dismissed EB-1A Case: Computer Graphics

(b)(6)
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Office: NEBRASKA SERVICE CENTER DATE: MAR 2 2. 2013 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
.------ I __ _ 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an I Alien of Extraordinary. Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd the decision of the Administrative (\-ppeals Office in your case. All of the 
documents related to this matter have been returned to the offi.ce that originally decided your case. Please 
be advised that any further inquiry that you might have concebng your case must be made to that office. 
If you believe the AAO inappropriately applied the law in rLching its decision, or you have additional 
informationthat you wish to have considered, you may file J motion to reconsider or a motion to reopen 
in accordance with the instructions on Form i-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found Jt 8 C.F.R. § 103.5. Do not file any motion 
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directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
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within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Admiiustrative Appeals Office · 
www .uscis.gov 
(b)(6). Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Admini~trative Appeals Office (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner is a software developer. It seeks to classify the beneficiary as an "alien of 
extraordinary ability'' in the arts and business, pursuant tb section 203(b )(1 )(A) of the Immigration 
and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A) as a three-dimensional (3D) computer 
graphics developer. The director determined that the p~titioner had not established the requisite 
extraordinary ability for the beneficiary 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 the alien's "sustairl.ed national or international acclaim" and 
present "extensive documentation" of the alien's achievdnents. See section 203(b )(1 )(A)(i) of the 
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Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international! acclaim through evidence of a one-time 
achievement of a major, internationally recognized award!. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective ev~dence. 8 C.F.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence fot the alien under at least three of the ten 
regulatory categories of evidence to establish the basic eli~bility requirements. · 
On appeal, counsel asserts that the beneficiary meets ~e regulatory categories of evidence at 
8 C.F.R. §§ 204.5(h)(3)(v) and (vii)- (x). For the reasdns discussed below, the AAO will uphold 
the director's decision. 
. 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 ~bparagraphs (A) through (C): 
,(A) Aliens with extraordinary ability. -- L alien is described in this 
subparagraph if--
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athlclics which has been 
demonstrated by slistained natidnal or international 
acclaim and whose achievements have been recognized 
in the field through extensive docutnentation, 
(ii) the alien seeks to enter .the uruL States to continue 
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work in the area of extraordinary ability, and 
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(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) anblegacy Immigration and Naturalization 
. Service (INS) have consistently recognized that Congresk intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordihary ability. See H.R. 723 1 01
51 
Cong., 2d 
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Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 2~, 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. !d.; 8 C.F.R. § 204.5(h)(2) . . 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's 
sustained acclaim and the 
recognition of his or her achievbnents in the field. Such acclaim must be 
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established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifyiAg evidence under at least three of the ten 
categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(k). 
In 2010, the U.S. Court of Appeals for the Ninth Circuil (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian V. uscis, 580 F.3d •1030 (9th Cir. 2009) aff'd in 
part 596 F.3d 1115 (9th Cir. 2010). Although the courl upheld the AAO's decision to deny the 
petition, the court took issue with the AAO's evaluatioh of evidence submitted to meet a given. 
evidentiary criterion.1 With respect to the criteria at 8 G.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. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
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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 prorided (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 ~vidence (as the AAO concluded)." !d. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this matter, the AAO will review the 
evidence under the plain language requirements of each chterion claimed. As the petitioner did not 
submit qualifying evidence for the beneficiary under at lbtst three criteria, the proper conclusion is 
that the petitioner has failed to satisfy the regulatory reqrlirement of three types of evidence. !d. 
1 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)(it) and 8 C.F.R. § 204.5(h)(3)(vi). 
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II. ANALYSIS 
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A. Evidentiary Criteria 
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This petition, filed on January 4, 2012, seeks to classify the beneficiary as "an alien of 
extraordinary ability in the field of 3D computer sdftware, character animation, and cloth 
simulation." ·At the time of filing, the beneficiary was ~orking as 
The petitioner has 
submitted documentation pertaining to the following categories of evidence under 8 C.F.R. 
§ 204.5(h)(3)? 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in thJ field of endeavor. 
The director discussed the evidence submitted for thiJ regulatory criterion and found that the 
petitioner failed to establish the beneficiary's eligibility. On appeal, the petitioner does not 
contest the director's findings for this criterion or ~ffer additional arguments. The AAO, 
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therefore, considers this issue to be abandoned. Sepulreda v. U.S. Att'y Gen., 401 F.3d 1226, 
1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-€V-27312011, 2011 WL 4711885 at *1, 
*9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned as he failed 
to raise them on appeal to the AAO). Accordingly, the petitioner has not established that the 
beneficiary meets this regulatory criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in thJ field. 
In the director's decision, he determined that the petitibner failed to est~blish the beneficiary's 
eligibility for this regulatory criterion. The plain l~guage of the regulation at 8 C.F .R. 
§ 204.5(h)(3)(v) requires "[e]vidence of the alien's origtnal scientific, scholarly, artistic, athletic, 
or business-related contributions of major significance! in the field." [Emphasis added.] Here, 
the evidence. must be reviewed to see whether it rises to the level of original artistic or business-
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related contributions "of major significance in the fieldf The phrase "major significance" is not 
superfluous and, thus, it has some meaning. Silverman lv. Eastrich Multiple Investor Fund, L.P., 
51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 
2003). · I 
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The petitioner submitted evidence showing that 
and the beneficiary coauthored === 
but there is no documentary evidence 
showing that a U.S. patent was granted for their inventions. Even if the petitioner were to 
establish that these inventions received aU .S. patent, thb grant of a patent demonstrates only that 
' On appea~ the petitioner does not claim to meet any of the regulltmy categories of evidence not d;,c,ssed m this 
decision. I 
(b)(6)PageS 
an invention is original. A patent is not necessarily e~idence of a track.record of success with 
some degree of influence over the field as a whole. See Matter of New York State Department of 
Transportation, 22 I&N Dec. 215, 221 n. 7, (Comm'r 11998). Rather, the significance of the 
innovation must be determined on a case-by-case basis. !d. With regard to the two patent 
applications coauthored by the beneficiary, the petition~r must demonstrate that her innovations 
have demonstrably impacted the field as a whole or othbise equate to original contributions of 
major significance in the field. 
The petitioner submitted a February 1, 2012 article po~ted at entitled 
. The article discusses three online retailers' use of virtual fitting room technologies 
developed by While the article states that 
"technology is helping spur denim sales for and that • "return 
rate ori denim is down about 34%," the plain laitguage ·of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v) requires that the contributions be "ofniajor significance in the field" rather than 
limited to and its customer _ Regardiess, the preceding article was published 
subsequent to the petition's January 4, 2012 filing datb. Eligibility must be established at the 
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time of filing the petition. 8 C.F .R. § § 1 03 .2(b )( 1 ), ( 12); Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971). A petition cannot be appr9ved at a future date after the petitioner 
becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 
1998). That decision further provides, citing Matter I of Bardouille, 18 I&N Dec. 114 (BIA 
1981 ), that USCIS cannot "consider facts that come into being only subsequent to the filing of a 
pe~ition." !d. at 1_76. Accordingly, .the AA_O. will notlconsider the Febru~ }• 2012 ~icle as 
evidence to establish that the beneficiary's digttal gannent technology had sigruficantly Impacted 
the field at the time of filing the petition. 
The petitioner submitted an event program from 2011 Conference on Mass Customization, 
indic~ting that gave a talk in 
Apparel story." Counsel states: addressed how leading global brands were 
launching interactive systems built on the platform es~ablished by [the beneficiary's patents." 
program schedule indicates that nurrierous individuals spoke at 
including more than ten other "Ke,Ynote Session" Jpeakers. The AAO notes that many 
professional fields regularly hold meetings and symppsia to present new work, discuss new 
findings, and to network with other professionals. 1 These conferences are promoted and 
sponsored by professional associations, businesses, eaucational institutions, and government 
agencies. Participation in such events, however, doe~ not equate to original contributions of 
major significance in the field. There is no documentarY evidence showing that the beneficiary's 
patent applications have significantly impacted the field! as a whole or have otherwise risen to the 
level of contributions of major significance in the field. While participation in 
·demonstrates that story wak shared with others, the AAO is not 
persuaded .that his discussion of the company's interJctive apparel system at is 
sufficient evidence establishing that the beneficiary's wprk is of"major significance" to the field 
as a whole and not limited to the audience at session. The petitioner has failed to 
establish, for example, the impact or influence of presentation beyond those in 
(b)(6)Page6 
attendance so as to establish that his and the beneficiaryj's garment visualization systems were of 
major significance to the field at large. 
The petitioner submitted a September 24, 2010 Purchase Agreement with for 
to provide "garment customization products! and related ~oods and services." The 
petitioner also submitted a November 22, 2011 PurchaAe Order froml While the evidence 
submitted at the time of filing the petition indicates that clients have 
utilized the beneficiary's garment digitization and potjtrayal software systems for their online 
customers' retail apparel purchases, not every marketable software product or service is a 
contribution of major significance in the field associatJd with that innovation. It is inherent to 
the field of software design to create software that is tJarketable to one's business clients. The 
fact that had two corporate clients for thb garinent systems co-invented by the 
beneficiary at the time of filing the petition does not abtomatically establish that she has made 
original contributions of "major significance" in the fieltt 
The petitioner submitted an April 2012 Purchase Agrlement Amendment with and 
I Purchase Orders from dated January 9, 2012; February 23, 2012; March 14, 2012; March 
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19, 2012; April 19, 2012; May 29, 2012; June 6, 2012~ July 25, 2012; and July 30, 2012. The 
petitioner also submitted a July 24, 2012 "Technical Consulting and Professional Services 
Agreement" with for to provide "garment digitization and digital 
garment experience systems and software services." In addition, the petitioner submitted a 
Purchase Order from dated July 25, 20112; a Purchase Order from 
dated August 2, 2012; and a June 13, 2012 productj order quote prepared by Embodee for 
The preceding order quote, agreements~ and purchase orders post-date the 
petition's filing date. As previously discussed, eligibility must be established at the time of filing 
the petition. 8 C.P.R. §§ 103.2(b)(1), (12); MattJr of Katigbak, 14 I&N Dec. at 49. 
Accordingly, the AAO will not consider business transJctions occurring after January 4, 2012 as 
evidence to establish the beneficiary's eligibility for thiJ regulatory criterion. 
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The petitioner also submitted various letters of support discussing the beneficiary's work. I . . 
states: 
Since February 2009 when I joined I have had the pleasure to work 
closely with [the beneficiary] and ave expenenced her exceptional talents and 
knowledge first hand. She has had invaluable :contributions to the success of our 
company via the technical innovatinm: o;:hP. introduced as part of our patent pending 
software solutions and processes. At she ~ot only heads our R&D efforts but is 
also a cofounder of the company. 
Our company, to a large extent due to [the beneficiary's] unique knowledge and 
expertise, has developed incredible digital garmerit technologies and won the right to 
power the digital side of appar~l business. This project was awarded 
to us based on our company's technical excellenc~ and because of our ability to create 
photorealistic digital representations of real clothing enabling the visualization of 
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millions of garment customization options. Since the company's founding we have grown 
to around 10 employees. This company growthl can be directly attributed to [the 
beneficiary's] technical vision and excellence.· The tools and workflows created by her 
are enabling worldclass businesses like to more efficiently serve their customers, in 
this case team sports uniform dealers and coaches. I 
[The beneficiary] is a pioneer in the art, technology, and business of Digital Clothing 
capture and simulation. She has provided the apparei industry and the end consumer with 
a breakthrough that can impact the lives of so man~ people. This claim is supported by 
another application of the technology developed by her at - the online try-on of 
garments for - a leading global youth brank With this application for the first 
time online shoppers can accurately see how a gatment of particular size fits on their 
body. This solves the biggest problem for online ap~arel sales- knowing what size to buy 
and how it will fit. solution thanks ro [the beneficiary's] technical and 
entrepreneurial leadership is the first one that actua~ly works and has been proven in the 
market. Online shoppers love the application and have given us outstandingly positive 
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comments on the beneficiary's "exceptional talents" and ''unique knowledge and 
expertise." Assuming the beneficiary's skills and khowledge are unique, the classification 
sought was not designed merely to alleviate skill short~ges in a given field. In fact, that issue 
properly falls under the jurisdiction of the Department! of Labor through the alien employment 
certification process. See Matter of New York State ~ep 't. of Transp., 22 I&N Dec. 215. 221 
(Comm'r 1998). While the beneficiary has developed digital garment technologies for 
there is no documentary evidence demonstrating thatj the beneficiary's specific work tor the 
company equates to original contributions of major significance in the field. As previously 
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discussed, the plain language of the regulation at 8 <I:.F.R. § 204.5(h)(3)(v) requires that the 
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beneficiary's original contributions be "of major significance in the field" rather than limited to 
her employer and two of its clients. 
states: 
I first met [the beneficiary] in 1996 at Siggraph, the annual computer graphics 
conference. We have since then been in contact nwtierous times. 
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I met again [the beneficiary] early 2006, when she 
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started a new project for online cloth 
fitting. My experience with cloth simulation allow~d me to apprehend how exceptional 
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her work was: based on physic simulation and real cloth patterns, her software was the 
first one to allow a real-time animation of a gatment directly in a web browser. I 
immediately understood that her project had 
the potential to completely redefine the way 
we buy cloth, and I decided to start a collaboratioti with her. In 2009, [the beneficiary] 
co-founded where she developed a revol~tionary platform that enables online 
shoppers to dynamically experience, select and per~onalize clothes. This software is now 
successfully used by apparel companies like dramatically increasing consumer' 
engagement and confidence. 
(b)(6)
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I was struck by the deep knowledge of CG technology [the beneficiary] displayed while 
· working on her project: she· needed to tackle b~ herself many issues, from cloth 
rasterization to physics modeling and web integration. On top of her technical and 
artistic capabilities, [the beneficiary] also has an entliusiastic entrepreneurship spirit. 
states that the beneficiary has "developed a rlvolutionary platform that enables online 
shoppers to dynamically experience, select and perso
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nalize clothes," but fails to 
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provide specific examples ofhow the beneficiary's work has significantly impacted the industry 
or otherwise constitutes original contributions of major ~ignificance in the field. Again, the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3J(v) requires "[e]vidence of the alien's 
original scientific, scholarly, artistic, athletic, or bhsiness-related contributions of major 
significance in the field." [Emphasis added.] The mbre fact that the beneficiary has created 
garment visualization 
systems for her company to matket to online apparel retailers does not 
· demonstrate that her specific work has had "major sikuificance" in the field. The submitted 
evidence fails to demonstrate that the beneficiary's original technologies were of maior 
significance to the online anparel industry at the time of filing rather than limited to 
two clients . j __ · _____ _ 
states: 
[The beneficiary] worked for and it was during this time that 
she became one of the major contributors in the 'development of modeling and 
animation technology. 
With· her current employer, [the beneficiary] has developed new technology 
powenng the world's first realistic online clothin~ try-on and personalization service. 
U.S. companies like -both leaders in their respective fields- are using 
this break-through technology. [The berleficiary], who is responsible for the 
body and cloth animation on this project, has a6hieved ·outstanding and remarkable 
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computer generated apparel quality on a large scale, i.e. for lOO's and soon 1000's of 
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garments - something that had never been achieved before. 
I states that the beneficiary has developed a "break-through" technology that supports 
"the world's first realistic oniine clothing try-on and petsonalization service." The beneficiary's 
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development of an original marketable technology, !however, is not the only factor to be 
considered in determining her eligibility for this regulktory criterion. The petitioner must also 
demonstrate that the beneficiary's original technology Jwas of maior simificance to the field at 
the time of filing the petition rather than limited to only There is no 
documentary evidence demonstrating that the benefici~'s garment visualization systems were 
extensively utilized by a significant number of online a~parel companies at the time of filing the 
petition such that her original technologies constitute dontributions of major significance in the 
ficld. · I 
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The preceding letters from the beneficiary's professional contacts are not without weight and 
have been considered above. While such letters are futportant in providing details about the 
beneficiary's work, they cannot by themselves establish lthe impact of her work beyond her circle 
of immediate professional acquaintances. USCIS may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter oJCaron International, 19 I&N Dec. 791, 
795 (Comm'r. 1988). However, USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the ~enefit sought. !d. The submission of 
reference letters supporting the petition is not presumptive evidence of eligibility; USCIS may 
evaluate the content of those letters as to whether they 
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support the alien's eligibility. See id. at I . 
795-796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion 
testimony does not purport to be evidence as to "fact"). Thus, the content of the references' . I 
statements and how they became aware of the beneficiaryjs reputation are important considerations. 
Even when written by independent experts, letters solicited by an alien in support of an 
immigration petition are of less weight than preexistin~, independent evidence that one would 
expect of a 3D computer graphics developer who has made original contributions of major 
significance in the field. Without additional, specific !evidence showing that the beneficiary's 
original work had been unusually influential, had substantially impacted her field, or had 
otherwise risen to the level of artistic or business-relat~d contributions of major significance at 
the time of filing, the AAO cannot conclude that she mebts this regulatory criterion. 
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Evidence of the display of the alien 's work in the field at artistic exhibitions or 
showcases. ·1 
The AAO withdraws the director's finding that the beneficiary meets this regulatory criterion. The 
petitioner submitted a screenshot from the Internet M~vie Database (IMDb) indicating that the 
beneficiary provided "Visual Effects" for 
The etitioner also submitted a July 10, 2012 letter from 
stating that the benetictarv created .. new teatures ot 
cloth simulation software that was [sic]· used in the !short film 
The petitioner asserts that the beneficiary's special effects work 
for the preceding motion 
pictmes meets this regulatory criterion. I . 
The AAO cannot conclude that being among the numerous contributors to a particular film 
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constitutes display of the beneficiary's work in the field at artistic exhibitions or showcases. 
Neither counsel nor the petitioner has explained how thJ beneficiary's special effects segments on 
the film productions were singled out for display "at artistic exhibitions or showcases." The plain 
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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 jshowcases." The beneficiary developed 
visual effects software for the above film productions; she was not "displaying" her work at . 
artistic exhibitions or showcases. . Moreover, the berieficiary no longer works in the motion 
picture field~ Instead, the beneficiary is presentl~ 
and she manages technology development for creating "photorealistic 
digital representations of real clothing" for online apparel retailers. See Lee v. I.N.S., 237 F. 
Supp. 2d 914 (N.D. Ill. 2002) (upholding a finding th~t competitive athletics and coaching are 
(b)(6)
Page 10 
not within the same area of expertise). The ten criteria in the regulations are designed to cover 
different areas; not every criterion will apply to every occupation. As the beneficiary has not 
created tangible pieces of art that were on display ~t artistic exhibitions or showcases, the 
petitioner has not submitted qualifying evidence that the beneficiary meets the plain language 
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requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). Accordingly, the' petitioner has not 
established that the beneficiary meets this regulatory criterion. 
Evidence that the alien has performed in a leadink or critical role for organizations 
or establishments that have a distinguished reputalion. 
The petitioner submitted documentation showing that tJe beneficiary has performed in a leading 
or critical role as 
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The petitioner also submitted information about 
printed from the company's website. USCIS need not, However, rely on self-promotional material. 
See Braga v. Poulos, No. CV 06 5105 SJO, aff'd 317 FJi. Appx. 680 (C.A.9) (concluding that the 
AAO did not have to rely on self-serving assertions on thJ cover of a magazine as to the magazine's 
status as major media). There is no objective documbntary evidence showing that 
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Corporation had a distinguished reputation at the time of filing the petition. 
The petitioner submitted documentary evidence showin~ that 
reputation. The petitioner also submitted a July 10, 2012 ietter from 
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has a distinguished 
stating: 
In my capacity, as I have personal knowledge and 
unique understanding of the significance played by [the beneficiary] in 
enumerated successes. [The beneficiary] was j the character animation software 
development lead at _ and therefore she played a leading and critical role for the 
organization. She was responsible for the development of character animation tools; 
skeleton kinematics, muscle-based skinning, facial animation and crowd non-linear 
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animation. For example, in the motion picture ' the animation 
performed by a team of 1 00 animators was conducted by using the software developed by 
[the beneficiary]. She played a similar role in tHe production of the motion pictures 
and as well as cre4ting new features of cloth simulation 
software that was used in the 
I can attest without reservations that [the beneficiary's] role in was leading and 
critical to the entire organization and its successes.j would not have received many 
of the nominations, awards and accolades for the movies listed above in this paragraph 
had it not been for the critical role played by [the beheficiary]. 
Similarly, [the beneficiary] contributed to the coiercial successes of several motion 
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pictures including . - - I 
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technicians, 
technicians. 
As indicated above, she ras not one of many 3D artists and 
she developed all character animation tools used by the 3D artists and 
She had a direct and critical impact on ~he success of these motion pictures. 
(b)(6)Page II 
states that the beneficiary "contributed to the pommercial successes of several motion 
pictures," but not every employee working on projects for a distinguished organization meets the 
elements ofthis regulatot)r criterion. . also assertsjthat "[the beneficiary's] role in was 
leading and critical to the entire organization and its suecesses." Merely repeating the language 
of the statute or regulations, however, does not satisfy jthe petitioner's burden of proof. Fedin 
Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.t-J.Y. 1989), ajj'd, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). While 
comments that the beneficiary was the "character anima!tion software development lead at '' 
and that she played a significant role on the motion pic~re projects to which she was assigned, 
the petitioner has not established that the beneficiary p~rforrned in a leading or critical role for 
the company as a whole. In general, a leading role is e+denced from the role itself, and a critical 
role is one in which the alien is responsible for the success or standing of the organization. The 
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petitioner failed to submit organizational charts or similar documentary evidence to demonstrate 
where the beneficiary's position fit within the overall hierlrrchy of the: Company. Further, the 
letter from fails to explain how the beneficiary's: role was leading or critical relative to that 
of Company's other managers, let alone the company's top executives such as 
ana In addition, the submitted evidence do~s ·not establish that the beneficiary was 
responsible for the Company's success or standing to a degree consistent with the meaning of 
"critical role." 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires evidence 
-that the beneficiary has performed in a leading or critic~! role for distinguished "organizations or 
.establishments" in the plural. The use of the plural is cohsistent with the statutory requirement for 
extensive evidence. Section 203(b)(l)(A)(i) of the Acf. Significantly, not all of the criteria at 
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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 sin~e 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 evidcltce 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. 
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In a different context, federal courts have upheld USGIS' ability to interpret significance from 
whether the singular or plural is used in a regulation. sek Maramjaya v. USCIS, Civ. Act. No. 06-
2158 (RCL) at *1, *12 (D.C. Cir. March 26, 2008); S~apnames.com Inc. v~ Chertojf, 2006 WL 
3491005 at *1, *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory 
requirement for "a" bachelor's degree or "a" foreign e4_uivalent degree at 8 C.F.R. § 204.5(1)(2) 
requires a single degree rather than a combination of ac~emic credentials). Therefore, even if the 
petitioner were to submit documentary evidence shoJing that the beneficiary's role for 
Company meets the elements of this regulatory criterioh, which the petitioner has not, the plam 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi
1
ii) requires evidence of the beneficiary's 
leading or critical role for more than one distinguished organization or establishment. 
In light of the above, the petitioner has not established !that the beneficiary meets this regulatory 
criterion. 
(b)(6)
Page 12 
Evidence that the alien has commanded a high salary or other significantly high I . 
remuneration for services, in relation to others in the field. 
Counsel asserts that . has, and is, compisating [the beneficiary] for her services 
I 
with an annual cash salary of $80,000." The record, however, does not include documentary 
evidence (such as payroll records or income tax fonhs) of the beneficiary's $80,000 salary. 
Without documentary evidence to support the claim, thej assertions of counsel will not satisfy the 
petitioner's 
burden of proof. The unsupported assertions
1 
of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA ~988); 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). Instead, 
the petitioner submitted. an October 10, 2008 ExecutiveJ Employment Agreement stating that the 
beneficiary receives a ''base salary at the rate of $6,00@ per month" or $72,000 per year. The 
petitioner also submitted documentation showing that th~ beneficiary has received an aggregate of . I 
shares of company stock from January 2009 to qecember 2011 ( shares per month). 
The petitioner, however, offers no basis for comparison demonstrating that the beneficiary's salary 
and remuneration were significantly high in relation to :others in the field. The petitioner must 
present evidence of objective earnings data showing l}lat the beneficiary has earned a "high 
salary" or "significantly high remuneration" in comparison with those performing similar work 
during the same time period. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) 
(considering professional golfer's earnings versus othet PGA Tour golfers); see also Skqkos v. 
US. Dept. of Homeland Sec., 420 F. App'x 712, 713-1t (9th Cir. 2011) (finding average salary 
information for those performing lesser duties is not a comparison to others in the field); 
I 
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.j440, 444-45 (N.D. Ill. 1995) (comparing 
salary ofNHL defensive player to salary of other NHL defensemen). Accordingly, the petitioner 
has not 'established that the beneficiary meets this regul~tory criterion. 
Evidence ·of commercial successes in the peifoJing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
. . I 
The petitioner submitted a July 10, 2012 letter from stating: 
[The beneficiary] contributed to the commercial Juccesses of several motion pictures 
in~ili~ ~ 
As mcllcated above, she was not one of many 3D artists and 
technicians, she developed all character animatioh tools used by the 3D artists and 
technicians. She had a direct and critical impact on the success of these motion pictures. 
, __ _ 
The petitioner also submitted information from stating tha 
I 
In addition, the petitioner submitted a November 11, ~008 article from 
counsel identifies as l on the 
who 
· production. 
states: 
(b)(6)
Page 13 
I have supervised the digital visual effects of several major film production [sic], 
involving high number of shots, large crews, and sfute of the art technology. With each 
- I 
new movie, new challenges are taken up, and the technology must be pushed a little more 
forward. While CG artists' talent and creativity ard necessary, engineer's contributions 
are equally critical too. Engineer's ability to develo~ software for a particular production 
needs are [sic] absolutely essential to achieve image's that are more capable of evoking a 
director's vision for the film. 
I enrolled [the beneficiary] in my teams for several productions such as J, __ 
-..--~-.-~-~----". In response, she] solved many significant technical 
probl-em~s ~t'hanks to her outstanding skills and experience in the field of Computer 
Graphics (CG) software development. I _ 
For example, on _we had to render large 
This was a real technical challenge, both in 
terms of animation and rendering. Hundreds of chJacters had to be animated, and they 
all had to look different from each 
other. To rendet the images for each, the number of 
polygons and animations exceeded our current system's limits. To solve this problem, 
[the beneficiary] _developed tools to automatically I generate varied, distinct animations 
from libraries, and do it within our system's resource constraints. This was the first time 
we accomplished crowd animation on such a massivb scale. 
I The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) indicates that this criterion 
applies to "the performing arts," not computer graphic~ software development. The beneficiary 
is not a performing artist. 
Regardless, even if applicable, the petitioner has not established that the commercial success of 
the above motion pictures was primarily attributabl~ to the film segments for which the 
beneficiary developed computer graphics software. wllile the beneficiary worked on the films' 
visual effects teams and was among the hundreds of! contributors to the 
films (including the 
actors, directors, producers, writers, cinematographers, sound mixers, production designers, 
editprs, and numerous other production staff positioAs), the AAO cannot conclude that her 
specific work on the productions drew large audiences in the same manner as the performances 
of their lead actors, for example. 
In light of the above, the petitioner has not established that the beneficiary meets this regulatory 
criterion. 
B. Summ1 
The petitioner has failed to submit evidence for the beneficiary satisfying the antecedent regulatory 
requirement of three categories of evidence. I 
(b)(6)
Page 14 
. C. Prior 0-1 Nonimmigrant Visa Status 
The· record reflects that the. alien is the beneficiary Jf an approved 0-1 nonimmigrant visa 
petition for an alien of extraordinary ability in the arts. Although the words "extraordinary 
ability'' are used in the Act for classification of artists undb- both the nonimmigrant 0-1 and the first 
preference employment-based immigrant categories, th~ statute and regulations define the tenn 
differently for each classification. Section 10l(a)(46) of; the Act states, "The tenn 'extraordinary 
ability' means, for purposes of section 101 (a)(l5)(0)(i), in the case of the arts, distinction." The 
0-1 regulation reiterates that "[ e ]xtraordinary ability in th~ field of arts means distinction." 8 C.F .R. 
§ 214.2(o)(3)(ii). "Distinction" is a lower standard I than that required for. the immigrant 
classification, which defines 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 evidentiary criteria for thes~ two classifications also differ in several 
respects, for example, nominations for awards or prizes eire acceptable evidence of 0-1 eligibility, 
8 CF.R. § 214.2(o)(3)(iv)(A), but the immigrant classifidation requires actual receipt of nationally 
I 
or internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear statutory 
and regulatory distinction between these two classific~tions, the beneficiary's receipt of 0-1 
I 
nonimmigrant classification is not evidence ofhis eligibility for immigrant classification as an alien 
with extraordinary ability. Further, the AAO does not fina that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each betition must be decided on a case-by-case 
basis upon review of the evidence of record. I 
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); Fedih Brothers Co. Ltd. v. Sava, 724 F. Supp. 
1103 (E.D.N.Y. 1989). Because USCIS spends le~s time reviewing 1-129 nonimmigrant 
petitions than 1-140 immigrant petitions, some nonimrhigrant petitions are simply approved in 
error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2tl at 29-30; see also Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556 (5th Cir. 2004) (finding th~t prior approvals do not preclude USCIS 
from denying an extension of the original visa bJsed on a reassessment of the alien'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 
I 
Church Scientology International, 19 I&N Dec. 593, 59~ (Comm'r 1988). USCIS need not treat 
acknowledged errors as binding precedent. Sussex Eng'~ Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furtliennore, the AAO's authority over the service Cfnters 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 
I 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 
I 
2000 WL 282785, *1, *3 (E.D. La.), a.ff'd, 248 F.3d 1139
1 
(5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(2001). ·. . . 
(b)(6)
• • i , 
Page 15 
III. CONCLUSI<DN 
The documentation submitted in ,support of a claij. of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national! or international acclaim and is one of the 
small percentage who has risen to the v~ top of the field rf endeavor. ' 
Even if the petitioner had submitted the requisite evidence for the beneficiary under at least three 
evidentiary categories, in accordance with the Kazarianj opinion, the next step would be 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 jthat the individual is one of that small 
percentage who.have risen to the very top of the[ir] fiel4 of endeavor'' 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." 8 C.F.R. §§ 204.5(h)(2) and (3); lsee also Kazarian, 596 F.3d at 1119-20. 
While the AAO concludes that the evidence is not indicative of a level of expertise consistent with 
I 
the small percentage at the very top of the field or sustained national or international acclaim, the 
AAO need not explain that conclusion in a final m~ts determination.3 Rather, the proper 
conclusion is that the petitioner has failed submit eviaence for the beneficiary satisfying the 
antecedent regulatory requirement of three categories of e~idence. !d. at 1122. 
I 
The petitioner has not established the beneficiary's eligibility pursuant to section 203(b)(l)(A) of 
the Act and the petition may not be approved. 
The AAO may deny an application or petition that fails to comply with the technical 
~equir~~~ts oft~~ law even if the Service C~ilter doesj not i~entify all of the grounds for denial 
m the mttlal deciSIOn. See Spencer Enterprzses, Inc. v. Umted States, 229 F. Supp. 2d 1025, 
1043 (E.D. Cal. 2001), ajf'd, 345 F.3d 683 (9th Cir. Z003); see also Soltane v. DOJ, at 145 
. (noting that the 
AAO conducts appellate review on a de !novo basis), 
The burden of proof in visa petition proceedings remains Ltirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
3 The AAO maintains de novo review of all questions offact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). In any future proceeding, the AAO maintairis the jurisdiction Ito conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii). See also section 103(a)(l) of the Act; section . . . I 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, ~60 (BIA 1987) (holding that legacy INS, now 
· USCIS, is the sole authority with the jurisdiction to decide visa petitions). 
I