dismissed EB-1A Case: Advertising

U.S. Citizenship 
and Immigration 
Services 
In Re: 5192140 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV. 14, 2019 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an advertising agency , seeks to classify the Beneficiary as an individual of 
extraordinary ability. See Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 
1153(b)(l)(A). This first preference classification makes immigrant visas available to those who can 
demonstrate their extraordinary ability through sustained national or international acclaim and whose 
achievements have been recognized in their field through extensive documentation. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner established 
that the Beneficiary had satisfied only one of the ten initial evidentiary criteria for this classification, 
of which he must meet at least three. 
On appeal, the Petitioner submits additional evidence and contends that the Beneficiary meets five of 
the ten criteria and qualifies as an individual of extraordinary ability. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1) of the Act makes visas available to immigrants with extraordinary ability if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business , or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained 
acclaim and the recognition of his or her achievements in the field through a one-time achievement 
(that is, a major, internationally recognized award). If that petitioner does not submit this evidence, 
then he or she must provide sufficient qualifying documentation that meets at least three of the ten 
categories listed at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material 
in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). 
II. ANALYSIS 
The Petitioner has employed the Beneficiary as an associate creative director since 201 7, and he has 
previously held copywriter and creative director positions with other advertising agencies in Argentina 
and New Zealand. 
A. Evidentiary Criteria 
Because it has not indicated or established that the Beneficiary has received a major, internationally 
recognized award, he must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 
204.5(h)(3)(i)-(x). In denying the petition, the Director found that the Beneficiary fulfilled only one 
of the initial evidentiary criteria, participating as a judge of the work of others in his field, under 8 
C.F.R. § 204.5(h)(3)(iv). 
On appeal, the Petitioner maintains that the Beneficiary meets four additional criteria, discussed 
below. We have reviewed all of the evidence in the record and find that it does not support a finding 
determination that the Beneficiary satisfies the requirements of at least three criteria. 
Documentation of the individual's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 8 C.F .R. § 204.5(h)(3)(i) 
In order to fulfill this criterion, the Petitioner must demonstrate that the Beneficiary's prizes or awards 
are nationally or internationally recognized for excellence in the field of endeavor. 1 Relevant 
considerations regarding whether the basis for granting the prizes or awards was excellence in the field 
include, but are not limited to, the criteria used to grant the prizes or awards, the national or 
international significance of the prizes or awards in the field, and the number of awardees or prize 
recipients as well as any limitations on competitors. 2 
1 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form T-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADI 1-14 6 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
2 Id. 
2 
The Petitioner claims eligibility based on the Beneficiary's receipt of the following awards and 
recognition for his work: 
• The I !International Festival of Creativity~ I: "Silver Lion" (one), 
"Bronze Lion" (one) and "Shortlist" (two) 
• I IFestivals International Advertising Awards I Festivals): "2nd Prize 
Award" one and "Finalist" one) 
• -----....-------~Awards: 2013 (six), 2011 (three), 2010 (two), 2009 (four) 
• La iz de Oro ("Golden Pencil") Diploma (one) 
• Annual Advertising Exhibition: "Award of Excellence" (one) 
• ,__ _________ 's "The One Show": "Merit Award" (two) 
The Petitioner provided thel !festival's media kits for its 2018 and 2019 festivals, as well 
as an article published by The Guardian regarding the 2016 festival, noting that "the industry descends 
on thel I to recognize the best advertising in the world." As it relates to thel I 
Festivals, the Petitioner provided an online article from AdHugger.net regarding the festival's 
announcement of its Finalists, which are selected by a grand jury in approximately 20 categories. The 
article notes that 'I I Festivals recognizes exceptional contributions by individual companies 
within the international advertising community" and holds an annual ceremony and gala to celebrate 
"the winners of the World's Best Advertising." While this media coverage establishes that these two 
festivals draw international competitors in the Beneficiary's field and are recognized outside the 
awarding organization, they do not address the awards that the Beneficiary won. 
With respect to the remaining award-issuing entities, the Petitioner submitted a screenshot from the 
website of I I indicating that it "organizes the most prestigious and recognized prizes 
of the I I advertising industry: The Gold Pencil and the Platinum Pencil. And the highest award 
for excellence in communications: the Jerry Goldenberg Award." 3 A letter from th;I I I lstates that the organization "awards the most creative work in advertising" at its annual 
!ceremony, and that its awards "are respected throughout the industry." Finally, a letter from 
I I describes its "The One Show" awards competition, noting that "to be 
selected for a Pencil is a great honor." 4 The Petitioner did not submit independent evidence from a 
source other than the organizations themselves regarding the national or international recognition 
accorded to the awards they issue. 
While the record contains sufficient evidence to establish that the aforementioned competitions are 
national or international in scope, the issue here is not the scope of the Beneficiary's competitions, but 
rather whether his specific awards are "nationally or internationally recognized prizes or awards for 
excellence in the field." 
The record reflects that the awarding entities, includin~ landl I Festivals, issue 
different levels of awards. The Petitioner did not demonstrate that the specific awards the Beneficiary 
received are nationally or internationally recognized for excellence in the field consistent with this 
3 Elsewhere, the Petitioner described the Lapiz de Oro as "an award granted to the best TV and Radio Commercials in 
I O bach month" as 'judged by professionals of advertising agencies and marketers." 
4 As noted, the record reflects that the Beneficiary received "Merit A wards" from The One Show, rather than the "Pencil" 
award mentioned in the letter from the awarding entity. The letter did not address the significance of the "Merit Award." 
3 
regulatory criterion. For instance, the Petitioner did not establish that his receipt of "Silver" and 
"Bronze" awards and "Shortlist" recognition from I I or a "2nd Prize" award and "Finalist" 
recognition frottj !Festivals are acknowledged by his field as national or international awards 
for excellence relative to garnering the top awards from each awarding entity. On appeal, the Petitioner 
points to evidence indicating that in 2018, only 1186 e~(out of 32,372, approximately 3.5%) 
received! lawards, thereby suggesting that anyl__Jaward should satisfy this criterion. 
However, the submitted evidence indicates that that the top prize issued by I I in each 
category or subcategory is the "Grand Prix," while thel I Festivals award "Grand Prize" and 
"Best of Show" awards in addition to first, second and third place awards. The record does not contain 
a breakdown of how the awards are structured, such as the total number of bronze, silver, gold, and 
Grand Prix winners recognized and how the entries and awards are distributed among subcategories, 
of which there appear to be many. 5 Further, the Petitioner did not show that the issuance of numerous 
awards below the top category is indicative of a nationally or internationally recognized award "for 
excellence" in the field of endeavor. As noted, the number of awardees or prize recipients is a relevant 
consideration when evaluating whether a given award meets this criterion. 6 
In addition to the awards discussed above, the record contains additional evidence related to this 
criterion. The Petitioner submitted photographs of a 20131 I Festivals Gold World Medal, a 
20l30Award (Film Category) troRhY, and a 2013 Golden Awardl l(Gold- Category 
Winner), all of which were awarded tol I for a Coca-Cola commercial. 7 The 
description of this type of evidence in the regulation provides that the focus should be on "the alien's" 
receipt of the awards or prizes, as opposed to his or her employer's receipt of the awards or prizes. 
The Petitioner did not submit any corroborating evidence from these three awarding entities 
confirming that they awarded these prizes to the Beneficiary or otherwise recognized him 
individually. 8 Therefore, the Petitioner did not submit sufficient evidence that the Beneficiary 
received these awards or prizes and we will not farther address them. 
The Petitioner also states that the Beneficiary received a "2017 Silver DA ward (New Zealaprl)..; 
but it did not provide documentation to support that claim. It provided a screenshot of "Winners L_J 
A wards" from the website of the New Zealand I I that includes links to the 
awards results for the years 2010 thrmgh 2016 Ibj record also includes a photograph that appears 
to show a group of individuals from~----~ the Beneficiary's former employer, accepting a 
5 For example, Thel 12018 Media Kit indicates that 120 award subcategories were removed in 2018. The 
record does not contain comparable information regarding the number of entries and awards for the years in which the 
Beneficiary's work was recognized. The media kit also describes an awards "point system" noting that under the new 
system, shortlist, bronze and silver awards would garner an agency 1, 3 and 7 points, respectively, as opposed to 15 points 
for a gold award and 30 points for a Grand Prix award. 
6 See USCTS Policy Memorandum PM 602-0005 .1, supra, at 6. 
7 The record does not reflect that the Beneficiary has ever been employed by~-------~ However, the 
~ I festival r~cognized the B~neficiary's wor_k as copy~iter o_n this Coca-Col~ television ad (id~ntitying 
,~. ~~---··-~--=-~~ ..... Js as the responsible agency), while other evidence m the record attnbutes the commercial to the 
Beneficiary's claimed former employer,~--------~ The Petitioner did not explain or document any 
connection between these two agencies. ~--~ 
8 A letter from the awards coordinator o~ I Festivals, dated November 2016, confirms only the Beneficiary's 2nd 
Prize award received in 2014, and a "Finalist" recognition received in 2013. 
4 
"Grand 0" This evidence does not document the Beneficiary's receipt of a 201 7 Silver D 
Award. 
On appeal, the Petitioner emphasizes that the aforementioned Coca-Cola advertisement was one often 
commercials judged as a "winner" in the 2013 TED Initiatives ~------------~ The documentation from TED.com shows that it recognized both the brand and the Beneficiary's 
former employer ~----------~ for the commercial by including it on its winners list. 
However, the Petitioner did not submit any corroborating evidence from TED confirming that the 
Beneficiary himself received a prize or award for his work on this ad. 
For the reasons discussed above, the Petitioner did not demonstrate that the Beneficiary meets this 
criterion. 
Published material about the individual in professional or major trade publications or 
other major media, relating to the individual's work in the field.for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and any 
necessa,y translation. 8 C.F.R. § 204.5(h)(3)(iii) 
The Petitioner states that it provided evidence that "[the Beneficiary] and his achievements have been 
the topic of articles published by professional publications and media." The Petitioner provided 
evidence that an interview with the Beneficiary was published on the website of Campaign US 
(www.campaignlive.com), as part its I I series, described as a "weekly 
feature in which we learn about the media young people in the ad industry are currently consuming." 
The Beneficiary's photograph appears with the article, which contains responses to questions about 
his current favorite television programs, movies, music, books, and social media sites. While this 
article clearly features the Beneficiary and is about him, it does not relate to his work in the field as 
required by this regulation. 
The Petitioner also submitted brief articles published on the website of AdLatina. One article, titled 
announces that the Beneficiary and three other individuals 
~w_e_r_e_a_ll_p_r_o_m_o_t_e_d_t_o_t_h_e_p_o_s_it-io_n_o_f_c-re-a~tive director with I land includes 
a quote from a company representative regarding their strong performance. The other article, 9 titled 
I t announces that the Beneficiary and another individual had recently 
joined I I as creative directors. A quote from two executive creative directors at the 
agency describes the Beneficiary and his colleague as creative directors who "understand what a brand 
needs without borders" and have "good energy." While the Petitioner provided evidence that the print 
version of AdLatina magazine qualifies as a professional publication, it did not demonstrate that these 
brief promotion and hiring announcements appearing on the AdLatina.com website can be deemed to 
be published material about the Beneficiary and his work in the field. In both instances, the body of 
the article refers to the Beneficiary only by his first name and does not mention or his work in the field 
beyond noting his promotion or transfer. 
9 The Petitioner indicated that this same article appeared on the websites Dossiernet.com and LatinSpots.com and provided 
copies of partially illegible screenshots from those sites. 
5 
In addition to the aforementioned articles, the Petitioner provided screenshots indicating that the 
Beneficiary's advertising projects for well-known brands have appeared on various websites, 
including both industry-oriented websites that maintain databases of creative advertising work, and on 
general websites, such as NFL.com. The Petitioner also presented that the above-mentioned Coca­
Cola ad, which was aired during the 20131 lwas covered by various media outlets. The 
Petitioner did not provide full copies of articles covering the Coca-Cola commercial or evidence that 
the Beneficiary was mentioned in those articles. 1° Further, evidence demonstrating that his work can 
be viewed online is not "published material" about the Beneficiary. Articles or other evidence that 
are not about a beneficiary do not fulfill this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 
2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles regarding 
a show are not about the actor). 11 In fact, the submitted evidence does not mention the Beneficiary, 
let alone reflect published material about him. 
Finally, the Petitioner provided evidence that some of the awarded projects on which the Beneficiary 
worked appear in the archives of the awarding entities' websites. While this evidence identifies the 
Beneficiary by name as a member of the creative team behind the awarded project, it does not meet 
the plain language of the criterion as it is not "published material" about the Beneficiary. 
For the reasons stated, the Petitioner did not provide evidence that satisfies this criterion. 
Evidence of the individual's participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of spec[fication for which 
class[fication is sought. 8 C.F.R. § 204.5(h)(3)(iv). 
We agree with the Director's determination that the Petitioner met this criterion. The Petitioner 
provided evidence that the Beneficiary participated as a member of the jury in the "Direct Marketing" 
category at the 20061 lawards sponsored by thel I 
Evidence that the individual has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
As it relates to a leading role, the evidence must establish that a petitioner is or was a leader. A title, 
with appropriate matching duties, can help to establish if a role is or was, in fact, leading. 12 Regarding 
a critical role, the evidence must demonstrate that a petitioner has contributed in a way that is of 
significant importance to the outcome of the organization or establishment's activities. It is not the 
title of a petitioner's role, but rather the performance in the role that determines whether the role is or 
was critical. 13 
10 We acknowledge that several of the news outlets covering this project are major media (such as CBS News and Daily 
Mail), but, as noted, the evidence was incomplete and the Petitioner did not establish that the coverage was about the 
Beneficiary. 
11 See USCIS Policy Memorandum PM 602-0005.1, supra, at 7 (finding that the published material should be about the 
Beneficiary relating to his work in the field, not just about his or her employer or another organization with whom he or 
she is associated). 
12 See USCTS Policy Memorandum PM-602-0005.1, supra, at 10. 
13 Id. 
6 
The Petitioner's initial letter in support of the petition described the Beneficiary's duties as an associate 
creative director, noting that he leads creative efforts and develops communication strategies, writes 
TV scripts and campaigns across different media, supervises creative teams, develops proposals and 
works closely with executive creative directors and art directors to establish the identify of assigned 
products. The Petitioner emphasized that "having someone like [the Beneficiary] working at [the 
company] is essential to the development of the creativity that the agency is proud of: and led the 
agency to be I !Agency of the Year." 
The Petitioner later provided a letter froml I a vice president and executive creative director, 
as evidence that the Beneficiary meets this criterion based on his current role as an associate creative 
director. I I states that the Beneficiary's contributions "have directly impacted several of the 
agency's largest marquee clients" and emphasizes that the Beneficiary "has been a key player in our 
efforts to retain existing clients, specifically I I which contributes approximately $20MM in 
revenue to the agency annually." He specifies that two of the I lads on which the Beneficiary 
worked had been featured onl I- a leading advertising press channel - and that such 
recognition "has helped [the Petitioner] maintain its profile as a leading agency brand." 14 I I 
references the Beneficiary's work on ad campaigns for another client, and also emphasizes that "he 
has been instrumental to the agency's new business efforts" and "continues to be critical to the success 
of our business." 
While I Is statement indicates that the Beneficiary has been successful in the performance of 
his job duties and received assignments to one or more major accounts, his letter does not establish 
that the Beneficiary has held a leading position, nor does it contain specific information signifying the 
Petitioner's essential role to the company or its impact on the company's overall operations. 15 The 
letter identifies the two main clients with which the Beneficiary has worked since joining the company, 
but it does not include detailed, probative information demonsla~ng the
11
specific nature of his role 
with the business or the associated outcomes. For example, does not explain why he 
considers the Beneficiary to be a "key player" with respect to the account or why he deems 
him "critical" to the company's overall success. The evidence indicates that a large creative team is 
credited for any given project and some of the creative teams on which the Beneficiary has worked 
have included more than one associate creative director. Further, as it relates to a leading role, the 
Petitioner did not provide evidence to establish where the Beneficiary's position fits within its overall 
organizational hierarchy. However, we find sufficient evidence to establish that the Petitioner has a 
distinguished reputation in its field. 
The Petitioner has also submitted letters from two of the Beneficiary's prior employers. I I 
founder-president ofl I praises the Beneficiary's "ground breaking innovation and 
creativity" and stated that, as a result of his talents, he was assigned to high profile clients. Another 
14 The Petitioner provided evidence that its television ads for I I appear in the Creative Works section of 
I I). Based on the information provided on the website, any company may 
submit their creative work for inclusion. While work is reviewed by an editorial board prior to being included in the 
database, the Petitioner did not establish that the Beneficiary's work was specifically "featured" by the website. 
15 See USCTS Policy Memorandum PM 602-0005.1, supra, at 10 (stating that letters from individuals with personal 
knowledge of the significance of a petitioner's leading or critical role can be particularly helpful in making this 
determination as long as the letters contain detailed and probative information that specifically addresses how the role for 
the organization or establishment was leading or critical). 
7 
letter, from I la vice president with I [ states that the Beneficiary's 
"leading role in our agency as Creative Director was key to create, craft and sell creative campaigns." 
I I farther states that having the Beneficiary as a creative director was "critical for the 
development of the agency, as it gave a vast amount of positive publicity for our company." The 
record also includes a letter from! I creative chairman ofll where the 
Beneficiary worked as a creative copywriter. He states that the Beneficiary "was in charge of 
copywriting for a wide range of accounts," carried out his responsibilities "in the most relevant ways," 
and created "exceptional" content. Finally, he states his option that the Beneficiary "will greatly 
influence the work of any agency that [he] may work for." Although these letters confirm the 
Petitioner's employment and offer praise for his talents, they do not present detailed, probative 
information demonstrating the specific nature and outcomes of his roles with the respective businesses. 
Further, the Petitioner did not provide sufficient evidence reflecting the standing of these employers 
in the field. 
Accordingly, the Petitioner did not establish that the Beneficiary satisfies this criterion. 
Evidence that the individual has commanded a high sala,y or other sign#ficantly high 
remuneration for services, in relation to others in the.field. 8 C.F.R. § 204.5(h)(3)(ix). 
The Petitioner states that it pays the Beneficiary an annual salary of $147,000 and provided a copy of 
his IRS Form W-2 indicating that it paid him $108,595 in 2017. The Director found that there was 
an inconsistency and relied upon the lower figure reported on the Beneficiary's Form W-2 when 
evaluating this criterion. However, the record reflects that the Beneficiary did not work for the 
Petitioner for the entire year in 2017, and, as such, the salary reported on his Form W-2 did not reflect 
his actual annual salary. After evaluating the submitted comparative salary information submitted by 
the Petitioner for the metropolitan area where the Beneficiary works, we find that the Beneficiary's 
$147,000 salary meets this criterion. 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Beneficiary received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved an 0-1 nonimmigrant visa 
petition filed on behalf of the Beneficiary, the prior approval does not preclude USCIS from denying 
an immigrant visa petition which is adjudicated based on a different standard - statute, regulations, 
and case law. Many Form 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); 
IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990). Furthermore, our authority 
over the USCIS service centers, the office adjudicating the nonimmigrant visa petition, is comparable 
to the relationship between a court of appeals and a district court. Even if a service center director has 
approved a nonimmigrant petition on behalf of an individual, we are not bound to follow that finding 
in the adjudication of another immigration petition. Louisiana Philharmonic Orchestra v. INS, No. 
98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
8 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of final 
merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise that we 
have reviewed the record in the aggregate, concluding that it does not support a finding that the 
Beneficiary has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long held 
that even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of the Beneficiary's work is indicative of the required sustained 
national or international acclaim or that it is consistent with a "career of acclaimed work in the field" 
as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 
203(b)(l)(A) of the Act. Moreover, the record does not otherwise demonstrate that the Beneficiary 
has garnered national or international acclaim in the field, and he is one of the small percentage who 
has risen to the very top of the field of endeavor. See section 203(b)(l)(A) of the Act and 8 C.F.R. § 
204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated the Beneficiary's eligibility as 
an individual of extraordinary ability. The appeal will be dismissed for the above stated reasons, with 
each considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
9