dismissed EB-1A Case: Digital Art

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 05, 2024 In Re: 32220185 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a digital artist, 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 evidence requirements of this classification through 
evidence of either a major, internationally recognized award or meeting at least three of the evidentiary 
criteria under 8 C.F.R. § 204.5(h)(3). The matter is now before us on appeal pursuant to 8 C.F.R. § 
103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility as an individual of extraordinary ability, a petitioner (or anyone on the 
petitioner's behalf) must establish that they: 
• Have extraordinary ability in the sciences, arts, education, business, or athletics; 
• Seek to enter the United States to continue work in their area of extraordinary ability; and that 
• Their entry into the United States will prospectively substantially benefit the United States. 
Extraordinary ability must be demonstrated by evidence of sustained national or international acclaim 
as well as extensive documentation that their achievements have been recognized in the field. Section 
203(b)(l) of the Act. 
The implementing regulation further states that 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." A 
petitioner can demonstrate that they meet the initial evidence requirements for this immigrant visa 
classification through evidence of a one-time achievement (that is, a major, internationally recognized 
award). If such evidence is unavailable, then they must alternatively provide evidence that meets at 
least three of the ten listed criteria, which call for evidence about lesser awards they may have received, 
published material about them in qualifying media, and their authorship of scholarly articles, among 
other types of evidence. 8 C.F.R. §§ 204.5(h)(2),(3). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination, assessing whether the record shows that the 
individual possesses the acclaim and recognition required for this highly exclusive immigrant visa 
classification. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 20 l0) ( 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); Rijalv. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. ANALYSIS 
The 
Petitioner is a digital artist who produces works in the surrealist photomontage genre. At the time 
of filing he was employed in the United States as a digital art director pursuant to O-lB nonimmigrant 
status, and was also involved in digital art workshops and mentoring other artists. He states that he 
plans to continue these latter activities. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he 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 determined that the Petitioner met one of the evidentiary 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to the display of his work at artistic exhibitions. We 
agree. On appeal, the Petitioner asserts that he also meets an additional four evidentiary criteria. 1 
After reviewing all of the evidence in the record, we conclude that he does not meet at least three of 
the evidentiary criteria. 
Documentation ofthe alien 's receipt oflesser nationally or internationally recognized 
prizes or awards for excellence in the field ofendeavor. 8 C.F.R. § 204.5(h)(3)(i) 
To meet this criterion, a petitioner must establish that they have received prizes or awards, which were 
granted for excellence in their field of endeavor, and that the prizes or awards are nationally or 
internationally recognized in their field of endeavor. 
The Petitioner does not challenge the Director's conclusion that he does not meet the criterion at 
8 C.F.R. § 204.5(h)(3)(iv) relating to his pa1iicipation as a judge of the work of others in his field. An issue not raised on 
appeal is waived. See, e.g.. Matter of O-R-E-, 28 I&N Dec. 330,336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 25 I&N 
Dec. 657,658 n.2 (BIA 2012)). 
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1 
The Petitioner initially claimed to meet this criterion based upon his selection as an "Honoree" for the 
I !Awards in 2019 in the "Social: Art & Culture" category, and his selection as a finalist for the 
2023 "iCanvas Digital Art Award." In his decision, the Director concluded 
that the record did not establish that the Petitioner received a prize or award from either competition. 
In his appeal brief: the Petitioner does not challenge the Director's decision regarding the I I 
I Iand refers to previously submitted evidence regarding his selection as a I I 
honoree. That evidence includes a page from thel IAwards website his selection as an 
honoree, another page describing the judging process, and an email from the A wards informing 
him that his work has been recognized. The judging process information states that in the first round 
of judging, five nominees are selected for each award category, from which one winner is selected in 
the second round. It adds that up to 15% of the remaining entries (20% in the email) can receive 
"special commendation" as honorees. 
The first element of this criterion requires that an individual receive a prize or award. The Petitioner 
has submitted evidence that his name appears on the I I website as an honoree, but does not 
indicate ( or submit evidence showing) what prize or award he received as a result of this selection. In 
addition, being selected as a nominee for an award, in this case al Istatuette in the Social: Arts 
& Culture category, is not equivalent to winning that award. Here, the Petitioner was not selected for 
the short list of nominees for the award, and thus was not eligible to receive the award. We agree with 
the Director's conclusion that the Petitioner has not established that he received a I I award. 
In addition, even if the Petitioner had established that he received a I I award, we also agree that 
the Petitioner has not established that his selection as an honoree is nationally or internationally 
recognized. The Director noted in his decision that while a story about the I I awards appeared 
in the New York Times onl 12006, the article stated that the 
title was "self-proclaimed," which did not support a showing a national or international recognition. 
On appeal, the Petitioner asserts that the Director placed undue emphasis on this phrase, and restates 
his response to the Director's request for evidence (RFE), in which he stressed the importance of the 
New York Times reporting on the I I awards in showing their recognition. But we note that the 
article also referred to the awarding organization as "the grandly titled 
and focused on the "quirky" nature of the proceedings. While we 
recognize the stature and reach of the New York Times, the content and tone of the article does not 
convey recognition of a prestigious award. 
Other evidence in the record regarding the recognition of I I awards was posted by the Public 
Broadcasting System and the I !Public Policy Center on their own websites. The articles 
promote their own programs and websites which were nominated for I I and encourage readers 
to cast votes for their nominees in the I I People's Voice Awards categories. While both the latter 
article and another very brief article published in the Los Angeles Times mention the I I 
I I moniker, this phrase carries reduced weight in the context of self-promotional materials. 
More importantly, this evidence does little to show that the I I awards are recognized in the 
Petitioner's field of digital art, as neither of the organizations promoting their nominations are involved 
in that field. Further, there is scant mention of the Petitioner's selection as al I honoree in the 
remainder of the record, including interviews of him published after 2019, indicating that neither the 
Petitioner nor the interviewers considered his selection as a !honoree worthy of emphasis. 
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For all of the reasons discussed above, we agree that the Petitioner has not established that he meets 
this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classification is sought. 
Such evidence shall include the title, date, and author of the material, and any 
necessa,y translation. 8 C.F.R. § 204.5(h)(3)(iii) 
To meet this criterion, a petitioner must submit evidence of published material that is about them and 
relates to their work in their field of endeavor. The material must include the title, date, and author 
information, and must be published in a professional or major trade publication or other major 
medium. Also, in compliance with the regulation at 8 e.F.R. § I 03.2(b )(3), materials in a foreign 
language must be accompanied by a certified English translation. When determining whether material 
was published in one of the qualifying types of media under this criterion, relevant factors include the 
intended audience and the relative circulation, readership, or viewership of the publication. See 
generally 6 USCIS Policy Manual F.2(B)(l), www.uscis.gov/policy-manual. 
The Petitioner submitted several articles which are about him and his work as a digital artist. These 
articles were published on websites including I I petapixel.com, thisiscolossal.com, 
boredpanda.com, mymodemmet.com, forbes.com, worldjoumal.com and others, including several 
which appear to be what is described in the record as "inspiration biogs." Regarding the articles 
published on the latter two websites, these were published after the date the Petitioner filed his petition. 
Eligibility must be established at the time of filing. 8 e.F.R. §§ 103.2(b)(l), (12); Matter ofKatigbak, 
14 I&N Dec. 45, 49 (Reg'! eomm'r 1971). A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 
(eomm'r 1998). Accordingly, we will not consider these two articles. 
In his decision, the Director reviewed the evidence from similarweb.com regarding visitation statistics 
for the websites where the articles were published, and concluded that this information did not 
establish that the websites qualified as professional or major trade publications or other major media. 
Specifically, he stated that visitation statistics differed from viewership of a website, and thus that the 
evidence from similarweb.com was "not useful" in determining whether a publication is a 
professional, major trade, or other major medium. On appeal, the Petitioner cites to a description of 
page visits of websites and asserts that the statistics presented do not include involuntary visits to a 
website as suggested by the Director. 
users may not utilize novel substantive or evidentiary requirements beyond those set forth at 8 e.F .R. 
§ 204.5. See Kazarian, 596 F.3d at 1221, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 
(9th eir.2008). Here, the Director's dismissal of the evidence presented was not based on the plain 
language of the statute, regulations, or relevant users policy, which acknowledges that professional 
or major online publications are a form of media which may qualify under this criterion. The evidence 
shows thatl lranks relatively high in global and country visitation, and thus qualifies as a 
major medium. On the other hand, while boredpanda.com has similarly high visitation rankings, 
particularly in the category "Other Arts & Entertainment" in the United States, this website is referred 
to as an inspiration blog in one of the reference letters in the record, and advertises that "Anyone can 
4 
write on Bored Panda." As the evidence does not provide statistics for the particular blog page in 
which the material about the Petitioner and his work was published, the Petitioner has not established 
that this material was published in one of the qualifying media types. 
Accordingly, we disagree with and withdraw the Director's determination regarding this criterion, and 
conclude that the Petitioner has established that he meets its requirements. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions ofmajor significance in the field. 8 C.F.R. § 204.5(h)(3)(v) 
To meet the requirements of this criterion, a petitioner must establish that not only have they 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. 
The Petitioner asserts on appeal that the Director erred in his decision by not considering the content 
of several reference letters submitted, as well as the work he created for several well-known 
organizations. Those letters include two which focus on what the Petitioner considers to be his most 
significant contribution: the selection of his art as the splash screen for I I for 2021. 2 
R-D-, a product manager forl Istates that the Petitioner was part of the company's! I 
team of artists who helped the company design I I for use on the and that the unveiling 
of his splash screen art took place at the company's annual conference. R-D- notes that eight million 
people use I I every month, and that the Petitioner's work was featured in marketing the 
product. This letter verifies that the Petitioner's I I gained broad exposure through its 
featured use in thel Iapplication and marketing, but does not establish that it widely impacted 
or influenced other artists who were exposed to it in using the application. 
R-W- , an author of two books featuring the work of artists using notes that the Petitioner 
was featured in his second book. He also calls the splash screen selection 
and states that through it many other artists were inspired and influenced by the 
Petitioner's work. While we recognize the writer's expertise and skills in using and teaching 
his statement regarding the prestige of the splash screen selection is not otherwise 
supported in the record. Also, as with the letter above, he does not show that by being exposed to the 
Petitioner's work, other digital artists were influenced by it in producing their own artworks. 
E-J-, a fellow digital artist working in photomontage surrealism, lauds the Petitioner's skill and 
style, noting that the scaling of animals is a hallmark of his work. He also comments on the 
splash screen, stating that the selection of the Petitioner's work place him as a "top of the line artist 
using this software." In addition, E-J- notes the Petitioner's social media following and the displays 
of his work in inspiration biogs. As previously discussed, the record includes evidence of the 
Petitioner's work in several of these inspiration biogs and thus supports the writer's statements in that 
2 We have reviewed and considered all of the letters in the record, including those not specifically mentioned in this 
decision. 
5 
regard. But the writer does not describe a specific original contribution made by the Petitioner that 
has impacted the field of digital art to the extent that it is of major significance. 
In addition to the reference letters, the Petitioner asserts on appeal that the use of his work in 
connection with the Grammy Awards and the United Nations, as well as large, multinational 
corporations, shows that it has been "widely implemented." But the evidence shows that the 
Petitioner's work was used as part of a marketing campaign by the I I change in connection 
with its partnership with the Grammy A wards, not that it was displayed as a part of the Grammy 
Awards as the Petitioner suggests. Similarly, while the Petitioner's work was displayed, together with 
that of many other artists, at the Exhibition in conjunction with a United Nations 
conference inl IPortugal, the evidence does not show that it was "implemented" by the United 
Nations as the Petitioner asserts. 
The evidence shows that the Petitioner's work has been incorporated into marketing campaigns by 
well-known companies such as and has gained exposure through the I I 
application and inspiration biogs. In addition, the letters demonstrate that other artists respect his style 
and use of technology in creating his work. However, the record does not establish that the Petitioner 
has made an original contribution of major significance to the filed of digital art. 
Evidence that the alien has pe1formed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
To meet the requirements of this criterion, a petitioner must first establish that they have served in a 
role that was either leading or critical for an organization or establishment, or a department of division 
thereof, and that the organization, establishment, department, or division has a distinguished 
reputation. Evidence of a leading role may include a title and matching duties, and should indicate 
that the petitioner is or was a leader. Evidence supporting a critical role should show that the petitioner 
has contributed in a way that is of significant importance to the outcome of the organization's or 
establishment's activities, or those of a division or department. Second, a petitioner must show that 
the organization or establishment, or department or division thereof: for which the leading or critical 
role was performed has a distinguished reputation. Factors may include the size, longevity, media 
coverage, awards, and industry rankings of the organization, establishment, department, or division. 
See generally 6 USCIS Policy Manual F.2(b)(l). 
The Petitioner asserts on appeal that the Director erred in relying in part upon his statement that he 
was transitioning out of his role for his employer at the time of filing, noting that the plain language 
of this criterion allows for consideration of current and previous roles. We agree that past roles are 
considered under this criterion, but note that the Director did not rest his conclusion on this factor 
alone. He also considered the letter from the Chief Executive Officer (CEO) of his employer, 
originally submitted in support of a nonimmigrant visa petition filed for the Petitioner, in which the 
CEO describes the Petitioner's duties as digital art director. Although the title of "director" implies 
leadership duties, and the CEO indicates that the Petitioner supervises design staff, the letter does not 
indicate that the Petitioner leads a specific department or division of the company. It also does not 
provide sufficient context to show that the Petitioner's role was leading for the overall company. 
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As for whether the Petitioner's position was critical for his employer, the CEO writes that the 
Petitioner's expertise in digital art "cements the agency's name in the market but also serves as a 
beacon, attracting new clientele," and goes on to note that the Petitioner "created successful campaigns 
with our biggest clients," and that he "develops our business and brings high-profile clients." While 
attracting clients is important for any business, the letter lacks sufficient detail to demonstrate that the 
nature and amount of business brought in by the Petitioner, and any resulting revenue or reputation, 
has been of significant importance to his employer's operations. 
In addition, even if the Petitioner had established the first element of this criterion, he has not shown 
that his employer enjoyed a distinguished reputation. The record includes a photograph of a trophy 
for the 2019-2020 __________ wards received by the Petitioner's employer, but 
no further information regarding the award. Despite the Petitioner's emphasis on the company's 
receipt of an I I the record does not show that this award conveys the same recognition and 
reputation as the more commonly known I I award granted on a national and international basis. 
On appeal, the Petitioner submits copies of the company's webpage which shows the logos of clients 
for which it has completed projects, asserting that this list of "major multinational clients" 
demonstrates its distinguished reputation. This list differs slightly from that previously provided in 
the CEO's letter, but carries the same evidentiary weight. We acknowledge that the Petitioner has 
submitted evidence that matches two of the factors considered when determining an organization's 
reputation, but as with the evidence concerning the award discussed above, this documentation lacks 
sufficient depth concerning the nature and longevity of the company's relationship with these clients 
to demonstrate that it has a distinguished reputation. 
Based on the above, we conclude that the Petitioner has not established that he meets this criterion. 
B. Previous Approvals for O-1B Nonimmigrant Status 
We note that the record reflects that the Petitioner received 0-1 B status, a classification reserved for 
nonimmigrants of extraordinary ability in the arts. Although USCIS has approved at least two O-1B 
nonimmigrant visa petitions filed on behalf of the Petitioner, the prior approvals do not preclude 
USCIS from denying an immigrant visa petition which is adjudicated based on a different standard -
statute, regulations, and case law. The nonimmigrant and immigrant categories have different criteria, 
definitions and standards for persons working in the arts. "Extraordinary ability in the field of arts" in 
the nonimmigrant O-1B category means distinction. 8 C.F.R. § 214.2(o)(3)(ii). However, in the 
immigrant context, "extraordinary ability" reflects that the individual is among the small percentage 
at the very top of the field. Moreover, each petition is separate and independent and must be 
adjudicated on its own merits, under the corresponding statutory and regulatory provisions. 
C. Coming to the United States to Work in Area of Expertise 
While no offer of employment or labor certification is required for this classification, a petitioner must 
submit clear evidence that they are coming to the United States to continue working in their area of 
expertise. This evidence may include letters from employers, evidence of prearranged commitments, 
or a statement from the petitioner detailing their plans. 8 C.F.R. § 204.5(h)(5). 
7 
In his decision, the Director concluded that the Petitioner's statement was not sufficiently detailed 
regarding his plans for working in the Untied States, and that he had not submitted sufficient evidence 
of prearranged commitments. On appeal, the Petitioner highlights letters and emails showing interest 
from several organizations in continuing to work with the Petitioner. We agree that this evidence, 
together with his statement, is sufficient to show how the Petitioner will continue to work as a digital 
artist in the United States, and withdraw the Director's conclusion to the contrary. 
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 have reviewed 
the entire record and conclude that it does not establish that the Petitioner has 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 those 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 ofPrice, 20 I&N Dec. 953,954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of their 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. lO1-723, 59 (Sept. 19, 1990); see also section 203(b )( 1 )(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 they are one of the small percentage who have 
risen to the very top of the field of endeavor. See section 203(b)(l)(A) of the Act and 8 C.F.R. § 
204.5(h)(2). 
ORDER: The appeal is dismissed. 
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