria at 8 C.F.R. § 
214.2( 0)(3)(iii)(B). An inability to meet a criterion, however, is not necessarily evidence that the criterion does not 
apply to the beneficiary's occupation. 
Where an alien is simply unable to meet or submit documentary evidence meeting three of these criteria, the 
plain language of the regulation at 8 C.F.R. § 214.2(0)(3)(iii)(C) does not allow for the submission of 
comparable evidence. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final merits determination that considers all 
of the evidence in the context of whether or not the petitioner has demonstrated: (1) a "level of expertise 
indicating that the individual is one of that small percentage who have risen to the very top ofthe[ir] field of 
endeavor," 8 C.F.R. § 214.2(0 )(3)(ii) and (2) "that the alien has sustained national or international acclaim and 
that his or her achievements have been recognized in the field of expertise." See section 101(a)(l5)(O)(i) of 
the Act, 8 U.S.C. § 1101(a)(l5)(O)(i) and 8 C.F.R. § 8 C.F.R. § 214.2(o)(3)(iii); see also Kazarian, 2010 WL 
725317 at *3. 
In evaluating our final merits determination, we must look at the totality of the evidence to determine the 
beneficiary's eligibility pursuant to section 101(a)(l5)(0)(i) of the Act. The weight given to evidence 
submitted to fulfill the criteria at 8 C.F.R. § 214.2(0)(3)(iii) depends on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained national or international acclaim at the very top of the 
alien's field of endeavor. A lower evidentiary standard would not be consistent with the regulatory definition 
of "extraordinary ability." 8 C.F.R. § 214.2(0)(3)(ii). 
In this case, the deficiencies in the documentation submitted by the petitioner have already been addressed in 
the preceding discussion of the regulatory criteria at 8 C.F.R. § 214.2(0)(3)(iii)(B). The director determined, 
and we concur, that the petitioner submitted evidence to satisfY only one of the four evidentiary criteria it 
claimed to meet under 8 C.F.R. § 214.2(o)(3)(iii)(B). With respect to the remaining criteria, the petitioner 
has contested only the criterion at 8 C.F.R. § 214.2(0)(3)(iii)(B)(8), while requesting that its testimonial 
evidence be given greater weight. 
The opinions of experts in the field are not without weight and have been considered above. Letters may 
generally be divided into two types of testimonial evidence: expert opinion evidence and written testimonial 
evidence. Opinion testimony is based on one's well-qualified belief or idea, rather than direct knowledge of 
the facts at issue. Blacks Law Dictionary ISIS (8th Ed. 2007) (defining "opinion testimony"). Written 
testimonial evidence, on the other hand, is testimony about whether something occurred or did not occur, 
based on the witness' direct personal knowledge. Id. (defining "written testimony"); see also id at 1514 
(defining "affirmative testimony"). 
Depending on the specificity, detail, or credibility of a letter, USCIS may give the document more or less 
persuasive weight in a proceeding. The Board of Immigration Appeals (the Board) has held that testimony 
should not be disregarded simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 
1332 (BIA 2000) (citing cases). The Board also held, however: "We not only encourage, but require the 
introduction of corroborative testimonial and documentary evidence, where available."!d. If testimonial 
evidence lacks specificity, detail, or credibility, there is a there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 2 I I&N Dec. 1136 (BIA 1998). 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, USCIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. Again, the submission of letters from experts 
supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those 
letters as to whether they support the alien's eligibility. See id at 795-796; see also Matter of V-K-, 24 I&N 
Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). 
Thus, the content of the experts' statements and how they became aware of the beneficiary's reputation are 
important considerations. As noted above, even when written by independent experts, letters solicited by an 
alien in support of an immigration petition are of less weight than preexisting, independent evidence that one 
would expect of a business executive who is considered to be at the very top of his profession. 
The beneficiary has undoubtedly been successful in both the high-end retail field and as an art gallery 
director. However, the petitioner has failed to document any achievements or recognition beyond praise from 
his employers and business contacts, two mentions in publications of unknown circulation, and his 
membership in _the significance of which has not been established. We cannot ignore that the 
statute requires the petitioner to submit "extensive documentation" of the beneficiary's sustained national or 
international acclaim. The petitioner seeks to rely primarily on vague testimonial letters rather than on any 
primary evidence of the beneficiary's achievements as a business person and the independent recognition he 
has received for such achievements. 
The petitioner seeks to qualify the beneficiary for a highly restrictive visa classification, intended for 
individuals already at the top of their respective fields. The conclusion we reach by considering the evidence to 
meet each criterion separately is consistent with a review of the evidence in the aggregate. Even in the aggregate, 
the evidence does not distinguish the beneficiary as one of the small percentage who has risen to the very top of 
the field of endeavor. 8 C.F.R. § 214.2(0 )(3)(ii). 
· ' 
III. Conclusion 
Review of the record does not establish that the beneficiary has distinguished himself to such an extent that he 
may be said to have achieved sustained national or international acclaim or to be within the small percentage 
at the very top of his field. The evidence is not persuasive that the beneficiary's achievements set him 
significantly above almost all others in his field at a national or international level. Therefore, the petitioner 
has not established eligibility pursuant to section IOI(a)(l5)(O)(i) of the Act and the petition may not be 
approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.