dismissed EB-1A Case: Animation

(b)(6)
DATE: FEB 1 2 2014 
INRE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
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 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-
290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
fr-(Pi-
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification of the beneficiary as an "alien of extraordinary ability" in the arts, 
pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(1)(A). The director found that the petitioner had not established that the beneficiary is "an 
individual of extraordinary ability." 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence under at least three of the ten regulatory categories of evidence to 
establish the beneficiary's basic eligibility requirements. 
On appeal, counsel submits a brief and additional evidence. Regarding the additional evidence 
submitted which references the movie Brave, eligibility must be established at the time of filing. 
8 C.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak , 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A 
petition cannot be approved at a future date after the petitioner becomes eligible under a new set of 
facts. Matter of lzummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, 
citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that 
come into being only subsequent to the filing of a petition." !d. at 176. Therefore, any evidence 
submitted, including awards and articles, dated after June 1, 2012, the date of the original filing, is 
not probative to the beneficiary's eligibility. In addition, the evidence the petitioner submitted on 
appeal which does not contain a date (other than the date it was printed from the internet) has no 
probative value as the date is not apparent from the evidence. The additional letters, however, will 
be considered in this decision. For the reasons discussed below, upon review of the entire record, the 
petitioner has not established the beneficiary's eligibility for the exclusive classification sought. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability.-- An alien is described in this subparagraph if--
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NON-PRECEDENT DECISION 
(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. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101st Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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. !d.; 
8 C.P.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his achievements in the field. Such acclaim must be established either 
through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the 
court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation 
of evidence submitted to meet a given evidentiary criterion. 1 With respect to the criteria at 8 C.P.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while users may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." !d. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed 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)." !d. at 1122 (citing to 
8 C.P.R. § 204.5(h)(3)). 
1 
Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(iv) and 8 C.P.R. 
§ 204.5(h)(3)(vi). 
(b)(6)
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Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence on behalf of the beneficiary under at least three criteria, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. /d. 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
USCIS may not utilize substantive or evidentiary requirements beyond those set forth at 8 C.F.R. 
§ 204.5. See Kazarian, 596 F.3d at 1221, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 
(9th Cir.2008). The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires 
"[d]ocumentation of the alien's receipt" of prizes or awards. On appeal, counsel states that such a 
"narrow interpretation of the law is not applicable to the animation industry. Rather, it is standard in 
the animation film industry that major awards ... are officially bestowed upon the animation film 
itself, or the film's production company." An inability to meet a criterion is not necessarily evidence 
that the criterion does not apply to the beneficiary's occupation such that a petitioner may rely on 
comparable evidence pursuant to 8 C.F.R. § 204.5(h)(4). Moreover, the petitioner has not established 
that working on an award winning film is comparable to personally receiving a lesser nationally or 
internationally recognized prize or award for excellence as a named recipient. 
The 2etitioner submitted numerous letters from members of the 
, , _ , , which generally 
state that it is usually the production company and/or the director who are awarded prizes in the best 
animated film fields and that "it is recognized throughout the Academy that while 
directors and 
production companies represent and are the face of the winning film, the award for Best Animated 
Feature Film is bestowed as a direct result of the artistic work of individual artist(s)." The 
beneficiary 's work on award winning films is not the same as the beneficiary's receipt of the award, 
as required by the plain language of the regulation. Furthermore, contrary to counsel's assertion that 
such awards are "not applicable to the animation industry," none of the letters state that there are not 
awards that are applicable to the beneficiary's field of animation . In fact, the producers 
awarded the award for Best Animated Character for 
~ to four individuals other than the beneficiary (a lead animator for the film); specifically, the 
animation supervisor, two other lead animators and the head of rigging. Thus, it is these individuals, 
some of whom are animators like the beneficiary, who received the award. 
2 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
(b)(6)
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Page 5 
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. 158, 165 (Comm'r 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the alien's 
receipt." The letters in the record acknowledge that the beneficiary was not the named recipient of 
the claimed awards. 
Furthermore, the petitioner did not submit primary evidence of the beneficiary's receipt of any of the 
claimed awards, which would consist of the award certificates or trophies the awarding officials 
issued to the beneficiary as the named recipient. The regulation at 8 C.F.R. § 103.2(b )(2)(i) provides 
that the non-existence or unavailability of required evidence creates a presumption of ineligibility. 
According to the same regulation, only where the petitioner demonstrates that primary evidence does 
not exist or cannot be obtained may the petitioner rely on secondary evidence and only where 
secondary evidence is demonstrated to be unavailable may the petitioner rely on affidavits. 
Regardless, the petitioner did not submit secondary evidence of the beneficiary's receipt of any 
awards, such as media accounts of his receipt of awards. Rather, the petitioner submitted letters 
which generally assert that the beneficiary was responsible in some part for the awards, but did not 
submit any documentary evidence demonstrating that primary evidence and secondary evidence do 
not exist or cannot be obtained. Regardless, the letters that have been provided are not affidavits as 
they were not sworn to or affirmed by the declarant before an officer authorized to administer oaths 
or affirmations who has, having confirmed the declarant's identity, administered the requisite oath or 
affirmation. See Black's Law Dictionary 58 (9th Ed., West 2009). Nor, in lieu of having been signed 
before an officer authorized to administer oaths or affirmations, do they contain the requisite 
statement, permitted by Federal law, that the signers, in signing the statements, certify the truth of the 
statements, under penalty of perjury. 28 U.S.C. § 1746. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The director determined that the petitioner established the petitioner submitted qualifying evidence 
under this criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires 
"[p ]ublished material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought." A review of the 
record of proceeding does not reflect that the petitioner submitted sufficient documentary evidence 
establishing that the beneficiary meets the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). 
In general, in order for published material to meet this criterion, it must be about the beneficiary and, 
as stated in the regulations, be printed in professional or major trade publications or other major 
media. To qualify as major media, the publication should have significant national or international 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
distribution. Some newspapers, such as the New York Times, nominally serve a particular locality 
but would qualify as major media because of significant national distribution, unlike small local 
community papers.3 Furthermore, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii) 
requires that "[ s ]uch evidence shall include the title, date, and author of the material, and any 
necessary translation ." 
The submission of evidence that simply mentions the beneficiary's name, quotes the beneficiary, or 
is not otherwise about the beneficiary is not published material about the alien relating to his work in 
the field. An article that is not about the beneficiary does not meet 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 about a show are not about the actor). 
Material that only lists, briefly mentions, or indicates the beneficiary's name, such as the 
beneficiary's film biography posted on the internet, or discusses the movies the beneficiary worked 
on, without even mentioning the beneficiary 's name does not constitute published material about the 
beneficiary. In fact, other than the beneficiary's online film credits, the beneficiary's name only 
appears in two items: a brief online article by a journalist with the · posted on an 
entertainment website and a listing as one of the animators for the movie in a blog post. 
Online directories of film credits pooled from screen credits, users, and/or members of the film and 
television industry do not constitute published material about the beneficiary. The record contains 
no evidence that the carried the article or that the entertainment website is a professional 
or major trade publication or other major media. The record also lacks evidence that the blog 
qualifies as major media, as required by the plain language of the regulations. The AAO notes that at 
least one letter quotes an article purportedly published in -- - but the record does not 
contain a copy of the article, nor is it listed on any of the exhibit lists. According to his resume, the 
beneficiary attended . The petitioner has not documented that qualifies 
as major media. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
According to the regulation at 8 C.P.R. § 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. The phrase "major significance" is not superfluous and, thus, it 
has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 
1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. 2003). Any documented contributions 
must rise to the level of original artistic-related contributions "of major significance in the field." 
Recognition of the beneficiary's contributions does not necessarily demonstrate that those 
contributions are of major significance in the field. Instead, recognition simply reflects that the 
3 
Even with nationally-circulated newspapers , consideration must be given to the placement of the article. For 
example, an article that appears in the v J but in a section that is distributed only in r · · 
for instance, cannot serve to spread an individual's reputation outside of that county. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
beneficiary's contributions have been acknowledged by others as original, but does not reflect that 
they are of major significance in the field. 
The petitioner asserts that the beneficiary has contributed to the field of animation while working as 
an animator for a film directed and films that and the - - -
petitioner helped animate or produced. The petitioner submitted several letters from individuals 
associated with these films and companies. A contribution of major significance in the field of 
animation is one that is influential beyond the studio where the animator works. 
__; an animation director with the petitioner, asserts that the beneficiary "developed" an 
animation style termed psychorealism used in the movie the director of the 
movie , credits the beneficiary with showing "outstanding technical skill and creative artistry 
through the development of the film's pioneering style of psychorealism ." in his 
capacity as a Member of the 
states that the beneficiary "developed the extraordinary animation style of psychorealism " and that 
"[a]nimators for high profile film projects .. .leveraged [the beneficiary's] novel animation style."4 
However, according to the submitted article ' . _ it was 
who was responsible for psychorealism. The article states that ) personally 
"handled about half of the facial animation; the animation grads finished the rest." Notably, 
quotes an article in . which the petitioner did not submit, as indicating that the 
beneficiary refined his animation technique and artistry, but begins the quote after the beneficiar 's 
name and uses brackets around "his," implying it is substituted for another word. On appeal, 
Director of the petitioner 's animation studios, and Senior Vice President of 
Production at the petitioner 's · animation studios, reference an additional article at 
commenting on the use of psychorealism in acknowledges 
that the article does not name the beneficiary. 
Furthermore. although many of the letters claim that other animators and movies, such as . 
have drawn upon the beneficiary's "groundbreaking design 
elements" from both . and other movies, the record does not contain any support for these 
claims. For example, the etitioner did not submit letters from animators who worked on r 
confirming their use of the beneficiary's techniques or 
articles that reference the beneficiary's influence in other films. While Head of 
Film and Executive Producer at _ __, asserts that animator 
utilized the beneficiary's techniques in Alice in Wonderland, the record does not contain a letter from 
As previously discussed, 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 165. While the beneficiary's references think highly of him, the letters fail to 
establish that any of his contributions are of major significance in the field, as required by the plain 
language of the regulation. 
4 provided letters in support of the record both as a member of the r 
for the petitioner. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
The authors of the letters also rely on articles they claim were written about the beneficiary and 
awards they claim were given to the beneficiary to demonstrate the beneficiary's original 
contributions. For example, ~ ~ • 
states: "As Lead Animator, [the beneficiary] was responsible for leading a team of animators in 
designing several key sequences" in . further 
asserts that ' the character that [the beneficiary] developed was regarded as a great 
success ... and resulted in the character ... winning the 
asserts that the beneficiary was "the animator responsible for the 
artistic/design development of the award-winning ~ ~ mouse." However, as discussed 
above, four other individuals were listed as the actual recipients of the award, including two 
other lead animators, and the beneficiary is not the named recipient of a single other award claimed 
in the letters. Furthermore, none of the articles state that any of the claimed contributions are directly 
attributable to the beneficiary. For example, the article in states that and lead 
animator . developed key poses for ~ r. The record does not include letters 
from explaining the beneficiary's role in developing 1 . It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support 
of the visa petition. !d. If USCIS fails to believe that a fact stated in the petition is true, USCIS may 
reject that fact. Section 204(b) of the Act, 8 U.S.C. § 1154(b ); see also Anetekhai v. I.N.S., 876 F.2d 
1218, 1220 (5th Cir.1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 F. Supp. 7, 10 (D.D.C.1988); 
Systronics Corp. v. INS, 153 F. Supp. 2d 7, 15 (D.D.C. 2001). 
Both . indicate in their letters that they worked on 1 
==========---- asserting that he also worked with the beneficiary 
on, . 
submitted, lists the beneficiary as 
The pages for 
submitted, do not list these 
The beneficiary's imdb.com page, which the petitioner 
an uncredited animator on , 
however, which the petitioner also 
films. 
The Board of Immigration Appeals (the Board) has held that testimony should 
not be disregarded 
simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) 
(citing cases). The Board also held, however: "We not only encourage, but require the introduction 
of corroborative testimonial and documentary evidence, where available." !d. If testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998). Given the above 
mentioned inconsistencies, without supporting evidence which corroborates the letters' claims, there 
is no basis to gauge the significance of the beneficiary's contributions. 
(b)(6)
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Page 9 
Vague, solicited letters from local colleagues that do not specifically identify contributions or 
provide specific examples of how those contributions influenced the field are insufficient. Kazarian 
v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010).5 The 
opinions of experts in the field are not without weight and have been considered above. USCIS may, 
in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of 
Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). However, USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit sought. 
/d. The submission of letters from experts supporting the petition is not presumptive evidence of 
eligibility; USCIS may, as this decision has done above, evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795; see also 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"). USCIS may even give less weight to an opinion that is not corroborated, in accord with 
other information or is in any way questionable. /d. at 795; see also Matter of Soffici, 22 I&N Dec. 
at 165 (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. at 190). 
Merely repeating the language of the statute or regulations does not satisfy the petitioner's burden of 
proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 
(2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, 
USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of the 
United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
In the case of a leading role, the petitioner must demonstrate how the beneficiary's role fits within 
the overall hierarchy of the organization or establishment. In the case of a critical role, the 
beneficiary must have contributed to the success of the establishment or organization beyond merely 
providing necessary services. 
Counsel asserts that the beneficiary played a leading or critical role for two companies, the petitioner 
and Counsel also notes the beneficiary's work on the movie, _ 
which co-produced. Regarding 
, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires 
"[ e ]vidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation." The petitioner did not demonstrate how a 
movie equates to an "organization" or "establishment." Regardless, while the beneficiary lists his 
5 
In 2010, the Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting 
to [the alien's] contributions in the field" were insufficient was "consistent with the relevant regulatory 
language." 596 F.3d at 1122. 
(b)(6)
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Page 10 
position on that movie as "lead animator," his 
him only as an animator. 6 
page, which the petitioner submitted, lists 
The record does not contain persuasive evidence that being a member of a team of animators for 
movies and other projects with an unknown number of other crew members, even for an organization 
with a distinguished reputation such as the petitioner, is performing in a leading or critical role. For 
example, the beneficiary was one of 91 animators for the movie - and one of 12 animators for 
the movie Although the beneficiary may have been "an essential leader in the animation of 
two key plot turning scenes" in the movie as stated by _ in his capacity as Chief 
Creative Officer for the petitioner, the letters are not persuasive that the beneficiary performed in a 
leading or critical role for the petitioning company as a whole. The record does not contain an 
organizational chart for either the petitioner or the or other evidence of 
their hierarchies which might demonstrate that the beneficiary served in a leading role. Companies 
such as the petitioner and routinely rely on individuals like the 
beneficiary to animate their films and other projects. While the beneficiary has played an important 
role in the animation department for individual projects at both the petitioning company and The 
the evidence does not establish that his role was leading or critical to either 
company's success or standing to a degree consistent with the meaning of"critical role." The evidence 
fails to demonstrate how the beneficiary's role as an animator and lead animator differentiated him 
from other individuals in the same positions as well as individuals who held more senior positions. 
In light of the above, the petitioner has not established that the beneficiary meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be abandoned. 
Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005), citing United States v. 
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); see also Hristov v. Roark, No. 09-CV-27312011, 
2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (finding that plaintiffs claims were abandoned 
as he failed to raise them on appeal to the AAO). 
B. Summary 
As the petitioner did not submit qualifying evidence on behalf of the beneficiary under at least three 
criteria, the proper conclusion is that the petitioner has failed to demonstrate that the beneficiary 
satisfies the antecedent regulatory requirement of three types of evidence. 
6 By submitting materials from 
proceedings. The page for 
letter. 
the petitiOner has incorporated that site into the record of 
lists seven animators for the film, not four as states in his 
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Page 11 
III. CONCLUSION 
Had the petitioner submitted the requisite evidence on behalf of the beneficiary under at least three 
evidentiary categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) 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" and (2) "that the alien has sustained national 
or international acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO 
concludes that the evidence is not indicative of a level of expertise consistent with the small percentage 
at the very top of the field or sustained national or international acclaim, the AAO need not explain that 
conclusion in a final merits determination.7 Rather, the proper conclusion is that the petitioner failed to 
demonstrate that the beneficiary has satisfied the antecedent regulatory requirement of three types of 
evidence. !d. at 1122. 
The petitioner has not established the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the 
Act and the petition may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
7 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 P.3d at 145. In 
any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.P.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; 
section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.P.R.§ 2.1 (2003); 
8 C.P.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).