dismissed EB-1A Case: Cinematography

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 24, 2025 In Re: 36862665 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a cinematographer, seeks first preference immigrant 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies as an individual of extraordinary ability either as the recipient of 
a one-time achievement that is a major, internationally recognized award, or as someone who initially 
satisfied at least three of the ten required regulatory criteria listed at 8 C.F.R. § 204.5(h)(3)(i) - (x). 
The matter is now before us on appeal pursuant to 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 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify as an alien with extraordinary ability, a petitioner must demonstrate that: 
• They have "extraordinary ability in the sciences, arts, education, business, or athletics;" 
• They seek to continue work in their field of expertise in the United States; and 
• Their work would substantially benefit the country. 
Section 203(b )(l)(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 sustained 
acclaim and recognition of their 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 they 
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). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit 
comparable material if the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not readily apply to the 
individual's occupation. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner is a cinematographer whose work includes short films and music videos in the United 
States and her home country ofltaly. The Petitioner's work has been showcased in film festivals, and 
she has also served as a judge at several film festivals, such as the and I 
The Petitioner does not claim or submit evidence to show that she received a major, internationally 
recognized award. She must therefore provide evidence showing that she satisfies at least three of the 
alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i) - (x). The Petitioner claims that she meets the 
elements of four of these criteria, which are summarized below: 
• (iii), Published material about the Petitioner; 
• (iv), Participation as a judge of the work of others; 
• (vii), Display of the Petitioner's work at artistic exhibitions; and 
• (viii), Performance in a leading or critical role for distinguished organizations or 
establishments. 
The Director determined, and we agree, that the Petitioner satisfied the criteria at 
8 C.F.R. § 204.5(h)(3)(iv) and (vii). On appeal, the Petitioner maintains her qualification for two 
additional criteria, which we will address in our discussion below. 1 
1 Although the Director determined that the Petitioner did not meet the criterion 8 C.F.R. § 204.5(h)(3)(ii), which pertains 
to membership in associations requiring outstand achievements, the Petitioner did not claim, nor does she claim on appeal 
that she meets the requirements of this criterion. Any ground of ineligibility that is not raised on appeal is waived. See 
MatterofO-R-E-. 28 I&N Dec. 330. 336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 25 I&N Dec. 657,658 n.2 (BIA 2012)). 
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A. Published Material 
The criterion at 8 C.F.R. § 204.5(h)(3)(iii) requires evidence which shows that material about the 
Petitioner and her work in the field of endeavor has been published in a professional or major trade 
publication or other major media. The title, date, and author of the material is also required along with 
any necessary translation. 
The Director acknowledged that the Petitioner submitted articles where she was featured or mentioned 
but noted that several of the submitted articles did not identify an author. The Director determined 
that the record lacked evidence that the published material was printed in professional or major trade 
publications or other major media and pointed out that of the two sources containing published 
material about the Petitioner - ritzherald.com and Buzzfeed - cannot be deemed major media, citing 
the Similarweb global, country, and category rankings that the Petitioner provided for ritzherald.com. 
On appeal, the Petitioner reiterates portions of the users Policy Manual pertaining to this criterion 
and points to our general acceptance of using Similarweb as an analytics tool to show a publication's 
circulation data, which is often used to establish that a publication qualifies as major media. The 
Petitioner argues that II Fatto Quotidiano, one of the publications containing an article about her, is a 
"major nationally distributed publication in Italy" and highlights the website's number of monthly 
visitors as an indicator of its major media status. She also lists the article's author and argues that it 
was included in the printout, despite the Director's finding to the contrary. 
While the record supports the Petitioner's claim about the author's named being included in the article 
printout, we disagree with the Petitioner's reliance on the number of monthly website visitors as 
sufficient evidence of a publication's major media status. Here, the number of monthly visitors for 
the source in question is not accompanied by comparative data for similar online sources. As such, 
merely providing the number of monthly visitors for the source in question is not sufficient to establish 
that II Fatto Quotidiano is a form of major media relative to similar online sources. And although the 
Petitioner's response to a request for evidence (RFE) included a printout of the ilfattoquotidiano. it 
"Traffic & Engagement" page in Similarweb, the comparative statistics, i.e., the global, country, and 
industry rankings, on that printout are illegible and preclude a meaningful comparison of this 
publication's rankings to those of similar publications. 
We also note that fl Fatto Quotidiano is the only publication that the Petitioner specifically addresses 
on appeal. While she broadly mentions "the articles submitted with the Original Petition," she does 
not refer to any article specifically or state how the Director's discussion of previously submitted 
evidence was incorrect. (Emphasis added in original). 
Further regarding the Petitioner's reliance on unpublished AAO decisions, we note that while our 
precedent decisions are binding on users, unpublished decisions are not similarly binding. See 
8 e.F.R. § 103.3(c). In addition, the Petitioner has not established that the facts of this petition are 
analogous to those in the unpublished decision. For instance, the Petitioner cites the circulation data 
provided in the unpublished decision, asserting that we deemed those numbers as sufficient to "surpass 
the threshold to be considered major media." However, as stated above, the Petitioner provided 
monthly visitor information, not circulation data as in the unpublished decision. She therefore has not 
established that findings in that decision are applicable in the matter at hand. 
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In light of the above, the Petitioner has not established that she meets this criterion. 
B. Comparable Evidence 
This regulatory provision provides petitioners the opportunity to submit comparable evidence to 
establish the person's eligibility, if it is determined that the evidentiary criteria described in the 
regulations do not readily apply to the person's occupation. See generally 6 USCIS Policy Manual 
F.2(B)(l), https://www.uscis.gov/policymanual. When evaluating such comparable evidence, officers 
must consider whether the regulatory criteria are readily applicable to the person's occupation and, if 
not, whether the evidence provided is truly comparable to the criteria listed in that regulation. Id. 
In both the RFE and on appeal, the Petitioner states that she has assumed a leading or critical role as 
required to meet the criterion at 8 C.F.R. § 204.5(h)(3)(viii). However, she states that she cannot meet 
the entirety of this criterion because "[ c ]inematographers typically do not work for organizations" and 
the criterion requires that in addition to demonstrating that she has performed in a leading or critical 
role, the Petitioner must also show that she performed that role within the context of an establishment 
or organization with a distinguished reputation. See 8 C.F.R. § 204.5(h)(3)(viii). The Petitioner 
stresses the rarity of being hired to work on all projects of a single production studio and states that it 
is common for cinematographers to be "selected and sought out to work on individual projects." She 
therefore claims that she has assumed a leading or critical role on various "highly prestigious and 
distinguished" film production projects that she lists and discusses. 
The Petitioner has provided evidence to support her claim concerning the mostly project-based work 
environment of most cinematographers, and she has also established her critical role on various film 
projects. However, the record lacks sufficient evidence showing that the Petitioner has assumed a 
leading or critical role on projects with a distinguished reputation. For instance, the Petitioner lists 
and discusses past projects and explains how certain projects were recognized, such as through awards 
or nominations at various film festivals. However, the record lacks corroborating evidence from the 
awarding entity to show that the Petitioner's projects won awards or were otherwise recognized as 
claimed. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (stating that assertions must 
be supported with relevant, probative, and credible evidence). In other instances, the Petitioner lists 
actors and film crew members with whom she worked, highlight ways in which these individuals have 
been recognized in other projects. However, the Petitioner does not explain how this information 
about unrelated projects is relevant to the matter at hand, which requires evidence establishing that 
projects in which the Petitioner assumed a leading or critical role have a distinguished reputation. 
Accordingly, the Petitioner has not established that she meets the criterion at 8 C.F.R. 
§ 204.5(h)(3)(viii) through the submission of comparable evidence. 
C. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved 0-1 nonimmigrant visa 
petitions filed on behalf of the Petitioner, the prior approval does not preclude USCIS from denying 
an immigrant visa petition which is adjudicated based on a different standard - statute, regulations, 
4 
and case law. USCIS is not precluded from denying a Form 1-140 immigrant petition after approving 
a prior nonimmigrant petition. 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. 2d41 (2d. Cir. 1990). Furthermore, our 
authority over the USCIS service centers, the office adjudicating the nonimmigrant visa petition, 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 an individual, we are not bound to follow 
that finding in the adjudication of another immigration petition. See La. Philharmonic Orchestra v. 
INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 2 
III. CONCLUSION 
The Petitioner has not shown that she met either a one-time award, or three of ten initial criteria. The 
Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top of 
their respective fields. 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 her 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)(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 that she 
is one of the small percentage who have 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). 
ORDER: The appeal is dismissed. 
2 See also generally 6 USC1S Policy Manual, supra, at F.2(B)(3). 
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