dismissed EB-1A Case: Creative Technology

U.S. Citizenship 
and Immigration 
Services 
InRe: 19217950 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 15, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a creative technologist, seeks classification as an alien of extraordinary ability . See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This first 
preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner met the initial evidentiary requirements for the requested classification 
through evidence of either a one-time achievement (a major, internationally recognized award) or 
meeting at least three of the evidentiary criteria under 8 C.F.R. § 204 .5(h)(3). 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. LAW 
Section 203(b )(1) of the Act makes visas available to immigrants with extraordinary ability 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 
(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 a multi-part analysis. First, a petitioner can demonstrate 
international recognition of his or her achievements in the field through a one-time achievement (that 
is, a major, internationally recognized award). If that petitioner does not submit this evidence, then 
he or she must provide sufficient qualifying documentation that meets at least three of the ten criteria 
listed at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material in certain 
media, and scholarly articles). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit 
comparable material if he or she is able to demonstrate that the standards at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) do not readily apply to the individual's occupation. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
At the time his pet1t10n was filed, the Petitioner was employed byl las a creative 
technologist. He earned a master of science degree in media arts and technology from the University 
of~------------~ in 2011, and has since worked to create interactive and 
experiential multimedia displays for tradeshows, tourist attractions and museums. He states that he 
intends to continue in this field in the United States. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has received a major, internationally 
recognized award, he must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Petitioner met two of the evidentiary criteria 
at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to his leading or critical role for distinguished establishments 
and the display of his work in the field at artistic exhibitions or showcases. Upon review, we agree 
that he meets these criteria. On appeal, the Petitioner asserts that he also meets the evidentiary criteria 
relating to four additional criteria, which we will discuss below. After reviewing all of the evidence 
in the record, we find that the Petitioner does not meet the initial evidentiary requirements for this 
classification, and has therefore not established that he is an individual of extraordinary ability. 
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.F.R. § 204.5(h)(3)(ii) 
In order to meet this criterion, a Petitioner must provide evidence of their membership in an association 
that is in their field, and that that association requires outstanding achievements as a condition of 
membership. In addition, the Petitioner must show that the quality of those achievements are judged 
by recognized national or international experts in their fields. 
2 
The record shows that the Petitioner is a professional member of the Society for Experiential Graphic 
Design (SEGD). However, it does not include evidence which provides any level of specificity 
regarding SEGD' s membership requirements, or information regarding any judging process for 
membership applicants. Pages submitted from the association's website simply state that design 
memberships "are for people whose primary occupation or course of study is experiential graphic 
design or related fields ... " This material then lists the different types of membership and the benefits 
associated with each, a list of members, and a brief history of SEGD. 
In addition, in responding to the Director's request for evidence, the Petitioner submitted a letter from 
SEGD's.__ _______________ ___. She provides background information on the 
association which is similar to that included on its website, and lists what she states are well-known 
SEGD members. But she does not provide further information regarding the requirements for SEGD 
membership at the Petitioner's or any level, nor does she shed light upon the membership application 
judging process. 
On appeal, the Petitioner points out that the Director failed to acknowledge the submission oO 
I Is letter. However, since that letter serves only to verify evidence that was already in the 
record, we find the Director's omission to be harmless. He also asserts that the totality of the evidence 
submitted under this criterion is sufficient to meet the preponderance of the evidence standard. But 
the Petitioner does not refer to evidence of any specific SEGD membership requirements or 
application review process, instead making conclusory statements and repeating the regulatory 
language on several occasions. Repeating the language of the statute or regulations does not satisfy 
the petitioner's burden of proof Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 
1989), afj'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, No. 95 CIV. 10729, *1, 
*5 (S.D.N.Y. Apr. 18, l 997). 
In addition, in his appeal brief the Petitioner focuses on evidence of the successful completion of 
projects to which he contributed, and asserts that since this work is considered to be outstanding, as 
evidenced by reference letters, media reports and other evidence in the record, it served as the basis 
for his membership in SEGD and he therefore meets this criterion. But this argument fails, as the 
record lacks any evidence that shows that his role in those projects was considered when he submitted 
his application for membership, let alone who would have considered them. 
For all of the reasons discussed above, we agree with the Director's conclusion that the Petitioner does 
not meet 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) 
There are several elements which must be satisfied for evidence to meet the requirements of this 
criterion. Specifically, a petitioner must show that the material has been published, that the publication 
is a professional or major trade medium or other major medium, that the material is about the 
petitioner, and that it relates to their work in the field for which classification is sought. Here, the 
Petitioner submitted materials published on several websites, some of which, like those published on 
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cnbc.com and nrimes.com, are clearly major media and relate to his work in the field. These articles 
discussl projects to which other evidence verifies the Petitioner contributed. However, as 
noted by the Director in his decision, they are not about the Petitioner but about the projects. They do 
not discuss the Petitioner's contribution to the projects, provide information about him and his work, 
or even mention him by name. Materials 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). 
The record also includes the Petitioner's profile pages on the SEGD website and on the website of 
Communication Arts (commarts.com). Regarding the SEGD profile, we note that the association 
promotes member profile pages as a significant membership benefit on its website, allowing members 
to network with each other. In his decision, the Director described this evidence as "self­
manufactured" and thus lacking in evidentiary weight. The Petitioner asserts on appeal that this 
conclusion runs counter to a plain language interpretation of the criterion, and that the profile otherwise 
meets all elements as described above. However, we note that the criterion also states that the evidence 
shall include the title, date, and author of the material. Because none of this information is present in 
this material, it does not meet the requirements of this criterion. 
The material published on commarts.com consists of the Petitioner's profile, which is also missing a 
date of publication and author, and consists of photographs showing some of his work. Also included 
were a series of photographs of an installation at th ~-----------~ inl I which 
also lists the Petitioner as a contributor among others, and a feature article about one of his former 
employers.I I that does not mention him. As with the SEGD profile, the commarts.com 
profile lacks essential information to qualify under this criterion. Further, the other materials are not 
about the Petitioner: the material on the I I installation does not provide information about the 
Petitioner other than his name and job title, and the article aboutl I is about the history and 
founders of that company. As such, none of this material meets all of the required elements of this 
criterion. 
Evidence of the alien's original scient[fic, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v) 
In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v), a petitioner must establish that not only 
has he made original contributions, but that they have been of major significance in the field. For 
example, a Petitioner may show that the contributions have been widely implemented throughout the 
field, have remarkably impacted or influenced the field, or have otherwise risen to a level of major 
significance. See Visinscaia, 4 F. Supp. 3d at 134-35. 
In his initial submission, the Petitioner did not specifically claim to meet this criterion. Instead, he 
submitted two reference letters relating to his academic career and referred to these as comparable 
evidence. These letters, from two of the faculty members who served on his master's thesis committee 
at I I describe his thesis and other work which he completed as a graduate student. When 
responding to the Director's RFE, although the Petitioner continued to assert that this evidence should 
be accepted under 8 C.F.R. § 204.5(h)(4), he also stated that the evidence serves to show his original 
contributions of major significance to his field. We further note that on appeal, he briefly refers to 
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additional reference letters as establishing his qualification under this criterion, although he does not 
specifically identify the contributions to his field shown by those letters. 1 
,..;;..T=h"""e"""'l"""e=tt"""erc.;;s;.......;;.;;fr~o=m=-....---------~~ and.__ _______ ____. of .... l __ _.ls .... l _____ ___. 
'--------~ program, describe the Petitioner's work during his graduate studies. They explain 
that for his thesis, he focused on and that this work 
resulted in system that was used in the program's immersive facility. 
lists two conference papers, a doctoral dissertation and a master's thesis that cite to 
._t_h_e_P_e_t-it-io_n_e_r-'s____.thesis, which he states "confirms its pioneering importance." In her le~terl I 
I I describes other projects that the Petitioner completed during his time atl I all of 
which were included in the annual.__ ________ ___,' However, as noted in the Director's 
decision, the assertions by these experts that these were contributions of major significance to the 
Petitioner's field are not supported by documentary evidence. The record does not include copies of 
the citing articles, or other evidence which would otherwise indicate the extent and nature of the 
influence of the Petitioner's work on the authors or on the overall field . .__ ________ ___,' s 
conclusion that his work has "contributed significantly to the landscape of immersive and generative 
art as well as.__ __________ ~" simply repeats the regulatory language and provides no 
measure of the significance of the Petitioner's contributions as a graduate student, particularly to the 
broader field beyon~ I 
On appeal, the Petitioner expands his claim to this criterion to the additional reference letters submitted 
with his petition, and in particular those froml l CEO ofl I andl I 
CEO ofl I both former employers of the Petitioner. 2 These letters describe many projects 
that the Petitioner contributed to during his employment with these companies, and refer to media 
coverage of the projects which is included in the record. I l's letter concludes that the 
Petitioner's work "has contributed significantly to th~ I experiences, directly 
impacting their cultural outreach." While this is undoubtedly true, his impact on these individual 
projects does not show that his work has impacted or influenced the overall field in any way. Although 
I I also writes about the Petitioner's contribution to the company's open source software 
toolkits, which he states are widely used by others in the field of creative technology to create user 
interfaces, the record does include evidence to support this statement or show the impact of these 
toolkits on the broader field. 
Similarly, the Petitioner's work on immersive projects for the and other 
~--___,lwas described in a letter frornl I, Director o-"L---....---------,__ _ ___. 
She indicates that she worked directly with him on digital installations for the.__ ____ ~ in the 
I, and also that she is familiar with his work on an installation 
.__a_t-th-e-rl--------.-1-S_h_e_a_ls_o_r_e__,fers to the Petitioner's "significant contributions to thd I 
public space, and Creative Technology field," but does not expand upon what these are beyond the 
completion of these projects. 
1 Because the Petitioner has submitted evidence which he asserts suppo1is his claim to the cntenon at 
8 C.F.R. § 204.5(h)(3)(v), he cannot demonstrate that this criterion does not apply to his occupation as required under 
8 C.F.R. § 204.5(h)(4). We will therefore not further address his claim to have submitted comparable evidence. 
2 All of the reference letters submitted have been reviewed, including those not specifically mentioned in this decision. 
5 
Other letters also describe the Petitioner's contributions to immersive projects installed at several 
venues, and praise his work and the impact it had on these projects. However, although they confirm 
that he has played an important role in several creative technology projects which have been well 
received, they do not establish that his influence has reached beyond those individual projects to affect 
the way others in his field do their work, or has otherwise made original contributions of major 
significance. Accordingly, we agree with the Director that the Petitioner has not established that he 
meets this criterion. 
Evidence that the alien has commanded a high salwy or other significantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix) 
The Petitioner submitted several forms of information regarding his salary, including Forms W-2 for 
the years 2017, 2018 and 2019. These show that in those years, he earned more than $117,000, 
$121,000 and $125,000, respectively. To show that his salary was high in relation to others in his 
field, he submitted the May 2019 edition of the Occupational Outlook Handbook's (OOH) section 
about graphic designers, which shows that in thel I metropolitan area where he lives and 
works, the annual mean salary is $68,690. 
In responding to the Director's RFE, and specifically his statement that the record did not include 
evidence to show that his salary was high in relation to other creative technologists, the Petitioner 
asserted that no statistics were available for that specific occupation "on the BLS website," and that 
the occupation of graphic designer "most mirrors the responsibilities and aspects of [the Beneficiary's] 
position, work in the field, and achievements as a "Creative Technologist."" On appeal, the Petitioner 
repeats these arguments, and reminds the AAO that he must only establish that he has met the 
requirements for this criterion by a preponderance of the evidence. Upon review, we agree with the 
Director that he has not done so. 
We first note that the fact that salary data does not exist for the specific occupation of creative 
technologist on the websites where the Bureau of Labor Statistics salary data is posted does not relieve 
the Petitioner of his burden to submit evidence in support of his assertions. The Director's RFE 
suggested several types of evidence that could be submitted by the Petitioner to show the relative 
salaries of others in his field, including media reports, lists or reports from professional organizations 
(such as SEGD), and other compensation surveys. The Petitioner chose not to submit such evidence 
despite the Director's specific request, and does not assert that this evidence also does not exist for the 
occupation of creative technologist. 
In addition, the Petitioner provides no support other than his own assertion for his position that the 
salary statistics for the position of graphic designer serve as an appropriate basis to compare his salary 
to that of others in his field. This is particularly striking because at the bottom of the first page of the 
OOH section on graphic designers it is stated that the occupational code for that occupation, 27-1024, 
excludes "Web and Digital Interface Designers." In addition, evidence in the record repeatedly refers 
to the Petitioner's previous job titles as "developer" and "senior developer" and describe his use of 
various software tools, thereby suggesting more appropriate occupational codes for which BLS data 
is readily available. Therefore, the Petitioner has not submitted evidence to establish that his salary is 
high in relation to others in his field, and does not meet this criterion. 
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III. CONCLUSION 
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 acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. USCIS has long held 
that even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of his work is indicative of the required sustained national or 
international acclaim or that it is consistent with a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 203(b )(l)(A) 
of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and that he is one of the small percentage who has risen 
to the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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