dismissed EB-1A Case: Digital Artist

U.S. Citizenship 
and Immigration 
Services 
In Re : 16949516 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 30, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , d I artist , seeks classification as an individual 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 Petitioner had 
satisfied only two of the initial evidentiary criteria, of which she must meet at least three . 
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)(l)(A) 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 sustained 
acclaim and the 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 
categories 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(5)(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). 
II. ANALYSIS 
A. Evidentiary Criteria 
The Petitioner indicates employment as ~ I artist. Because the Petitioner has not 
indicated or established that she has received a major, internationally recognized award, she must 
satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In denying the petition, the Director determined that the Petitioner fulfilled two of the initial 
evidentiary criteria, judging at 8 C.F.R. § 204.5(h)(3)(iv) and display at artistic exhibitions or 
showcases at 8 C.F.R. § 204.5(h)(3)(vii). We will not disturb the Director's findings relating to those 
criteria. 1 
On appeal, the Petitioner asserts that she meets one additional criterion. After reviewing all the 
evidence in the record, we conclude that the Petitioner does not establish that she satisfies the 
requirements of at least three criteria. 
Published material about the individual in professional or major trade publications or 
other major media, relating to the alien's work in the field for which class[fication 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) 
In order to meet this criterion, the Petitioner must demonstrate published material about her in 
professional or major trade publications or other major media, as well as the title, date, and author of 
the material, and any necessary translation. 2 On appeal, the Petitioner asserts that she satisfies the 
1 We note that the Director determined that the Petitioner initially submitted evidence related to four other evidentiary 
criteria, membership in associations at 8 C.F.R. § 204.5(h)(3)(ii), original contributions of major significance at 
8 C.F.R. § 204.5(h)(3)(v), leading or critical roles at 8 C.F.R. § 204.5(h)(3)(viii), and commercial successes in the 
performing arts at 8 C.F.R. § 204.5(h)(3)(x), respectively, but did not satisfy these criteria. The Petitioner does not contest 
these issues on appeal and therefore we deem them to be waived. See, e.g., Matter of M-A-S-, 24 T&N Dec. 762, 767 n.2 
(BIA 2009). 
2 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14 7 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
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eligibility requirements of this criterion based on four claimed interviews of her onl I television 
shows. The Petitioner submitted YouTube screenshots of a video from the show I I 
which was broadcasted od I TV onl I 201 7, Y ouTube screenshots of a video from the 
show I I which was broadcasted onl I TV on I ,I 201 7, and Y ouTube 
screenshots of a video from the show I I' which was broadcasted onl I 
Television 1 onl 12019. The Petitioner provided transcriptions of those videos suggesting 
published material about her relating to her work. Although she also argues that she satisfies this 
criterion based on a claimed interview of her cof ducted on the show I I and 
broadcasted onl ITV inl I o~~---~2019, she did not provide a transcription of the 
interview demonstrating published material about her relating to her work. 
The Director determined that this evidence did not satisfy the requirements of the criterion because 
"screen prints and transcripts of televised interviews do not meet the plain language in the regulations 
as being 'published material,"' and, nevertheless, the record did not establish that the TV networks on 
which they were broadcasted were a major medium. On appeal, the Petitioner asserts that the 
Director's interpretation of this criterion was too restrictive. 3 We agree. The issue is whether the 
aforementioned television shows [enresent a maioJ' medium. Here, the Petitioner did not establish that 
the shows.__ ______ ___. .__ ____ ___.' or I l(epreser a major medium. 4 
Although the Petitioner provided television ratings for channels in the documentation 
submitted did not establish that these television shows constitute a major medium. In addition, the 
English translations of the above transcripts are not accompanied by a copy of the foreign-language 
transcripts or the required certification from the translator. 5 
Finally, the Petitioner argued that her evidence should also be considered as comparable evidence 
because "[t]here is no professional or major trade publications in the field ofl I 
The regulation at 8 C.F.R. § 204.5(h)(4) allows for comparable evidence if the listed criteria do not 
readily apply to her occupation. 6 A petitioner should explain why she has not submitted evidence that 
would satisfy at least three of the criteria set forth in 8 C.F.R. § 204.5(h)(3), as well as why the 
evidence she has included is "comparable" to that required under 8 C.F.R. § 204.5(h)(3). 7 General 
assertions that any of the ten objective criteria do not readily apply to an occupation are not probative 
and should be discounted. 8 Here, the Petitioner did not show why she cannot offer evidence that meets 
3 The Petitioner submits a non-precedent decision concerning a photographer who petitioned under this classification, 
noting that "[i]n this case, the AAO considered a television [show] as media but determined that petitioner did not meet 
this criterion because she failed to prove her 'appearances on the shows."' This decision was not published as a precedent 
and therefore does not bind USCIS officers in future adjudications. See 8 C.F.R. § 103.3(c). Non-precedent decisions 
apply existing law and policy to the specific facts of the individual case and may be distinguishable based on the evidence 
in the record of proceedings. the issues considered, and applicable law and policy. 
4 See USCIS Policy Memorandum PM 602-0005.1, supra, at 7 (indicating that evidence of published material in 
professional or major trade publications or in other major media publications should establish that the circulation (on-line 
or in print) is high compared to other circulation statistics). 
5 Any document in a foreign language must be accompanied by a full English language translation. 8 C.F.R. § 103.2(b )(3). 
The translator must certify that the English language translation is complete and accurate, and that the translator is 
competent to translate from the foreign language into English. Id. Here, the translations contain the typed statement, 
"Sworn interpreter and translator for Courts," the interpreter's name and telephone number. 
6 See USCIS Policy Memorandum PM-602-0005.1, supra, at 12. 
7 Id. 
8 Id. 
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at least three criteria. The fact that the Petitioner provided documentation that does not meet at least 
three criteria is not evidence that a ~------~artist could not do so. In fact, the Petitioner 
claimed to meet six other criteria. For the foregoing reasons, the Petitioner did not demonstrate that 
she fulfills this criterion, including through the submission of comparable evidence. 
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. Price, 20 I&N Dec. at 954. Here, the Petitioner has not shown that the significance 
of her 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 she is one of the small percentage who has 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). 
For the reasons discussed above, the Petitioner has not demonstrated her 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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