dismissed EB-1A Case: Cinematic Arts

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DATE: DEC 21 2011 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act; 8 U.S.c. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
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" PerryRh~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
Pa~e 2 
DISCUSSION: The employment-based immigrant visa petItIon was denied by the Director, 
Nebraska Service Center, on June 10, 2010, and is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), 
as an alien of extraordinary ability as a cinematic look development supervisor. The director 
determined that the petitioner had not established the beneficiary's requisite extraordinary ability 
and failed to submit extensive documentation of his sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the beneficiary's "sustained national or international 
acclaim" and present "extensive documentation" of his or her 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, specifically a major, internationally recognized award. 
Absent the receipt of such an award, the regulation outlines ten categories of specific 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 basic eligibility 
requirements. 
On appeal, counsel argues that "[t]he Director failed to meaningfully consider the evidence under 
the 'comparable evidence' standard, and also failed to consider the evidence taken as a whole in 
her evaluation of [the beneficiary's] eligibility as an alien of extraordinary ability." A review of 
the record of proceeding reflects that in counsel's cover letter at the initial filing of the petition, 
counsel claimed and submitted documentary evidence of the beneficiary'S eligibility for all of 
the criteria at 8 C.F.R. § 204.5(h)(3) except for the judging criterion pursuant to the regulation at 
8 C.F.R. § 204.5(h)(3)(iv). In addition, counsel requested that the beneficiary'S documentation 
be considered as comparable evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(4) for the 
published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the original 
contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v), the artistic display 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii), and the commercial successes 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(x). 
In response to the director's request for additional evidence pursuant to the regulation at 8 C.F.R. 
§ 103.2(b)(8), counsel stated: 
We respectfully request that you consider all the evidence not only as it pertains 
to the 10 enumerated categories of8 CFR §204.5 (h) (3), but also as it pertains the 
comparable evidence [emphasis in original] provision at 8 CFR §204.5(h)( 4). 
* * * 
Pa~e 3 
Although [the beneficiary] has not won awards in his own name, please consider 
the comparable evidence of criteria (i) and (v) [emphasis in original] showing 
that his innovative methods were crucial to the Academy Award-winning visual 
effects in "The Curious Case of Benjamin Button" and to his current employer 
[the petitioner]. Although [the beneficiary] does not have published interviews, 
please consider the comparable evidence of criteria (iii) [emphasis in original] 
showing that high profile interviews with Eric Barba and Steve Preeg: although 
they did not include [the beneficiary's] name, did in fact describe the work 
performed by [the beneficiary's] department (Human Texture) as part of the 
overall, award-winning process. Please also consider the evidence previously 
submitting showing the distinguished reputations of both Digital Domain and [the 
petitioner], along with testimonials, expert opinions, and [the petitioner's] 
supporting letters describing [the beneficiary's] leading and crucial role at these 
organizations, as comparable evidence of criteria (viii) [emphasis in original]. 
In the director's decision, she determined that the beneficiary failed to meet any of the criteria at 
8 C.F.R. § 204.5(h)(3) except for the high salary criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix). In counsel's appellate brief, counsel argues: 
Despite the petitioner's request for consideration under the comparable evidence 
standard, the Director failed to do so. In fact, the only time the Director 
mentioned "comparable evidence" was in the Decision, page 6, stating, "Counsel 
has submitted additional witness letter but no additional evidence in the form of 
comparable evidence." 
* * * 
If the "comparable evidence" provision is meant to act as a kind of safety net to 
catch those qualified individuals who, because of the nature of their particular 
profession, "slip through the cracks" because they cannot specifically and literally 
satisfy 3 out of the 10 criteria of 8 CFR §204.5 (h) (3), then the Director abused 
her discretion by not meaningfully considering the evidence presented under this 
alternate standard. 
Although the director briefly mentioned comparable evidence in relating to her discussion of the 
artistic display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii) and only in 
terms that "no additional evidence in the form of comparable evidence" was submitted, the 
director did not address counsel's arguments at the initial filing of the petition and in response to 
the director's request for additional evidence pursuant to the regulation at 8 C.F.R. § l03.2(b)(8) 
regarding comparable evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). More 
importantly, however, the director failed to indicate if comparable evidence could even be 
considered. 
Page 4 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that evidence of sustained national or 
international acclaim "shall" include evidence of a one-time achievement or evidence of at least 
three of the regulatory categories of evidence. The ten categories in the regulations are designed 
to cover different areas; not every criterion will apply to every occupation. For example, the 
criterion at 8 C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual arts, and the criterion at 8 
C.F.R. § 204.5(h)(3)(x) expressly applies to the performing arts. The AAO further 
acknowledges that the regulation at 8 C.F.R. § 204.5(h)(4) provides "[i]fthe above standards do 
not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence 
to establish the beneficiary's eligibility." It is clear from the use of the word "shall" in 8 C.F.R. 
§ 204.5(h)(3) that the rule, not the exception, is that the petitioner must submit evidence to meet 
at least three of the regulatory criteria. Thus, it is the petitioner's burden to explain why the 
regulatory criteria are not readily applicable to the beneficiary's occupation and how the 
evidence submitted is "comparable" to the objective evidence required at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). 
In response to the director's request for additional evidence pursuant to the 
§ 103.2(b)(8) and in counsel's appellate brief, counsel refers to a letter from 
••••••••••• ,,"0 stated: 
[I]t is important to remember that the computer graphics and video game 
animation industry is extremely cutthroat and competitive and original 
contributions made in this field are not typically shared with other companies in 
the industry. Typically, experts in the field keep a low public profile with few 
articles published or interviews granted in every attempt to preserve their 
proprietary knowledge and techniques. They specifically don't want others to 
know what they are doing and a lot of money hinges on them specifically not 
revealing their research and innovations. 
The letter from_ is not persuasive evidence that the regulatory criteria at 8 C.F.R. 
§ 204.5 ~ apply to the beneficiary's occupation in multi-media arts and 
animation. only addressed two out of the ten criteria - the published material 
criterion (8 C.F.R. § 204. 5 (h)(3)(iii)) and the original contributions criterion (8 C.F.R. 
§ 204.5(h)(3)(v)). Regarding the published material, 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." This regulatory criterion does not require the beneficiary to be 
interviewed by the media; instead the regulation requires published material about the 
beneficiary relating to his work. In fact, the petitioner submitted doc~ 
reflecting published material about others in the beneficiary's field such as_ 
••• Therefore, published material does exist in the beneficiary's occupation; there just is not 
any published material about the beneficiary relating to his work. Moreover, regarding the 
original contributions criterion, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) 
requires "[ e ] vidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field." This regulatory criterion does not 
Page 5 
require the beneficiary's work to be shared with others; rather the regulation requires that the 
beneficiary make original contributions of major significance in the field. 
The regulatory language precludes the consideration of comparable evidence in this case, as 
there is no indication that eligibility for visa preference in the beneficiary's occupation as a 
cinematic look development supervisor cannot be established by the ten criteria specified by the 
regulation at 8 C.F.R. § 204.5(h)(3). In fact, the director determined that the beneficiary met at 
least one of the criteria (high salary criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix)). Moreover, as indicated above, counsel initially claimed the beneficiary's 
eligibility for nine of the ten criteria at 8 C.F.R. § 204.5(h)(3) and also requested consideration 
for comparable evidence for four of the criteria. An inability to meet a criterion, however, is not 
necessarily evidence that the criterion does not apply to the beneficiary's occupation. 
Furthermore, counsel's reliance on documentary evidence reflecting the recognition of the work 
of others, such as winning the 2008 
Academy Award for "Best Curious Case of Benjamin 
Button or an interview conducted with the beneficiary is never 
even mentioned, fails to demonstrate comparatively analyzed to 
determine if the beneficiary meets any of the criteria. The regulation at 8 C.F.R. § 204.5(h)(4) is 
not a provision to simply allow an alien to circumvent the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) when an alien is unable to meet or submit documentary evidence of the 
criteria. Where an alien is simply unable to meet or submit documentary evidence of three of 
these criteria, the plain language of the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the 
submission of comparable evidence. As the petitioner submitted documentary evidence 
reflecting that many of the beneficiary's colleagues could have met some of the regulatory 
criteria at 8 C.F.R. § 204. 5 (h)(3)(i)-(x), the record clearly reflects that the submission of 
comparable evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(4) cannot be considered to 
determine the beneficiary's eligibility. 
In the AAO's analysis of the evidentiary criteria below, the AAO will determine whether the 
documentary evidence meets the requirements of the plain language of the criteria at 8 C.F.R. 
§ 204.5(h)(3). 
II. 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 --
Pa~e 6 
(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 hnmigration 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. 723 101 5t 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. Id. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her sustained 
acclaim and the recognition of his or her 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 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) 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; 
(iv) Evidence of the alien's participation, either individually or on a panel, as ajudge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
Pa~e 7 
(vi) Evidence of the alien's authorship of scholarly articles III the field, III 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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.l With respect to the criteria 
at 8 C.F.R. §§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS 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. 
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.F.R. § 204.5(h)(3». The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both 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," 
8 C.F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. § 1153(b )(1 )(A)(i). 
!d. at 1119. 
I 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.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
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 reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
III. Analysis 
A. Evidentiary Criteria 
The petitioner has submitted evidence pertaining to the following criteria under the regulation at 
8 C.F.R. § 204.5(h)(3).2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
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 lesser nationally or internationally recognized prizes or awards for excellence 
in the field of endeavor [emphasis added]." As indicated above, the petitioner claimed the 
beneficiary's eligibility for this criterion based on receipt of the 2008 Academy Award in "Best 
Achievement in Visual Effects" categ~ Curious Case of Benjamin Button. Although 
the petitioner submitted a letter from ...-,vho stated that the beneficiary ''was a crucial 
member of that team, and was recognized as such," the petitioner submitted screenshots from 
IMDbPRO reflecting that the recipients of the Academy Award were: 
beneficiary is not credited as being one of the recipients. As such, 
the petitioner failed to establish "the alien's receipt" of the award. 
Similarly, the petitioner submitted additional screenshots from IMDbPRO reflecting numerous 
nominations and awards won by The Curious Case of Benjamin Button. While the screenshots 
specifically list the recipient(s), the beneficiary is not listed as being a recipient for any award. 
Although the screenshots from IMDbPRO do not equate to primary evidence as required 
pursuant to the regulation at 8 C.F.R. § 103.2(b)(2), the AAO cannot conclude that awards that 
were not specifically presented to the beneficiary are tantamount to his receipt of nationally or 
internationally recognized awards; it cannot suffice that the beneficiary was one member of a 
large group that earned collective recognition. As 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, the 
submission of documentary evidence reflecting awards won by movies in which the beneficiary 
2 The petitioner does not claim the beneficiary meets or submits evidence relating to the criteria not discussed in this 
decision. 
Page 9 
contributed in some capacity or awards that were specifically presented to other individuals is 
insufficient to demonstrate that the beneficiary received nationally or internationally recognized 
awards for excellence in the field. There is no documentary evidence establishing that the 
beneficiary was individually recognized for his work. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their 
members, as judged by recognized national or international experts in their 
disciplines or fields. 
The plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(ii) requires "[d]ocumentation of 
the alien's membership in associations in the field for which is classification is sought, which 
require outstanding achievements of their members, as judged by recognized national or 
international experts in their disciplines or fields." In order to demonstrate that membership in 
an association meets this criterion, a petitioner must show that the association requires 
outstanding achievement as an essential condition for admission to membership. Membership 
requirements based on employment or activity in a given field, minimum education or 
experience, standardized test scores, grade point average, recommendations by colleagues or 
current members, or payment of dues do not satisfy this criterion as such requirements do not 
constitute outstanding achievements. Further, the overall prestige of a given association is not 
determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
Technicians, Artists and Allied Crafts of the United States, its Territories and 
Canada (JA TSE) and The Animation Guild and Affiliated Optical Electronic and Graphic Artists 
(AGAOEGA)). Neither letter indicated that the beneficiary was a member of any of the 
associations, nor did the petitioner submit any documentary evidence demonstrating that 
membership in the associations require outstanding achievements of their members, as judged by 
recognized national or international experts in their disciplines or fields. 
In response to the director's request for additional evidence pursuant to the regulation at 8 C.F.R. 
§ l03.2(b)(8), the petitioner submitted a letter from isual Effects 
Society (VES), who stated: 
[YES] is a professional organization comprised of artists and technologists who 
are professionally committed to the specialized industry of visual effects. YES is 
the world's largest organization of distinguished visual effects professionals. 
YES was formed in order to provide a platform for these distinguished artisans to 
communicate, educate, and recognize each other and their shared vision of the 
Page 10 
current and future state of visual effects industry. Therefore YES does serve as 
the global reference point for visual effects practitioners. 
Likewise, Ms. Bromley's letter failed to indicate that the beneficiary is a member of YES and 
failed to reflect that outstanding achievements, as judged by recognized national or international 
experts in their disciplines or fields, are requirements for membership with YES. 
Even if the petitioner submitted documentary evidence reflecting that the beneficiary is a 
member of any of these associations, the petitioner failed to demonstrate that any of the 
associations require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields consistent with the plain language of 
the regulation at 8 C.P.R. § 204.5(h)(3)(ii). It is the petitioner's burden to establish eligibility for 
every element of this criterion. 
Accordingly, the petitioner failed to establish 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 plain language of the regulation at 8 C.P.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." In general, in order for published 
material to meet this criterion, it must be primarily 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 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? 
Moreover, 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 ofthe material, and any necessary translation." 
As previously discussed, the petitioner submitted documentary evidence of published material 
about the beneficiary'S colleagues; however the petitioner failed to submit any documentary 
evidence reflecting published material about the beneficiary relating to his work. As the plain 
language of the regulation at 8 c.P.R. § 204.5(h)(3)(iii) requires "[p]ublished material about the 
alien [emphasis added]" the submission of published material about co-workers and colleagues, 
let alone material that does not even mention the name of the beneficiary, is insufficient to meet 
the elements of this criterion. 
3 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Pa~e 11 
Accordingly, the petitioner failed to establish 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. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[ e ]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." Here, the evidence must be reviewed to see whether it rises to the level 
of original artistic-related contributions "of major significance in the field." 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 APWUv. Potter, 343 F.3d 619,626 
(2nd Cir. Sep 15,2003). 
A review of the record of proceeding reflects that the petItIOner submitted several 
recommendation letters. While the recommendation letters make general statements regarding 
both the originality and quality of the beneficiary's work, they fail ~ any specific 
original contributions of major significance in the field. For example, ~tated that the 
beneficiary "has succeeded in bringing new skills, a new art approach, and an extraordinary level 
of experience in digital effects to the industry." _failed to identify the beneficiary's 
"new skills" and "new art approach" and how have somehow affected the field in a 
significant manner. Moreover, that the beneficiary ~ 
provided the most accomplished and innovative digital visual effects." Again, ~ 
failed to specifically identify any "accomplished and innovative digital visual effects" that were 
developed by the beneficiary and how they have widely influenced than limited 
to the movies in which the beneficiary contributed. Furthermore, that the 
beneficiary's "creative and technical skills were 
challenges in various high-profile projects." Likewise, failed to pinpoint a creative 
and technical skill that could be considered an original contribution of major significance in the 
field as a whole. In addition, stated that the beneficiary "is an expert in digital 
visual effects and is renowned in the industry his stellar work, strong dedication to innovative 
quality, and critical contributions to the success of a project." However,_ failed to 
identify the beneficiary's "critical contributions" and how they have impact~ 
The letters provide only general statements without offering any specific information to establish 
the beneficiary's original contributions and how they have been of major significance in the 
field. The lack of specific information fails to provide a basis for determining that the 
beneficiary has made original contributions of major significance in the field consistent with the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v). The authors of the letters, for 
example, failed to provide specific examples of the beneficiary's original work and how they 
have influenced, impacted, or affected the field, so as to establish original contributions of major 
significance in the field. Simply SUbmitting recommendation letters that merely indicate that the 
beneficiary worked on proj ects for various movies are insufficient to demonstrate that the 
beneficiary's original contributions have been of major significance in the field. 
Page 12 
The record of proceeding also contains recommendations letters from individuals who work for 
and represent the petitioner. Again, the recommendation letters fail to provide specific 
information and provide only general statements regarding the significance of the beneficiary's 
contributions. For example, . "greatly improved the 
efficiency of our creative pipeline." Once again, to indicate how the 
beneficiary improved the efficiency of the "creative pipeline," and how it is of major 
. . ficance in the field as a whole rather than limited to the impact on the petitioner. Moreover, 
that "[ s ]ince [the beneficiary's] arrival our look dev[ elopment] and surfacing 
has increased productivity by at least 5 times" and the beneficiary "has applied his knowledge 
and experience to create systems and policies that have given us this increase in productivity." 
_ however, discussed the beneficiary's contributions as they related to the petitioner 
rather than to the field as a whole, and he failed to specifically identify or provide details 
regarding the "systems and policies" created by the beneficiary. 
Finally, the recommendation letters refer to the skills and talents of the beneficiary. For 
example, Erik Nash stated that the beneficiary's "unique blend of artistic taste, technological 
expertise, and zeal for efficiency make him essential to any production." Assuming the 
beneficiary's skills are unique, the classification sought was not designed merely to alleviate skill 
shortages in a given field. In fact, that issue properly falls under the jurisdiction of the 
Department of Labor through the alien employment labor certification process. See Matter of 
New York State Dep 't. ofTransp., 22 I&N Dec. 215, 221 (Comm'r 1998). 
While those familiar with the beneficiary and his work generally describe it as "innovative" and 
"extraordinary," there is insufficient documentary evidence demonstrating that the beneficiary'S 
work is of major significance. This regulatory criterion not only requires the beneficiary to make 
original contributions, the regulatory criterion also requires those contributions to be of major 
significance. The AAO is not persuaded by vague, solicited letters that simply repeat the 
regulatory language but do not explain how the beneficiary'S contributions are original and have 
already influenced the field. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. See 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.). The lack of supporting evidence gives the AAO no basis to 
gauge the significance of the beneficiary'S contributions. 
Further, USCIS may, in its discretion, use as advisory opinion 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. Id. The submission of letters of support from the 
beneficiary'S personal contacts is not presumptive evidence of eligibility; USCIS may 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). Thus, the content of the writers' 
statements and how they became aware of the beneficiary'S reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in 
Page 13 
support of an immigration petition are of less weight than preexisting, independent evidence of 
original contributions of major significance. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[ e ]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of 
major significance in the field [emphasis added]." Without additional, specific evidence 
showing that the beneficiary's work has been unusually influential, widely applied throughout 
his field, or has otherwise risen to the level of contributions of major significance, the AAO 
cannot conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional 
or major trade publications or other major media. 
At the initial filing of the petition, counsel claimed the beneficiary's eligibility for this criterion 
based on his thesis entitled, "The Influence of a Japanese Contemporary Director on the Work of 
Song Tiang Teo," at the Savannah College of Art and Design. The plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires "[e]vidence of the alien's authorship of 
scholarly articles in the field, in professional or major trade publications or other major media 
[emphasis added]." The petitioner failed to submit any documentary evidence demonstrating 
that the beneficiary's thesis was published in a professional or major trade publication or other 
major media. Therefore, the petitioner failed to establish that he meets all of the elements of the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi). 
Moreover, even if the petitioner were to submit supporting documentary evidence showing that 
the beneficiary's thesis meets the elements of this criterion, which it has not, section 
203(b)(1 )(A)(i) of the Act requires the submission of extensive evidence. Consistent with that 
statutory requirement, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires 
more than one scholarly article. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are 
worded in the plural. Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only 
require service on a single judging panel or a single high salary. When a regulatory criterion 
wishes to include the singular within the plural, it expressly does so as when it states at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." Thus, the 
AAO can infer that the plural in the remaining regulatory criteria has meaning. In a different 
context, federal courts have upheld USCIS' ability to interpret significance from whether the 
singular or plural is used in a regulation. See Maramjaya v. USCIS, Civ. Act. No. 06-2158 
(RCL) at 12 (D.C. Cir. March 26,2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at 
*10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory requirement for "a" 
bachelor's degree or "a" foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) requires a single 
degree rather than a combination of academic credentials). In this, the petitioner only submitted 
one scholarly article that was authored by the beneficiary. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Page 14 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(vii) requires "[e]vidence of the 
display of the alien's work in the field at artistic exhibitions or showcases." A review of the 
record of proceeding reflects that the petitioner submitted sufficient documentary evidence 
reflecting that the beneficiary meets the plain language of the regulation at 8 C.F.R. 
§ 204.S(h)(3)(vii). Therefore, the AAO withdraws the findings ofthe director for this criterion. 
Accordingly, the petitioner established that the beneficiary meets the plain language of the 
regulation for this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The plain language of the regulation at 8 C.F.R. § 204.S(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 [emphasis added]." In general, a leading role is evidenced from the role 
itself, and a critical role is one in which the alien was responsible for the success or standing of 
the organization or establishment. 
On appeal, the petitioner refers to the previously discussed recommendation letters as evidence 
of the beneficiary'S .. for this criterion. . Di 'tal . the petitioner 
submitted letters from 
and 
Although the letters indicated that the beneficiary was 
"critical," "invaluable," and "crucial" to Digital Domain and to the petitioner, they fail to reflect 
that the beneficiary has performed in a leading or critical role consistent with the plain language 
of the regulation at 8 C.F.R. § 204.S(h)(3)(viii). In fact, it appears from their job titles that these 
individuals who wrote recommendation letters on behalf of the beneficiary performed in a far 
more leading or critical role. The petitioner failed to submit any organizational charts, for 
example, to demonstrate that the beneficiary'S roles were leading or critical when compared to 
other employees at the organizations. Again, the AAO is not persuaded by vague, solicited 
letters that simply repeat the regulatory language but do not explain how the beneficiary'S roles 
were leading or critical. Merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. at 1108, 
affd, 90S F. 2d at 41; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *S. The lack of 
supporting evidence gives the AAO no basis to gauge the significance of the roles performed by 
the beneficiary. 
Page 15 
The AAO notes that the petitioner submitted selective screenshots from Yahoo! Movies regarding 
the some of the cast and crew for The Curious Case of Benjamin Button. The screenshot credits 
the beneficiary as the "Texture Paint Lead." However, the screenshot lists numerous Digital 
. ,III I .... I -II •• -- .1 •••••• -' I' '-"I - , •• :-. - -.' I 'I 
The 
, " " . p y y gu ry e and 
position to the other Digital Domain employees, as well as the other cast and crew members, so 
as to establish that the beneficiary's role was leading or critical. Moreover, the fact that .. 
_ere acknowledged by winning the 2008 Academy Award reflects that 
their visual effects roles were substantially leading or critical in relation to the beneficiary's 
subordinate role as a "Texture Paint Lead." 
Again, 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 burden is on the petitioner to establish that the beneficiary 
meets every element of this criterion. Without documentary evidence demonstrating that the 
beneficiary has performed in a leading or critical role for organizations or establishments that 
have a distinguished reputation, the AAO cannot conclude that the beneficiary meets this 
criterion. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
As indicated previously, the director determined that the petitioner established the beneficiary's 
eligibility for this criterion. However, based on a review of the record of proceeding, the AAO 
must withdraw the findings of the director for this criterion. The petitioner submitted the 
following documentation: 
1. A letter, dated June 9, 2008, addressed to the beneficiary from_ 
the petitioner, who stated: 
We are pleased to offer you a starting annual base salary of 
... ($11 O,OOO.OOUSD); and a one-time signing bonus of .. 
. ($15,000.00USD), less applicable taxes. Further, you will 
be eligible to (i) receive up to a ... (10%) annual bonus at 
the end of each calendar year; 
2. A screenshot from www.flcdatacenter.com reflecting the median Level 4 
wages for "Multi-Media Artists and Animators" is $73,653 per year; 
3. Screenshots from www.jobbankusa.com reflecting that the median wages 
for "Professional Multi-Media Artists" in Los Angeles, CA is $83,000; 
-Page 16 
4. Screenshots from www.payscale.com reflecting the median salary for 
"Multi-Media Artist or Animator" from California, Florida, 
Massachusetts, Pennsylvania, Ohio, Texas, and New York ranging from 
approximately $30,000 to $70,000; 
5. A screenshot from www.salarylist.com reflecting various salaries for 
"Multi-Media Artist and Animator" in California ranging from $40,872 to 
$90,000; and 
6. Screenshots from www.bls.gov reflecting 90th percentile of wages for 
"Multi-Media Artists and Animators" is $100,390. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires "[ e ]vidence that the 
alien has commanded a high salary or other significantly high remuneration for services, in 
relation to others in the field." In other words, the petitioner must not only submit evidence of 
the beneficiary's salary but also submit evidence that the beneficiary's salary is high when 
compared to others in the field. 
Moreover, 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. 
Regarding item 1, the document reflects an offer of employment and salary rather than evidence 
that the beneficiary actually earned those wages. The petitioner failed to submit any primary 
evidence, such as paystubs or income tax documentation, of the beneficiary's salary. 
Furthermore, the petitioner failed to submit any documentary evidence reflecting that primary 
and secondary evidence do not exist or cannot be obtained. 
Notwithstanding the above, the petitioner seeks to classify the beneficiary as a cinematic look 
development supervisor, and the petitioner offered the beneficiary a position as a cinematic look 
development supervisor. However, regarding items 2 - 6, the petitioner submitted documentary 
evidence reflecting the salaries of multi-media artists and animators. The plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires "[e]vidence that the alien has commanded a high 
salary or other significantly high remuneration for services, in relation to others in the field 
[emphasis added]." While cinematic look developers are similar to qualify them as multi-media 
artists and animators, the petitioner failed to submit any documentary evidence reflecting the 
salaries of multi-media artist or animator supervisors or cinematic look development supervisors. 
See Lee v. IN.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002) (upholding a finding that competitive 
athletics and coaching are not within the same area of expertise). As such, the petitioner failed to 
demonstrate that the beneficiary commands a high salary "in relation to others in the field" of 
cinematic look development supervision. 
Page 17 
Furthermore, regarding items 2 - 5, the documentary evidence reflects median wage statistics 
both in the United States as a whole and in select regional areas. However, median or average 
statistics do not meet the requirement that the beneficiary commands a high salary "in relation to 
others in the field." Similarly, regarding item 6, while the petitioner's salary as a supervisor 
places him barely in the 90th percentile of multi-media artists and animators, the AAO is not 
persuaded that the beneficiary's salary was high when 10% of others made more than the 
beneficiary's offered salary. There is no evidence reflecting the top salaries in the beneficiary's 
field, so as to compare the beneficiary's salary to the highest earners. The evidence submitted by 
the petitioner does not establish that the beneficiary has commanded a high salary in relation to 
experienced professionals in his occupation. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. 
Comm'r 1994) (considering a professional golfer's earnings versus other PGA Tour golfers); see 
also Grimson v. INS, 934 F. Supp. 965,968 (N.D. Ill. 1996) (considering NHL enforcer's salary 
versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 1995) 
(comparing salary of NHL defensive player to salary of other NHL defensemen). The AAO 
notes that in Matter of Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison 
is not a comparison of Racine's ability with that of all the hockey players at all 
levels of play; but rather, Racine's ability as a professional hockey player within 
the NHL. This interpretation is consistent with at least one other court in this 
district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the 
definition of the term 8 C.F.R. § 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
The AAO notes that the petitioner offered the beneficiary a $15,000 signing bonus, as well as a 
bonus of up to 10% of the beneficiary's annual salary. The plain language of the regulation at 8 
C.F.R. § 204.5(h)(3)(ix) also provides that the petitioner can submit evidence that the beneficiary 
has commanded "other significantly high remuneration for services, in relation to others in the 
field." However, the record contains no evidence comparing the beneficiary's sign-on bonus or 
annual bonus to other cinematic look development supervisors, so as to reflect that the 
beneficiary has commanded other significantly high remuneration for services. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires "[e]vidence that 
the alien has commanded a high salary or other significantly high remuneration for services, in 
relation to others in the field." For the reasons discussed, the petitioner failed to submit 
sufficient documentary evidence establishing the beneficiary's salary, and that he has 
commanded a high salary in relation to others in the field consistent with the plain language of 
this regulatory criterion. Therefore, the AAO withdraws the decision of the director for this 
criterion. 
Accordingly, the petitioner failed to establish 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 plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) requires "[e]vidence of 
commercial successes in the performing arts, as shown by box office receipts or record, cassette, 
compact disk, or video sales [emphasis added]." The beneficiary is not a performing artist; 
rather the beneficiary is a cinematic look development supervisor. The ten criteria in the 
regulations are designed to cover different areas; not every criterion will apply to every 
occupation. As the beneficiary's occupation is not "in the performing arts," such as an actor or 
singer, the beneficiary fails to meet the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian OpInIOn, the AAO must next conduct 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," 8 C.F.R. § 204.5(h)(2); 
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." See section 203(b)(I)(A)(i) of the 
Act, 8 U.S.C. § 1 1 53(b)(I)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1115. The beneficiary met the plain language of one of the criteria, in which at least three are 
required under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many of the deficiencies in 
the documentation submitted by the petitioner have already been addressed in the AAO's 
preceding discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating the AAO's final merits determination, the AAO must look at the totality of the 
evidence to determine the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the Act. 
In this case, the beneficiary has participated in successful movies and video games. However, 
the personal accomplishments of the beneficiary fall far short of establishing that he "is one of 
that small percentage who have risen to the very top of the field of endeavor" and that he "has 
sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise." See 8 C.F.R. § 204.5(h)(2), section 203(b)(1)(A)(i) of the 
Act, 8 U.S.c. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[a] petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 C.F.R. § 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "a 
level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). 
The AAO cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of the beneficiary's sustained national or international acclaim. See section 
203(b )(1 )(A) of the Act. The commentary for the proposed regulations implementing section 
203 (b)(1 )(A)(i) of the Act provide that the "intent of Congress that a very high standard be set 
for aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to 
present more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 
30703,30704 (July 5, 1991). In this case, the petitioner claims eligibility for the awards criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i) and the published material criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) based on documentary evidence of the 
awards and published material of others in beneficiary's field without submitting any 
documentary evidence demonstrating that the beneficiary has won any awards or has had any 
published material about him relating to his work. Likewise, the petitioner submitted 
documentary evidence regarding memberships in associations pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(ii), but the documentary evidence failed to even reflect that the beneficiary 
was a member of the associations, let alone that the associations require outstanding 
achievements of their members. Moreover, the petitioner based the beneficiary's eligibility for 
the original contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v) and the 
leading or critical role criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii) entirely 
on recommendation letters that failed to reflect that the beneficiary has made original 
contributions of major significance in the field and that the beneficiary has performed in a 
leading or critical role. It must be emphasized that the favorable opinions of experts in the field, 
while not without evidentiary weight, are not a solid basis for a successful extraordinary ability 
claim. Again, USCIS may, in its discretion, use as advisory opinions statements submitted as 
expert testimony. See Matter of Caron International, 19 I&N Dec. at 795. However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of letters from individuals, especially when they are 
colleagues of the beneficiary without any prior knowledge of his work, supporting the petition is 
not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N 
Dec. at 500, n.2. Similarly, the petitioner claimed the beneficiary's eligibility for the high salary 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix) without submitting any primary 
evidence of the beneficiary's salary, as well as any documentary evidence comparing his salary 
as a cinematic look development supervisor to others in his field. Likewise, the petitioner 
claimed the beneficiary's eligibility for the scholarly articles criterion pursuant to the regulation 
at 8 C.F.R. § 204.5(h)(3)(vi) based on the submission of one article and without establishing that 
the article was ever published in a professional or major trade publication or other major media. 
The AAO is not persuaded that such evidence equates to "extensive documentation" and is 
demonstrative of this highly restrictive classification. The truth is to be determined not by the 
quantity of evidence alone but by its quality. Matter of Chawathe, 25 I&N Dec. 369 (AAO 
2010) citing Matter of E-M- 20 I&N Dec. 77, 80 (Comm'r 1989). 
The evidence of record falls short of demonstrating the beneficiary's sustained national or 
international acclaim as a cinematic look development supervisor. The regulation at 8 C.F.R. 
§ 204.5(h)(3) requires "[a] petition for an alien of extraordinary ability must be accompanied by 
evidence that the alien has sustained national or international acclaim and this his or her 
achievements have been recognized in the field of expertise." While the petitioner submitted 
documentation demonstrating that the beneficiary has contributed to various movies and video 
games, the documentary evidence is not consistent with or indicative of sustained national or 
international acclaim. 
USCIS has long held that even athletes performing at the major league level do not automatically 
meet the statutory standards for immigrant classification as an alien of "extraordinary ability." 
Matter of Price, 20 I&N Dec. at 954; 56 Fed. Reg. at 60899. While the petitioner need not 
demonstrate that there is no one more accomplished than the beneficiary to qualify for the 
classification sought, it appears that the very top of his field of endeavor is far above the level the 
beneficiary has attained. For example, won the Academy Award 
for "Best Achievement in Visual Effects. to beneficiary, the references are 
far more impressive and have established themselves as that "small percentage at the very top of 
the field of endeavor." 
The conclusion the AAO reaches by considering the evidence to meet each category of evidence 
at 8 C.F.R. § 204.5(h)(3) separately is consistent with a review of the evidence in the aggregate. 
Ultimately, the evidence in the aggregate does not distinguish the beneficiary as one of that small 
percentage who has risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The 
beneficiary seeks a highly restrictive visa classification, intended for individuals at the top of 
their respective fields, rather than for individuals progressing toward the top at some unspecified 
future time. In this case, the petitioner has not established that the beneficiary's achievements at 
the time of filing the petition were commensurate with sustained national or international 
acclaim, or that he was among that small percentage at the very top of the field of endeavor. 
IV. 0-1 Nonimmigrant Admission 
The AAO notes that at the time of the filing of the petition, the beneficiary was admitted to the 
United States as an 0-1 nonimmigrant on July 6, 2008. However, while USCIS has approved at 
least one 0-1 nonimmigrant visa petition filed on behalf of the beneficiary, the prior approval 
does not preclude USCIS from denying an immigrant visa petition based on a different, if 
similarly phrased, standard. It must be noted that many 1-140 immigrant petitions are denied after 
USCIS approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); 
Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends 
less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some 
nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
Pa~e 21 
1240482 (5th Cir. 2004) (finding that prior approvals do not preclude USCIS from denying an 
extension of the original visa based on a reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter 
o/Church Scientology International, 19 I&N Dec. 593,597 (Comm'r 1988). It would be absurd 
to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. 
Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 
1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
affd, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
V. Conclusion 
Review of the record does not establish that the beneficiary has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
beneficiary's achievements set him significantly above almost all others in his field at a national 
or international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b )(1 )(A) of the Act, and the petition may not be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.