dismissed EB-1A Case: Business

U.S. Citizenship 
and Immigration 
Services 
In Re: 13011369 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 15, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a beauty products company, seeks classification of the Beneficiary as an alien of 
extraordinary ability in the field of business. 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 Nebraska Service Center denied the petition, concluding that although the record 
demonstrated that the Beneficiary met the initial evidence requirements for the requested 
classification, it did not establish that she had sustained national or international acclaim and was one 
of the small percentage of business executives at the top of the field. 
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)(l) 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 pettt10ner 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 petitioner 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 (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 
At the time of filing, the Beneficiary served as thel I President for the Petitioner's! I 
brand of cosmetics. She was previously employed by thel !organization an~._ _____ _.I 
and has held managerial and executive positions with these companies for 20 years. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that the Beneficiary has received a major, 
internationally recognized award, it must show that she satisfies at least three of the alternate 
regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Beneficiary met the 
requisite three of the evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to her leading role 
for organizations with a distinguished reputation, published material about her and her work in 
professional, major trade or other major media, and a high salary relative to others in her field. Upon 
review of the evidence, we agree with the Director's decision regarding the first two of these criteria, 
but withdraw his conclusion concerning the Beneficiary's salary. 
On appeal, the Petitioner asserts that the Beneficiary also meets two additional evidentiary criteria 
relating to her receipt of lesser nationally or internationally recognized awards in her field, and 
original contributions of major significance to the field. After reviewing all of the evidence in the 
record, we find that she does not meet the initial evidence requirement for this classification, and does 
not qualify as an individual of extraordinary ability. 
Documentation of the alien '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) 
To meet the requirements of this criterion, a petitioner must show that the individual has received a 
prize or award, that the prize or award was granted based upon excellence in the individual's field of 
endeavor, and that the prize or award is nationally or internationally recognized within the field. Here, 
the Petitioner submitted evidence that the Beneficiary led efforts to launch and market, and in some 
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cases develop, cosmetics products which were later selected for awards based upon their rerformance. 
These awards include the Allure magazine I t and I awards and 
Cosmetics Magazine 1 I Awards," which were received by products issued by the 
Petitioner and by the Beneficiary's previous employer,! I In addition, the Petitioner submitted 
evidence that its l I advertising campaign was a finalist in the 11th Annual I I Awards" 
in the I I category. 
However, as noted by the Director, the Beneficiary is not named as a recipient and did not personally 
receive any of these awards, as is required by the plain language of this criterion. The focus in this 
criterion is on the individual's receipt of awards or prizes, as opposed to his or hers employer's receipt 
of award or prizes. 1 On appeal, the Petitioner concedes that the awards "do not bear [the Beneficiary's] 
name," but focuses instead upon her contribution to these products' recognition. Letters from the 
Beneficiary's direct superiors in both organizations state that due to her leadership in the areas of 
marketing ( and in some cases product development), the recognition afforded to the products through 
these awards can be attributed to her. But it is the awarding organizations which determine upon 
whom or what recognition is bestowed, and in this case they chose to name the products and the 
companies which sell them. In addition, the evidence indicates that the awards issued by the 
magazines were based upon an appraisal of the relative performance of the cosmetics and related 
products, not upon the business acumen of those who developed and marketed them. They are not, 
therefore, awards for excellence in the Beneficiary's field of endeavor. 
Further, even ifwe were to accept the Petitioner's assertion that the evidence of the Beneficiary's work 
related to the recognized products is sufficient under this criterion, which we do not, we note that at 
least some of the recognition asserted to be attributable to her did not come in the form of prizes or 
awards as re uired. Exam les of this include the a earance ofl I sold b~ I in a Vogue 
article titled ~------------~------ as well as the previously mentioned 
marketing campaign which was a finalist for a ~----~" This evidence does not demonstrate 
that either the Beneficiary or her employer were the recipient of a prize or award. 
Based upon the above analysis, we conclude that the Petitioner has not established that the Beneficiary 
is the recipient of prizes or awards for excellence in her field of endeavor. 
Evidence of the alien's original scient[fic, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v) 
In order to successfully demonstrate that an individual meets this criterion, a petitioner must establish 
that he or she has made contributions to the field that are both original and of major significance. 
"Contributions of major significance" connotes that the individual's work has significantly impacted 
the field. See Visinscaia, 4 F. Supp. 3d at 134. 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 in the field. 
1 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted With Certain 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14. Page 6 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
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The Petitioner asserts on appeal that the Beneficiary's accomplishments "have had a major impact on 
product development and marketing in the global beauty industry," and refers to her leadership of 
projects to develop and launch beauty products which were recognized by the industry awards 
mentioned above. It begins by highlighting her leadership of the development o~ I I I and I I as examples of contributions to the field ' ess, 
noting that these products represente~ "grouldbreaking innovations" such as a,....m_a.......,_n_e_t_ic_._ __ ....____, 
"that has since been copied by othe companies." Also mentioned i ________ ___,. 
which the Petitioner states is "one of the best-selling franchises in the world." 
In support of these assertions, the Petitioner refers to reference letters from executives at I.__ __ _. 
I I Executive Vice President of Human Relations at the company, confirms the 
Beneficiary's employment in progressively more senior managerial and executive positions from 1999 
to 2016, and notes that during this time she "defined and implemented marketing, media, and 
promotional strategies" and "was involved in the creation and launched numerous highly successful 
and groundbreaking products." He confirms that these included the three products mentioned above 
as well as others, and goes into greater detail regarding the first two. I I describes I I I I as "game-changing," having "innovative features," and "one of the leading products in its 
category to this day," and notes that I I came in "a novr-11 1 J package with a 
magnetic opening system, which was the first of its kind in the market." Although this letter confirms 
that the Beneficiary led the development of products which are said to have novel features, at least 
one of which remains a sales success for her former employer, it does not explain how the 
Beneficiary's work in these examples was of such wide impact or influence on her field that they were 
of majorl significjnce. For example, while the Petitioner asserts on appeal that other companies 
followed in offering magnetic I I cases,I I does not make this claim in his 
letter, nor does the record include documentary evidence to support this claim or demonstrate how it 
was of major significance to the field. In addition, while the Petitioner submitted evidence regarding 
an Allure I I' award received for the~----.......,...--,-____,, the webpage in the record 
which announces the award and describes this product makes no mention of its magnetic case. 
Similarly, the Petitioner names products for which the Beneficiary has led the development and 
marketing under its employment, also including! I products. I I the 
Petitioner's Chief Marketing Officer and also former colleague of the Beneficiary's atl I 
confirms that "several new products" have been introduced during her tenure as Global Brand 
President, some of which "were recognized by the industry for their innovation," including the Allure 
.__ _____ ____. recognition in 2019. However, as noted above, the evidence of these awards 
indicates that they were granted based upon home testing of the products' performance by the 
magazine's staff, not upon any judgment of innovation or excellence in product development. 
Although the evidence demonstrates that the Beneficiary has successfully led the development of 
products for her current and former employers, it does not show that her work has led other executives 
in the cosmetics industry or elsewhere to change the way they conduct their work, or has otherwise 
impacted the area of product development in her overall field. The commercial or critical success of 
the products may have led to improved sales for her employers, but the evidence shows that that impact 
was felt by those employers only, not the broader field. 
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Turning to the Beneficiary's contributions related to the marketing of cosmetics during her long career 
in the industry, the Petitioner first refers on appeal to the reference letter froml I a former 
colleague of the Beneficiary's atl I He describes product launch marketing campaigns for two 
I lproducts, both of which featured well-known actresses.I I then explains that the 
Beneficiary was responsible for relaunching thel f website for the United States, "which was 
so successful that it quickly became the standard reference for all I I business units worldwide." 
He states that she "established standards, methods, and processes that at still in use atl I today." 
We note that this same paragraph regarding the Beneficiary's work on thel !website appears 
inl l's letter as well However, neither lett~tes that these processes or methods 
have been applied outside of the! Jbrand, or thel___J organization, to have an impact on 
the broader field. 
I l's letter touches on other aspects of the Beneficiary's marketing efforts while arj [ 
stating that "she was responsible for redefininr the brand equity forl I in the United States," 
and that her strategy "became the platform for_ I globally." It is unclear if he is referring to 
the website relaunching as referenced in the other two letters, as he does not expand upon what was 
involved in redefining! Is "brand equity," butl I later notes that the Beneficiary 
"accelerated the company's digital presence, achieving double-digit growth in e-commerce ... " As 
with the previously mentioned letters, there is no indication in this letter that her work in leading 
marketing campaigns forl ~ignificantly impacted the field beyond her employer. 
The Petitioner also asserts that media articles featuring quotes from the Beneficiary, as well as an 
interview of her which appeared on the website of Women's Wear Daily (WWD) confirm her 
"preeminence" and "elite status." Some of these articles were published during her time with 
I, such as a 2013 article in the New York Times which includes a statement from her regarding 
~th_e_c_o_m~pany's effort in targetin9 the I I market. Another article appearing in the same 
newspaper a year earlier is about a[ lcommercial featuring thel I 
and includes a short quote from the Beneficiary. While these articles confirm her position as a 
marketing executive fo~ land its I I brand, and thus an expert in cosmetics marketing 
who is authorized to speak on the brand's behalf: they do not focus on any contributions made by the 
Beneficiary to the cosmetics industry or the field of business. 
Other articles werel publisled since the Beneficiary began working for the Petitioner. The WWD 
interview discusses 's I ~ campaign, noting it as a departure for the company, and 
allows the Beneficiary to discuss her efforts to reverse the company's sales struggles and compete 
with "indie" brands. This article also serves to confirm the Beneficiary's role as an executive and 
provides more detail about certain marketing projects she has undertaken. Another article, posted on 
the website~--------~ is about brands conducting marketing campaigns at live events, 
and dedicates several paragraphs to the Beneficiary's description of the Petitioner's efforts in this vein. 
Although both of these articles indicate that she led the Petitioner in marketing campaigns that were 
novel for the company and brand, they do not indicate that these campaigns represented contributions 
to the overall field which influenced other companies to take a similar approach. 
Another way in which the Petitioner asserts that the Beneficiary has made a contribution of jajorl 
significance to the field of business relates to her work in internal processes for the company. 
I !writes that she was able to reduce development time for new products from 18 to 24 months 
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down to 6 to 18 months. The Beneficiary also discusses this change in the WWD article, noting that 
accelerating this timeline is a way in which the Petitioner is changing its business model to compete 
with newer cosmetics companies. As with the discussions above, this evidence does not show that the 
changes made to the Petitioner's internal processes are contributions which have influenced others in 
the industry or broader field of business to implement within their organizations. 
Upon consideration of all of the evidence pertaining to this criterion, some of which has been 
specifically mentioned in the analysis above, we conclude that the Petitioner has not established that 
the Beneficiary has made original contributions of major significance in her field. 
Evidence that the alien has commanded a high salmy or other significantZv high 
remuneration for services, in relation to others in the.field. 8 C.F.R. § 204.5(h)(3)(ix) 
In support of its claim to this criterion, the Petitioner submitted a letter regarding the Beneficiary's 
promotion in 2018, her IRS Forms W-2 for the years 2018 and 2019, earnings statements for 2019, 
and information about the salaries of Chief Executive Officers and Chief Sustainability Officers in 
I I during the relevant period. The letter states that as President ofl I the 
Beneficiary earns $600,000 in salary, a 100% bonus, and an award under the company's Long Term 
Incentive Plan ofup to $1,000,000. The Forms W-2 for 2018 and 2019 show that in those years, she 
earned "wages, tips and other compensation" of $865,602 and $1,099, 303, respectively. Also, the 
earnings statement for January 31, 2020 shows that at that point her base salary was $662,000, and 
that other compensation included a car allowance, life insurance and financial consulting. 
For purposes of comparison, the salary data from the United States Department of Labor's Online 
Wage Library (OWL) does not provide values for wage levels 1 through 4, but states that such 
information is not provided "due to limitations in the OES data." It further notes that the wage data 
may be at least $208,000 per year, but does provide a "Mean Wage (H-2B)" of $256,776 per year. 
Although we acknowledge that the Beneficiary's base salary of $600,000 in 2018, and $662,000 in 
2020, exceeds the mean salary reported, the information provided in the OWL is not sufficient to 
demonstrate that her salary is high in comparison to the salary of other executives i~ I or 
that her total remuneration is significantly high in comparison to those executives. 
First, since the OWL does not take indicate that compensation other than base salary is included in the 
figures provided, we can only consider the Beneficiary's base salary as shown in the promotion letter 
and earnings statements when making this comparison. Second, the mean wage by itself does not 
provide a sufficient basis to determine whether the Beneficiary's salary is high, as it does not provide 
a complete picture of the range of executive salaries which are above average, high, and near the top 
echelon. Therefore, the record does not include evidence that demonstrates that the Beneficiary's 
salary is high in comparison to other executive, and we withdraw the Director's conclusion that she 
meets this criterion. 
B. 0-1 Classification 
We note that the record reflects that the Petitioner has been granted 0-1 status, a classification reserved 
for nonimmigrants of extraordinary ability. Although USCIS has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the Petitioner, the prior approval does not preclude 
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USCIS from denying an immigrant visa petition which is adjudicated based on a different standard -
statute, regulations, and case law. Many Form I-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), aff'd, 905 F. 2d 41 (2d. Cir. 1990). 
Further, it must be emphasized that each petition filing is a separate proceeding with a separate record. 
In making a determination of statutory eligibility, USCIS is limited to the information contained in 
that individual record of proceedings. 8 C.F.R. § 103.2(b)(l6)(ii). We are not required to approve 
applications or petitions where eligibility has not been demonstrated, merely because of prior 
approvals that 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. Montgome,y, 825 F.2d 1084, 1090 (6th Cir. 1987). 
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 
Petitioner has established that the Beneficiary has 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 )(1 )(A) of the Act. Moreover, the record does not otherwise demonstrate that the Beneficiary 
has garnered national or international acclaim in the field, and that she 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 his 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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