dismissed O-1A Case: Business

(b)(6)
DATE: APR 0 2 2013 
r 
Office: CALIFORNIA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and lrnmigration Services 
Administrative Appeals . Office (AAO) 
20 Massachusetts Ave., N.W. , MS 2090 
Washim!lon. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10l{a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. § ll~l(a){15)(0)(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 AAO inappropriately applied the law in. reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or · a motion to reopen in 
accordance with . the instructions on Form l-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not tile any niotion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
")>t . ' . 
. ·i:?···.· . ...,. .. J:-. :·tA. 
' . . . .. · ....... . 
{1. , . . · ~ . . 
. ~'-Ro~.: ~~~~ ber~ · 
Acting Chief , Administrative Appeals Office 
www .uscis.gov 
(b)(6)
Page 2 
DISCUSSION: · The Director, California 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 ~ismiss the appeal. 
The .petitioner filed this petition seeking to classify the beneficiary as an 0-1 nonimmigrant pursuant 
to section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), · 8 U.S.C. 
§ 1101(a)(15)(0)(i), as an alien of extrabrdinary ability in the field of business. The petitioner states 
that it operates a non-profit organization in the United States. It seeks to employ the beneficiary in 
the position of communications/public relations director for a period of three years. 
The director denied the petition concluding that the petitioner failed to establish that the beneficiary 
has received "sustained national or international acclaim" or to demonstrate that he is one of the 
small percentage who has risen to the very 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(o)(3)(iii)(A) or at least three of the eight criteria set forth at 8 C.F.R. § 214.2(o)(3)(iii)(B). 
The director dismissed the petitioner's subsequent motion to reconsider on October 26, 2010, 
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 beneficiary meets at least 
three of the evidentiary criteria at 8 C.F.R. § 214.2( o )(3)(iii)(B). Counsel asserts that the director 
undervalued the documentary evidence in the record, including testimonial evidence. Counsel asserts 
that the evidence satisfies the requirements set forth at 8 C.F.R. § 214.2(o)(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 101(a)(15)(0)(i) of the Act, 8 U.S.C. § 1101(a)(15)(0)(i), provides for the classification of a 
qualified alien who: 
has extraordinary ability in the sciences, arts, education, business, or athletics which 
has been demonstrated by sustained national or international acclaim ... and wh6se 
achievements have been recognized in the field through extensive documentation, and 
seeks to enter the United States to continue work in the area of extraordinary ability . 
The regulation at 8 C.F.R. § 214.2(o)(3)(ii) defines, in pertinent part: 
Extraordinary ability in the field of science, education, business, or athletics mean~ a 
level of expertise indicating that the person is one of the small percentage who have 
arisen to the very top of the .field of endeavor. , 
(b)(6)
Page 3 
The extraordinary abiHty 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 Cong. 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 extreril~l y 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-1B 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, Lawrence Weinig, Acting Asst. 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( o )(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) 
(3) 
Documentation of the alien's membership in associations in the field for 
which c:;lassification is sought, which require outstanding achievements of 
their members, as judged by recognized orinternational experts in their 
disciplines or fields; · 
Published material in professional or major trade publications or major 
media about the alien, ~elating 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; 
(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 t~ that for which 
classification is sought; 
(b)(6)
Page4 
(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 ofscholarly 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 (a)(3)(iii) ofthis 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 reguiation at 8 C.F.R. § 214.2(o)(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 (USCIS) 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 h~s submitted evidence relating to three of the criteria as required by the 
regulation does not necessarily establish thanhe 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. 
USCIS, 596 F3d 1115 (9th Cir. 2010). Similar to the regulations governing ·this noniillJ11igrant 
classification, the 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). Although the court upheld the AAO's 
· decision to deny the petition, the court took issue with the AAO's evaluation of evidence submitted to 
meet a given evidentiary criterion. The court conCluded that while US.CIS may have raised legitimate 
(b)(6)
Page 5 
concerns about the significance of the evipence submitted to meet two of the criteria, those concerns 
should have been raised in a subsequent"final merits determination." ld at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidenee, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." /d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(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(o)(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 
. th 
(E.D. Cal. 2001), aff'd, 345 F.3d 683 (9 Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d 
Cir. 2004)(noting that the AAO conducts appell.ate review on a de novo basis). 
In this matter, the AAO has reviewed the evidenCe under the plain language requirements of each criterion 
claimed. As the petitioner has failed to submit evidence that satisfies three of the evidentiary criteria at 
8 C.P.R.§ 214.2(o)(3)(iv)(B), the proper conclusion is that the petitioner has failed to satisfy the regulatory 
requirement of three types of evidence. 
II. · Discussion 
The petitioner filed the Form I-:129, Petition for a Nonimmigrant Worker, on April 14, 2010. The 
petitioner describes its non-profit activities and the beneficiary's proposed position as 
communications/public relations director as follows: 
l.. [The petitioner] promotes social and economic transformation through direct 
humanitarian action and sustainable development ... We have delivered in person and 
by hand over two million U.S. dollars of rice, food, clothes, computers, sewing 
machines and helped to build schools, orphanages, monasteries and homes for the 
elderly in India, Cambodia arid Burma. 
* * * 
To aid the growth, reach, and impact or our organization, we would like to employ [the 
beneficiary] as Director of Communications and Public Relations. [The beneficiary] · 
will be responsible for 'creating, developing, managing, planning, and coordinating 
activities related (sic) our central mission, our promotional campaigns and materials, the· 
publication of articles and books, and our internet and website presence. In the position 
of Director ofBrand for 1 [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 
(b)(6)
Page 6 
resources; and to provide overall br'and management during the start up and initial. 
growth phases of this CJ.Spect of our business. He will also be instrumental in identifying 
business partners who wili 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 [tht: petitioning company]. 
The petitioner stated that the beneficiary "has worked in a critical and essential capacity for world 
renowned (sic) such as the world's leading advertising 
agencies .... We believe in his writing skills,. his creative skills, and his persuasive skills." The petition 
states the beneficiary's job duties under the approved petition will be to plan and direct public relations 
programs designed to create and maintain a favorable image for the petitioner. The beneficiary will also 
be expected to direct and coordinate fundraising and create/write public relations content. 
The record consists of: the Form 1-129 petition and supporting evidence; the director's requests for 
evidence dated April 22, 2010 and June 1, 2010, respectively, and the petitioner's responses; the 
director's decision dated August 18, 2010; the petitioner's rQOtion to reopen and supporting evidence; 
the director's decision dismissing the motion dated October 26, 2010; and the petitioner's appeal. The 
AAO has reviewed the evidence of re~rd in its entirety in reaching its decision. 
A~ The Beneficiary's Eligibility under the Regulatory 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(o)(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. /d. 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(o)(3)(iii)(B). The petitioner has submitted evidence relating to the criteria 
at 8 C.F.R. § 214.2(o)(3)(iii)(B)(I), (3), (4), (5), (7) and'(B). The petitioner also requests that USCIS 
consider as comparable evidence documentary evidence ,that the beneficiary was elected Chair of the 
for 2008, "because of his 
advertising, marketing and communications expertise." The AAO will consider this evidence under 
8 
C.F.R. § 214.2(o)(3)(iii)(B)(5). The petitioner did not submit evidence relating to the evidentiary 
criteria at 8 C.F.R. § 214.2( o )(3)(iii)(B)(2) and ( 6) at the time of filing the petition, and raises no 
objection to the director's determination that these criteria have not been met. The remaining six 
criteria will be discussed below. 
Documentation of the alien's receipt of nationally or internationally recognized prizes 
or awards for excellence in the field of endeavor. · 
To meet criterion number one, the petitioner must submit documentation of the alien's receipt of 
nationally or internationally recognized prizes or awards for excellence in the field of endeavor. 8 
C.F.R. § 214.2(o)(3)(iii)(B)(I) . 
(b)(6)
Page 7 
At the time of filing, the petitioner submitted testimonials, letters from various individuals who are 
the beneficiary's former colleagues at in New Delhi, India. The 
witnesses assert the beneficiary meets this criterion based on his receipt of the f~llowing: 
• 
• 
• 
• 
• 
• 
• 
• 
The letters also indicate that the beneficiary was a finalist for the in 
public service advertising category (1994) and a runner up for an additional l award (1997). 1 
The :letters further indicate the beneficiary has won numerous other national and international 
advertising awards . . 
However, the AAO notes the petitioner has not submitted documentary evidence to establish that the 
beneficiary has won awards; or other independent corroboration of the awards. While the AAO does 
not question the credibility of the testimonial letters that list awards won by the beneficiary, the 
petitioner has· not explained why the AAO should accept the letters' assertions of the fact of the awards 
in lieu of the awards themselves, as required by the plain language of the criterion. Nor has the 
petitioner asserted that . documentary evidence of such awards is not available. The third-party 
statements of witnesses regarding such awards are insufficient to meet this criterion. Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden 
of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm 'r 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r 1972)). In addition, the 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 (BIA 1988); Matter ofLaureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 
17 I&N Dec. 503, 506 (BIA 1980). 
Further, the beneficiary's claimed receipt of workplace awards fails to qualify as nationally or 
internationally recognized awards. The plain language of the regulatory criterion . at . . 
8 C.F.R. § 214.2(o)(3)(iii)(B)(1) specifically requires that the petitioner's awards be nationally or 
internationally recognized iri the field of endeavor and it is the petitioner's burden to establish every 
element of this criterion. The petitioner has not provided any documentation explaining the 
significance 6f these awards, thus there is no evidence demonstrating that the receipt of such an 
awards is tantamouqt to a nationally or internationally recognized pri~e or award for excellence in 
the beneficiary's field of endeavor. . · 
1 The petitioner has submitted a copy of a certificate for Finalist, 
~94 ), but this certificate does not contain any information that would serve to link it to the 
applicant. Therefore, this docum~nt has no probative value. · 
(b)(6)
For the reasons stated above, the petitioner has not submitted evidence that meets the criterion at 
8 C.F.R. § 214.2(o)(3)(iii)(B)(J)._ 
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 materiat" to meet the criterion at 8 C.F.R. § 214.2(o)(3)(iii)(B)(J), it 
must be primarily "about" the ~eneficiary relating to his work ~nd, as stated in the regulations, ·be 
printed in professional or major trade publications or other major media. To qualify 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 qualify as major media because of significant national 
distribution, unlike small local community papers.2 . 
The petitioner submitted two articles relating to this evidentiary criterion at the time of filing the 
petition. The first was an article from the January 16-31 1998 issue of _ The 
article is about the Indian government's use of professional advertising, proyided 
by the beneficiary's previous employer . and another company, regarding a tax 
compliance program called _ _ . The beneficiary is 
identified as "creative supervisor" and briefly quoted in the article describing the public's 
reaction to the government's advertising campaign. Thus, a review of the article fails to reflect the 
published material is about the beneficiary relating to his work. In fact, · the article is about the 
government's - advertising campaign and is not about the beneficiary's work. 
The second article submitted is from the January 12, 1998 issue of The article 
also discusses the Indian government's advertising campaign. The article mentions that 
the advertising campaign was partly by The beneficiary is not mentioned in the article. 
The director determined that the ·above-referenced evidence was insufficient to meet the plain language 
of the regulatory criterion at 8 C.F.R .. § 214.2(o)(3)(iii)(B)(J). Specifically, the director observed that 
only one of the submitted publications made a brief mention of the beneficiary. 
The AAO concurs with the director's determination that a brief mention of the beneficiary in one 
publication does not satisfy this criterion. The AAO also notes that the petitioner failed to submit any 
documentary . evidence demonstrating that is a professional or major· trade 
publication or other major media. 
The petitioner has not submitted evidence that· meets the criterion at 8 C.F.R. 
§ 214.2( o )(3)(iii)(B)(J). 
2 Even with nationally-circulated newspapers, consideration must be given to the placement cif 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. · 
(b)(6)
Page9 
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 
The director concluded that the beneficiary's review of the work of subordinates and colleagues in his 
employment in the field does not qualify as evidence of the beneficiary's participation on a panel, or 
individually as a judge of the work of others in the field . . Neither counsel nor the petitioner challenges 
that conclusion on appeal. Accordingly, the petitioner has abandoned that claim. See Sepulveda v. U.S. 
Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005); Hristov v. Roark, No. 09-CV~2731, 2011 WL 
4711885 at *9 (E.D. N.Y. Sept. 30, 2011). 
Nevertheless, upon review, the AAO concurs with the director's conclusion that tiJe petitioner did not 
submit qualifying evidence that meets the plain language requirements of this criterion, set forth at 
. 8 C.F.R. § 214.2(o)(3)(iii)(B)(4). 
Evidence of the alien's original' scientific, scholarly, or business-related contributions of 
major significance in the field . 
The petitiOner submits testimonial evidence to satisfy the criterion at 8 C.F.R. 
§ 214.2(o)(3)(iii)(B)(5). At the time of filing, the petitioner submitted nine experience letters from 
the beneficiary's prior work colleagues. These letters are more appropriately considered under the 
criterion at 8 C.F.R. § 214.2(o)(3)(iii)(B)(7). 
"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 director determined 
that the evidence · submitted was insufficient to satisfy the criterion at 8 C.F.R. 
§ 214.2( o )(3)(iii)(B)(5) . 
. Upon rev~ew, the preceding experience letters demonstrate that the beneficiary's work has earned the 
respect and admiration of those with whom he has worked, 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)(5), .an alien's contributions must be not 
only original but of major significance. We must presume thatthe 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 communications and public relations, and has worked on projects that benefitted 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 experience letters submitted by the petitioner are not sufficient to meet this criterion. 
The petitioner has not provided preexisting, independent evidence of original contributions of major 
significance that one would expect of a communications/public relations professional who has 
sustained national or international acclaim. Without extensive documentation showing that the 
(b)(6)
Page 10 
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. 
In addition. at the time of filing the petitioner submitted evidence that the benefiCiary was elected 
for 2008, 
"because of his advertising, marketing and communications expe 1se." However, the petitioner has 
not provided evidence either that being a member of the or being Chair of the 
of the council's International Forum is restricted to those who can demonstrate 
outstanding achievements in the beneficiary's field of endeavor. Therefore, the AAO finds that this 
additional evidence fails to establish either 
the beneficiary's original business-related contributions of 
major significance in the field or that the beneficiary has the requisite sustained acclaim and has· 
established that he has reached the very top of his field.3 . · 
The petitioner has .not submitted evidence that meets · the criterion at 8 C.F.R. 
§ 214.2(o)(3)(iii)(B)(5). 
Evidence that the alien has been employed in a critical or essential capacity for 
organizations and establishments that have a distinguished reputation 
In order to establish. that the beneficiary meets the criterion, the petitioner must submit evidence that 
the alien has performed in a lead, starring, or critical role for organizations and establishments that 
have a distinguished reputation. 8 C.F.R. § 214.2(o)(3)(iii)(B)(7). The petitioner submitted 
experience l~tters from nine individuals that worked with the beneficiary. The director determined that 
the petitioner submitted evidence to satisfy the criterion. The AAO disagrees with the director's 
determination. · 
Several of the experience letters refer to the fact that the beneficiary has received nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor. The regulations, 
however, include a separate criterion for awards at 8 C.F.R. § 214.2(o)(3)(iii)(B)(J). If the regulations 
are to be interpreted with any logic, it must be presumed that the regulation views awards as a separate 
evidentiary requirement from being employed in a critical or essential capacity. (We have considered 
the awards under 8 C.F.R. § 214.2(o)(3)(iii)(B)(J)). 
who worked in the same business unit with the beneficiary at [n Delhi for from 1994 to 
1997, states the beneficiary was in charge of "several highly visible brands critical to the company's 
success .. : and created some particularly exceptional work ... " 
(no relation to the beneficiary) does not state how he first became aware of the 
. beneficiary's work. He states the beneficiary was in charge of "high profile JUUltinational clients" of 
and was "critical to our success." He .describes the beneficiary's wor~ with as "consistently 
. al " exception .... 
3 This evidence has also been considered below with respect to the "comparable evidence" . 
requirements of the regulation at 8 C.F.R. § 214.2(o) (3)(iii)(C). 
(b)(6)
- ' 
Page 11 
does not state how he first became aware of the beneficiary's work. He states the 
beneficiary established a satellite office for in Chandigarh, India, and that "[the beneficiary's] 
leadership at the creative department of this newly launched office helped make Chandigarh the 
largest advertising agency in that city during its initial year of operation." He also states that the 
beneficiary was instrwnental in helping "win new business pitches, each worth several 
million dollars." 
states he has Ialown the beneficiary since 1989 when the beneficiary first began working for 
He states he was the beneficiary's supervisor from 1997 to 1998, when the beneficiary was a 
creative supervisor. He states "[the beneficiary] fs one of the best creative professionals in the industry, 
and was often selected to work on critical or sensitive accounts." He states that from 1995 to 1997 the 
beneficiary was responsible for submitting the company's best work to the national/international award 
shows, and that the company "won Agency of the Year every year." -In addition he states the -
beneficiary "led a team from and to create advertising for [the Indian government's 
program] ' .. " which he describes as "the most successful 
advertising campaign in Indian advertising history." 
states he worked with the beneficiary at from 1993 to 1998. He states the 
beneficiary's work for the company's client, "was invaluable for the brand to continue to 
dominate the market [in India] and retain its leadership position in the beverages category." 
states he worked with the beneficiary at in New Delhi, India in 1998. 
The beneficiary's resume indicates the beneficiary worked for the company from February 1998 to 
April 1999. He states the beneficiary was responsible for the largest clientof the New Delhi branch, 
L------- -He states the beneficiary created som~ of · best work. 
states he has known the beneficiary since 1989 at He states that the beneficiary 
worked at first as a copy trainee, then as junior copywriter, copywriter, senior copywriter and 
creative supervisor, respectively. He states "in each of his various capacities as a copywriter, [the 
beneficiary] not only has served in critical and essential roles, but has stood out as exceptional." He 
describes advertising campaign, and the beneficiary'swork on it, as "one of best 
and most historic .... " 
chairman and CEO of in San Francisco, states the beneficiary worked 
for the company from April 2000 to March 2010.4 He describes the beneficiary's work as an 
editor/creative director as critical and essential in two important ways: the beneficiary was in charge of 
creative and original content and the beneficiary "judged, reviewed, and evaluated all of our creative 
output." 
summarizes awards that the beneficiary ciaims to have received while employed by 
Upon review, the letters submitted speak highly of the petitioner's work for the institutions that have 
employed him .. However, although the letters characterize the beneficiary's work as "crucial" and 
4 The record shows the beneficiary previously held 0-1 status authorizing employment with 
from April 13, 2009 to April 14, 2010. 
(b)(6)
Page 12 . 
"essential", there is no evidence that his role for these organizations was essential or critical for 
those companies as a whole. The beneficiary was assigned copywriting and advertising projects as 
part of his normal responsibilities, and achieved results that met or exceeded his employer's 
expectations. While an employer's staff .may consider the beneficiary's achiev~ments to be of great 
benefit to the employer, the focus of this criterion, based on the plain language of the regulation, is 
the beneficiary's role itself. Although the beneficiary may have served on a team that resulted in 
significant profit for the employer, the petitioner's evidence does not demonstrate how the 
beneficiary's role differentiated him from the other copywriters or creative supervisors at those 
companies, or from other senior staff such as partners, divisional directors and department heads. 
The documentation submitted by the petitioner does not establish that the beneficiary was 
responsible for the previous employers' success or standing to a degree consistent with the. meaning 
of "essential or critical capacity." 
Therefore, the evidence that the petitioner submits is insufficient to establish that the beneficiary meets 
the criterion at 8 C.F.R. § 214.2( o )(3)(iii)(B)(7). 
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 director concluded that the petitioner has not submitted qualifying evidence thanhe beneficiary has 
either commanded a high salary or will command a high salary for services in the field of endeavor. 
Neither counsel nor the petitioner challenges that conclusion on appeal. Aceordingly, the petitioner has 
abandoned that claim. See Sepulveda v. US Att'y Gen., 401 F.3d 1226, ·1228 n. 2 (11th Cir.2005); 
Hristov v. Roark, No. 09-CV-2731, 2011 WL 471~885 at *9 (E.D. N.Y. Sept. 30, 2011). 
Nevertheless, upon review, the AAO concurs with the director's conclusion that the petitioner did not · 
submit qualifying evidence that meets the. plain language requirements of this criterion, set forth at 
8 C.F.R. § 214.2(o)(3)(iii)(B)(8). 
B. Comparable Evidence 
The regulation at 8 c:F.R. § 214.2(o)(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(o)(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(o)(3)(iii)(B). We 
further acknowledge that the regulation at 8 C.F.R. § 214.2(o)(3)(iii)(C) provides "[i]f the criteria in 
paragraph ( o )(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(o)(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( o )(3)(iii)(B)(J) through (8). 
(b)(6)
Page 13 
At the time of filing counsel emphasizes that the evidence in the record meets the requirements of the 
· regulation at 8 C.F.R. § 214.2( o )(3)(iii)(C), in that it the petitioner has provided evidence thilt the 
beneficiary was elected Chair of the 
Forum for 2008, "because ofhis advertising, marketing and communications expertise." Counsel cites 
to no authorityfor consideration of such evidence under 8 C.F.R. § 214.2(o)(3)(iii)(C) as comparable 
evidence ofthe beneficiary's eligibility. The beneficiary's role_ ~s Chair of the Steering Committee . of 
the Forum_ for 2008 has been considered above with respect to 
the beneficiary's originalbusiness-related contributions ofmajor significance in the field. 
While the petitioner appears to claim eligibility under the "comparable evidence" regulation, it has 
_also claimed eligibility under the criteria at 8 C.F.R. §§ 214.2(o)(3)(iii)(B)(l), (3), (4), (5), (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 
communications/public relations director cannot be established by submitting documentation relevant 
to at least three of the eight criteria at 8 C.F.R. § 214.2(o)(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(o)(3)(iii)(B). An inability to meet a criterion, however, is not necessarily 
evidence that the cr~terion 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(o)(3)(jii)(C) does not allow for the 
submission of comparable evidence. · 
C. 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 necessari ·to qualify as an alien of extraordinary ability. 8 C.F.R. § 214.2(o)(3)(iii). 
III. Prior Approval and Conclusion 
The record shows that the beneficiary heid 0-1 status authorizing employment with a previous 
. employer from April 13, 2009 to April 14, 2010. In the present matter, the director reviewed · the 
record of proceeding and concluded that the petitioner failed to establish the minimum eligibility 
requirements necessary to qualify the beneficiary as an alien of extraordinary ability under 8 C.F.R. 
§ 214.2(o)(3)(iii). In both the request for evidence and the notice of decision, the director clearly 
articulated the objective statutory and regulatory requirements and applied them to the case at hand. 
The AAO is not required to approve· applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Despite any number of 
previously· approved petitions, USCIS does not have any authority to confer an immigration benefit 
when the petitioner fails to meet its burden of proof in a subsequent petition. See section 291 of the 
Act. 
(b)(6)
• r,. 
Page 14 
The record does not establish that the beneficiary is an alien of extraordinary ability in business 
whose achievements have been recognized in the field through extensive documentation, as required 
by section 101(a)(15)(0)(i) of the Act. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
acCordance with the Kazarian opinion, the next step would be a consideration of the evidence in the 
context of a final merits determination.· However, as discussed above, the petitioner failed to establish 
eligibility under at least three of the evidentiary criteria specified in. the regulation at 8 C.F.R. 
· § 214.2(o)(3)(iii)(B). The AAO will not conduct a final merits determination. 
~For the above-Stated reasons, the petitioner has not established the beneficiary's eligibility pursuant 
to the regulatory criteria at 8 C.F.R. § 214.2(o)(3)(iii)(B), and the petition may not be approved.5 
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. 
5The AAO maintainsde novo review. Soltane v. DOJ, 381 F.3d 143, 145 (3d Ci~: 2004). In any 
future proceeding on ·motion or as a result of litigation, the AAO maintains the jurisdiction to 
conduct a final merits determination as the official who made· the last decision in this matter. 8 
I 
C.F.R. § 103.5(a)(1)(ii). See also Section 103(a)(1) of the Act; Section 204(b) of the Act; DHS 
Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. · § 2.1 (2003);, 8 C.F.R. § 
103.1(f)(3)(iii)(2003); Matter of Aurelio, 19 I & N Dec. 458, 460 (BIA 1987)(holding that legacy 
INS, now USCIS, is 
the sole authority with the jurisdiction to decide visa petitions).