dismissed EB-1A Case: Art

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 22, 2023 In Re: 27422937 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, an artist, seeks classification as an individual of extraordinary ability. See Immigration 
and Nationality Act (the Act) section 203(b )(1 )(A), 8 U.S.C. § 1153(b)(1 )(A). This first preference 
(EB-1) 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 record did not 
establish that the Petitioner had satisfied at least three of the ten initial evidentiary criteria for this 
classification, as required. The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence . Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 
(AAO 2010). Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(A) 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 their achievements in the field through a one-time achievement (that 
is, a major, internationally recognized award). If the petitioner does not submit this evidence, then 
they 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) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp . 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner is an artist who has displayed her work and offers art instruction to beginners via her 
social media account. She intends to continue working as an artist through creating and marketing her 
own artistic work, and by conducting art classes to children between the age of four and fifteen . 
Because the Petitioner has not indicated or established that she has received a major, internationally 
recognized award, she must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director determined that the Petitioner met two of the claimed 
evidentiary criteria relating to published material at 8 C.F.R. § 204.5(h)(3)(iii) and artistic display at 
8 C.F.R. § 204.5(h)(3)(vii), and we agree with that determination. 
On appeal, the Petitioner asserts that she also meets the 8 C.F.R. § 204.5(h)(3) evidentiary criteria 
relating to lesser nationally or internationally recognized awards (i), membership (ii), and original 
contributions (v). She does not assert eligibility under the judging (iv), authorship (vi), leading or 
critical role (viii), high salary (ix), or commercial success (x) criteria . Therefore, we deem these issues 
to be waived and will not address these criteria in our decision. See, e.g., Matter ofM-A-S-, 24 I&N 
Dec. 762, 767 n.2 (BIA 2009). We have reviewed all the evidence in the record and conclude that the 
Petitioner has not established that she meets the requirements of at least three criteria . 1 
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). 
This criterion contains several evidentiary elements the Petitioner must satisfy. According to the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i), the evidence must establish that the Petitioner 
is the recipient of prizes or awards, that the awards are nationally or internationally recognized, and 
that each prize or award is one for excellence in the field of endeavor. See also 6 USCIS Policy Manual 
F.2 appendix, https://www .uscis.gov/policy-manual/volume-6-part-f-chapter-2 ( noting relevant 
1 While we may not discuss every document in the record, we have reviewed and considered each one. 
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considerations in determining if the award or prize meets this criterion, 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). 
As evidence of her lesser national or international awards, the Petitioner submitted certificates from 
an art promotion organization,! I[L-], regarding artwork that she had submitted to L­
as paid entries in its art competitions. According to the internet material submitted by the Petitioner 
about L-, its mission is to "help[] today's artists to market their art." L- offers art competitions on a 
monthly basis to "amateur and professional artists" who may submit digitized entries of their work on 
a sliding fee basis - "$14 for 1 to 2 entries and $24 for 3 to 5 entries." There is no limit to the number 
of entries an artist may submit as long as the fees are paid. However, the pool of entries submitted 
for L-' s consideration is limited by how many entries the contestants are willing to pay for. 
L-'s internet material indicates "[t]he top winning artists for each exhibition will be promoted and 
circulated to over 550+ major News Outlets, Premium Fox, CBS, NBS, Affiliate Sites, Guaranteed 
inclusion on Google News & Bing News and Social Media Inclusion." L- notes "the winning images 
will be seen by an international audience of gallery directors, art collectors and art consultants .... the 
winning entries will be featured on [L-' s online gallery] for one month and then remain in [L-' s] 
archive gallery for five (5) years. By having their work on the [L-] website, winning artists should 
increase exposure to their work, enhance their resume and create an increased number ofbacklinks to 
their own website." 
In the request for evidence (RFE), the Director advised the Petitioner that she had not demonstrated 
that the claimed awards were nationally or internationally recognized and requested additional 
documentary evidence in support of her eligibility under this criterion. The Director stated that such 
evidence should demonstrate the criteria used to grant the awards, their significance (including the 
national or international recognition associated with the awards), the reputation of the organization or 
panel granting the awards, the geographic scope of the awards and any limitations on competitors, the 
number of awards or prizes granted, evidence related to previous award winners, and public 
announcements of the awards. 
In response, the Petitioner stated that her "special merit" and "special recognition" awards from L-, 
along with the submitted information about L- "are sufficient to establish that her awards are 
recognized both nationally and internationally." The Director denied the petition, in part, concluding 
that the evidence submitted was insufficient to meet the plain language requirements of this criterion. 
On appeal, the Petitioner points to her "special merit" award from L- for her entry entitled 1~---~ 
among other L- awards, noting that in this competition "over 1,000 contestants from over 30 countries 
in the world competed." She states that she "submitted multiple awards she received in [L-'s] 
competitions ... [which] clearly satisfies the requirements that the prize or award be recognized 
nationally or internationally and that the award or prize is for excellence in the field of endeavor." We 
disagree. 
L-' s internet materials indicate that it receives digitized art entries from amateur and professional 
artists living in various countries for consideration in its monthly fee-based competitions. While the 
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pool of competitors willing to pay for the entry of their digitized artwork stems from international 
locations, this fact alone does not substantiate the Petitioner's claim that the awards given to the 
winners of L-' s competitions are internationally or even nationally recognized awards for excellence 
in the field of endeavor. 
For instance, the evidence does not sufficiently describe the evaluative criteria used by L- in selecting 
the winning entries in its competition. If an artist's entry is selected as a "winner," the artist is eligible 
to have their artwork digitally promoted by L- to various media outlets and the artwork will also appear 
in L-'s own web gallery. Here, the evidence suggests that L- is engaged in marketing artwork for 
artists via its website and fee-based competitions, not offering nationally or internationally recognized 
art competitions which grant prizes or awards for excellence in the field of endeavor. We conclude 
that this evidence is of little probative value to the issue at hand. Matter of Chawathe, 25 I&N Dec. 
at 369. The Petitioner has not met her burden in demonstrating that the certificates she earned through 
L-' s art competitions meet the plain language requirements of this criterion. Therefore, this criterion 
has not been met. 
We acknowledge that the Petitioner previously filed another petition seeking the EB-1 extraordinary 
ability classification, which was denied in March 2020. The Petitioner contends on appeal that since 
the Director determined that she met this criterion in her first denied petition, the Director erred in 
concluding that she did not meet this criterion when denying the instant petition. USCIS is not required 
to approve applications or petitions where eligibility has not been demonstrated, merely because of 
prior affirmative determinations which may have been erroneous. See Matter of Church Scientology 
Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987). Furthermore, we are not bound to follow a contradictory decision of a 
service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *3 (E.D. La. 
2000), affd, 248 F.3d 1139 (5th Cir. 2001). 
Documentation of the individual's membership in associations in the field for which 
class[fication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 8 
C.F.R. § 204.5(h)(3)(ii). 
To satisfy this criterion, a petitioner must provide evidence of their membership in an association and 
demonstrate that such membership is based on being judged by recognized national or international 
experts as having outstanding achievements in the field for which classification is sought. See 6 USCIS 
Policy Manual, supra, at F.2 appendix (providing an example of admission to membership in the 
National Academy of Sciences as a Foreign Associate that requires individuals to be nominated by an 
academy member, and membership is ultimately granted based upon recognition of the individual's 
distinguished achievements in original research). 
The Petitioner initially asserted that she met this criterion based on membership in three organizations, 
thel Isociety, Portrait Society of America, and the Pastel Society of America [PSA]. The 
Director determined that the initial evidence did not provide sufficient evidence about the Petitioner's 
membership in these organizations or their membership requirements to establish that this criterion 
had been met. In the RFE, the Director advised the Petitioner that the evidence she submitted did not 
establish that she is a member of an association in which membership is conditioned on outstanding 
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achievements in the field of endeavor as judged by recognized national or international experts in the 
field. He requested additional evidence to establish that the individuals who review prospective 
members' applications are recognized as national or international experts; the sections of the 
associations' bylaws which discuss the criteria for membership; and the sections of the bylaws 
discussing the qualifications required of those who review membership applications. 
In response to the Director's RFE, the Petitioner narrowed her focus to just one organization, PSA, 
and submitted PSA's bylaws and a letter from its president [Mr. W-]. The Director reviewed the 
response, and then denied the petition, in part, concluding the Petitioner did not show that PSA 
members are required to have outstanding achievements to gain membership. He farther noted that 
Mr. W-'s letter expressed that PSA's members have a level of expertise in the field, but that his 
statements did not indicate that the organization requires outstanding achievements of its members. 
On appeal, the Petitioner states that while PSA's bylaws "do not specifically state that members are 
required to have outstanding achievements they do make clear that admission of a member occurs only 
after evaluation of the applicant's artwork by a jury of at least three signature members." We have 
carefully reviewed the bylaws and other submitted evidence about PSA, and conclude that contrary to 
the Petitioner's general assertions about PSA's membership requirements, the bylaws provide four 
levels of membership within the organization, as follows: 
• Signature Member - shall be a person who (1) is engaged in the creation of pastel 
paintings and (2) has met the professional and other admission requirements. . . 
Admission of Full Member: Upon receipt of a membership application and the 
prescribed fees, a pastelist will have his or her submitted works evaluated by a jury of 
not less than three (3) Signature Members ... The Jury will determine whether the 
works meet the established professional standards of the Society. 
• Associate Member - shall be a person who (1) is engaged in the creation of pastel 
paintings judged by the Society to meet the basic principles of the pastel field, (2) 
exhibits the potential of meeting the professional standards of a Signature Member and 
(3) meets such other prescribed admission requirements of an Associate Member as 
the Board may from time to time establish. 
• Honorary Member: A person, pastelist or non-pastelist, who has rendered either 
outstanding or distinguished services to the pastel field and/or other segments of the art 
world may be granted an Honorary Membership, provided that such person is not 
currently a Signature Member or an Associate Member of the Society. 
• Supporting Member - shall be any person who contributes financially to the Society 
and meets other criteria [i]ncluding but not limited to the payment of dues. 
The record contains the Petitioner's PSA membership certificate which reflects that she was 'juried" 
as an associate member in October 2019. Based on the descriptions provided above, an associate 
member of PSA meets the "basic principles of the pastel field," but is the next lowest level of 
membership immediately above that of a supporting member who simply gains membership by 
financially contributing to the organization. While the Petitioner's certificate indicates that she is a 
'juried" PSA member, PSA's membership requirements in its bylaws do not suggest that associate 
members must have "outstanding achievements" in order to gain this level of membership. Rather, it 
appears that honorary membership is PSA's only membership category which requires "outstanding 
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or distinguished services to the pastel field and/or other segments of the art world," and notably the 
bylaws also indicate that honorary memberships are not available to associate members, such as the 
Petitioner. 
In summary, while it appears that PSA may offer a level of membership in its Society that requires 
outstanding achievements of its members, the record does not show that this is the category of 
membership that the Petitioner holds. For the sake of brevity, we will not discuss other deficiencies 
in the evidence regarding whether the Petitioner's PSA membership meets the plain language of this 
criterion. This criterion has not been met. 
Evidence ofthe alien's original scient#fic, scholarly, artistic, athletic, or business-related 
contributions ofmajor significance in the.field. 8 C.F.R. § 204.5(h)(3)(v). 
In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v), a petitioner must establish that not only has 
she made original contributions, but that they have been of major significance in the field. For example, 
a Petitioner may show that the contributions have been widely implemented throughout the field, have 
remarkably impacted or influenced the field, or have otherwise risen to a level of major significance. 
The Petitioner did not initially identify a specific original artistic contribution that she has made. In her 
RFE response, she pointed to her Y ouTube channel "that teaches viewers around the world how to create 
step-by-step drawings, mostly in the pastel and pencil art mediums." She asserted that as her channel 
"has just under 100,000 subscribers, and in the cumulative, her videos have been viewed over 18 million 
times, [it] is an original artistic contribution of major significance further demonstrating that she is an 
artist of extraordinary ability who has attained both national and international acclaim in her field." She 
provided copies of her channel's internet pages showing a listing of the instructional videos that she 
posted in her channel with statistics regarding the number of shares, likes, and views that each video had 
garnered, as well as the total number of hours that viewers spent watching her videos as of October 2022 
(when she made the screenshots of her channel). The Director ultimately determined that while the 
Petitioner has developed a moderate viewership on A-, her art instruction contributions through this 
activity had not significantly impacted the field of art. 
On appeal, the Petitioner asserts that the Director did not give sufficient weight to "her channel's 
subscriptions and view numbers [which] unequivocally demonstrates that millions of viewers have 
benefited from her art lessons." However, we agree with the Director that without more, the Petitioner 
has not demonstrated that the "views" of her videos on You Tube translate to a showing that she meets 
the plain language requirements of this criterion. The Petitioner presented Y ouTube screenshots from 
October 2022 indicating that the number of subscribers to her channel at that time was 98,228, but this 
subscription information substantially post-dates the filing of the petition. Eligibility must be 
demonstrated at the time of filing. See 8 C.F.R. § 103.2(b)(l). Without more, the metrics for these 
videos do not support the Petitioner's assertion that she had made contributions of major significance at 
the time the petition was filed in February 2021. 
Regardless, the Petitioner has not sufficiently demonstrated that the availability of her videos on 
Y ouTube and subscribership to her channel signify original contributions of major significance in the 
field. As discussed, to satisfy this criterion, the Petitioner must establish that she has not only made 
original contributions, but that they have been of major significance in the arts. Major significance in 
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the field may be shown through evidence that her original art instruction methods or processes have 
been widely implemented throughout the field, have remarkably impacted or influenced the field, or 
have otherwise risen to a level of major significance in the field. Here, the Petitioner has not provided 
objective, independent documentary evidence to show that her YouTube channel videos are of major 
significance in her field of endeavor. Chawathe, supra. 
For example, although the Petitioner provided screenshots from YouTube of her work, she did not offer 
evidence that her presence on Y ouTube resulted in the adoption of her art instruction methods by others 
involved in similar pursuits in the field, or otherwise engendered substantial interest from others with 
expertise within the field of endeavor. While the record indicates that the Petitioner has achieved a 
level of popularity in the art instruction industry through her Y ouTube channel, she has not 
demonstrated that her original work rises to the level of artistic or even business-related contributions 
of major significance in the field. 
The record, including the Y ouTube screenshots, does not sufficiently establish that the Petitioner's 
original work has been unusually influential, has substantially impacted the field, or has otherwise risen 
to the level of original contributions of major significance. As such, the Petitioner has not demonstrated 
that she meets this regulatory criterion. See Visinscaia, 4 F. Supp. 3d at 134-35 (upholding a finding that 
a ballroom dancer had not met this criterion because she did not demonstrate her impact in the field as a 
whole). 
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 lesser 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 determination 
that the Petitioner 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. Here, the Petitioner 
has established that she is a dedicated artist who devotes part of her time to providing art instruction 
to beginners. But she has not shown that her artistic achievements have been recognized at the required 
level of sustained national or international acclaim, or that her work to date 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 Petitioner 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 her eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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