dismissed O-1B Case: Art

identifYing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBL1CCOPY 
FILE Office: CALIFORNIA SERVICE CENTER 
I", RE 
L.S. I){'partmrnt (If Homeland S{'curit~ 
U_S. Clli!(.'J1"hIP :md !mll1i~yali()n SCr\'il'\.'~ 
AdllllllISlI'd!I\'(' ,>\ppeals Office (:\:\0) 
20 Ma""al'iHl"l'lh Ave .. N.\V .. MS 2()l)() 
Washlllgtllil. DC 2()."i29 2()90 
u.s. Citizenship 
and Immigration 
Services 
Datc-: FEd 0 3 2011 
PETITION: Petition for a Nonimmigrant Worker under Section IOl(a)( 15)(0)(i) of the Immigration and 
Nationality Act, 8 U.s.c. § 1101(a)(15)(0)(i) 
ON BEHALf' OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find thc decision of the Administrative Appeals Officc in your easc. All of thc documents 
related to this matter have been returned to the office that originally decided your case. Please be advised lhal 
any further inquiry that you might have concerning your case must be made to that officc. 
If you believc thc 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 reopcll. The 
specific requirements for filing such a request can be found at 8 C.F.R. * 10.1.5. All Illotions must he 
suhmitted to the office that originally decided your case hy filing a Form 1-290B, Nolice of Appeal or Malian. 
with a fee of $6]0. Please be aware that 8 C.F.R. § I m.S(a)( I lei) requires that any motion Illust bc filcd 
within ]0 days of the decision that the Illation seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief. Administrative Appeals Office 
l,,"ww.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is 
now hefore the Administrative Appeals Office (AAO) on appeal. The appeal will he dismissed. 
The petitioner filed this nonimmigrant 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). as an alien with 
extraordinary ability in the ilitS. The petitioner states that it is engaged in ,u1ist representation. digital 
publications, and media consultation. It seeks to extend the beneficiary'S 0-1 status as an AI1ist (painter) for one 
year. The beneficiary was initially granted 0-1 classification in 1999 and her status has been extended annually 
since that time. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary IS an allen of 
extraordinary ability in the arts. The director determined that the petitioner failed to establish that the beneficiary 
meets the evidentiary criterion at 8 C.F.R. * 214.2(0)(3)(iv)(A), or at least three of the six evidentiary criteria set 
fOl1h at 8 c.F.R. * 214.2(0)(3)(iv)(B). 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO for review. On appeal, counsel for the petitioner assel1s that the director en'ed by 
"requiring petitioner to prove again all requirements for 0-1 classification when there is no material change in the 
underlying: facts and the regulations state that no documentation is needed for an extension of the 0-1 visa 
petition." Counsel specifically refers to a 2004 USCIS memorandum to sUpp0l1 her assel1ion that it is USCIS 
policy that prior approvals should be given deference. See Memorandum of William R. Yates. Associate Director 
for Operations, USClS: 71,c SiKnificancc of'a Prior CIS Approval oFa NoninuniKl'U1II Pctition ill tite COlltcxt o/u 
Sul)Sl'I/ll('lIt Dctcrlllin(lfion RCKarding EIiKibilitv of Petition Validitv (April 23. 2(04)("Yates Memorandum"). 
The memorandum provides that exceptions to this policy should be made where: (I) It is determined that there 
V\'as a material error with regard to the previous petition approvaL (2) a substantial change in CirCllll1stallcc~ has 
taken place; or (3) there is new material information that adversely impacts the petitioner's or benefieiary's 
eligibility. hI. Counsel fUl1her contends that the petitioner submitted evidence to satisfy all six criteria at 8 C.F.R. 
~ 214.2( 0)(3)( iv)(B). of which only three arc required to establish the beneficiary's eligibility. 
Counsel submits a hrief and additional evidence in SUppOI1 of the appeal. For reasons that will be discussed 
below, the AAO upholds the director's ultimate conclusion that the petitioner has not established that the 
beneficiary meets the eligibility requirements for an alien of extraordinary ahility in the arts. 
I. The Law 
Section 10 I (a)( 15)(0)(i) of the Act provides classification to a qualified alien who has extraordinary ability in the 
sciences, al1s, education, business, or athletics which has been demonstrated by sustained national or international 
acclaim, whose achievements have been recognized in the field through extensive doeumc11lation, ancl who seeks 
to enter the United States to continue work in the area of extraordinary ability. 
The regulation at 8 CFR. § 214.2(o)(3)(ii) defines, in pel1inent part: 
Arts includes any field of creative activity or endeavor slich as, but nOllilllitcd to, fille arts, visual 
alb, culinary arh, and performing arts. 
Page 3 
Lnr{/ordinarv ability in the field of oris 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 alts. 
The regulation at 8 C.F.R. * 214.2(o)(3)(iv) states, in peltinent part: 
t,'videntian criteria.f()r an 0-1 alien o{extraordinary ahility ill the arts. To qualify as an alien 
of extraordinary ability in the field of 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 the recipient of. signIficant national 
or international awards or prizes in the particular field such as an Academy Award. all 
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. sen' ices 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; 
(2j 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 pelformed, and will pelform. 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 
te~timonials; 
(4) Evidence that the alien has a record of major commercial or critically acclaimed 
succcsses as evidenced by such indicators as title, rating. standing in the field. 
box office receipts, motion picture or television ratings. and other occupat ional 
achievements rep0l1ed in trade journals, major llewSparers. or other 
publications; 
(5) Evidence that the alien has received significant recognition for achievements 
from organizations, critics, government agencies, or other recognized expens in 
the field in which the alien is engaged. Such testimonials must be in a form 
which clearly indicates the author's authority. expcl1isc. and knowledge of the 
alien's achievements; or 
Page 4 
(6) Evidence that the alien has either commanded a high salary or will command a 
high salary or other substantial remuneration for services in rclation to others in 
the field, as evidenced by contracts or other reliable evidence: or 
(C) 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 or(kr 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 confonn 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 
inst itution, firm, establishment, or organization where the work was peli'orJned. 
(B) Affidavits written by present or former employers or recognized expcm cel1ifying to the 
recognition and extraordinary ability ... shall specifically describe the alien's recognition 
and ability or achievement in factual terms and set fOl1h 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 pal1icular case is dependellt upon the 
quality of the evidence submitted by the petitioner, not just the quantity of the evidence. The mere fact that the 
petitioner has submitted evidence relating to three of the criteria as required hy till' regulation doc~ not 
neccssarily establish that the alien is eligible for 0-1 classification. 59 Fed Reg at 41 X20. 
In determining the beneficiary's eligibility under these criteria, the AAO will follow a two-pal1 approach set fOl1h 
in a 2010 decision issued by the U.S. C0U11 of Appeals for the Ninth Circuit. K(J~(Jri(/n I'. USClS, 2010 WL 
725317 (9'" Cir. March 4. 2010). Similar to the regulations governing this nonimmigrant classification. the 
regulations reviewed by the Kazarian cOUl1 require the petitioner to suhmit evidence rCl1aining to at least three 
out of ten alternative criteria in order to establish a bcneficiary's cligibility as an alicn with cxtraordinary ability. 
Cf g C.F.R. § 204.5(h)(3). 
The court stated that the AAO's evaluation rested on an improper understanding or tilt: regulations. Instead of 
parsing the significance of evidence as part of the initial inquiry, the COUll stated that "the proper procedure is to 
count the types or evidence provided (which the AAO did)," and if the pctitionl'1' railed 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'i(h)(1)). The COllrt also 
explained the "finalmcrits 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 of the[ir] field of endeavor," 8 C.F.R. ~ 204.5(h)(2). 
Page S 
and "that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expeI1ise." 8 CF.R. ~ 204.S(h)(.1). Only aliens 
whose achievements have garnered "sustained national or international acclaim" are eligihle fur 
an "extraordinary ability" visa. 8 USC ~ 1 I 53(b)( 1 )(A)(i). 
Id. at 1119-1120. 
Thus, Kazarian sets f0\1h a two-pat1 approach where the evidence is first counted and then considered in the 
context of a final merits determination. The AAO finds the Kazarian court's two-pal1 approach to be approprtate 
for evaluating the regulatory criteria set forth for 0-1 nonimmigrant petitions for aliens of extraordinary ability at 
8 CF.R. ~ 214.2(0)(3)(iii), (iv) and (v). Therefore, in reviewing Scrvice Center decisions, the AAO will apply 
the test set f0\1h in Kazarian. As the AAO maintains de novo review, the AAO will conduct a new analysis if the 
director reached his or her conclusion by using a one-step analysis rather than the two-step analysis dictated by 
the Kazarian court. Sec Spencer Enterprises, Inc. v. Uniled Stales, 229 F. Supp. 2e1 I02S. 104.1 (E.D. Cal. 
2(01), alt'd, 345 F.3d 683 (9th Cir. 2(03); see a/so SO/lane v. DOJ, 381 F.3d 143, 145 (3d Cir. 20(4) (noting 
that the AAO conducts appcllate review on a de novo basis). 
II. Analysis 
A, Evidentiary Criteria 
The petitioner seeks to extend the beneficiary's 0-1 status for a period of one year. The bcneficiary was initially 
granted 0-1 classification as an alien of extraordinary ability as an artist in 1999 and had been in the United States 
continuously since November 13,2000 at the time the instant petition was filed. 
The petitioner claims that the evidence submitted in support of the petition satisfies all six of the evidentiary 
criteria at 8 CF.R. * 214.2(0)(3)(iv)(B) and establishes that the beneficiary is an alien of extraordinary ability in 
thc al1s. In denying the petition, the director determined that the evidence submitted meets none of these criteria. 
After careful review of the record, it must be concluded that the petitioner has failed to overcome the grounds for 
denial. 
Thc AAO emphasizes that submitting evidence to satisfy the evidentiary criteria will not automatically 
establish eligibility for this visa classification. The mere fact that the petitioner has submitted evidence 
rclating to three of the criteria as required by the regulation does not necessarily establish that the alien IS 
eligible for 0-1 classification. S9 Fed Reg 41818, 41820 (August IS, 1(94). 
If the petitioner establishes through the submission of documentary evidence that the beneficiary has been 
nominated for or has been the recipient of, significant national or international avvards or prizes in the particular 
field pursuant to 8 CF.R. § 214.2(0)(3)(iv)(A), thcn it will meet its burden of proof with respect to the 
beneficiary'S eligibility for 0-1 classification. The regulation lists an Academy Award. an Emmy, a Grammy, or 
a Director's Guild award as examples of qualifying significant awards or prizes. The pctiltoner does not claim 
that the beneficiary has received or been nominated for a significant national or international award or prize in the 
fine ans. 
Page: 6 
Accordingly, the petitioner must establish the beneficiary's eligibility under at least three of the six criteria set 
f0l1h at 8 CFR. * 214,2(o)(3)(iv)(B), The AAO will address each of these criteria below. 
EI';t/l'lICe that the alien has performed, and \1'ill perj(Jrm. services as u lewl or slUrring 
porlinjWl1l in produclions or events ~thich have a dislinguished repl/tution 0,\' cl'idcl1('('d hy 
('(;I;cell rcv;cH'S, advert;semenls, publicily releases, puh/ications, ('ontrads. ()r Clll/(WSCflICllls. 
The plain language of the regulation at 8 CF.R. * 214.2(o)(3)(iv)(B)(l) requires that thc petitioner identify with 
specificity the productions or events in which the beneficiary pen'ormed services III a lead or starring capacity. 
document the distinguished reputation of such productions or events, and provide evidence of the bcneficiary's 
role in such events in the form of critical reviews, adveltisements, publicity releases, publications, contracts. or 
endorsements. 
In a letter dated Novcmber 19, 2008, counsel for the petitioner assel1ed the benefici,u-y "has performed as a 
starring participant in single and group art exhibitions which have a distinguished reputation." Counsel notes that 
the beneficiary's roles in these events "have been well-documented in critical reviews and publicity releases." 
The petitioner provided a list of 34 solo exhibitions and 20 group exhibitions spanning the beneficiary's career of 
nearly 40 years. While the AAO notes that such exhibitions could 4ualify as events in which the beneficiary 
performed services in a lead or staning pal1icipant. the plain language of this regulation rC4lnres the petitioner to 
submit documentary evidence to establish that the beneficiary's exhibitions have becn and will bc "events which 
have a distinguished reputation." The petitioner has submitted such documentation with respect to only a small 
fraction of the beneficiary's 54 past solo and group exhibitions. Specifically, the petitioner has suomitted the 
following published reviews and al1ieles regarding the beneficiary's exhibitions: 
Page 7 
Counsel also indicated that the beneficiary meets this criterion based on her "long-standing relationship with the 
MIRO Galerie, an international art gallery in Europe, which was selected in the 200 I Gallup Poll as 'the most 
popular commercial gallery in I 
contemporary world class artists 
Counsel stated that the MIRO Galerie has been the beneficiary's 
pelltioner has submilled a total of three letters from gallery owner n sUppOil of the petition. 
However, the petitioner has not submitted evidence in the form of "critical reviews, advertisements, publicity 
reieases, publications, contracts, or endorsements" to establish that the beneficiary has provided or will provide 
services in a lead or starring role in an event or production with a distinguIShed reputation at this gallery. 
Notwithstanding the beneficiary's claimed longstanding relationshi~O Galerie, her resume lists a 
single 1992 exhibition at the MIRO Galerie in Berlin. Although ~llers do not satisfy the plain 
language of this regulatory criterion, we will be discuss the letters below under the third criterion at 8 C.F.R. 
* 2142(0)(3)(iv)(B)(3). 
"Miracles Ha 
has been and will be interviewed on the syndicated radio talk show, 
has appeared several times on MCTV Channel 15 in Siskiyou 
County, California, and was interviewed at the "Vegan Radio Show of the Valley Free Radio in Massachusells." 
The interviews are claimed to have taken place in 2007 and 2008. We cannot cOllclude that the beneficiary's 
participation in local radio and television interviews rises to the level of providing services in a lead or starring 
role in events or productions that have a distinguished reputation. Further, the evidence does not support a 
finding that the interviews themselves served as publicity for specific events with a distinguished reputation in 
which the beneficiary provided services in a lead or starring role. 
The director determined that the evidence submitted does not meet the cntcrion at 8 C.F.R. ~ 
214.2( 0)(3 )(iv)(B)(1). The director acknowledged that, while some of the al1icies mention the beneficiary's talent 
and mention the bcneficiary playing a lead role in some of the events, "none of the al1ieles attest to the 
distinguished reputation of any of the productions or events." 
On appeal, counsel revisits her argument that the beneficiary's exhibitions at the :YIIRO Galerie have a 
distinguished reputation because of the gallery's "high stature in Europe." Again, thl' AAO notes that the 
petitioner ha~ not submitted evidence in the form of critical reviews, advel1isements, publicity releases, 
Page R 
puhlications, contracts or endorsements evidencing the heneficiary's lead or slalTing role III specific productions 
or events at the MIRa Galerie, but rather depends upon testimonial evidence from the gallery's owner. 
Accordingly, the evidence submitted does not meet the plain language of this evidentiary criterion. 
Counsel also emphasizes that several articles and reviews regarding the beneficiary's exhibitions were published 
in major German and Irish newspapers, including Rheinische Post, Neue Ruhr ZeitulIg, and 111e Irish Tillles. The 
petitioner submits circulation figures for each of these publications in suppon of its claim that they are major 
publications that have a national impact. Counsel acknowledges that some of the submitted anicies and reviews 
appeared in local newspapers. 
Upon review, the AAO finds that the petitioner has provided evidence to sUppOI1 a finding that the beneficiary's 
1981 group exhibition at the German gallery "A11 Gable" meets the plain language of this criterion. The 
beneficiary was one of only thrce al1ists included in the exhibition, and the exhibition was covered by at least 
three German newspapers, including a major national paper, Rheinischepost, and a major regional paper. Nelle 
RlIhr Zeitung 
However. in order to satisfy this criterion, the petitioner must also establish that the beneficiary "Irill pn1lml1. 
services as a lead or starring participant in productions or events which have a distinguished reputation as 
evidenced hy critical reviews, advel1isements. publicity releases, pUblications, contracts, or endorsements." 
At the time of filing, the petitioner described the beneficiary'S upeoming exhibitions and activities as follows: 
For 2008, I the beneficiary I has scheduled exhibits at The Brown Trout Caf0 &. Gallery and the 
AI1 Walk, both in Dunsmuir. California, 
IThc petitionerl will be visiting and negotiating with galleries in Massachusetts, New York, 
California and Oregon for exhihitions for 2009, 
IThe beneficiarYI has a planned radio mt,en'ICIN San 
Francisco, California from September 2008 to September 2009. 
From February 2007 to July 2008, Ithe bcneficiarYI worked on her }()(l-page autobiography. 
The manuscript is being sent to publishers for consideration, 
The petitioncr submitted the following updated itinerary in response to the RFE: 
September I I, 2008 -
September I), 2008 -
November 22,2008 -
October 2009 -
February 2009 Syndicated radio talk show in San Francisco, CA,_ 
March 2009 - MCTV Channel I S, Siskiyou County 
Page 9 
The petitioner indicated that additional exhibitions may be added as a result of its ncgotiat ions with galleries, and 
noted that the beneficiary would continue to work with her editor on her autobiography. 
The petitioner submitted an advertisement for the ArtWalk event from the website of "Window Box Bonsai 
Accents & Art Gallery." The advel1isement indicates that the beneficiary is one of ten ,mists ll1eluded in the one­
dayevenl. The submitted evidence does not establish that inclusion in this local arts event qualifies as performing 
in a lead or stan'ing role in an event or production with a distinguished reputation. The petitioner did not submit 
critical reviews, advertisements, publicity releases, publications. contracts, or endorsements peltnining to the 
heneficiary's upcoming exhibitions at the Brown Trout Cafe and Gallery or Turn of the Century Fine Ans 
Gallery, and thus also failed to establish that these exhibitions would meet this criterion. 
We note that the beneficiary's planned exhibition at the MIRO Gabie in Prague. which was confirmed through a 
letter from the owner of the gallery, was scheduled to take place in October 2(X)9, which would place the event 
outside of the requested one-year validity period for the extended petition. We prcsuillc that the regulatory 
language "will pcrform services" refers to future events that will occur during the validity of the petition. 
Finally. as noted above. television and radio interviews, while perhaps indicative of the beneficiary'S level of 
recognition for hcr achievements, cannot be used to satisfy this criterion and will be considered further helow. 
Based on the foregoing, the petitioner has failed to submit evidcnce that satisfil's l'aeh component of the 
regulatory criterion at 8 CFR. ~ 214.2(0)(3)(iv)(B)(l). 
/:'1';d£'I1(,(, thul the alien has achieved natiollal or international rl!('ogniliofl ./()!" achievemcnts 
(,I'it/cncct! hy critical reviews or other published materials hy or ahout the illdh'iduo/ ill mqjor 
II(,H'sIJOlh'rs. trade journals, magazines, or other publications 
The director determined that the petitioner did not submit evidence to meet the criterion at 8 C.F.R. 
* 214.2( 0)( 3)( iv)( B )(2), noting that "the significance of the German articles on record is L1nKnown." Specifically, 
the director noted that "it is unclear whether the publications in which the beneficiary is mentioned are 
publications which have a national or international impact." 
On appeal, cOLinsel asserts that the beneficiary "established her national and international recognition through the 
anicles about her that were published in German and Irish newspapers." As noted ahove, the petitioner has 
established that 71,l' Irish Times and Rheinische Post. which published reviews of two of the beneficiary's group 
exhibitions in 1981, are major national newspapers in their respective countries. 
The Irish lImes al1icie "Two Artists at Metropole Hotel. Cork" states the following with respect to the beneficiary 
and her work: 
IThe beneficiary'sl small works are gentle and contemplative and oriental in idiolll. Reeds and a 
sky of soft colour provide the vehicle for what are essays in mood: for though she says she 
contemplates before emharking on a work, she shows herself open to the atlllospheric conditions 
around her. 
Page 10 
The use of gold brushed on in circular strokes over the tempera and oil, often on a silk ground, 
adds an element of fantasy, which has a folkloric quality in works such as the compact and 
concise "Skywriting." "Sun Dance" alone has a note of harshness, whilc not deviating from the 
balanced rhythm of the other small paintings." 
The Rheinische Post aJliclc, 
•••• as follows: 
discusses the beneficiary's 
The 33-year-old [beneficimy[, currently living in Ireland, with her pictures, whose main accent is 
in tempera and pigment oil techniques, tried to draw landscapes out of their real relationship and 
using color and shadowing compositions, to place them on a mysticalleve!. 
Like gold dust, elements are drawn through many of her pictures. Themes such as "Vietnam" 
and "1914-1918," while th~nto the other w.orkS, often overload the obscrver with an 
incomplete symbolism. _ pointed out. in her introductory speech, that [the 
beneficiary [ immersed herself in meditation long before the beginning of her \\orks. She had to 
feci completely free and entirely empty. This bodily emptiness will be comprehenSible to the 
observer only in a very few cases. 
The article refers to the 
Whilc both of these reviews appeared in "national" newspapers, the AAO cannot conclude that a routine 
exhibition rcview constitutes "national recognition for achievements" for a fine altist. As discussed above. we 
determined that one of the heneficiary's group exhibitions received a level of media coverage, including coverage 
in a major national newspaper, sufficient to establish that the exhibition itself could be considered to have a 
"distinguished reputation" under the first evidentiary criterion. The petitioner attcmph to rely 011 the same 
evidence LU meet the separate criterion that the beneficiary has received "national recognition for achicvcIllCllh." 
The ahove-referenced reviews briefly mention the heneficiary's technique and suhject matter and arc nelltral to 
positive ill assessing the beneficiary's work. The petitioner has not indicated how such reviews rise to the level of 
"recognition for achievements." 
None of the other media covcrage of the beneficiary, including newspaper mticles and occasional radio and 
television interviews, has been shown to be national or international in scope. For example . 
•••• "t MCTV 15 in Siskiyou County, California, states that the beneficiary is "a . I 
personality in our arm." While it appears that the radio show "Miracles Happen, Dreams do 
Come True," has a syndicated talk show, there is no evidence that the show is nationally syndicated or that the 
beneficiary's appearance on the show served as national recognition of her achievement-, <I" an artist. 
Accordingly, we concur with the director's ultimate conclusion that this criterion has not been met. 
Evidence that the alien has perjiJrmed, and will perf;mn. in a lead, swrrill;;. or critical role jilr 
orguni:uthms and establishments that have a distinguished reputation e\'idenced hy articles in 
newspapers, t rude journals, publications, or testimonials. 
Page II 
The petitioner initially claimed that the beneficiary meets this criterion based on her more than 50 group and solo 
exhibitions in Europe and the United States, her MIRO Galerie, her roles in 
The director determined that the submitted reviews regarding the beneficiary's exhihitions failed to "attest to the 
distinguished reputation of the organizations or establishments" that hosted the exhibitions." The director 
acknowledged that the petitioner submitted a letter from the owner of MIRO Gabie ,,,selllllg that the beneficiary 
has been featured at the gallery for many years. The director concluded, however, that "tIllS testimonial does not 
state whether the beneficiary has played a lead or stan'ing role." 
On appeal. counsel assells that "the service erred in failed to consider the articles from major publications and 
testimonials from art expells that beneficiary played a lead or critical role in the development of German modern 
art and has exhibited her work in a lead or critical role in organizations and estahlishments that have a 
distinguished reputation." 
. ioner submitted in support of the heneficiary's initial 0-1 petition evidence that the 
The petitioner submits a letter dated February 6, 2006 from 
states: 
with branches in 
regions ion or the •••• 
_ makes her one of the important figures in the history of the modern German all 
scene. 
The •. .. is the largest professional fine arts association in Germany. It rerresents 15 Land 
(states) associations with their district co-operative association on a federal level. 
protects attists' interests towards the 
government the ba:'-,ic conditions for artistic 
professionals with its home, financial and foreign policies, and administrates \vorks of <l11 
connceted to federal building projects. 
The petitioner also submits a letter from tates: 
Early in her career, I the beneficiary I and three fellow artists created •••••••••••• 
••••••••• which is Germany's first and now largest union for artists. I ieI' leading role 
in this effort led to a great promotion of the fine ans in Germany, and a security for artists that 
only a professional association can provide. 
Page 12 
IThe beneficiary I has been a leading figure in German abstract a11, hut her efforts in helping 
other artists, through the creation of_ as well as her sage advice and selflcss suppol1 for 
al1ists, has given her a reputation of being a central player in the German an scelle. 
The AAO concurs with counsel that, as a founding member of_ the beneficiary played a critical role for 
an organization that has a distinguished reputation as German's largest union for 311ists. There is no evidence that 
the beneficiary cUlTently performs in a critical role for this organization. 
Some of the beneficiary's other claimed qualifying organizational roles have not been "d'·'"""""iv 
For example, counsel indicates that the co-founded 
collective in Berlin in 1988, and served as 
festival held ill honor of the fall of the Berlin Wall. These roles have 1I0t been documellted through the 
submission of "articles ill lIewspapers, trade journals. publications, or testimollials" as required by the plain 
lallguage of the regulation at 8 C.F.R. § 214.2(0)(3)(iv)(B)(J). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burdell of proof in these proceedillgs. 
Maller of'Softiei, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Malter of'Treasllre ('mfi Ii! Califfir/lia, 14 
I&N Dec. 190 (Reg. Comm'r 1972». Furthermore, while the AAO acknowledges coltllscl's claim on appeal 
that the beneficiary played a critical role in "development of German modern art." Wl' cannot find "German 
modern an" to be an "organization or establishment" within the meaning of this regulatory criterion. Such claims 
will be addressed under the criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(5) below. 
Several of the testimonial letters in the record corroborate counsel's assel1ion that the 
~he art community in N0I1hern California." For 
__ confirms that the beneficiary is a member of the council. 
or the Siskiyou AI1ists Association. While the beneficiary is perhaps a recognized figure in her local mts 
community in the United States, the petitioner has not established that the beneficiary currently performs in a 
critical role with an al1s organization or establishment that has a distinguished reputation. 
The petitioner has also not submitted evidence to establish that the beneficiary's upcollling exhihitions arc in a 
lead, starring or critical role for organizations or establishments that have a distinguished reputation. As discussed 
ahove. the heneficiary's planned exhibitions for the intended period of employment include _ and 
and 
California. The petitioner has not claimed that these pal1icular establishments enjoy a distinguished reputation in 
the beneficiary's field. 
Finally, the AAO will address the beneficiary's claimed long-standing relationship with MIRO Galcrie which is 
claimed to be the in Europe. The record contains three letters from the gallery's 
owner and general a letter dated June 24, I 999,_stated: 
The MIRO Gallery made first contacts to the . . Since then 
_ has been represented in all the expositions of the MIRO Gallery held in Berlin 
(Germany). Prague (Czech Republic) and Bratislava (Slovak Republic). Bccau.se of the fact that 
the work of_is noted for her uniquely expressive hand in an. belongs to the most 
Page 13 
highly regarded group of personalities in the European al1 scene, and rcprc~cnh an ImI11Cn~C 
enrichment of the MIRO Gallery's presentations. 
* * * 
The international MIRO Gallery values its cooperation with the altist Ma as extraordinarily 
lIseful in every aspect. 
In a letter dated October 4, 2008, stated: 
The international MIRO Gallery has been honored to be [the beneficiary's [ European 
representative since 1988, All of our artists have suffered from unfortunate world economic 
downturns in the last years, but some exceptional altists, like [the beneficiary [ have retained a 
continued high reputation even while experiencing fewer sales, We arc very pleased to have her 
scheduled once again after many years for an exhibition in our main gallery in Prague. Czech 
Republic, in October of 2009. 
On appeal, the petitioner submits a third letter fram ••••• dated February 6, 20()<) , In this latest letler. he 
states: 
As director of the MIRO Galerie- exhibitions of major representatives in the field of abstract 
paintings- I am honored to attest to the placement of [the beneficiary[ as a leading figure not only 
in our museum's archive, but as a leading figurc in the genre of modern abstract an. 
Upon review of the submitted evidence, while it appears that the MIRO Galerie enjoys a distinguished reputation, 
the petitioner has failed to establish that the beneficiary has performed, and will perform, in a lead, stalTing, or 
critical role for this establishment. 
The beneficiary identifies herself as an "Artist of the Galerie Mira, Berlin and Prague" in her self-prepared list of 
exhibitions, but is unclear to what extent her work is displayed at the gallery or how she rises to the level of a 
lead, starring or critical figure within that establishment. For example, the beneficiary's I ist of 54 solo and group 
exhibitions identifies only one group exhibition at the "Mira Galerie, Berlin" in 1992. tatcs in his 
mosl recenl letter that the beneficiary is "a leading figure.. in our museurn\ archive," however, in October 
2008, his letter suggested that the beneficiary's work had not been exhibited in the gallery for "many years." 
Without clarification regarding the exact nature and extent of the beneficiary's relationship with the MIRO 
Galc:ric, these statements appear to be inconsistent. The petitioner has not submitted any corroborating evidence, 
such as brochures, publicity materials or other information regarding the gallery, to establ ish that the beneficiary 
has been and will be a featured lead, starring or critical artist within the gallery's collectioll. NOlle of the submitted 
published materials about the beneficiary reference the MIRO Galerie or the beneficiary's exhibitions there. 
Fulther, while~tates that the beneficiary will have all exhibition at the MIRO Galerie commencing in 
October 2009, we note that such date is subsequent to the expiration of the rcqucsted period of employment and 
cannot establish that the beneficiary "will perform" qualifying services under the extended petition. 
Page 14 
Accordingly, while we acknowledge that the petitioner provided evidence that the beneficiary "has performed" III 
a critical role for organizations and establishments that have a distinguished reputation in the past, specifically as 
a co-founder of , the evidence of record does not establish that she "will perform" 
such scrvices under the cxtcndcd petition. Thus, we concur with the director's conclusion that this cvidellliary 
criterion has not been met. 
EI·idenc£' 11101 Ihc alien luts a record of major commercial or critically acc!{/;ulet/ successes as 
el'idenc£'d /Jy slfch indicalors as title, rating, standing in the field, Iw.\" (~!lic(' rectil)!.\". llIotion 
pidllrc or leievision ratings, and other occupational achievements rcporlet/ in Irude journals, 
mqjor neH'slwpers, or other publications, 
The director determined that the petitioner failed to submit evidence that satisfies this criterion. The director 
observed that the anicles and publications submitted are "either local in nature or of unknown significance and 
therefore do not reflect critically acclaimed successes." 
On appeal, counsel once again refers to the above-referenced reviews of the beneficiary's work in the Irish TillICS 
and thc Rheinische PosI, and assens that the director ignored both these major newspaper anicles and "the 
evidence of beneficiary's major commercial or critically acclaimed successes as evidenced hy testimonials 
attesting to her standing in the field." 
Upon review, the AAO upholds the director's finding that the petitioner has not submitteu eVidence to meet this 
criterion. Counsel's reliance on testimonial evidence is misplaced as the plain language of the regulation at 8 
C.F.R. ~ 214.2(0)(3)(iv)(B)(4) requires that the beneficiary'S commercial or critically-acclaimed successes be 
"reported in trade journals, major newspapers or other publications." While we have recognized '/he irish Times 
and Rheinische Post as "major newspapers" we cannot conclude that two newspaper reviews of the beneficiary's 
exhibitions published 28 years prior to the filing of the petition are sufficient to establish that the beneficiary has 
"a record of major commercial or critically acclaimed successes." Based all the evidence submitted. we must 
conclude that it has been nearly three decades since the beneficiary's work has bccn Illelllioned in any major 
publication. 
FUl1her, we are not persuaded that a newspaper review of a gallery exhibition rises to the level of an 
"occupational achievement" as contemplated by the regulation. As discussed above, we found that coverage of 
the beneficiary's exhibitions in major newspapers was sufficient to establish that such exhibitions meet the 
criterion of "events with a distinguished reputation," pursuant to 8 C.F.R. ~ 214.2(0)(3)( iv )(B)(1). The petitioner 
is attempting to rely on the same two 28-year-old newspaper anides to meet three or more criteria at 8 C.F.R. ~ 
214.2( 0)(3)( iv)(B), which is contrary to thc statutory rcquirement that the alien's achievements "have been 
recognized in the field through extensivc documentation." See section 101(a)(15)(0)(i) of the Act. Again, we 
emphasize that the regulatory criteria are separatc and distinct from one another. To hold otherwise would 
render meaningless the statutory requirement for extensive evidcnce or the regulatory requirement that a 
beneficiary meet at least three separate criteria. 
Lvidencc Ihat the alien has received significant recognition for (lchi('l'CIIl<'flfS .fi'on! 
organizations. critics. government agencies, or other recogniz.ed e.\perts in tile ji'e/d in ~i"hh·1I 
Page IS 
the alien is engaged. Such testimonials mllst be in of Orin which clearly indicotes the ([If thor's 
([llthorit.y, expertise, and knmvledge qlthe ahen's achievements. 
The director acknowledged that the petitioner submitted various testimonial letters from arts professionals 
stating that the beneficiary has extraordinary skills in the field of arts. The director determined that the 
testimonial letters attest to the beneficiary's talent, rather than her achievements, and as such, do not constitute 
"significant recognition of the beneficiary's achievements in the field of arts." 
On appeal, counsel asserts that "experts in the field of arts have provided testimonials of beneficiary's 
achievements in her field." The testimonial evidence will be summarized below. The regulation at X C.F.R. 
114.1( 0)(2)( iii)( B) provides that affidavits written by present or former employers or recognized experts 
eel1ifying to the recognition and extraordinary ability ... shall specifically describe the alien's recognition and 
ahility or achievcment in factual terms and sct forth the expet1ise of the affiant and the manner in which the 
affiant acquired such information. 
711" LeITers 
in his letter dated October 4,2008 that the beneficiary has "retained a continued high 
reputation even while experiencing fewer sales." In an earlier letter, dated Junc 24, 1999,_ stated 
that "commcrcial success of Ithe beneficiary's I paintings (especially in Germany and Czech Repuhlic) lifts 
this artist to the sphere of prestigious representatives of contemporary culture." He also stated that the 
beneficiary "belongs to the most h~d group of personalities in the European art scene." Finally, in 
his Jetter dated February 6, 2009, _states that the beneficiary is "a leading figure, not only in our 
museum's archive, hut as a leading figure in the genre of modern abstract art," who has "furthered the field in 
a unique personal ground-breaking manner." He also notes that, in recent years, "the beneficiary has still sold 
individual paintings for ten percent of their past value when most lesser known artists are unsuccessful in 
holding any sales." 
states that he is an art historian, collector and exhibitor of contemporary art, provided a 
letter dated July 21, 1999. He states that he has "deeply appreciated the poetic force" of the beneficiary's art 
for over 20 years, and noted that "both of my shows with [the heneficiary'sl work in Berlin and in Hamburg 
were extremely successful and widely positive review Isicl." _further states: 
Slated: 
Her art has a distinctive female voice. It is at the samc timc both sensitive and confident. 
imparting a deep spirituality, This strong female expression will no douht encourage a new 
generation of woman to create their own spiritual expressions in arl. 
In a wonderful transcending of any intellectual commentary, the breathtaking usc of colour 
and material in [the beneficiary'sl work has attracted enormous respect from the ,u1 
community. 
Australian writer and filmmaker provided a letter dated June 11,1999, in which she 
Page 16 
[The beneficiary's] accomplishments attest to her extraordinary abililic~ as an artist and a 
painter. specifically in the area of modern art. I am aware that Ithe beneficiary's I remarkable 
style is acknowledged worldwide in galleries, in the homes of private colleuors and in the 
cyberspace gallery on the Internet. This fact alone indicates Ithe beneficiary's I incredible 
vision and fore~ight as a digital art pioneer. 
IThe beneficiary'sl art breaks away from all political and social content and reveals an 
abstract quasi impressionistic style which awakens the senses, soothing the mind and soui. . 
Exquisite fabrics, gold and silver leaf and a collection of offerings and findings from sacred 
adventures arc amongst the rage of objects used by I the beneficiary I in her work. 
This is an art that transcends time and space as it speaks on behalf of the spirit of the earth's 
ancestors. It is an art that beckons one to live in harmonious relationships. IThe 
beneficiary's I art speaks a forgotten universal language. 
an independent music magazine publisher based in Massachusctts, slates thai he is qualified 
to comment on the beneficiary's work as he is a professional multimedia artist \\/110 is "exposed to a wide 
variety of art everyday." He states that he has "searched the world for artforms which speak directly to the 
spirit" and describes the beneficiary's work as "quite rare in this regard" and a "powerful resource for 
inspiration." Regarding the beneficiary, he further state>: 
IThe beneficiary'sl accomplishments attest to her extraordinary abililies '" an artist and a 
painter, specifically in the area of modern art. Her abstract impressionistic style is 
acknowledged worldwide as groundbreaking and visionary. Her synergistlL' usc of elements 
and mixed media is breathtaking and thought provoking in a purely aesthetic manner - a rare 
feat for art that does not draw upon literal or metaphorical political or social content. In a 
world filled with vapid, senseless and sensationalist art how often does one encounter a work 
that elicits gasps, "ooh"s and "wow"s simply from a graceful synergy of ahstract patterns') 
IThe heneficiary'sl work triggers such responses without relying on hate. Vloicnce, anger or 
offensive imagery. Her work simultaneously stimulates the mind and calms the soul. 
Based 011 my experience as a frequenter of galleries and museums in Nev·/ York. Los Angeles, 
London, and San Francisco, [the bencficiary'sl work will command extremely substantial 
renumeralion Isic] and in turn will likely generate hundreds of thousands of dollars in tax 
revenue for both the Federal and State government. 
president and chief executive officer also provided a letter 
in support of the petition._ states that he is the "sole disseminator of the enlire film archive of the 
former East Germany under special arrangement of the German government." and as such is "uniquely! 
qualified to comment on the 'lit and influence of one of Germany's finest artists.'_ states: 
The work of Ithe beneficiary I stands solidly in our national treasury of art. I have traveled 
widcly and had the chance to enrich my interest in art throughout Germany and abroad. I 
recently had the ironic opportunity of meeting this fellow German, I the hendiciary I, while 
Page 17 
we were both in the United States. I was quite pleased to meet her as I am familiar with her 
work that has been on exhibition in Berlin .... 
[The beneficiary[ has a deep understanding of not only the history, genres. and techniques in 
the traditional study of al1. but she has that special quality of being able to transcend the 
levels of the current stale of the art, and present on her canvases and in her cOllversations an 
entirely new and engaging art that blends color and form with philosophy and a remarkable 
process of (what I am surprised to see mysc1f) a kind of soothing, calming presence. In her 
paintings, this is expressed in the way the wild forms come together in a rlow of textures that 
arc more than pleasing. They actually seem to massage one's wandering thoughts. 
_tates that the beneficiary "has a reputation in Europe that allows her to command high prices for 
her paintings, but this stature was achieved only after years of hard work." 
The petitioner provided a letter dated November 8, 2008 from of the syndicated talk radIO 
show 
the environment, human and animal rights, and a fine example of living her dreams," but does not discuss the 
beneficiary's achievements as an al1ist. 
nrc,nllcel' of~tates in a letter dated November 3, 2008 that the beneficiary "has been 
featured several times 011 our television broadcasts," where "her outstanding art and fascinating discussions 011 
art have been very popular in our interview formats." He states that the beneficiary is "truly a noteworthy 
television personality in our area," presumably referring to Siskiyou County. California. where the local 
television station is hased. 
The petitioner provicied a letter from 
California. _tates: 
been activating minds through her exceptional paintings ••••• 
[The beneficiary] takes the viewer to a higher level of awareness. awareness 
from within oneself to a more joyous unformed vision of whatever the vicvver wants to see or 
has to see. 
* * * 
[The beneficiary] has excelled in opening minds and hearts in our communlly through her 
artwork, she has been exhibiting her in the city of Weed and is also a member of our Weed 
Arts Council. [The beneficiary J will also be having another opening here in Weed at the Turn 
of the Centuries Fine AI1 Gallery November 22, 2008. I just attended one or [the 
beneficiary's[ openings for this exhibit was so well 
attended that the viewers 
described as a n()ll~pr()fit. rublie~benefit 
project in Yreka, California. provided a letter dated November 3, 2008. _ stated: 
Page 18 
]The beneficiary] has shown her art at our gallery twice since ollr opening exhibition in May 
2008. Currcntly, she is exhibiting a conceptual piece featured in the center ,pace of our 
gallery. Working with the theme of ancestral acknowledgment, the sculpture relates to the 
human origins of simple life forms. [The beneficiary [ has presented viewers with a plane of 
authentic blue-green algae, manipulated with a "creative design" to pose the challenge of 
creation. In addition to the piece, [the beneficiary[ has produced a companion explanation of 
evolving life forms and ancillary information on the origins of her materials. The presence of 
conceptual art in our rural setting is, in itself. an education for our community . 
. . Her work is conceptually compelling, and the quality of her craftsmanship and attcntion 
to detail result in finish pieces that set a bar for excellence and rival those of any 
cosmopol itan area. 
* * * 
[The benefieiary[ offers a unique presence in our community. Fellow artist,. gallery owner, 
and local arts associations regard her as not only an artist of the highest ability, but also a 
compassionate and dedicated supporter of the arts, other artists and aspiring art ish. 
provided a letter datl'd November 2, 200H. 
lie indicates that thc beneficiary has an exhibition scheduled to begin at his gallery on November 22, 200H. 
and notes that "we are privileged to have the opp0l1unity of exhibiting the art of such a prestigious artist such 
as [the beneficiary[. that the beneficiary is "the most recogni7cd and respected ani,t in 
this part of California.' 
The petitioner submitted a letter from 
California. _tates: 
Artist 
Wc arc proud to have the art of [the beneficiary] in our community. [The beneficiary I 
produces highly original abstract, non-representational art - without doubt thc most difficult 
art to market but [the beneficiary] has shown a talcnt that continues to astound us. As 
evidenced by her sales record, collectors recognize her gifts and have been willing to pay the 
highest prices for art in any category in our arca. This alone sets her arart from the vast 
majority of artists. Most abstract as well as non-abstract aJ1ists have a difficult time selling 
individual pieces over the $200 range. Individual pieces from [the beneficiary I have sold in 
our area 1'01' thousands of dollars. With a depressed economy, most profoundly fclt in our 
rural part of California, this success is truly remarkable. 
Beyond the markct aspcct of art, Ithe beneficiary[ offers a unique presence in our community. 
She is regarded by fellow artists, gallery owners and local al1 associations as not only an artist 
of the highest ability, but also a compassionate and dedicated supporter of the an community. 
other artists and aspiring artists. 
provided a letter dated November 2, 200g in which he stated: 
Page 19 
In the eight years of my acquaintance with [the beneficiaryJ I am frequently reminded of what 
an extraordinary artist, teacher, role model and pillar of the art community she is III Northern 
California. Her artwork rings of spirituality and beauty and "speaks" in a language that even 
the uninitiated in art can grasp and get great value from, This area of the statc is not noted for 
its artistic creativity, and has no well known ,lItists who are native to the region, JThe 
beneficiaryJ with years of exhibitions and educational talks helpJsJ "ground" and guide the 
arts here. Her talent is extraordinary and her generosity is boundless. 
urther states that the beneficiary's "artwork and her value as an artISt is truly remarkahk." 
in a leller dated May S. 
1999 that he is a collector of the beneficiary'S art and owns six of her abstract pieces. which he describes as 
"extraordinary explorations of form and color." He states that in his opinion, the hendiciary's "work IS so 
satisfying and engaging precisely because it embodies ... classical canons of harmony and proportion." 
with the beneficiary as editor of the beneficiary's autobiography. 
beneficiary as a "talented writer" who "is making a significant contribution to the literature of the United 
States." 
states that the beneficiary "has 
contributed her artistic expeltise on various television shows produced at MCTV -15. the communit) 
television station housed at the Weed Campus of College of the Siskiyous," and "has exhibited her work at 
various venues in the coullty." She describes the beneficiary as a "cultural treasure." 
The petitioner submitted a letter dated November 8, 2008 from who states that he 
has known and admired the beneficiary'S art and work in the community for several years. He states that he 
"finds her art a unique expression of the divine spirit," and feels "that her artwor, will soon find greater 
acceptance in the art world at large." He describes the beneficiary as "very pro American," an active 
participant in religious activities, and "an upstanding and very generolls member of the local community." 
the _, California states that she has known the 
parishioner and active member of the community for seven ycar'i." She dcscrihcs the 
"a treasured member or the community of as well as helllg a celebrated artist 
natiollvvide. " 
or()Vided a letter dated November 8, 2008 from r and artistic director of 
__ states that the 
beneficiary has become widely known her "unique abstract art" and "for her amazing 
compassion and support" for all members of the community. 
states that he has seven of the beneficiary's paintings In his private 
collection and finds her to be "an artist of extraordinary talent." 
Page 20 
Finally, the petitioner submitted a letter from ~ho states that she first saw the beneficiary's art 
in a local gallery six year ago and now owns several of her paintings, _ states that she is "not an art 
aficionado," but believes that the beneficiary "can be likened to an 'Einstein' in the field of art, forging into 
new and unexplored territory with her art in a way that benefits humanity." She indicates that she has 
attended the beneficiary's ar~n the cities of Dunsmuir, Mount Shasta. Weed and Yreka. each of 
which were "well attended." _opines that the beneficiary's paintings "scem to reflect and help us to 
understand emerging themes in our culture," and "speak to human evolution, Qur origins, the unity or 
humanity. and our individual as well as collective path to greatness." 
~. its several additional letters on appeal, including the above-referenced 
.......- who states that thc beneficiary's "leading role in the creation of the 
letter from. 
makes her one of the impo~in the history of the modern German art scene." The petitioner also 
submitted a new letter from_ who states that the beneficiary "has been a leading figure in German 
abstract art." 
/\lIu/ysis 
Upon review of the letters, the AAO concurs with the director's determination thai thl' petitioner failed to 
establish that the beneficiary has received significant recognition for achievements from organizations, critics. 
government agencies, or other recognized experts in the field. 
The majority of the letters submitted were not provided by recognized experts in the field of fine art. It is 
evidcnt that the beneficiary's talent and contributions to the community are greatly respected and appreciated. 
The heneficiary has earned the praise and respect of local art galleries and organizations in Siskiyou County, 
California, local television and radio outlets, hcr church, her book editor. and private collectors of her work. 
not 
experts" in the field, and as such, their testimonial evidence, individually and collectively, does not rise to the 
level of "significant recognition." We note that, on appeal, counsel does not refer to these individuals as 
expel1s whose testimonial evidence is qualifying under this criterion. 
On appeal, counsel emphasizes that ••••••••••••••••••••••••••••• 
arc "experts in the field of arts" and that thcy "clearly state how art experts reeoglllze the beneficiary's 
achievements in the field of arts." 
In his letter dated July 21, 1999, _ discussed the beneficiary's body of vv()l'k generally from an 
artistic perspective, noting the "exccptional delicate power" of her paintings, her techniques. her materials and 
her subject matter. While _ clearly appreciates the beneficiary'S artistic talents, such testimony docs 
not amount to "recognition for achievements." _ notes that "both of my shows with Ithe 
beneficiary's] work in Berlin and in Hamburg were extremely successful and widely positive review Isicl." 
He does not identify specifically when or where the shows took place, what made them "extremely 
successful." or elaborate with respect to the positive reviews the beneficiary purportedly reccived. The record 
contains no documentary evidence, such as articles or reviews, regarding exhibitions of the beneficiary'S work 
Page 21 
in Berlin or Hamburg. Thus, we find_vague reference to two well-received art exhihitions to be 
insufficient evidence of the beneficiary's "achievements." _also stated that the beneficiary's work 
"has attracted enormous respect from the art community," As noted above, the regulation at 8 C.F.R. ~ 
214.2(o)(2)(iii)(D) provides that affidavits written by recognizcd 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. Broad 
claims indicating that the beneficiary is respected in the "art community" provide insufficiel1l recognition of 
the beneficiary's specific achievements as they do not describe the beneficiary's achievements in factual 
terlll~. 
We acknowledge that ••••• has stated that the beneficiary is "a leading figure in German abstract art" 
also indicates that the beneficiary is "a leading figure in the genre of modern abstract art." 
that the beneficiary's work "stands solidly in our national treasury of aI1." 
states that the beneficiary is "one of the important figures in the history of the modern German art scene." 
Recognition as heing a leading figure within an entire genre of art could be considered a notable achievement; 
however, the AAO finds that this testimony is simply not consistent with the other evidence in the record. 
The AAO may. in its discretion, use as advisory opinion statements submitted as exrert testimony. \Vhcrc an 
orin ion is not in accord with other information or is in any way questionable. the AAO is not required to 
accept or may give less weight to that evidence. Mauer of'Carollinterllllliono/, 19 I&N Dec. 791 (Comm'r. 
1988). An artist who is in fact widely recognized as a leading figure in the fine arts should not have to rely 
almost solely on testimonial evidence to establish this reputation. Rather it is reasonahle to believe that such 
an artist could readily produce a plethora of evidence from art critics, art historians, art publications, and other 
sourccs clearly recognizing her among the leading or most important modern or abstract artists in Germany. 
lIere. the petitioner has produced several 30-year-old newspaper clippings reviewing a few exhibitions of the 
beneficiary's work. While this evidence shows that the beneficiary enjoyed a degree of recognition for her 
work in the early 1980s, the evidence of record simply does not support the tcstimony that the beneficiary is 
recognized as "a leading figure" in German modern or abstract art. 
_also stated that the "commercial success of Jthe beneficiary'sJ paintings. lifts this artist to the 
sphere of prestigious representatives of contemporary culture." He failed to state the heneficiary's 
commercial achievements in factual terms. We cannot conclude that vague references to commercial 
achievements are sufficient to meet this criterion. 
The petitioner relies on the testimony who is a writer, filmmaker and commercial 
assistant. rather than a recognized expert in the field of fine arts. She claims to be qualified to render her 
opinion because her documentary work is focused on "revival of ancient spiritual trauitions" and she has heen 
attracted to the beneficiary's art for this reason. The AAO cannot conclude that this statement adequately sets 
forth pertise in the fine al1 of painting. She indicates that she IS "aware that Jthe 
heneficiary'sJ remarkable style is acknowledged worldwide in galleries," and notes that the fact that the 
beneficiary has ~ery on the Internet" makes her a "digital art pioneer." The remainder of her 
letter describes ~ersonal reaction to the beneficiary's work as "art that heckons one to live in 
harmonious rclat' . '." Other than confirming that the beneficiary'S work appears in galleries anu on the 
Internet. has not described the beneficiary's achievements in factual terms. 
Page 22 
Similarly. the petitioner's reliance on testimonial evidence is misplaced. First. __ 
indicates that he is an independent publisher of music magazines. His only basis for establishing his authority 
as an expert in the beneficiary's field is that he is "exposed to a wide variety of art everyday" and is attracted 
to "artforms which speak directly to the spirit." The AAO cannot conclude that he is a recognized expert in 
the beneficiary's field. He provides no factual basis for his conclusion that the beneficiary's "abstract 
impressionistic style is acknowledged worldwide as groundbreaking and visionary." and mentions no othl'r 
achievements. As discussed above. unsupported references to the beneficiary's reputation in her field do not 
provide significant recognition for achievements within the meaning of the regulations. The remaindcr of. 
_letter describes his personal response to the beneficiary's art work and his opinion that the 
beneficiary's work "will generate hundreds of thousands of dollars of tax revenue." 
We cannot conclude that the reference letters, considered in the context of the totality of thc evidence submitted. 
arc sufficient to meet this criterion. The preceding letters, while not without weight. cannot form the cornerstone 
of a successful extraordinary ability claim. USCIS may, in its discretion, Lise as advisory.' opinions slatcmcnts 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791. 795 (Comm'r. 1988). 
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 suppotting 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 
it!. at 795-796; see a/so 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 expelts' statements and how they became 
aware of the petitioner's reputation are imp01tant considerations. Even when written hy independent expens. 
letters solicited by an alien in suppott of an immigration petition are of less weight than preexisting, independent 
evidence that one would expect of an aliist whose achievements have received "significanl recognition." 
Therefore. the criterion at X c.F.R. § 214.2(0)(3)(iv)(B)(5) has heen met. 
Evidencc lhal the alien has either commanded a high salary or H'il! command {/ high salary or 
other slIiJstcmria/ remuneration for services in relation to others in the .lidd. a. .. (Tit/ellecd by 
COl/tracts Of other reliable evidence 
At the time of filing. the petitioner stated that the beneficiary "experienced commercial recognition of her talents 
through the sale of numerous paintings in the last year." The petitioner indicates that from 2007 through 2008. 
the hencficiary sold five paintings for $380, $480. $900. $1,400 and $1.500. The petitioner stated that the 
beneficiary also donated a S 14.000 painting and two paintings with a combined value of 51.500, during this same 
time period. 
In response to the RFE, counsel reiterated the figures quoted above and stated that "it is rare for a living altist to 
earn a substalllial and steady income li'om the sale of her work." Counsel stated that "[the beneficiary [ has 
commanded, and will command substantial remuneration for her work" as "evidenced by her record of past sales. 
submitted with the past applications for extension of the petition and stay." It is worth emphasizing that each 
petition filing is a separate proceeding with a separate record. Sec X CF.R. ~ I03.S(d). In making a 
determination of statutory eligibility, USCIS is limited to the information contained in the record of 
proceeding. See 8 C.F.R. § I 03.2(b)( 16)( ii). If a director requests additional evidence that the petitioner may 
, , 
Page 23 
have submitted in conjunction with a separate nonimmigrant petition filing, the petitioller is. nevertheless, 
ohligated to submit the requested evidence, as the records of the nonimmigrant prolTl'dings arc not combined. 
The petitioner's response to the RFE also included testimonial evidence from_ and ••••• 
attesting to the beneficiary's relative commercial success in a difficult economy. 
The director determined that the petitioner failed to submit evidence to meet this criterion. The director 
acknowledged counsel's assertion that it is extremely difficult for an abstract artist to achieve commercial 
success in the current economic situation. The director nevertheless noted that the beneficiary'S works sold in 
the year preceding the filing of the petition totaled less than $5,000 and no evidence of comparison to other 
anists' salaries was submitted. 
On appeal. counsel asselts that "the fact that beneficiary has commanded a high salary in the past was established 
in the initial petition and in the subsequent renewals of the petition." Counsel emphasi/es that_ attested 
to the fact that the beneficiary "has a reputation in Europe that allows her to command high prices for her 
paintings," and ~lOted the beneficiary'S "commercial success." Counsel asselts that the director 
Ignored evidence that the beneficiary commanded a high salary in the past and Instead concentrates on the 
heneficiary's current record of sales. 
Upon review. counsel's asscltions afC not persuasive. While it is true that the director hased his determination on 
the beneficiary'S recent record of sales, no other "reliable evidence" of the beneficiary's sales has been pnl\ided. 
Givcn that the plain language of the regulation requires evidence that the beneficiary "has commanded a high 
salary or will command a high salary" we would accept reliable evidence of the beneficiary's claimed past 
commercial Sllccess. The fact that the beneficiary earns less now than she has in the past. for vv"hatever reason. 
would not prohibit a finding that she meets this criterion. 
However. testimonial evidence containing vague claims of past commercial success is in~L1fficiel1t to sati:-.fy this 
regulatory criterion, which requires that the petitioner's claims be supported by "contracts or other reliable 
evidence." 8 c.F.R. * 214.2(0)(3)(iv)(B)(6). Going on record without supporting documentary evidence is not 
suflicient for purposes of meeting the burden of proof in these proceedings. Maller ofSo/fici. 22 I&N Dec. at 
16') (Comm'r. 1998) (citing Maller o/Treasure Craft o/CaliJomia. 14 I&N Dec. 190 (Reg. Comm'r. 1972)). 
Given that the petitioner is the beneficiary's U.S. agent and _ claims to be the beneficiary's 
exclusive agent in Europe since 1988, it is unclear why neither party was able to produce a record of the 
beneficiary's past sales as evidence that she has commanded a high salary. As noted above. claiming that 
:-.uch evidence was suhmitted with a prior petition is insufficient to meet the petitioner's hurden or proof in the 
current proceeding. The AAO concurs with the director's conclusion that the petitioner did not submit 
evidence to meet this criterion. 
H. Final Merits Determination 
Ka~"ri,," sets forth a two-palt approach where the evidence is first counted and then considered in the context of 
a final merits determination. However, as discussed above, the petitioner established eligibility under none of the 
six criteria at 8 C.F.R. * 214.2(0)(3)(iv)(B). of which at least three must be met to establish eligibility. 
" . 
Page 24 
Notwithstanding the above, a final merits determination considers all of the evidence in the context of whether or 
notthe petitioner has demonstrated: (I) that the beneficiary has a high level of achievement in the al1s evidenced 
by a degree of skill and recognition substantially above that ordinarily encountered to the extent that she is 
renowned, leading, or well-known in the field of al1S, pursuant to 8 CF,R. ~ 214.2(0)(3)(ii); and (2) tlwt the 
beneficiary is recognized as being prominent in her field, pursuant to 8 CF.R. § 214.2( ()( 3)( iv). See K(/~(/ri(/I/. 
2010 WL 725317 at *3. 
In this case, we concur with the director's finding that the petitioner has not established that the beneficiary is 
prominent to the extent that she could be considered renowned, leading or well-known in the field of fine arts. 
The specific deficiencies in the documentation submitted by the petitioner have already been addressed in our 
preceding discussion of the regulatory criteria at 8 CF.R. § 214.2(0)(3)(iv)(B). Although the petitioner's 
evidence shows that the beneficiary enjoyed a degree of national recognition as an artist early in her career. the 
evidence in the aggregate docs not establish that the beneficiary is currently recognized as a leading or vvcll­
known ;:utist uutside of her local community in Califomia. 
As discussed above, the petitioner's claims that the beneficiary qualifies for the requested classification are based, 
in large part, on testimonial evidence, including statements indicating that the beneficiary is "a leading figure" in 
German modern or abstract a11. Again, we emphasize that the favorable opinions of expel1s in the field, while 
not without evidentiary weight, are not a solid basis for a successful extraordinary ability claim,' Unusual in its 
specificity, section IOI(a)(15)(O)(i) of the Act clearly requires "extensive documentation" of the alien's 
achievements. Again, USCIS may, in its discretion, use as advisory opinions statements submitted as expeI1 
testimony. Scc Muller of Caron Intenzational, 19 I&N Dec. at 795. However, USCIS is ultimately responsible 
for making the final determination regarding an alien's eligibility for the benefit sought. Ill. The submission of 
lellers from expel1s supp0l1ing 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 ill. at 79)-796: .ICC a/so Maller of v­
K-. 24 I&N Dcc. at 500, n.2. 
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 1515 (8th Ed. 20(7) (defining "opinion 
tcstimony"). Written testimonial evidence, on the other hand, is testimony about whether something occurred 
or did nol occur, hased on the witness' direct personal knowledge. Id. (defining "\\Titlc'1l leslimony"): sec 
a/so 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 "sclf-serving," See, e.g .. Marter of S-A-, 22 I&N Dec. 1328, 
1332 (BIA 20(JO) (citing cases), The Board also held, however: "We not only cncourage, but require the 
introduction of corroborative testimonial and documentary evidence, where available." iiI. If testimonial 
evidencc lacks specificity, detail, or credibility, there is a there is a greater need for the petitioner to submit 
corrobative evidence. Matter olY-B-, 21 I&N Dec, 1136 (BIA 1998), 
" , 
Page 2) 
The AAO emphasizes that four out of the six criteria set fOlth at 8 C.F.R. * 214.2(0)(3)(iv)(B) require the 
petitioner to submit various types of published materials to establish the beneficiary's recognition. such as critical 
rcviews, advel1isements, publicity releases, newspaper, magazine or trade journal articles. Therefore. it is 
significant that the petitioner has submitted relatively little published evidence regarding the bcneficiary. 
notwithstanding the fact that her career as an artist began in the early I 970s. Funher. almost all of the published 
materials submitted are reviews of art exhibitions held in 1981. It is not reasonable to include the beneficiary 
among the group of visual artists recognized in the field as leading, renowned or well-known if the petitioner does 
not establish that she has received some form of significant independent recognition based on her reputation or 
achievements in the last twenty-five years. 
Therefore. the conclusion we reach by considering each evidentiary criterion separately is consistent vvith a 
review of the evidence in the aggregate. Even in the aggregate, the evidence docs not distinguish the beneficiary 
as a painter who has achievcd a level of distinction to the extent that she can be deemed to be renowned, leading, 
or well-known in the field of visual or fine arts. 8 C.F.R. * 214.2(0)(3)(ii). Based on the evidence submitted, it 
can be concluded that the beneficiary was active in artist union efforts in Germany in the 1970s and had some 
notice from the national press in Europe in the early 1980s. The beneficiary's career and level of recognition since 
that time have been poorly documented. 
Nothing in the decision of the AAO should be seen as an attempt to minimile the accomplishments or 
obvious talent of the beneficiary. Many of the petitioner's claims simply failed on an evidentiary basis, as the 
rctitioner chose to rely. in part, on evidence that it claims was submitted in support of a prior nonimmigrant 
petition. As noted above, such evidence is not available for review in subsequent nonimmigrant proceedings. 
III, Prior Approval and Conclusion 
The record does show that USCIS has approved several prior 0-1 classification petitions filed by the 
petitioner on behalf of the instant beneficiary. Counsel specifically refers to a 2004 USClS memorandum to 
support her assertion that it is uscrs policy that prior approvals of petitions involving the same parties 
should he given deference. See Memorandum of William R. Yates, Associate Director for Operations. 
LJSCIS: The Sigm)fcanc{' (~la Prior CIS Approval (411 Nonim.migrant Pctitiol1 in thc CO/lfe_rf (~ra .)·II/JS('(llfCnl 
Dclermillalioll Regardilll! nigibilitv of Pel ilion Validitv (April 23, 2004)("Yates Memoranuum"). The 
memorandum provides that exceptions to this policy should be made where: (I) it is determined that there 
was a material error with regard to the previous petition approval; (2) a substantial change in circumstances 
has taken place; or (3) there is new material information that adversely impacts the petitioner's or 
beneficiary's eligibility. Id. It is noted that the Yates Memorandum is addressed to service celller and regional 
directors and not to the chief of the AAO. 
The AAO notes that prior approvals do not preclude USClS from denying an extension of the original visa based 
on reassessment of the petitioner's or beneficiary's qualifications. Texas A&M Univ. \'. Upchurch, 99 Fed. Appx. 
<;56. 2004 WL 1240482 (5th Cir. 2(04). The mere fact that USCIS, by mistake or oversight, approved a vISa 
petition on onc occasion does not create an automatic entitlement to the approval of a 'iubsequent petition for 
renewal of that visa. Royal Siam Corp. v. Cheri off: 484 FJd 139, 148 (I st Cir 2(07); sec also Maller ot Chllrch 
Sciell/ologv Inl'/., 19 I&N Dec. 593. 597 (Comm'r. 1988). 
" .0' " 
Page 26 
Each nonimmigrant petition filing is a separate proceeding with a separate record or proceeding and a separate 
burden of proof. Sa 8 C.r:.R. * Im.8(d). In making a determination of statutory eligibility, USCIS is limited to 
the information contained in that individual record of proceeding. See 8 C.F.R. * IOJ.2(bH 16)(ii). In the present 
matter, the director reviewed the record of proceeding and concluded that the petitioner was ineligible for an 
extension of the nonimmigrant visa petition's validity based on the petitioner's failure to submit evidence that 
satisfies the regulatory criteria at 8 C.F.R. § 214.2(0)(3)(iv). In both the request for evidence and the final denial. 
the director clearly al1ieulated the objective statutory and regulatory requirements and applied them to the case at 
hand. Despite any number of previously approved petitions, USCIS docs not haw 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. 
useIS records confirm that most or all of the petitioner's prior 0-1 petitions on behalf of the beneficiary were 
favorably adjudicated with no requests for additional evidence. Much of the evidence in the eurrelll record 
consists of letters dated in 1999 and newspaper clippings from the I 980s, which we presume were submilled 
in support of the beneficiary'S initial petition filed in 1999. Unless the initial filing included substantial 
evidence that has not been provided for review in this matter, it is likely that the initial petition and 
subsequent extensions were approved without sufficient evidence of eligibility in the record. Such approvals 
would constitute material and gross elTor on the part of the director. Neither the director nor the AAO is 
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 qr Church Sciellw!ogy International. 19 I&N 
Dec. 593. 597 (Comm'r. 1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director approves the nonimmigrant petitions on 
behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service 
center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aiI'd. 248 FJd 1139 (5th Cir. 
20(1), cal. denied, 122 S.Ct. 51 (2001). Based on the lack of required evidence or eligibility in the current 
record, the AAO finds that the director was justified in departing from the previous petition approvals by 
denying the instant petition. 
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.