dismissed O-1B Case: Art

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., RoomA3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: SRC 04 225 52570 Office: TEXAS SERVICE CENTER Date: JUL 1 g 
--- 
IN RE: Petitioner: 
Beneliciar!,: 
PETITION: Petition for Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. 5 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. 
u 9 Robert P. Wiemann, Director 
Administrative Appeals Office 
SRC 04 225 52570 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the nonimrnigrant visa and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification of the beneficiary as an employment-based immigrant pursuant to section 
10 l(a)(l5)(O)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 101(a)(15)(0)(i), as an alien of 
extraordinary ability in the arts, in order to employ him as a plastic artist for a period of three years. The director 
determined that the petitioner had not established that the beneficiary qualifies as an alien of extraordinary ability 
in the arts. 
On appeal, counsel asserts that the director erred in denying the petition. 
Section 10 l(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 or, with regard to motion picture and television productions, has a demonstrated record of extraordinary 
achievement, and whose achievements have been recognized in the field through extensive documentation, and 
seeks to enter the United States to continue work in the area of extraordinary ability. 
According to the regulation at 8 C.F.R. 5 214,2(0)(3)(ii): 
Extraordinary ability in the Jield of arts means distinction. Distinction means a high level of 
achievement in the field of 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 specific requirements for supporting documents to establish that the alien qualifies as an alien of 
extraordinary ability in the field of arts are set forth in the regulation at 8 C.F.R. 5 214.2(0)(3)(iv). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that the alien has 
achieved distinction in his or her field of endeavor. 
This petition, filed on August 19, 2004, seeks to classify the beneficiary as an alien with extraordinary ability as 
an artist. The beneficiary is a native of Peru and received refugee status in France. He entered the United States 
as a nonimmigrant visitor on September 29, 2004. The beneficiary studied at the Escuela Superior de Formacion 
Artistica in Puno, Peru fiom 1987 through 1990. According to the petitioner, the beneficiary has approximately 
11 years of highly specialized experience as a plastic artist, painter and professional caricaturist. The petitioner 
further indicated that the beneficiary works in many different media, including cartooning, mural painting, 
abstract acrylic painting, logo design, computer graphics and crafts. According to the evidence on the record, the 
beneficiary also founded and taught at a Latin dance academy in Pau, France; owned a shop in France, selling 
Peruvian textiles, clothing and musical instruments; and founded a nonprofit organization, Eco-Solaire. 
The regulation at 8 C.F.R. 5 214.2(0)(3)(iv) indicates that an alien can establish he or she is recognized as being 
prominent in his or field of endeavor through evidence of a one-time achievement (that is, a significant, nationally 
or internationally recognized award, such as an Academy Award). Barring the alien's receipt of such an award, 
the regulation outlines six criteria, at least three of which must be satisfied for an alien to establish the prominent 
necessary to qualify as an alien of extraordinary ability in the field of arts. The petitioner has submitted evidence 
that it claims satisfies at least three of the six criteria. At no point has counsel or the petitioner specifically 
identified and addressed the regulatory criteria discussed below. 
SRC 04 225 52570 
Page 3 
Evidence that the alien has been nominatedfor or has been the recipient of signlJicunt national or 
international awards or prizes in the particularjield such as an Academy Award, an Emmy, a 
Grammy, or a Director's GuildAward. 
According to the evidence on the record, the beneficiary has been awarded the following: 
Honorable mention from the Ministry of Education, Regional Office, for his determined and brilliant 
participation in the strengthening of the art and culture in Puno, Peru, 1993. 
Honorable mention (honor diploma) from the Ministry of Education, Department Directorate of 
Education, Puno, Peru, in recognition of his meritorious labor on the execution of the mural "Puno in 
History," 1987. 
Five certificates of completion of programs of study at the National School of Fine Arts of Lima, Peru. 
Certificate of participation as an exhibitor in Puno, Peru, 1996. 
Prize in painting contest held by the city of Orthez, France. 
A patent for his invention, the polychromatic drawer, a calligraphy tool. 
The evidence on the record is devoid of documentation establishing the significance of any of the above listed 
awards. Certificates of participation are not awards, per se. While the petitioner submitted copies of the 
honorable mentions and certificates, it failed to submit corroborating evidence of the prize awarded by the city of 
Orthez. Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter of Sofjci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner also provided evidence of an approved patent granted to the beneficiary for a calligraphy tool. 
The granting of a patent documents that an invention or innovation is original, but not every patented 
invention or innovation constitutes a significant contribution in one's field. The petitioner failed to 
demonstrate that the beneficiary's patented technique is a significant contribution in relation to others in the 
field. 
The petitioner has failed to establish that the beneficiary satisfies this criterion. 
Evidence that the alien has performed 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 testimonial. 
According to the evidence on the record, the beneficiary opened a shop selling traditional Peruvian textiles and 
folk art in France. The petitioner submitted an undated article captioned "That's Peru," which describes the 
beneficiary's shop. The article was featured in the commerce section of an unnamed publication. The petitioner 
submitted a captioned photograph of the beneficiary selling caricatures at a stand in an unnamed undated 
publication. The AAO will not consider undated and unnamed publications. The record contains a photograph of 
the beneficiary captioned "Juan and Mikaela Visiting Pau's Fair" published in the September 14, 2002 edition of 
L 'Eclair. The petitioner failed to submit circulation data of L 'Eclair. The petitioner submitted photographs of 
SRC 04 225 52570 
Page 4 
the beneficiary's art exhibitions. There is no evidence of when and where these photographs were published. 
The petitioner failed to submit evidence establishing that the beneficiary's shop or art exhibitions are 
organizations or establishments with a distinguished reputation. The beneficiary does not satisfy this criterion. 
Evidence that the alien has received signfiant recognition for achievements j?om 
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. 
As evidence that the beneficiary has received significant recognition for achievements from organizations, critics, 
government agencies or other recognized experts in the field in satisfaction of criterion number five, the petitioner 
submitted the following letters: 
artist, attested that the beneficiary's invention has received a "great positive reception." 
Director, Educational Sciences Faculty, National University of the Altiplano in 
that the beneficiary has "demonstrated extraordinary abilities in the art of 
calligraphy" during his lecture at the university in 2002. 
University, Miami, Florida, wrote, "[the beneficiary] has demonstrated his professional qualifications as 
an exceptional artist in an impressive career with numerous exhibitions and unique creative projects." 
- Acting General Director, Escuela Superior de Fonnacion Artistica, Ministry of 
Education, Puno, Peru, certified that the beneficiary "demonstrated extraordinary ability and superlative 
accomplishment in the art of the [sic] calligraphy." 
fhb 
4th year art student at the University of Fine Arts in Mirail, Toulouse, attested to her use 
o t e eneficiary's patented invention, "polychromatic drawer" calligraphy tool. 
ist, wrote that the beneficiary's work has received international exposure at exhibitions. 
While all of the letters' authors praise the beneficiary's work, they fail to establish that the beneficiary has 
received significant recognition for his achievements. The beneficiary does not satisfy this criterion. 
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 petitioner submitted a signed contract indicating that the petitioner would pay the beneficiary an annual 
salary of $35,000. As evidence that the proffered wage may be considered "high," the petitioner quoted the 
2004-2005 Edition of the U.S. Department of Labor Occupational Handbook, which states: "only the most 
successful fine artists are able to support themselves solely through the sale of their works [and] most fine artists 
must work in an unrelated field to support their art careers." The petitioner asserts that since most fine artists 
cannot support themselves by selling the art, or in effect, earn nothing, the proffered wage is high in comparison. 
Salary blurb. This criterion must be indicative of national acclaim in the field. To evaluate whether the salary is 
high, Citizenship and Immigration Services (CIS) needs to compare it to the median and highest wages offered 
SRC 04 225 52570 
Page 5 
nationwide to fine artists. There is no such documentation in the record that would provide a basis for 
comparison. 
After a careful review of the entire record, the AAO finds that the petitioner has not shown that the beneficiary is 
a person of extraordinary ability in the fine arts. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
The petitioner has not sustained that burden. Accordingly, the director's decision will not be disturbed. 
ORDER: The appeal is dismissed.