dismissed EB-1A Case: Cinematography

Identifying data deleted to 
prevent cleany Linw~nted 
invasion of persona~ prIvacy 
PtJBLIC COpy 
u.s. Department of Homeland Security 
U.S. Citizenship and Innnigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
DATE: NOV 1 4 2011 OFFICE: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, on March 15,2011, and is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification 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. The director determined that the petitioner had not established the 
requisite extraordinary ability and failed to submit extensive documentation of her 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 "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 caJ? 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 claims that the petitioner meets at least three of the regulatory criteria at 8 
C.F.R. § 204.5(h)(3). 
I. 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 --
(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 
Page 3 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration 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 st 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 a judge 
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; 
(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; 
Page 4 
(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 201 0, 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)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "fmal 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). 
Id. at 1119. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a fmal merits determination. In reviewing Service Center decisions, 
the AAO will apply the test set forth in Kazarian. 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). 
II. Analysis 
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). 
-Page 5 
A. Evidentiary Criteria 
This petition, filed on February 16, 2011, seeks to classify the petitioner as an alien with 
extraordinary ability as a cinematographer. The petitioner has submitted evidence pertaining to 
the following criteria under 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. 
In the director's decision, she determined that the petitioner failed to meet this criterion. 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." On appeal, the petitioner does not contest the director's findings for 
this criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda v. us. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-273 12011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30,2011) (the court 
found the plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). 
Accordingly, the petitioner failed to establish that she 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 director found that the petitioner's membership with the International Cinematographers 
Guild (lCG) failed to meet this criterion. On appeal, counsel argues: 
to is the American 
This organization was established in 1919, 
has 340 members of which seven (7) are women, and Membership is by Invitation 
Only which is akin to a Private Club. 
In the Comparable Evidence submitted in response to your RFE [request for 
additional evidence ~on at 8 C.F.R. § 103.2(b)(8)], we 
provided a report by~ Executive Director, Center for the 
Study of Women in Television and Film, San Diego University, San Diego, CA 
... which showed that 98% ofthe films had no female Cinematographers. 
If [the petitioner] was a Scientific Researcher, many organizations would be 
available to her, including Proceedings of the National Academics of Science, 
Journal of Biological Chemistry, Journal of Cell Biology, American Journal of 
Physiology and Journal of Cellular Physiology, to name a few. All of these 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 6 
aSSOCIatIOns have published membership requirements which must be met. 
Consequently, Membership in Associations in the field which require outstanding 
achievements of their members should be DELETED for Cinematographers. 
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 ten regulatory categories of evidence to establish the basic eligibility requirements. 
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]f the above standards do not readily apply to the [petitioner's] 
occupation, the petitioner may submit comparable evidence to establish the [petitioner'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 her occupation and how the evidence submitted is "comparable" to the objective 
evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The regulatory language precludes the consideration of comparable evidence in this case, as 
there is no indication that eligibility for visa preference in the petitioner's occupation as a 
cinematographer cannot be established by the ten criteria specified by the regulation at 8 C.F.R. 
§ 204.5(h)(3). In fact, as indicated in this decision, counsel mentions evidence in her brief, 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. § 103 .2(b )(8) that specifically addresses six of the ten 
criteria at the regulation at 8 C.F.R. § 204.5(h)(3). An inability to meet a criterion, however, is 
not necessarily evidence that the criterion does not apply to the petitioner's occupation. 
Moreover, although the petitioner failed to claim these additional criteria, the AAO finds that a 
cinematographer could perform as a judge of the work of others pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(iv) and could make original contributions of major significance in the field 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v). Counsel provided no documentation as to 
why these provisions of the regulation would not be appropriate to the profession of a 
cinematographer. 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. 
Moreover, while on appeal counsel submitted a screenshot from Wikipedia regarding ASC, the 
documentary evidence fails to support counsel's assertion that "[t]he only other association 
applicable to Cinematographers is the American Society of Cinematography." There is no 
evidence demonstrating that ASC in the only association applicable to cinematographers. The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not 
entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires 
"[d]ocumentation of the alien's membership in associations in the field for which is classification 
Page 7 
is sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields." 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. In this case, counsel attempts to alter or diminish the plain language of this criterion 
by arguing that because of the lack of women cinematographers, the petitioner's membership 
with ICG should meet this criterion instead of demonstrating that the petitioner's membership 
with ICG requires outstanding achievements as judged by recognized national or international 
experts in cinematography. Even if counsel established that comparable evidence could be 
submitted for this criterion, which she clearly did not, the issue is not the number of women 
cinematographers in the field. Rather, the issue is whether there are associations in the 
petitioner's field of cinematography that require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. In fact, based 
on documentary evidence submitted by counsel regarding ASC, such an association does exist. 
There is no evidence establishing that the petitioner is not a member of ASC because she is a 
woman; rather the petitioner has not been invited to be a member of or is eligible for the 
membership requirements of ASC. The fact remains that the lack of women cinematographers is 
irrelevant to demonstrating eligibility for the regulation at 8 C.F.R. §§ 204.5(h)(3)(ii) and 
204.5(h)(4). 
Regarding ICG, the petitioner submitted a copy of her membership card, a screenshot from 
ICG's website, and the ICG Local 600 Union Membership booklet. A review of the 
documentary evidence submitted by the petitioner fails to reflect the specific membership 
requirements to join ICG; rather the evidence reflects the benefits of membership. While the 
screenshot reflects that "certain requirements must be met regarding industry experience" and 
"[t]he specific number of hours, however, may vary according to where you live and work," the 
documentary evidence fails to reflect that outstanding achievements are required for membership 
with ICG, as judged by recognized national or international experts in their disciplines or fields. 
It appears that ICG is a labor union and membership is based on work experience rather than 
outstanding achievements consistent with the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ii). The AAO is not persuaded that work experience equates to outstanding 
achievement. In addition, there is no evidence that membership with ICG is judged by 
recognized national or international experts in their disciplines or fields. 
Moreover, even if the petitioner were to establish that the petitioner's membership with ICG 
meets the elements of this criterion, which she has not, section 203(b)(I)(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)(ii) requires membership in more than 
one association. 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 
Page 8 
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. ChertofJ, 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 the case here, the petitioner 
claimed eligibility for this criterion with only one association of which at least two are required 
to meet the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which 
classification is sought. Such evidence shall include the title, date, and author of 
the material, and any necessary translation. 
In the director's decision, she determined that the petitioner met this criterion without any 
discussion of the documentary evidence. Upon a review of the record of proceeding, the AAO 
must withdraw the findings of the director for this criterion. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentation: 
I 
1. A screenshot entitled, "Ladies First," November 8, 2006, unidentified 
author, www.afi.com; 
2. An article entitled, "25 New Faces of Independent Film," Spring 2009, 
unidentified author, Filmmaker; 
3. An article entitled, "Predators and Young Prey in a World Gone Sinister," 
unidentified date, unidentified author, unidentified publication; 
4. A screenshot entitled, "Review Summary," unidentified date, unidentified 
author, http://movies.nytimes.com; 
5. An article entitled, "Gardens of Night," unidentified 
Variety and www.variety.com; 
6. An article entitled, "Gardens of Night," February 12, 2008, unidentified 
author, unidentified publication; 
7. An article entitled, "Gardens of the Night," unidentified date, unidentified 
author, unidentified publication; 
Page 9 
8. A screenshot entitled, "Review of the Movie 'Morning': Stunning Look at 
How a Husband and Wife Each Deal With Their Child's Death," August 
28,2010, unidentified author, www.psychologytoday.com; and 
9. A screenshot entitled, "Alonso Mayo Adapts a Powerful Short Story With 
Spectacular Cinematography in His Academy Award-Winning Film 
Wednesday Afternoon," unidentified date, unidentified author, 
www.kodak.com. 
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." In general, in order for published 
material to meet this criterion, it must be primarily about the petitioner 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.3 Furthermore, the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii) requires that "[s]uch evidence shall include the title, date, and author of the 
material, and any necessary translation." 
As evidenced above, the AAO notes here that petitioner submitted several screenshots from the 
Internet. However, the AAO is not persuaded that articles posted on the Internet from a printed 
publication or from an organization are automatically considered major media. The petitioner 
failed to submit independent, objective evidence establishing that the websites are considered 
major media. In today's world, many newspapers, regardless of size and distribution, post at 
least some of their stories on the Internet. To ignore this reality would be to render the "major 
media" requirement meaningless. The AAO is not persuaded that international accessibility by 
itself is a realistic indicator of whether a given website is "major media." 
Regarding item 1, the petitioner failed to include the author of the screenshot as required 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Moreover, the screenshot is about the 
American Film Institute's program entitled, "Directing wor_sho for Women." In addition, the 
article discusses the movie, Mother, in which the director, is interviewed regarding 
the workshop and the movie. Although the screenshot re ects t at the petitioner's answer is 
recorded from a question posed by the interviewer, the article is not published material about the 
petitioner relating to her work. Finally, the petitioner failed to submit any documentary evidence 
demonstrating that www.afi.comis a professional or major trade publication or other major 
media. 
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. 
Page 10 
Regarding item 2, the petitioner failed to include the author of the article as required pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Furthermore, while the article is sufficient to reflect 
published material about the petitioner relating to her work, the petitioner failed to submit any 
documentary evidence establishing that Filmmaker is a professional or major trade publication or 
other major media. 
Regarding items 3 - 8, the petitioner failed to include the date and/or author of the material as 
required pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). In addition, regarding item 3, 
while counsel claimed in her cover letter at the initial filing of the petition that the article was 
from the New York Times, counsel failed to submit any documentary evidence supporting her 
assertion. Similarly, regarding item 6, counsel claimed that the publication was the "Berlin Film 
Festival." However, a review of the documentary evidence reflects that the section of the 
publication was about the Berlin Film Festival rather than the name of the publication. Likewise, 
regarding item 7, counsel claimed that the article was from Screen Daily, but counsel failed to 
submit any documentary evidence supporting her assertions. Without documentary evidence to 
support her claims, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Moreover, while the AAO acknowledges 
the status of The New York Times as major media, the petitioner failed to submit any 
documentary evidence reflecting that any of the publications or web sites, such as Screen Daily 
and www.psychologytoday.com. are professional or major trade publications or other major 
media. Finally, a review of items 3 - 8 fail to reflect published material about the petitioner 
relating to her work. Instead, the items reflect reviews of movies and merely mention the 
petitioner as being the cinematographer for the movies. Articles that are not about the petitioner 
do not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 
*1, *7 (D. Nev. Sept. 8,2008) (upholding a finding that articles about a show are not about the 
actor). 
Regarding item 9, the petitioner failed to include the date and author of the screenshot as 
required pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Furthermore, while the 
petitioner is mentioned in the screenshot, the screenshot is about 
discusses the movie, Wednesday Afternoon, rather than about the petitioner relating to her work. 
Finally, the petitioner failed to submit any documentary evidence demonstrating that 
www.kodak.comis a professional or major trade publication or other major media. 
Again, 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." The burden is on the 
petitioner to establish that she meets every element of this criterion. In this case, the petitioner 
failed to include the date and/or author for any of the submitted documentation pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii). Moreover, with exception of item 2, the petitioner 
failed to demonstrate that any of the documentary evidence reflected published material about 
her relating to her work. Finally, the petitioner failed to establish that the material was published 
Page 11 
in professional or major trade publications or other major media. As such, the AAO withdraws 
the decision of the director for this criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
At the initial filing of the petition, counsel claimed the petitioner's eligibility for this criterion 
based on the display of movies in which the petitioner was a cinematographer at various film 
festivals. In the director's request for additional evidence, the director indicated that "[t]he 
evidence submitted does meet this criterion." In the director's decision denying the petition, 
however, she did not make a final determination on the petitioner's eligibility for this criterion. 
The plain language of the regulation at 8 C.F.R. § 204.5(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 
establishing that she meets the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
Accordingly, the petitioner established that she 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 director determined that the petitioner failed to meet this criterion. 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 
[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. 
Page 12 
talent as cinematographer as well as her professional way of conduct, dealing with other 
crewmembers." However, merely having a diverse skill set is not reflective of performing in a 
leading or critical role. Rather, the record must be supported by evidence that the petitioner has 
already used those unique skills to perform in a leading or critical role. Furthermore, assuming 
the petitioner'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 Department of Transportation, 22 I&N Dec. 215, 221 (Comm'r 1998). 
Although the authors of the letters indicate movies and projects in which they worked together, 
they failed to provide . . demonstrating that the petitioner's roles were leading 
or critical. For instance, indicated that he worked with the petitioner on the 
feature, Bless Me Ultima. While was pleased with their collaboration, he failed to 
demonstrate how such collaboration was a leading or critical role. indicated that 
he worked with the petitioner on a film he wrote and directed entitled, Gardens of the Night. 
While _ stated that he chose the petitioner to be the cinematographer for his film based 
on "her intelligent understanding and interpretation of the ." he failed to establish that 
. Similarly, al Technicolor, and 
indicated that they each worked with the petitioner on a 
to any in their letters to reflect that the petitioner performed in a 
leading or critical role beyond performing the routine duties of a cinematographer. 
Finally, the petitioner submitted a letter from who 
indicated that the petitioner performed in a "cn distinguished film producers and 
directors." The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires that the 
leading or critical role be "for organizations or establishments that have a distinguished 
reputation." However, individuals such as film producers and directors do not equate to 
"organizations or establishments." Similarly, the recommendation letters discuss the films, 
movies, and features that the petitioner worked on rather than her employment with 
"organizations or establishments." While most films are generated by production companies, the 
letters focus on the films rather than the petitioner's roles for the production companies as a 
whole. Although the petitioner submitted some background information regarding the authors of 
the letters, the petitioner failed to submit any documentary evidence regarding the production 
companies, so as to establish that they have a distinguished reputation. 
USCIS may, in its discretion, use as advisory opinion statements submitted as expert testimony. 
See Matter o/Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). USCIS is, however, 
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 petitioner'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 795-796; see also Matter of V-K-, 24 I&N 
Dec. at 500 n.2 (BIA 2008). Thus, the content of the writers' statements and how they became 
aware of the petitioner's reputation are important considerations. Even when written by 
Page 13 
independent experts, letters solicited by an alien in support of an immigration petition are of less 
weight than preexisting, independent evidence. 
The petitioner failed to submit any other documentary evidence that demonstrates that the 
petitioner's roles were leading or critical. Without evidence establishing that the petitioner 
performed in a leading or critical role, it is insufficient to simply submit self-serving letters 
reflecting that she worked as a cinematographer for a film. As the petitioner is a 
cinematographer, it is expected that the petitioner will perform the routine duties of a 
cinematographer for films. The AAO is not persuaded that every cinematographer automatically 
demonstrates eligibility for this criterion; it cannot be determined from the petitioner's job title 
alone that her role is leading or critical. There is no evidence distinguishing the roles of the 
petitioner from the other production members, so as to establish that she performed in a leading 
or critical role. 
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 she meets 
every element of this criterion. Without documentary evidence demonstrating that the petitioner 
has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation, the AAO cannot conclude that the petitioner meets this criterion. 
Accordingly, the petitioner failed to establish that she 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 
In the director's decision, she determined that the petitioner met this criterion without any 
discussion of the documentary evidence. Upon a review of the record of proceeding, the AAO must 
withdraw the findings of the director for this criterion. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentation: 
1. A screenshot from www.careeronestop.org reflecting that the highest ten 
percent earned an average salary for photographers in 2009 in the United 
States was $62,300 and in California was $72,200; 
2. Screenshots from www.onetonline.org reflecting that the median wages for 
camera operators in television, video, and motion picture in 2009 was 
$42,940; 
3. Screenshots from www.bls.gov reflecting that the highest ten percent earned 
an average salary for television, video, and motion picture camera operators 
and editors in the United States in 2008 was $79,440; 
Page 14 
4. A copy of the petitioner's Form 1040, U.S. Individual Income Tax Return, 
for 2010 reflecting income of$l10,677 (line 7); and 
5. A copy of From W-2, Wage and Tax Statement, for 2010 reflecting wages of 
$110,676.50. 
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." At the initial filing of the petition, the . submitted an " 
Representation Agreement," dated February 19,2008, between 
the petitioner reflecting that GAl agreed to pay the petitioner ten percent of the gross compensation 
earned or received by GAL Moreover, according to the agreement, "gross compensation" means: 
All forms of money, things of value, and considerations of any kind of character 
without deductions of any kind, including but not limited to salaries, earnings, fees, 
residuals, royalties, bonuses, gifts, proceeds, deferred compensation, contingent 
compensation, monetary and non-monetary consideration, securities and shares of 
profit; directly or indirectly earned or received, from [GAl's] servIces or 
employment or both, or from any disposition of [GAl's] material. 
As such, the record reflects that the petitioner does not command a salary; rather the petitioner is 
compensated by earning ten percent of the gross compensation earned or received by GAL 
Moreover, as indicated above, the petitioner's compensation often percent may not necessarily be 
based on salaries negotiated by GAl but by other compensation such as residuals, royalties, or 
bonuses. Therefore, the petitioner must establish that she earns "other significantly high 
remuneration for services, in relation to others in the field" rather than commanding a high salary. 
Items 1 - 3 do not reflect other significantly high remuneration for services compared to others in 
the field. Rather, the documentary evidence reflects the average salaries. The petitioner failed to 
submit any documentary evidence demonstrating that the petitioner's contractual agreement of 
commanding "ten percent" is significantly high when compared to other cinematographers. 
Even if the AAO considered the petitioner's documentary evidence as commanding a high salary, 
there is no evidence establishing that the $110,676.50 on Form W-2 in "wages, tips, [or] other 
compensation" was based exclusively on "salary" but may have also included other "gross 
compensation." Moreover, regarding item 1, the screenshot reflects the salaries for photographers 
rather than cinematographers. Regarding item 2, the screenshots reflect median wages; however, 
median wage statistics do not meet the requirement of commanding a high salary in relation to 
others in the field. Regarding item 3, while the screenshots reflect that the petitioner's earnings on 
Form W-2 were in the 90th percentile, the AAO is not persuaded that the petitioner's earnings were 
high when there is no evidence reflecting the top salaries in the field, so as to compare the 
petitioner's salary to the highest earners. The evidence submitted by the petitioner does not 
establish that she has commanded a high salary in relation to experienced professionals in her 
occupation. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering a 
Page 15 
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 ofNHL 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 suggests that the appropriate field of comparison is 
not a comparison ability with that of all the hockey players at all levels 
of play; but rather, 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. 
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 [emphasis added]." For the reasons discussed, the petitioner failed to 
submit documentary evidence establishing that her remuneration was significantly high in relation 
to other cinematographers. Therefore, the AAO withdraws the decision of the director for this 
criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opmIOn, the AAO will 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)(1 )(A)(i) of the 
Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1115. The petitioner met the plain language for one of the criteria, of 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 petitioner's eligibility pursuant to section 203 (b)(1 )(A) of the Act. In 
this case, the petitioner has demonstrated that she is a member of an association in her field, has 
a single article published about her, and has worked as a cinematographer for several films that 
have been displayed at festivals. However, the personal accomplishments of the petitioner fall 
far short of establishing that she "is one of that small percentage who have risen to the very top 
of the field of endeavor" and that she "has sustained national or international acclaim and that his 
Page 16 
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 her 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). 
The petitioner's claim of eligibility for the membership criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(ii) was based on membership with a single association, ICG, and is not 
consistent with "extensive documentation." Further, the petitioner failed to establish that her 
single membership with ICG, which appears to be a labor union rather than an association 
requiring outstanding achievements, demonstrates that she "has sustained national or 
international acclaim and that his or her achievements have been recognized in the field of 
expertise." See 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). 
Regarding the published material criterion pursuant to the regulation at 8 C.F .R. § 
204.5(h)(3)(iii), the petitioner failed to include the date and/or author for any of the material as 
required by the regulatory criterion. In addition, the petitioner's submission of a single article 
that was material about her relating to her work, but no evidence that it was published in a 
professional or major trade publication or other major media, is not reflective of the sustained 
national or international acclaim required for this highly restrictive classification. 
Regarding the leading or critical role criterion pursuant to the regulation at 8 C.F .R. § 
204.5(h)(3)(viii), the petitioner based her claim of eligibility entirely on recommendation letters. 
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. USCIS is, however, ultimately 
Page 17 
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 petitioner without any prior knowledge of the petitioner's 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. Again, none of the letters establish that the petitioner performed in a leading or 
critical role for organizations or establishments that have a distinguished reputation. Evidence 
of the petitioner's leading or critical roles with organizations that have a distinguished reputation 
is far more persuasive that she "is one of that small percentage who have risen to the very top of 
the field of endeavor." See 8 C.F.R. § 204.5(h)(2). 
Furthermore, regarding the high salary criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix), the petitioner failed to submit any evidence comparing her remuneration for 
services in the field to other cinematographers, so as to establish that she commanded a 
significantly high remuneration for services. There is no evidence demonstrating that the 
petitioner's remuneration is reflective "of that small percentage who have risen to the very top of 
the field of endeavor." 
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 
20lO) citing Matter ofE-M- 20 I&N Dec. 77, 80 (Comm'r 1989). 
The evidence of record falls short of demonstrating the petitioner's sustained national or 
international acclaim as a cinematographer. 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 films in which she worked as a cinematographer have been exhibited at 
various local film festivals, as well as the acclaimed Cannes Film Festival, 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. In fact, many of the 
recommendation letters refer to the petitioner's possible or promising benefit to the United 
States, such as who stated that "[o]ur American movie industry would benefit 
from [the petitioner's] continued employment in the US [emphasis added]," and_ 
who stated that "the United States film industry will benefit tremendously from [the 
petitioner's] continued presence and contributions to the art of cinema [emphasis added]." A 
petitioner cannot file a petition under this classification based on the expectation of future 
eligibility. Eligibility must be established at the time of filing the petition. 8 C.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Page 18 
Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing 
Matter ofBardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come 
into being only subsequent to the filing of a petition." Id at 176. The petitioner 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 her achievements at the time of filing the petition were 
commensurate with sustained national or international acclaim, or that she was among 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 petitioner 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). 
111.0-1 Nonimmigrant Admission 
The AAO notes that at the time of the filing of the petition, the petitioner was admitted to the 
United States as an 0-1 nonimmigrant on January 12,2011. While USCIS has approved at least 
one 0-1 nonimmigrant visa petition filed on behalf of the petitioner, 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 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 
of 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). 
,. 
-Page 19 
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). 
IV. Conclusion 
Review of the record does not establish that the petitioner has distinguished herself to such an 
extent that she may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of her field. The evidence is not persuasive that the 
petitioner's achievements set her significantly above almost all others in her 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.