dismissed EB-1A Case: Digital Graphics Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF F-S-M-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 19, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner seeks to classify the Beneficiary, a digital graphics designer, 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 Form 1-140, Immigrant Petition for Alien 
Worker, concluding that the Beneficiary had satisfied only one of the ten initial evidentiary criteria, 
of which he must meet at least three. On appeal, the Petitioner submits a brief, arguing that the 
Beneficiary meets at least three of the ten criteria. 
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 m 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 two options for satisfying this classification's initial evidence 
Matter of F-S-M-C-
requirements. First, a petitioner can demonstrate that a beneficiary has a one-time achievement (that 
is a major, internationally recognized award). Alternatively, a petitioner must provide documentation 
for an individual that meets at least three of the ten categories of evidence listed at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) (including items such as awards, memberships, and published material in certain 
media). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit comparable material if 
it is able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not readily apply to a 
beneficiary's occupation. 
Where a beneficiary 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). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Beneficiary is a digital graphics designer with the petitioning organization. Because the Petitioner 
has not indicated or established that the Beneficiary has received a major, internationally recognized 
award, it must show that he satisfies at least three of the alternate regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). The Director found that the Beneficiary had met only one of the initial evidentiary 
criteria: leading or critical role at 8 C.F.R. § 204.5(h)(3)(viii). On appeal, the Petitioner asserts that 
the Beneficiary also meets the following criteria: awards at 8 C.F.R. § 204.5(h)(3)(i), published 
material at 8 C.F.R. § 204.5(h)(3)(iii); and high salary under 8 C.F.R. § 204.5(h)(3)(ix). Upon review 
of all of the evidence, we conclude that it does not support a finding that the Beneficiary meets the 
requirements of at least three criteria. 
A. Evidentiary Criteria 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes 
or awards for excellence in the.field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The Petitioner contends that the Beneficiary meets the eligibility requirements of this criterion based 
on the q Innovation award received by his company, I I for their project, I I I The Petitioner asserts that awards "granted to a company ultimately are an honor to and 
testament of achievement of its founders" and therefore, "[the Beneficiary] was the recipient of' the 
award. The record contains articles and recommendation letters that confirm the Beneficiary's role as 
one of the company's three members and co-founders. Regarding the company's receipt of the 2010 
D Innovation award, the Petitioner refers to a letter from I I the director of c=] 
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Matter of F-S-M-C-
Innovation. He states that "[w]e crowned [the Beneficiary's] team in 2010 as the winners of the 
competition." Though I I indicates thatc=]Innovation is "France's biggest competition of 
Design Thinking aid Oren Innovation[,]" the Petitioner has not provided supporting documentation 
to establish that the Innovation award is nationally or internationally recognized for excellence in 
the field. The Petitioner, for example, did not provide evidence, such as media articles, showing that 
winning this competition is tantamount to an award consistent with this regulatory criterion. 1 
Accordingly, the Petitioner did not demonstrate that the Beneficiary fulfills 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). 
The record contains articles from various publications and websites, such as The Next Web, Venture 
Beat, Killer Startups, Obsession, Press Citron, and Silicon Maniacs. They discuss the Beneficiary's 
company,! I and its iPhone application that is described as a game that "involves a series of 
missions which you can choose to complete, by taking a photograph that fits a certain description or 
criteria." Users can create their own missions, encourage "other people to complete them, as well as 
complete other people's missions." While the articles reference the Beneficiary's role as co-founder 
and one of three members, they are not specifically about him. Rather, the articles discuss his 
company, only briefly mentioning the Beneficiary. For example, 'I I 
c===]" contains direct quotes from one of the company's other co-founders and members, I I 
r==:::::] but does not discuss the Beneficiary. Articles that are not about a petitioner do not meet 
this regulatory criterion. See, e.g., Negro-Plwnpe 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). As the 
Petitioner has not established that the articles are about the Beneficiary, we need not address whether 
the publications in which they appeared qualify under the criterion. 2 
Accordingly, the Petitioner did not demonstrate that the Beneficiary fulfills this criterion. 
Evidence that the alien has performed in a leading or critical role.for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
The record contains evidence, such as media articles and recommendation letters, showing that the 
Beneficiary has performed in a critical role for the Petitioner, an organization that has a distinguished 
reputation. Therefore, the Petitioner has demonstrated that the Beneficiary satisfies this criterion. 
1 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 6 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
2 In addition, we note that the evidence does not demonstrate the publications qualify as major media and they should be 
addressed in any future proceeding. See USCIS Policy Memorandum PM 602-0005.1, supra, at 7. 
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Matter of F-S-M-C-
Evidence that the alien has commanded a high sala,y or other significantly high 
remuneration for services, in relation to others in the.field. 8 C.F.R. § 204.5(h)(3)(ix). 
To establish eligibility under this criterion, the Petitioner must present evidence showing that the 
Beneficiary has earned a high salary or significantly high remuneration in comparison with those 
performing similar services in the field. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 
1994) (considering a professional golfer's earnings versus other PGA Tour golfers); see also Skokos 
v. US. Dept. o_f Homeland Sec., 420 F. App'x 712, 713-14 (9th Cir. 2011) (finding salary information 
for those performing lesser duties is not a comparison to others in the field); Grims on 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. 440, 444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player 
to salary of other NHL defensemen). 
The Petitioner indicates that at the time of the petition's filing in October 2017, the Beneficiary 
received an annual salary of $155,000. The record contains a letter from I I the co-founder 
and Senior Vice President of Operations for the Petitioner. I !confirmed the Beneficiary is 
employed as their Director of Design, and his salary was raised to $170,000 in April 2018. The 
Petitioner also submitted the Beneficiary's IRS Form W-2, Wage and Tax Statements, that reflect 
earnings of $156,858 in 2017. Concerning the Beneficiary's job duties, I I stated that in his 
director role, he is "indispensable as a leader and mentor who imparts his vision to the junior 
designers" and it was his "successful effort to build an entire Department of Design" that led "to the 
change in his title from Chief Creative Designer to Director of Design." I I's letter indicates 
that the Beneficiary's duties are more closely aligned with a senior management position rather than 
the graphic design category. 
The Petitioner asserts that according to "[Department of Labor (DOL)] and industry data, [the 
Beneficiary] is paid a higher salary relative to others in his field." As evidence, the Petitioner refers 
to the DOL Office of Foreign Labor Certification Online Wage Library that shows the annual salary 
from June 2017 to July 2018 in the I IMetropolitan area ranged from $44,054 to $84,864 
for graphic designers and from $61,693 to $110,261 for multimedia artists and animators. The 
Petitioner also states that the DOL Career One Stop website reflects similar median salaries for graphic 
designers ($68,380) and multimedia artists and animators ($82,090). 
In addition, the Petitioner referred to survey data from Glassdoor, Linkedin, and Indeed as evidence 
that the Beneficiary "commands a high salary in relation to others in the field." For example the 
Petitioner claims that Glassdoor indicates the average annual salary of a graphic designer in theO 
I I Metropolitan area in 2018 was $73,367; Linkedin reflects the median base salary of"senior 
designer" was $100,000; and Indeed shows an average annual salary for a "senior graphic designer" 
as $92,928. 
However, as noted in the Director's denial, the comparative salary documentation in the record does 
not include data regarding average salaries for directors of graphic design, such as the Beneficiary, 
nor do they distinguish among differing levels of expertise, education, and years of work experience. 
Further, the 2018 Indeed documentation reflects salaries as high as $175,000 for senior digital graphic 
designers in the I I metropolitan area, which exceeds the Beneficiary's 201 7 salary of 
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Matter of F-S-M-C-
$155,000. Though the Petitioner contends on appeal that "the fact that highest paid Senior Digital 
Graphics Designers in 2018" are paid this amount proves that the Beneficiary's 2018 $170,000 salary 
is "a high salary" relative to others in the field, we disagree. As explained above, the evidence does 
not include sufficient comparative salary documentation for individuals with the Beneficiary's level 
of expertise and experience, and performing similar services as a director of graphic design, to show 
that his $155,000 annual salary at the time of filing satisfies the eligibility requirements of this 
criterion. 
For the reasons stated above, the Petitioner has not submitted evidence showing that the Beneficiary 
has earned a high salary or other significantly high remuneration relative to others in his field and not 
just a salary that is above average in his field. 
Accordingly, the Petitioner did not demonstrate that the Beneficiary fulfills this criterion. 
B. 0-1 Nonimmigrant Status 
In addition, we note that the record reflects that the Beneficiary received 0-1 status, a classification 
reserved for nonimmigrants of extraordinary ability. Although USCIS has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the Beneficiary, the prior approval does not preclude 
USCIS from denying an immigrant visa petition which is adjudicated based on a different standard -
statute, regulations, and case law. Many Form I-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); Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990). 
Furthermore, our authority over the USCIS service centers, the office adjudicating the nonimmigrant 
visa petition, 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 an individual, we are not 
bound to follow that finding in the adjudication of another immigration petition. Louisiana 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
III. CONCLUSION 
The Petitioner has not demonstrated the Beneficiary's eligibility because it has failed to submit the 
required initial evidence of either a qualifying one-time achievement or documents that meet at least 
three of the ten criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). Thus, we do not need to folly address 
the totality of the materials in a final merits determination. Kazarian, 596 F.3d at 119-20. 
Nevertheless, we advise that we have reviewed the record in the aggregate, concluding that it does not 
support a finding that the Beneficiary has the level of expertise required for the classification sought. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). Here, that burden has not been met. 
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Matter of F-S-M-C-
ORDER: The appeal is dismissed. 
Cite as Matter of F-S-M-C-, ID# 3718065 (AAO Aug. 19, 2019) 
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