dismissed EB-1A Case: Comedic Acting

MATTER OF D-H-B-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 12,2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a comedic actor, seeks classification as an individual of extraordinary ability in the 
arts. See Immigration and Nationality Act (the Act) section 203(b)(l )(A), 8 U.S.C. § 1153(b )(1 )(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 Form I-140, Immigrant Petition for Alien 
Worker, concluding that the 'Petitioner had satisfied only one of the initial evidentiary criteria, of 
which she must meet at least three. 
On appeal, the Petitioner submits a statement, requesting a reconsideration of her petition. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b) of the Act states in pertinent part: 
(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 
Matter of D-H-B-
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § :204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is a major, 
internationally recognized award). Alternately, he or she must provide documentation that meets at 
least three of the ten c'ategories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items 
such as awards, published material in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 201 0) 
(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). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Petitioner is a comedic actor who has performed on stage and in films in the United States. 
Because the Petitioner has not indicated or established that she .has received a major, internationally 
recognized award, she must satisfy at least three of'the alternate regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). In denying the petition, the Director found that the Petitioner satisfied the 
published material criterion under 8 C.F.R. § 204.5(h)(3)(iii). 
On appeal, the Petitioner states that her previously submitted documentation establishes that she is 
an individual of extraordinary ability. She does not, however, contest the Director's findings, offer 
further arguments, or present additional evidence for any specific criteria. Upon review of the 
record, we find the evidence insufficient to demonstrate that the Petitioner meets the plain language 
requirements of at least three criteria. 
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A. Evidentiary Criteria 1 
Documentation of the alien's membership in associations in the field for which class(fication is 
sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 8 C.P.R. § 204.5(h)(3)(ii). 
The Director determined that the Petitioner's membership with the Screen Actors Guild and the 
American Federation of Television and Radio Artists (SAG-AFTRA) did not meet this criterion 
because outstanding achievements are not a prerequisite for membership. The record indicates that 
the Petitioner submitted SAG-AFTRA's constitution reflecting that a person is generally eligible for 
membership if he or she is working in a position covered by a SAG-AFTRA collective bargaining 
agreement and is determined by the national board to be engaged in work that advances the active 
organizing efforts and general goals of SAG-AFTRA. As SAG-AFTRA is based on working under 
a union-based contract rather than outstanding achievements, the Petitioner has not shown that her 
membership qualifies under this criterion. Moreover, although SAG-AFTRA's constitution states 
that the national 
board is comprised of elected members who are nominated by either a petition 
containing signatures or where deemed appropriate, the Petitioner has not provided sufficient 
evidence to demonstrate that the national board consists of recognized national or international 
experts. Accordingly, we agree with the Director's assessment, and the Petitioner has not 
established that she satisfies this criterion. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 8 C.F .R. 
§ 204.5(h)(3)(iii). 
Although the Director found that the Petitioner met this criterion, we must withdraw the Director's 
decision. The record contains one article, reflecting published material about 
the Petitioner relating to her 
work; however, the Petitioner did not include the author of the article as 
required by this regulatory criterion. Further, while the Petitioner presented evidence showing a 
readership of 30,000 in mainly the Southern California area, she did not establish that such 
circulation is representative of a professional or major trade publication or other major medium. 
Moreover, while the record includes additional articles, they either list her as a cast member for 
productions without discussing her or are reviews of shows that do not mention her. Articles that do 
not pertain to a 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 regarding 
a show are not about the actor). For these reasons, the Petitioner has not demonstrated that she 
meets this criterion, and we withdraw the Director's findings for this criterion. , 
1 We will discuss those criteria the Petitioner has previously raised and for which the record contains relevant evidence. 
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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 specification fo': which class(fication is sought. 8 C.F .R. 
§ 204.5(h)(3)(iv). 
In his decision, the Director determined that the Petitioner's evidence of consulting and advising 
people did not show that she served in the capacity as a judge of the work of others. The Petitioner 
provided letters from and who stated that the Petitioner 
recommended comics to perform in a show and assisted in the naming ofa television channel. The 
regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires evidence that the Petitioner has served as "a judge" 
of the work of others. The phrase "a judge" implies a formal designation in a judging capacity, 
either on a panel or individually as specified at 8 C.F.R. § 204.5(h)(3)(iv). The documentation 
mentioned above does not demonstrate that she served as a judge consistent with the plain language 
of this regulatory criterion. 
In addition, the record includes a letter from who stated that he asked the 
Petitioner to be one of the talent judges of the films for the m and 
"that she will be excellent at judging these film awards." The Petitioner must establish that all 
eligibility requirements for the immigration benefit have been satisfied from the time of the filing 
and continuing through adjudication. 8 C.F.R. § 103.2(b)(l). Here, the record reflects that the 
Petitioner was asked to judge after she filed her petition. In addition, the Petitioner did not provide 
evidence establishing that she actually participated as a judge at the 
Accordingly, the Petitioner has not demonstrated that she meets this criterion, and we concur with 
the Director's determination. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The Director found the record insufficient to demonstrate that the Petitioner's humanitarian work 
represented original contributions of major significance in the field. The record contains letters and 
other evidence of her involvement in raising money for various charitable organizations, such as 
The Petitioner's 
documentation also reflects that she donated money or assisted with events, such as collecting tickets 
and fundraising. The plain language of this criterion requires the Petitioner to submit evidence of 
her original "contributions of major significance in the field." In the case here, the Petitioner has not 
established how her personal donations and involvement with charitable organizations relate to her 
field of comedic acting. While her humanitarian work is admirable, the Petitioner how she has 
influenced or impacted her field of expertise at a level that is consistent with original contributions 
of major significance in the field. For these reasons, we agree with the Director's finding that she 
did not meet this criterion. 
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Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
Although the Petitioner did not claim eligibility for this criterion, the record reflects that the 
Petitioner has displayed her work on 
stage at artistic events. For example, the Petitioner was an 
actress in a show at m , California. Accordingly, we find that 
the Petitioner satisfies this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F:R. § 204.5(h)(3)(viii). 
In his decision, the Director determined that the Petitioner's role in was 
not leading or critical. The Director based his decision on evidence showing that the Petitioner acted 
for approximately three days while it ran in California, and other actors guest­
performed in the same role. In general, a leading role is evidenced from the role itself, and a critical 
role is one in which a petitioner was responsible for the success or standing of the organization or 
establishment. 
In the case here, the Petitioner has not shown that her character role was leading or critical to an 
organization or establishment that has a distinguished reputation. Regarding her role, the record 
reflects that the Petitioner performed in a brief, supporting role, as evidenced by a review article of 
the show that discusses the other performers with a brief mention of the Petitioner as a guest actor. 
Furthermore, the Petitioner did not demonstrate that her role was critical, such as documentation 
indicating that she was responsible for the success of an organization or establishment. Finally, the 
Petitioner did not establish how her performance in a play demonstrates her role for an organization 
or establishment that has a distinguished reputation. 
The record also shows that the Petitioner was cast as the model for an music video. While 
the Petitioner was featured in the music video, she did not demonstrate that she performed in a 
leading or critical role for the band or another organization or establishment. In addition, although 
the Petitioner submitted screenshots from Wikipedia about it does not establish that the 
band enjoys a distinguished reputation consistent with this regulatory criterion. 
Finally, the Petitioner submitted a letter from who stated that she selected the 
Petitioner to perform in an upcoming television pilot, The plain language of this 
criterion requires the Petitioner to show that she has already performed in a leading or critical role 
rather than demonstrating that she will perform such a role in the future. See 8 C.F.R. § 103.2(b)(l). 
Regardless, Ms. does not describe the Petitioner's role or identify an establishment for whom 
it would be leading or critical. Accordingly, we concur with the Director's finding that the Petitioner 
does not meet this criterion. 
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Evidence that the alien has commanded a high salary or other significantly high remuneration 
for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix). 
The Director determined that the Petitioner had not commanded a high salary compared to others in 
her field. The Petitioner provided a contract reflecting that for the film, 
she was budgeted to earn $4,000. In addition, the Petitioner submitted documentation showing 
potential compensation from prospective movies, such as 
, and other untitled movies. Moreover, the Petitioner presented evidence from the 
Foreign Labor Certification Data Center and the U.S. Bureau of Labor Statistics indicating that the 
average yearly wages for actors in the California, area range from $28,018 to 
$187, 199. However, the Petitioner has not provided evidence of her cumulative annual wages, nor 
has she sufficiently shown how the submitted yearly wage data demonstrates that the budgeted 
payments in her short term contracts represent significantly high remuneration for services compared 
to others in her field. Accordingly, the Petitioner did not establish that she 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. 8 C.F.R. § 204.5(h)(3)(x). 
The Director found that the Petitioner did not present evidence of her box office receipts for her 
movies and shows. The record reflects that the Petitioner submitted screenshots regarding the 
release dates for her movies: . 
As the Petitioner's evidence does not reflect her commercial successes in the form of "receipts" or 
"sales," she has not established that she meets this criterion, and we agree with the Director's 
determination. 
B. Summary 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of 
final merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise 
that we have reviewed the record in the aggregate, concluding that it does not support a finding that 
the Petitioner has established the level of expertise required for the classification sought. 
C. 0-1 Nonimmigrant Status 
The record reflects that the Petitioner received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although U.S. Citizenship and Immigration Services 
(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 which is 
adjudicated based on a different standard- statute, regulations, and case law. Many Form I-140 
immigrant petitions are denied after USCIS approves prior nonimmigrant petitions. See, e.g., Q 
Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 
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F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd., 724 F. Supp. at 1103. Furthermore, our 
authority over the USCIS service centers, the office adjudicating the nonimmigrant visa petition, is 
comp!arable 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. Louisiana Philharmonic 
Orchestra v. INS, No. 98-2855, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), 
cert. denied, 122 S.Ct. 51 (2001). 
III. CONCLUSION 
For the foregoing reasons, the Petitioner has not shown that she qualifies as an individual of 
extraordinary ability. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-H-B-, ID# 391239 (AAO June 12, 2017)