dismissed EB-1A Case: Comics And Illustration

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 11, 2023 In Re: 29046472 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a comics creator and illustrator, seeks classification under the employment-based , first­
preference (EB-1) immigrant visa category as a noncitizen with "extraordinary ability." See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U .S.C. § 1153(b)(l)(A) . 
Noncitizens may obtain U.S. permanent residence in this category if they demonstrate "sustained 
national or international acclaim" and provide "extensive documentation" of recognition they received 
for achievements in their fields. Id. 
The Acting Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner met only one of 10 initial evidentiary criteria, two less than required for U.S. Citizenship 
and Immigration Services (USCIS) to conduct a final merits determination for eligibility under the 
requested immigrant visa category. On appeal, the Petitioner contends that the Director misapplied 
law in finding insufficient evidence of: his receipt of nationally or internationally recognized awards; 
published materials about himself; and his performance in a leading or critical role for organizations 
with distinguished reputations. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Exercising de novo appellate review, see Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 
2015), we conclude that, while the Petitioner has submitted qualifying evidence of his receipt of a 
nationally recognized award for excellence in his field, he has not demonstrated his satisfaction of a 
third evidentiary requirement. We will therefore dismiss the appeal. 
I. LAW 
To qualify as a noncitizen 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 )( 1)(A)(i)-(iii) of the Act. 
The term "extraordinary ability" means a level of expertise commensurate with "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). Evidence 
of extraordinary ability must demonstrate a noncitizen's receipt of either "a major, international 
recognized award" or satisfaction of at least three of ten lesser evidentiary standards. 8 C.F.R. 
§ 204.5(h)(3)(i-x). 1 
If a petitioner meets either of the initial evidentiary requirements discussed above, USCIS then 
determines whether the record, as a whole, establishes sustained national or international acclaim and 
recognized achievements placing the noncitizen among the small percentage at the very top of their 
field. See Kazarian v. USCIS, 596 F.3d 1115, 1119-20 (9th Cir. 2010) (requiring a two-part analysis 
of extraordinary ability). 
II. ANALYSIS 
The record shows that the Petitioner, a Venezuelan national and citizen, began creating and illustrating 
comics in his home country in the 1970s. Specializing in action heroes, he co-founded an artistic 
merchandising company where, from 2006 to 2020, he served as president and lead illustrator and 
artist. 
Since 2020, the Petitioner has been working at a comic book development company in the United 
States as a comics creator and illustrator. He seeks to continue designing comics in this country. 
The record does not demonstrate - nor does the Petitioner claim - his receipt of a major, international 
award. He must therefore satisfy at least three of the 10 evidentiary requirements at 8 C.F.R. 
§ 204.5(h)(3)(i-x). 
The record supports the Director's finding that the Petitioner submitted evidence of the display of his 
comics work at artistic exhibitions or showcases. See 8 C.F.R. § 204.5(h)(3)(vii). We will next 
consider his claims that he: received lesser nationally or internationally recognized prizes; was the 
subject of published materials; and performed in a leading or critical role for distinguished 
organizations. See 8 C.F.R. § 204.5(h)(3)(i), (iii), (viii). 
A. Receipt of Nationally or Internationally Recognized Prizes 
This evidentiary standard requires "[d]ocumentation of the alien's receipt of lesser nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor." 8 C.F.R. 
§ 204.5(h)(3)(i). USCIS first determines if a noncitizen - as opposed to their employer, for example -
received prizes or awards. See generally 6 USCJS Policy Manual F.(2)(B)(l), www.uscis.gov/policy­
manual. If so, the Agency then determines whether an award was nationally or internationally 
recognized and given for excellence in the field of endeavor. Id. Relevant considerations include: the 
1 If the ten standards do not readily apply to a petitioner's occupation, the noncitizen may submit comparable evidence to 
establish their eligibility. 8 C.F.R. § 204.5(h)(4). 
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criteria used to grant the awards; their national or international significance; the number of recipients; 
and any limitations on competitors. Id. 
The Petitioner submitted evidence that he won a 20221 laward in Venezuela in the category 
of'----------------------~ According to letters from the award 
foundation's president, the organization issues prizes annually to 60 to 100 honorees in a variety of 
fields, including: art; entertainment; media; business; and science. The foundation president stated 
that groups of experts in specific fields evaluate candidates based on their professional careers. 
The Director found that the Petitioner's award "appear[s] to be local or regional in nature." The 
Director also stated that "it has not been established that the prizes or awards were given for excellence 
in the petitioner's field of endeavor, or that the primary purpose of the prizes or awards was to 
recognize excellence in the petitioner's field." Citing the award's website, the Director concluded that 
the Petitioner did not receive his prize for excellence in his field, but rather "for the years of 
experience." 
A preponderance of the evidence, however, demonstrates the Petitioner's satisfaction of the 
regulation's criterion. Documentation establishes his receipt ofthd laward and its national 
recognition in Venezuela. See Buletini v. INS, 860 F. Supp. 1222, 1230-31 (E.D. Mich. 1994) (holding 
that, to meet 8 C.F.R. § 204.5(h)(3)(i), an award "need not have significance outside of one country"). 
The award foundation's president stated that "[award] candidates are chosen nationally and from all 
parts of the world" and that the awards' issuances are televised in Venezuela. She said that, because 
the foundation has given the awards for more than 60 years, their "prestige and credibility" make them 
"the number one [awards] in Venezuela." An online article about the prizes describes them as "[t]he 
award for excellence in Venezuela." The article also quotes the foundation's former president as 
saying: "In the world there are many important prizes, but in Venezuela the best thing is to have a
I ~' The evidence therefore sufficiently establishes the Petitioner's award as nationally 
recognized. 
.______,.....__________ ---, 
field. A copy of the award describes its issuance in the category of .___________ ___.
I I The award foundation's president stated that a group of experts in the field 
of "plastic arts" evaluated the Petitioner and chose him ahead of four others in the field. 2 Although 
the foundation gives awards only to those with at least 10 years of experience in their fields, the 
president indicated that the organization does not base the prizes solely on number of years of 
experience. Rather, she stated that the awards seek "to exalt and dignify the talent of the best, with a 
recognition to brilliant men and women, who have excelled through their artistic, cultural, religious, 
business, scientific, educational, historical and entrepreneurial skills." A preponderance of the 
evidence therefore establishes the Petitioner's receipt of the award for excellence in his field. 
The Petitioner has also demonstrated that he received his award for excellence in his 
Consistent with 8 C.F.R. § 204.5(h)(3)(i), the Petitioner has demonstrated his receipt of a nationally 
recognized award for excellence in his field. We will therefore withdraw the Director's contrary 
finding. 
2 In Latin America, the term "plastic arts" encompasses "painting, architecture, sculpture, textile art and all human 
expression that transforms materials into images and objects with aiiistic meaning." LatAm A1ie, "What Are Plastic Arts?" 
www.latamarte.com/en/articles/5MbA/ 
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B. Published Material About the Petitioner 
This criterion 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." 
8 C.F.R. § 204.5(h)(3)(iii). The evidence must include the title, date, and author of the material, and 
any necessary translations. Id. 
USCIS first considers whether published materials relate to a petitioner and their specific work in their 
field. See generally 6 USCIS Policy Manual F.(2)(B)(l). The Agency then determines whether the 
materials' sources qualify as professional or major trade publications, or other major media. Id. 
In evaluating whether a submitted publication is a professional publication, major trade 
publication, or major medi[um], relevant factors include the intended audience (for 
professional and major trade publications) and the relative circulation, readership, or 
viewership (for major trade publications and other major media). 
Id. 
The Petitioner submitted copies of four online articles about himself and his comics work. The articles 
bear the following publication dates: August 2014; May 2022; July 2022; and September 2022. 
In response to the Director's request for additional evidence, the Petitioner submitted website analyses 
categorizing all four publication sources in the "news and media" industry. As the websites did not 
specifically target artists as audiences, the record does not establish the sources as professional or 
major trade publications. See 6 USCIS Policy Manual F.(2)(B)(l) (listing the intended audience as a 
relevant factor "for professional and major trade publications"). 
Thus, we must determine whether any of the publication sources qualify as "other major media." See 
8 C.F.R. § 204.5(h)(3)(iii). "[C]ourts generally agree that the phrase can mean a publication with 
significant reach and recognition. It follows that the AAO may reasonably require evidence of 
circulation or the like." Krasniqi v. Dibbins, 558 F. Supp. 3d 168, 185 (D.N.J. 2021) (citations 
omitted). 
The website analyses provided by the Petitioner include readership statistics. The analyses state the 
following as of January 2023: 
• The source of the August 2014 publication generated 199,656 monthly visits. 6,437th in 
Venezuela and 28,246th in the news and media industry; 
• The source of the May 2022 publication generated 275,590 monthly visits, 1,150th in 
Venezuela and 12,894th in the news and media industry; 
• The source of the July 2022 publication generated 132,279 monthly visits, 272,043rd in the 
United States and 24,827th in the news and media industry; and 
• The source of the September 2022 publication generated 1.545 million monthly visits, 135th 
in Venezuela and 4,021st in the news and media industry. 
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Based on the number of monthly visits and rankings, we do not consider the sources of the August 
2014, May 2022, or July 2022 publications to constitute major media. But whether the source of the 
September 30, 2022 publication is a major medium is a much closer call. The adjective "major" 
ordinarily means "greater in dignity, rank, importance, or interest." Merriam-Webster Dictionary, 
"major," www.merriam-webster.com/dictionary/major. The September 2022 source's generation of 
more than 1.5 million visits a month is substantial. But, based on the source's rankings as the 135th 
most visited website in Venezuela and 4,02lst in the news and media industry, the record does not 
demonstrate that the source constitutes a major medium. The record also lacks evidence of the 
source's level of dignity, importance, or interest. 
On appeal, the Petitioner urges us to "compare[] the [sources'] circulation or readership figures to 
those newspapers or magazines with similar intended audiences to determine if these figures raise it 
to the level of being considered major in nature." But we cannot make such comparisons because the 
Petitioner did not provide evidence of the readership statistics of other publication sources. The appeal 
includes a copy of an online article, "Top 30 Venezuela Newspapers Online," ranking the source of 
the September 2022 publication about the Petitioner 10th. But the Director's RFE notified him of the 
need for additional evidence and gave him a reasonable opportunity to provide it. We therefore decline 
to accept the evidence on appeal. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988). Also, 
even if we considered the article, it does not state readership statistics or the basis of its rankings. 
For the foregoing reasons, the Petitioner has not submitted published materials in professional or 
major trade publications or other major media, relating to his work in the comics field. We will 
therefore affirm the Director's negative finding regarding the evidentiary requirement at 8 C.F.R. 
§ 204.5(h)(3)(iii). 
C. Performance in a Leading or Critical Role 
This standard requires "[ e ]vidence 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). 
USCIS first determines whether a noncitizen has performed in a leading or critical role for an 
organization, establishment, or its division or department. See generally 6 USCIS Policy Manual 
F.(2)(B)(l). Evidence of a leading role must demonstrate that the noncitizen is ( or was) a leader within 
the organization, establishment, division, or department. Id. In contrast, evidence of a critical role 
must establish that a noncitizen contributed in a significant way to the outcome of the activities of an 
organization, establishment, division, or department. Id. 
If a noncitizen establishes their performance in a leading or critical role, USCIS then determines 
whether the organization, establishment, department, or division that benefited has a distinguished 
reputation. Id. The Agency considers the relative size or longevity of an organization or establishment 
along with other relevant factors, such as the scale of its customer base or relevant media coverage. 
Id. 
The Petitioner demonstrated that he has performed in leading or critical roles for the company he co­
founded in Venezuela and the U.S. business for which he now works. The Director, however, found 
insufficient evidence that these businesses have or had distinguished reputations. The Director stated: 
"The evidence only provides general information and does not contain information about any awards, 
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recogmt10n, or achievements garnered by the organizations or establishments, or otherwise 
demonstrate that [they] have distinguished reputations." 
On appeal, the Petitioner maintains that the Director overlooked evidence. As proof that his 
Venezuelan employer had a distinguished reputation, the Petitioner submitted materials showing his 
development of the company's most successful product: an action figure of a Venezuelan military 
hero and revolutionary. The company's president, who is also the Petitioner's daughter, stated that 
major media, including one of Venezuela's most widely read newspapers, published articles about the 
action figure. A letter from a distributor states that, from 2009 to 2012, it sold more than 2,000 of the 
eight-inch-tall action figures. 
The Petitioner submitted copies of additional articles about the action figure, confirming its design by 
the Petitioner and its manufacture by his former employer. But the evidence does not establish that 
the company's manufacture of the figure or the media recognition the business received for making it 
earned the company a distinguished reputation. The Petitioner has not shown that the company was 
large, conducted business for a long time, or enjoyed a wide customer base. 
As evidence that the Petitioner's current U.S. employer has a distinguished reputation, he submitted 
materials showing the company's publication of a comic book he created about a lifeguard/superhero 
and the employer's participation in major comic book conventions in the United States. The record, 
however, does not establish that the company's publication of the comic book or its participation in 
large comics conventions provide it with a distinguished reputation. The evidence does not indicate 
whether the comic book is popular or profitable, or whether the conventions limited the number or 
type of companies that could participate. 
For the foregoing reasons, the Petitioner has not established that the organizations for which he has 
performed leading or critical roles have or had distinguished reputations. We will therefore also affirm 
the Director's finding regarding the evidentiary requirement at 8 C.F.R. § 204.5(h)(3)(viii). 
The Petitioner has not demonstrated his satisfaction of at least three of the 10 initial evidentiary 
requirements for the requested immigrant visa category. Thus, we need not make a final merits 
determination as to his eligibility as a noncitizen with extraordinary ability in his field and hereby 
reserve his appellate arguments in that regard. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating 
that agencies need not make "purely advisory findings" on issues unnecessary to their ultimate 
decisions); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach 
alternate issues on appeal where an applicant does not otherwise qualify for relief). 
III. CONCLUSION 
The Petitioner met a second initial evidentiary requirement by demonstrating his receipt of a nationally 
recognized award for excellence in his field. But he did not establish his satisfaction of a third 
evidentiary criterion as required for the requested immigrant visa category. We will therefore affirm 
the petition's denial. 
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ORDER: The appeal is dismissed. 
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