dismissed EB-1A Case: Art

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 1, 2023 In Re: 28424522 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an artist, seeks classification 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 the Petitioner had not 
established eligibility as an individual of extraordinary ability, either as the recipient of a major, 
internationally recognized award, or by meeting at least three of the ten regulatory criteria listed at 
8 C.F.R. § 204.5(h)(3)(i) - (x). The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify under this immigrant classification, the statute requires the filing party demonstrate: 
• The foreign national enjoys extraordinary ability in the sciences, arts, education, business, or 
athletics; 
• They seek to enter the country to continue working in the area of extraordinary ability; and 
• The foreign national's entry into the United States will substantially benefit the country in the 
future. 
Section 203(b )( 1)(A)(i)-(iii) of the Act. 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 international recognition of his or her achievements in 
the field through a one-time achievement (that is, a major, internationally recognized award). If that 
pet1t10ner does not submit this evidence, then he or she must provide sufficient qualifying 
documentation that meets at least three of the ten criteria 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, 1121 (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 Amin 
v. Mayorkas, 24 F.4th 383, 394 (5th Cir. 2022). 
II. ANALYSIS 
The 
Petitioner states she will continue to work in the United States as an artist-in-residence in her own 
studio and art gallery. 
The Director concluded that the Petitioner has not established that she has received a major, 
internationally recognized prize or award under 8 C.F.R. § 204.5(h)(3) and that the evidence in the 
record demonstrates that she only meets one of the ten alternate criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x), of which he must meet at least three. Specifically, the Director held that she met the criteria for 
the display of her work in the field at artistic exhibitions or showcases under 8 C.F.R. 
§ 204.5(h)(3)(vii). 
On appeal, the Petitioner contends that the Director erred in finding that she is not an individual of 
extraordinary ability, and that the Director omitted several documents in support of her extraordinary 
ability such as an expert opinion letter. In addition, the Petitioner maintains that she met the 
evidentiary criteria relating to each of the areas upon which the Director issued an adverse 
determination and provides additional information. 
Upon review, we find that the Director's decision reflects a careful and thorough review and analysis 
of the Petitioner's claims and supporting evidence including the expert opinion letter. Therefore, we 
adopt and affirm the Director's decision with the added comments below. See Matter ofBurbano, 20 
I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting 
that the practice of adopting and affirming the decision below has been "universally accepted by every 
other circuit that has squarely confronted this issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining 
eight U.S. Court of Appeals in holding the appellate adjudicators may adopt and affirm the decision 
below as long as they give "individualized consideration" to the case). 
A. Major International Award 
The Director determined that the 
record did not establish that the Petitioner earned a one-time 
achievement of a major, internationally recognized award under 8 C.F.R. § 204.5(h)(3). The Petitioner 
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does not contest this determination on appeal and therefore we consider the Petitioner to have waived 
appeal on this issue. 1 
B. Evidentiary Criteria 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the.field ofendeavor. 8 C.F.R. § 204.5(h)(3)(i) 
In support of her claim to the criterion at 8 C.F.R. § 204.5(h)(3)(i), the Petitioner provides information 
regarding the art events including the number of exhibits and artists present, and the exhibition judge. 
However, this new information does not show that the Petitioner's awards commanded a level of 
recognition beyond the events where they were presented. For example, there is no evidence showing 
that the Petitioner's awards were announced in major media or in some other manner consistent with 
national or international acclaim. 
Without more, the Petitioner has not established that any of the awards she received are nationally or 
internationally recognized as prizes or awards of excellence in her field of endeavor. 
Documentation of the alien '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). 
On appeal, the Petitioner provides copies of emails and membership cards to establish that she is a 
member of several associations. However, the evidence does not demonstrate that the associations 
require outstanding achievements of their members, and that membership eligibility is judged by 
recognized national or international experts in their field. 
Therefore, the Petitioner does not establish that she 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. 8 C.F.R. § 204.5(h)(3)(iii) 
On appeal, the Petitioner provides additional information regarding some of the articles submitted 
including the title, date, and author, as well as the circulation figures. However, the Petitioner does 
not demonstrate the significance of these circulation figures or establish that such data reflects status 
as a professional or major trade publication or other major media. 2 
1 See Matter of R-A-M-. 25 T&N Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue 
addressed in an adverse decision. that issue is waived); see also Sepulveda v. US. At(v Gen., 401 F .3d 1226. 1228 n. 2 
(11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (finding 
the plaintiffs claims to be abandoned as he failed to raise them on appeal to the AAO). 
2 See 6 USCJ S Policy Manual, supra, at F.2(B)(l) (indicating that evidence of published material in professional or major 
trade publications or in other major media publications should establish that the circulation (on-line or in print) is high 
compared to other circulation statistics). 
3 
Evidence of the alien's original scient[fic, scholarly, artistic, athletic, or business­
related contributions ofmajor sign[ficance in the field. 8 C.F.R. § 204.5(h)(3)(v) 
The Petitioner does not provide any new evidence or arguments which overcome the Director's 
determination. Therefore, the Petitioner does not establish that she meets this criterion. 
Evidence ofthe alien's authorship ofscholarly articles in the field, in professional or 
major trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi) 
The Petitioner does not provide any new evidence or arguments which overcome the Director's 
determination. Therefore, the Petitioner does not establish that she meets this criterion. 
Evidence that the alien 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) 
The Petitioner does not contest the Director's conclusions regarding this determination on appeal and 
therefore we consider the Petitioner to have waived appeal on this issue. 3 
Evidence that the alien has commanded a high salary or other sign[ficantly high remuneration 
for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(viii) 
On appeal, the Petitioner states that in Canada, she "commanded high managerial salaries from Art 
Director to senior Creative Pre-planner positions" and she provides copies of her 2004 executive 
employment contract and Canada pension plan contributions. However, the Petitioner did not submit 
evidence to show that her salary or remuneration was high relative to the compensation paid to others 
working in the field. 
Accordingly, we conclude the Petitioner did not establish she commanded a high salary in relation to 
others in the same position. Therefore, the Petitioner does not establish that she meets this criterion. 
III. CONCLUSION 
Although the Petitioner is a talented artist, she 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 it does not 
support a finding 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 that goal. USCIS has long 
held that even athletes performing at the major league level do not automatically meet the 
"extraordinary ability" standard. Matter ofPrice, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994). 
3 See Matter ofR-A-M-. 25 l&N Dec. 657,658 n.2 (BIA 2012). 
4 
Here, the Petitioner has not shown that the significance of her artwork is indicative of the required 
sustained national or international acclaim, 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 has 
garnered national or international acclaim in the field, and they are one of the small percentage who 
has risen to the very top of the field of endeavor. See section 203(b)(l)(A) 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, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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