dismissed O-1B Case: Art

U.S. Department of Homeland Security 
20 Mass. Ave.. NW, Rm. 3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: EAC 05 047 5 175 1 Office: VERMONT SERVICE CENTER Date: JAN 1 7 m]6 
IN RE: 
PETITION: Petition for Nonimmigrant Worker Pursuant to Section 101 (a)(15)(O)(i) of the Immigration 
and Nationality Act, 8 U.S.C. 9 1 101 (a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
* This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
' the office that originally decided your case. Any further inquiry must be made to that office. 
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I Robert P. Wiemann, Director 
\ j Administrative Appeals Office 
EAC 05 047 51751 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, Vermont Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is an art gallery. The beneficiary is an artist. The petitioner seeks 0-1 classification of the 
beneficiary as an alien with extraordinary ability in the arts under section IOl(a)(lS)(O)(i) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(0)(i), in order to employ her as a fine artistlart consultant for 
three years at an annual salary of $40,000. 
The director denied the petition, finding that the petitioner had failed to establish that the beneficiary satisfies the 
standards for classification as an alien with extraordinary ability in the arts. 
On appeal, counsel submits a brief and additional documentation. 
Section 10l(a)(15)(0)(i) of the Act provides classification to 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, whose achievements have been recognized in the field through extensive documentation, and who seeks 
to enter the United States to continue work in the area of extraordinary ability. 
The issue to be addressed in this proceeding is whether the petitioner has established that the beneficiary qualifies 
as an alien with extraordinary ability in the arts as defined by the statute and the regulations. 
The regulation at 8 C.F.R. 5 2 14.2(0)(3)(ii) defines, in pertinent part: 
Arts includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual 
arts, culinary arts, and performing arts. 
Extraordinary ability in theJield of arts means distinction. Distinction means a high level of 
achievement in the arts evidenced by a degree of skill and recognition substantially above that 
ordinarily encountered to the extent that a person described as prominent is renowned, leading, 
or well-known in the field of arts. 
The regulation at 8 C.F.R. 5 214.2(0)(3)(iv) states that in order to qualify as an alien of extraordinary ability in the 
arts, the alien must be recognized as being prominent in his or her field of endeavor as demonstrated by the 
following: 
(A) Evidence that the alien has been nominated for, or has been the recipient of, significant 
national or international awards or prizes in the particular field such as an Academy Award, an 
Emmy, a Grammy, or a Director's Guild Award; or 
(B) At least three of the following forms of documentation: 
(1) Evidence that the alien has performed, and will perform, services as a lead or starring 
participant in productions or events which have a distinguished reputation as evidenced by 
critical reviews, advertisements, publicity releases, publications, contracts, or 
endorsements; 
EAC 05 047 5 175 1 
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(2) Evidence that the alien has achieved national or international recognition for 
achievements evidenced by critical reviews or other published materials by or about the 
individual in major newspapers, trade journals, magazines, or other publications; 
(3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical 
role for organizations and establishments that have a distinguished reputation evidenced by 
articles in newspapers, trade journals, publications, or testimonials; 
(4) Evidence that the alien has a record of major commercial or critically acclaimed 
successes as evidenced by such indicators as title, rating, standing in the field, box office 
receipts, motion picture or television ratings, and other occupational achievements reported 
in trade journals, major newspapers, or other publications; 
(5) Evidence that the alien has received significant recognition for achievements from 
organizations, critics, governmental agencies, or other recognized experts in the field in 
which the alien is engaged. Such testimonials must be in a form which clearly indicates the 
author's authority, expertise, and knowledge of the alien's achievements; or 
(6) Evidence that the alien has either commanded a high salary or will command a high 
salary or other substantial remuneration for services in relation to others in the field, as 
evidenced by contracts or other reliable evidence. 
The beneficiary is a resident and native of Germany and has earned a master's of arts degree in architecture and 
studio. According to the Form 1-129, Petition for a Nonimmigrant Worker, the beneficiary currently resides in 
Berlin, Germany. 
The petitioner does not allege, and the evidence does not establish, that the beneficiary has been nominated for, or 
been the recipient of, any significant national or international awards or prizes in her field of endeavor. The 
petitioner submitted evidence that, it cl&ms, meets the following criteria. 
Evidence that the alien hm performed, and will perform, services as a lead or starring participant in productions 
or events that have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, 
publications, contracts, or endorsements. 
According to counsel, the beneficiary satisfies this criterion based on the exhibitions of her work, particularly in 
solo and two-person exhibitions. Counsel asserts that the regular exhibition of the beneficiary's work "indicates 
that she is a leading participant in productions of distinguished reputation." 
The petitioner submits evidence that the beneficiary's work has been exhibited at such venues as the Galerie Am 
Arkonaplatz in Berlin, the Luxe Gallery, ZOOLOOK Gallery and Clocktower Art Space in New York, and 
Modern Culture in Milan. However, although the record contains numerous examples of the beneficiary's work, 
this criterion is not satisfied by volume alone. The petitioner must establish that the events that featured the 
beneficiary's work have distinguished reputations. The petitioner submitted no documentary evidence to establish 
the reputation of the various events. Only one document, a May 18,2004, press release on the ninth International 
Modern and Contemporary Art Fair in Milan, which addresses the number of participants and the attendance, 
would seem to constitute evidence under this criterion. However, a single documented event does not constitute 
extensive documentation that would establish that the beneficiary is prominent in the field of art. Therefore, the 
evidence does not establish that the beneficiary satisfies this criterion. 
EAC 05 047 5 175 1 
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Evidence that the alien has achieved national or international recognition for achievements evidenced by critical 
reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, 
or other publications. 
Counsel asserts that the beneficiary meets this criterion based on her receipt of "several important, competitive 
grants and awards," including "first prizes" in design competitions by Atelier Briickner, a student excellence 
award fiom New York University, an academic fellowship fiom Deutsher Akademischer Austausch Dienst 
(DAAD), the Erwin-Stephan Prize from Technische Universitat in Berlin, and a visiting scholar fellowship fiom 
the Illinois Institute of Technology. 
A evidence, the petitioner submitted what purports to be a "work certificate" fiom Atelier Briickner, indicating 
that the beneficiary had won several competitions for the studio. However, the translated document does not 
comply with the provisions of 8 C.F.R. 5 103.2(b)(3) in that the translator is not identified, did not certify that 
the translation was complete and accurate, and did not certify that he or she is competent to translate from 
German into English. Accordingly, the evidence is not probative and will not be accorded any weight in this 
proceeding. Although the petitioner submitted evidence that Atelier Briickner published the beneficiary's 
work in a book and that the studio attributed some of its success to design competitions won for it by the 
beneficiary, the submitted no other evidence regarding the nature of these competitions. The evidence does 
not establish that information regarding these competitions was published in major newspapers, trade 
journals, magazines or other publications. 
Counsel also asserts that the beneficiary satisfies this criterion based on her receipt of scholastic awards and 
fellowships. However, fellowships and scholarships awarded by a specific college or university and limited to 
students at that particular institution are not nationally or internationally recognized prizes or awards in the 
field. A scholarship does not measure a recipient's standing in the field, but is limited to students in an 
academic endeavor. Academic training is not the field of endeavor, but preparation for entry into the field of 
endeavor. Thus, scholarships do not qualify as awards under this criterion. 
The beneficiary indicates in her resume submitted on appeal that she has "applications" pending for three 
other "awards or honors," which counsel asserts meets this criterion. The petitioner submitted no evidence 
regarding the nature of these "awards or honors". Further, the petitioner must establish eligibility at the time 
of filing the nonimmigrant visa petition. A visa petition may not be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N 
Dec. 248 (Reg. Comm. 1978). 
The record contains several documents announcing locations in which the beneficiary's work would be 
shown. However, these announcements do not provide a critical review of the beneficiary's work or constitute 
published material "about" the beneficiary. The evidence indicates that the beneficiary's work has appeared in 
the March 2004 edition of the Architecture Journal, accompanied by a review of the her work. Copies of 
other documentation that identifies the beneficiary are not accompanied by English translations as required by 
the regulation. Because the petitioner failed to submit certified translations of the documents, the AAO cannot 
determine whether the evidence supports the petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). Accordingly, 
the evidence is not probative and will not be accorded any weight in this proceeding. 
EAC 05 047 5 175 1 
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The record, therefore, consists of one document that may be relevant to this criterion and is far from the 
extensive documentation required by the statute and regulation to establish that the beneficiary is at the top of 
her field. Accordingly, the evidence submitted by the petitioner does not establish that the beneficiary meets 
this criterion. 
Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and 
establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, 
publications, or testimonials. 
The evidence reflects that the beneficiary's work has been shown in solo and two-person exhibitions, as discussed 
under criterion one above. Counsel asserts that these one- and two-artist shows reflect that the beneficiary has 
performed in a leading or starring role for an organization. Nonetheless, the petitioner submitted no evidence that 
these organizations or establishments that have featured the beneficiary's work in one- or two-artist exhibitions 
are organizations that have a distinguished reputation. Counsel asserts that the Armory Show, Galerie Am 
Arkonaplatz, MiArt & Modern Culture meet this criterion. However, the petitioner submitted no evidence to 
establish the stature of these organizations in the field of art. Without documentary evidence to support the 
claim, the assertions of counsel will not satisfy 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). 
The evidence does not establish that the beneficiary meets this criterion. 
Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such 
indicators as title, rating, standing in the$eld, box ofJe receipts, motion picture or television ratings, and other 
occupational achievements reported in trade journals, major newspapers, or other publications. 
Counsel asserts on appeal that the evidence establishes that the beneficiary has been critically successful based on 
her winning "competitive grants and awards." However, as discussed above, the petitioner submitted no 
documentary evidence of the competitions that it states the beneficiary won. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Crafi of California, 14 
I&N Dec. 190 (Reg. Comm. 1972)). A letter from the Deutshcer Akademischer Austausch Dienst indicates 
that the beneficiary was selected as an exchange student during a national competition; however, the letter is 
clear that the beneficiary was competing with other students for the purpose of furthering her education as an 
exchange student. The record does not establish how many scholarships in the beneficiary's field were 
awarded, or that the award of this scholarship conferred any specific standing on the beneficiary in her field 
of endeavor. 
The petitioner also submitted several letters of recommendation and reference on behalf of the beneficiary 
written by individuals in the art field, which counsel cites as evidence that the beneficiary satisfies this 
criterion. 
In a letter dated January 11, 2005, Barry Neuman, the director and proprietor of the gallery Modern Culture, 
stated: 
I first saw [the beneficiary's] work in 2001, and I immediately invited her to produce a solo 
exhibition at Modern Culture At The Gershwin Hotel, New York, a gallery of 
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contemporary art, or which I was the director and a partner . . . Since then, I have presented 
her work in group exhibitions at Modern Culture and at The Armory Show 2004 . . . I had 
presented a solo exhibition of [the beneficiary's] work at MIArt, the Milan international art, 
in May in 2004. 1 have also sold her work to appreciative collectors. 
Steven Stoyanov, the director of the Luxe Gallery, stated in a letter dated January 10, 2005: 
The very strongest recommendation I could make for the importance of [the beneficiary's] 
work (photographs, conceptual drawings and video), is already apparent because I 
exhibited her work 1 the extremely selective Toronto Art Fair, in 2003, and in the exhibit 
"Simply Drawn" in 2003. These exhibits garnered much acclaim for [the beneficiary], and 
the attention was fully deserved. What's more, many other reputable galleries and 
exhibitions have showcased [her] work as well, and her presence in these shows has done 
justice to their reputation for excellence. 
David Gibson of "Article Projects" stated in a letter dated November 3, 2004, that he has "over 15 years of 
expertise within the art world, both as a curator and critic" and "currently write[s] for a number of art 
periodicals . . . and curate for several galleries in New York City." Mr. Gibson states that the beneficiary's 
solo exhibitions of her work and her contributions in shows at the ZOOLOOK Gallery and Portland Institute 
for Contemporary Art, as well as an upcoming contribution to Videoseries, NYC are "testaments to the critical 
and aesthetic accomplishments" of the beneficiary. 
Other letters submitted by the petitioner attest to the beneficiary's artistic skills and innovativeness in the 
field; however, none indicate that the beneficiary's successes in art have been distinguished by a specific title 
or standing in the field that would evidence her critical success under this criterion. 
Although the authors state that presentation of the beneficiary's work is evidence of her critical success, the 
petitioner submits no evidence of the beneficiary's success beyond these statements. See Matter of SofJici, 22 
I&N Dec. at 165. The petitioner submitted no documentary evidence that the showcasing of the beneficiary's 
work is critically acclaimed in publications. The petitioner also submits no evidence that a specific title or 
particular standing in the field has recognized the beneficiary's success in the field of art. 
The evidence does not establish that the beneficiary meets this criterion. 
Evidence that the alien has received signiJcant recognition for achievements )om organizations, critics, 
governmental agencies, or other recognized experts in the jield in which the alien is engaged. Such 
testimonials must be in a form which clearly indicates the author's authority, expertise, and knowledge of the 
alien's achievements. 
As noted above, the petitioner submitted several letters of recommendation and reference from her teachers, 
peers, art gallery owners, and from one art criticlcurator. All note that the beneficiary's work has been shown 
in various exhibitions in different countries. The documentation also includes evidence that the beneficiary's 
work has been featured in solo and two-person exhibitions, and featured in others. The evidence sufficiently 
establishes that the beneficiary has received significant recognition for her work as an artist. 
Evidence that the alien has either commanded a high salaly or will command a high salaly or other substantial 
remuneration for services in relation to others in thefit.14 us evidenced by contracts or other reliable evidence. 
EAC 05 047 5 1751 
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The petitioner does not allege, and submits no evidence, that the beneficiary satisfies this criterion. 
The petitioner also submits evidence that the beneficiary has served as a teaching assistant, and which it states 
indicates that the beneficiary has served as a judge of the works of others. The petitioner asserts that this 
evidence should be considered under 8 C.F.R. tj 214.2(0)(3)(iv)(C), which provides, "If the criteria in paragraph 
(0)(3)(iv) 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." The petitioner submitted evidence that it 
claimed met five of the six criteria; therefore, it has not established that the stated criteria is not applicable to the 
beneficiary's occupation and thus use comparable evidence in an attempt to establish the beneficiary's eligibility. 
Notwithstanding this however, the beneficiary's duties as a teaching assistant was not judging the work of her 
peers, but rather, of her subordinates. She evaluated the work of others as an integral part of her job. The 
beneficiary's work evaluating others in this capacity is not indicative of prominence in the arts field. 
After a careful review of the entire record, it is concluded that the petitioner has not shown that the 
beneficiary is a person of extraordinary ability in piping. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 5 1361. Here, that burden has 
not been met. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.