dismissed O-1B Case: Ceramics

(b)(6)
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i!b~'J!f~~].[_~~D:l!limd~iiiity 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. CitiZenship 
and Immigration 
Services 
Date: FEB 0 6 201J>ffice: CALIFORNIA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker under Section IOl(aXIS)(O)(i) ofthe Iinmigration and 
Nationality Act, 8 U.S.C. § llOI(a)(ISXOXi) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Foim 1-2908, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 CF.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
· .. )>t:.··· .)' ~ 
·•·;:';z . · · ~~. 
RonRos~.J · 
Acting Chief, Administrative Appeals Office 
www.uscis.g()V. 
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DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition~ The matter 
is now before the Administrative Appeals Office ("AAO") on appeaL The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to classify the beneficiary pursuant to section 
lOl(aXIS)(O)(i).oftheimmigration and Nationality Act (the Act), 8 U.S.C. § llOl(aXIS)(O) as an alien with 
extraordinary .ability in the arts. The petitioner requests that the beneficiary be granted 0-1 classification for a 
period of three years so that the petitioner may employ the beneficiary as an artist in residence, to teach ceramics 
courses and display her work at exhibitions. 
The director denied the petition, finding that the petitioner had failed to establish that the beneficiary qualifies as 
an alien 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(o)(3)(iv)(A), or any of the six evidentiary criteria 
set forth at 8 C.F.R. § 214.2(oX3Xiv)(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 asserts that the director's decision is 
incorrect as a matter of law and policy and is arbitrary and capricious. Counsel contends that the evidence 
. submitted meets the evidentiary requirements set forth at 8 C.F.R. § 214.2(o)(3)(iv)(A) and five of the evidentiary 
requirements set forth at 8 C.F.R. 214.2(o)(3)(iv)(B). 
I. TheLaw 
Section lOl(a)(lS)(O)(i) of the Act provi(ies 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 regulation at 8 C.F.R. § 214.2(o)(3)(ii) defmes, in pertinent part: 
Arts includes any field of creative activity or endeavor such as, but not limited to, fme arts, visual 
arts, culinary arts, and performing arts. 
Extraordinary ability in the field 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. § 214.2(o)(3)(iv) states, in pertinent part: 
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Evidentiary criteria for an 0-1 alien of extraordinary ability in 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 reeipient of, significant national 
or international awards or prizes in the particular field such as an Academy Award, an 
Emmy, a Grarnmy, 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; 
(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 perfo~Jlled, 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 organiiations, critics, government 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; or 
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(C) If the criteria in paragraph (oX3Xiv) of this section do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence in order to 
establish the beneficiary's eligibility. 
Additionally, the regulation at 8 C.F.R. § 214.2(o)(2)(iii) provides: 
The evidence submitted with an 0 petition shall conform to the following: 
(A) Affidavits, contracts, awards, and similar documentation must reflect the nature of the 
alien's achievement and be executed by an officer or responsible person employed by the 
institution, frrm, establishment, or organization where the work was performed. 
(B) Affidavits written by presentor former employers or recognized experts certifying to the 
recognition and extraordinary ability ... shall specifically describe the alien's recognition 
and ability or achievement in factual terms and set forth the expertise of the affiant and the 
manner in which the affiant acquired such information. 
The decision of U.S. Citizenship and Immigration Services (USCIS) in a particular case is dependent upon the 
quality of the evidence submitted by the petitioner, not just the quantity of the evidence. The mere fact that the 
petitioner has submitted evidence relating to three of the criteria as required by the regulation does not 
necessarily establish that the alien is eligible for 0-1 classification. 59 Fed Reg at 41820. 
In determining the beneficiary's eligibility under these criteria, the AAO will follow a two-part approach set forth 
in a 2010 decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kazarian v. USCIS, 580 F.3d 1030 
(9th Cir. 2009) qff' din P_art 596 F .3d 1115 (9th Cir. 201 0). Similar to the regulations governing this nonimmigrant 
classification, the regulations reviewed by the Kazarian court require the petitioner to submit evidence pertaining 
to at least three out of ten alternative criteria in order to establish a beneficiary's ~ligibility as an alien with 
extraordinary ability. Cf 8 C.F.R. § 204.5(hX3). 
Instead of parsing the significance of evidence as part of the initial inquirr, the Kazarian court stated that "the 
proper procedure is to count the types of evidence provided (which theAAO did)," and if the petitioner failed to 
submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the regulatory 
requirement ofthree types of evidence (as the AAO concluded)." Id at 1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
The court concluded that while USCIS may have raised legitimate concerns about the significance of the 
evidence submitted to meet two of the criteria, those concerns should have been raised in a subsequent "fmal 
. merits determination." Id at 1121-22. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if qualifying under at 
least three criteria, considered in the context of a fmal merits determination. While involving a different 
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classification than the one at issue in this matter, the similarity of the two classifications makes the court's 
reasoning persuasive to the classification sought in this matter. 
The AAO fmds the Kazarian court's two-part approach to be appropriate for evaluating the regulatory criteria set 
forth for 0-l nonimmigrant petitions for aliens of extraordinary ability at 8 C.F.R. § 2l4.2(o)(3)(iii), (iv) and (v). 
Therefore, in reviewing Service Center decisions, the AAO will apply the test set forth 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 analysisrather than the two-step analysis dictated by the Kazarian court. See Soltane v. DOJ, 
381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO reviews appeals on a de novo basis). 
In this matter, the AAO will review the evidence under the plain language requirements of each criterion claimed; 
As the petitioner has failed to submit evidence that satisfies three of the evidentiary criteria at 8 C.F .R. § 
214.2(o)(3XivXB), the proper conclusion is that the petitioner has failed to satisfy the regulatory requirement of 
three types of evidence. 
II. Discussion 
The sole issue ·addressed by the director is whether the petitioner submitted evidence to establish that the 
beneficiary satisfies the evidentiary criterion at 8 C.F.R. § 2l4.2(o)(3)(iv)(A), or at least three ofthe six criteria 
set forth at 8 C.F.R. § 214.2(oX3)(ivXB). 
The beneficiary, a ceramics artist and instructor, is a native and citizen of Japan who was last admitted to the 
United States in F-1 practical training status. The petitioner, which is described as an educational arts facility, 
filed the petition on September 4, 2009. The director subsequently issued a request for additional evidence 
("RFE"), to which the petitioner promptly responded. 
,· 
A. · The Evidentiary Criteria 
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 awards or prizes in the particular 
field pursuant to 8 
C.F.R. § 214.2( o )(3Xiv)(A), then 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 petitioner claimed that the beneficiary is eligible for this classification based on her receipt of five awards. 
The petitioner stated that the applicant's work titled was selected for exhibition at the 
The petitioner asserted that the 
beneficiary received an award when three of her sculptures were sel~ted for purchase for the 
The petitioner stated that the awarded 
$1000 to the beneficiary to create eight to ten sculptures. In 2009, the 
awarded the applicant $2000 to exhibit an original work. Finally, in 2009, the Artist 
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Trust awarded the applicant a grant of $1500 for the purchase of professional-quality camera and gear. While the 
evidence indicates that the beneficiary is talented and has ·received grants and awards, there is no evidence that the 
awards are internationally recognized or equivalent to that listed at 8 C.F.R. § 214.2(oX3XivXA). 
Therefore, the petitioner must establish the beneficiary's eligibility under at least three of the. six criteria set forth 
at 8 C.F.R. § 214.2(oX3Xiv)(B). ·Counsel indicates that the beneficiary satisfies the criteria at 8 C.F.R. 
214:2(oX3)(ivXBXJ), (2), (3), (4) and (5). The remaining criterion will not be discussed. 
(1) Eviaence 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 
Counsel for the petitioner indicated that the beneficiary meets this criterion based on her past and prospective 
employment as a· resident artist and ceramics instructor for the petitioner, . According to 
their contract, the beneficiary is a "critical member" of their teaching staff and she will teach once or twice a week 
for three hours at a time. 
The mission of is to develop and promote excellence in the ceramic arts. 
goal is to provide a professional facility in an educational atmosphere for 
the enhaneement of skills in the medium of class. This is achieved by providing studio space, 
classes, professional workshops, lectures, community programs, and a gallery dedicated to the 
sale and exhibition of ceramic works. 
The director determined and the AAO agrees, that the petitioner did not provide sufficient evidence to establish 
that the beneficiary has and will play a lead, starririg or critical role for 
Additionally, the petitioner stated that the beneficiary has been and will be employed at the J 
Washington, teaching classes and exhibiting her work. The evidence does not establish that the 
beneficiary has and will play a lead, starring or critical role for 
The plain language of tllis criterion requires the petitioner to support its assertions regarding the beneficiary's 
lead or starring role in events or productions with a distinguished reputation by submitting evidence including 
critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. The petitioner 
has submitted no such evidence that would establish the beneficiary's leading, critical or starring role in these 
productions. Going on record without supporting documentary evidence is ·not sufficient for purposes of 
meeting the burden ofproofin these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) 
(citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r. 1972)). 
Based on the foregoing discussion, we concur with the director's conclusion that this criterion has not been met. 
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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 . 
. The petitioner provided a list of published articles that somehow relate to the beneficiary's work. The petitioner 
listed exhibition catalogues, monthly magazines, blogs, and the 
The petitioner failed to establish that any of these publications are major publications. The petitioner indicated 
that the is a part of rhe petitioner failed to provide 
information as to the circulation, so the AAO cannot discern whether it is a major 
newspaper, as required by the regulation. Exhibition catalogues are distributed only to art exhibition viewers. The 
petitioner indicated that the beneficiary was featured in a book titled and in a magazine titled 
At page 21 of one of the beneficiary's sculptures is featured. 
other artists' work was featured in the book. The petitioner provided no information about the book's 
distribution. · The petitioner provided a partial copy of which featured 
students' work, including one of the beneficiary's. Again, no information was provided as to the 
magazine's circulation. The petitioner failed to establish that the articles document the beneficiary's national or 
international recognition for her achievements and that the items were published by major media. 
·Based on the foregoing discussion, we concur with the director's conclusion that this criterion has not been met. 
(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. 
Counsel asserts that the beneficiary has performed in lead, starring or critical roles for a number of art galleries, 
including among others. 
In a testimonial, co-owner of wrote that he showcased the beneficiary's work in a 
solo exhibition and that the public response was overwhelmingly positive. He further indicated that he intended to 
feature the beneficiary's work in an upcoming solo exhibition. Counsel for the petitioner asserts that the 
beneficiary played a lead role in solo exhibitions. But an exhibition is not an organization or establishment. 
of the wrote that he exhibited the beneficiary's work at the 2008 
and intended to exhibit her work again in 2009. He provided a copy of a flyer 
for the exhibition, showing that the beneficiary was one of six artists selected to show their work: The petitioner 
failed to establish that has a distinguished reputation. 
The petitioner stated that the beneficiary was one of 11 artists chosen from 178 applicants to exhibit at 
in the 2009-2010 season. The petitioner failed to establish that has a 
distinguished reputation. 
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The petitioner indicated that the beneficiary had and would exhibit work and teach at and 
at 
reputation. 
The petitioner . failed to establish that these organizations enjoy a distinguished 
The petitioner submitted a list of publications about the beneficiary's work, however, none related to the 
. beneficiary's work at the above-listed organizations. Instead,' the articles related to several exhibitions, including 
several held at the where the beneficiary was a student. 
The AAO agrees with the director in finding that the petitioner failed to establish that the beneficiary has and will 
serve as lead, starring or critical role for any of these entities and failed to demonstrate that any of the galleries or 
museums have a distinguished reputation. 
For the foregoing reasons, the petitioner has not submitted evidence to meet the criterion at 8 C.F.R. 
§ 214.2(o)(3Xiv)(B)(3). 
( 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 
Counsel indicates that the beneficiary meets the criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(4) based on her 
"critically acclaimed success." · Counsel cites three examples of such success. Counsel states that 
commissioned the beneficiary to create a piece for display at the company's offices in Redmond, Washington. 
Second, counsel asserts that the beneficiary meets this criterion because her work was one of several selected 
from more than 1500 submissions to be part of the Third, the 
beneficiary was awarded a grant to create 8 to 1 0 ceramic sculptures for the 
Regardless, the petitioner did not submit evidence of these commercial or critical successes in the form of 
published evidence from trade journals, major newspapers or other publications, as required. Tile plain 
language of the regulation at 8 C.F.R. § 214.2(oX3Xiv)(BX4) requires the petitioner's commercial or critically 
acclaimed successes to be "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." The petitioner has not submitted any relevant evidence pertaining to this 
criterion. '---..... 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 16S (citing Matter of Treasure Craft 
ofCalifornia, 14 I&N Dec. 190 (Reg. Commr. 1972)). 
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For the foregoing reasons, the petitioner has .not submitted evidence that satisfies the evidentiary criterion at 8 
C.F.R. § 214.2(o)(3)(iv)(B)(4). 
(5) Evidence that the alien has received significant recognition for achievements from 
organizations, critics, government 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. 
The petitioner submitted several letters from experts in the beneficiary's field. A letter from 
Montana artist, states: 
[The beneficiary] is also a valuable asset to the cultural community in the and has been a 
very effective teacher at where her classes focus on drawing on pots, a tradition 
that has long roots in her native apan. Her mariy accomplishments since her graduation ... are quite 
impressive, and I will have you refer to her resume for specifics. She has the capability to contribute 
greatly to the arts in this country. -
a 
Professor , writes: "[The beneficiary's] works possesses [sic] an 
uncanny ability to resonate with viewers at many levels. The broad scope of her work in subject matter as well as 
style and technique is extremely impressive for one so young. [The beneficiary] is gifted in her mastery of the 
medium." 
a professor of ceramic art at the wrote: . "While there are many , 
artists working in ceramics today, [the beneficiary's] work stands out in her sensitive handling of the clay, and in 
her use of drawing, paint, wood, and other materials in combination with the clay .... " 
at the writes: "Following 
graduation, [the beneficiary] immediately established a studio and has garnered the attention of critics, art dealers 
and collectors. The work she is making is truly unique and the support that she has already received from our 
leading arts organizations ... is quite an accomplishment at this early stage of her career." 
While the AAO recognizes that the individuals who provided letters hold a very high opinion of the beneficiary's 
taient a5 an artist, the submitted testimonials do not satisfy the plain language of the evidentiary criterion at 8 
C.F.R. § 214.2(o)(3)(iv)(B)(S). Few of the persons providing testimonials have clearly indicated their knowledge 
. of the beneficiary's achievements. Rather, the majority of them opine that the beneficiary is a talented artist, 
without specifically addressing her achievements or recognition in the field. 
Based on the foregoing, the petitioner has not submitted evidence that satisfies the criterion at 8 C.F .R. 
§ 214.2(o)(3)(iv)(B)(S). 
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ill. Conclusion 
The documentation submitted in. support of a claim of extraordinary ability in the field of arts must clearly 
establish that the beneficiary is prominent to the extent that she could be considered renowned, leading or well­
known in her field. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in accordance with 
the Kazarian opinion, the next step would be a consideration of the evidence in the context of a final merits 
determination. However, as discussed above, the petitioner failed to es~blish eligibility under any of the criteria 
found under the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(B). The AAO will not conduct a fmal merits 
determination. 
For the above-stated reasons, the petitioner has not established the beneficiary's eligibility pursuant to the 
regulatory criteria at 8 C.F.R. § 214.2(o)(3Xiv)(B), and the petition may not be approved. 1 
The petition will be denied and the appeal dismissed for the above stated reasons. 1n visa petition 
proceedings, the burden of proving eligibility for the benefit sought remains entirely with the petitioner. 
Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has not been met. 
ORDER: TQe appeal is dismissed. 
1 The AAO maintains de novo review. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). 1n any future 
proceeding on motion or as a result oflitigation, the AAO maintains the jurisdiction to conduct a final merits 
determination as the officialwho made the last decision in this matter. 8 C .F.R. § 103.5(a)(1Xii). See also 
Section 103(a)(l) ofthe Act; Section 204(b) ofthe Act; DHS Delegation Number 0150.1 (effective March 1, 
2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii)(2003); Matter of Aurelio, 19 I & N Dec. 458, 460 
(BIA 
1987)(holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa 
petitions).