dismissed EB-1A Case: Digital Marketing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-O-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 19, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a digital marketing consultant, seeks classification as an individual of extraordinary 
ability in business. 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, and a subsequent motion, concluding that the Petitioner 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 asserting that he fulfills 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 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 
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Matter of P-O-
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate 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 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(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). 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). 
11. ANALYSIS 
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). In denying the petition, the Director found that the Petitioner met only one of the 
initial evidentiary criteria: leading or critical role for an organization with a distinguished reputation 
under 8 C.F.R. § 204.5(h)(3)(viii). The record reflects, for example, that the Petitioner performed in 
a critical role as a digital marketing consultant for an organization with a distinguished 
reputation. Accordingly, we agree with the Director that the Petitioner fulfilled the leading or critical 
role criterion. On appeal, the Petitioner maintains that he meets three additional criteria, discussed 
below. We have reviewed all of the evidence in the record and conclude that it does not support a 
finding that he satisfies the requirements of at least three criteria. 
A Evidentiary Criteria 
Evidence of the alien 's participation, either individually o r on a pane l, as a judge of 
the work of others in the same or an allied fi eld of specification f or which classification 
is sought. 8 C.F.R. § 204.5(h)(3)(iv). 
As evidence for this criterion, the Petitioner submitted his "Digital Marketing Process Step-by-step" 
outline for prospective clients. He also provided various "Digital Marketing" reports that he prepared 
for clients that retained his consulting services in order to develop their digital marketing strategies. 
For example, the record includes a digital marketing "Initial analysis," a "Measurement report" 
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Matter of P-O-
(August 2016), and a "Yearly analysis" (January 2018) that he prepared for Apparis, an online fashion 
boutique. In addition, the Petitioner presented a "Measurement report" (December 2017) for 
a womenswear boutique; "User acquisition" (October 2017) and "Measurement" (November 
2017 and December 2017) reports for an online talent platform; and "Initial analysis" 
and "Measurement" (July 2016) reports for _______ an art and luxury lifestyle 
publication. 
The Director determined that performing consulting services relating to clients' digital marketing 
strategies did not meet the requirements of this criterion. For example, the Director indicated that 
while providing feedback to clients demonstrated the Petitioner's competency in strategic marketing, 
his consulting work did not equate to participation as a judge of the work of others in the same or an 
allied field. The Director further noted that the phrase "a judge" implies a formal designation in a 
judging capacity, either on a panel or individually as specified in the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iv). 
On appeal, the Petitioner contends that "digital marketing professionals' judgment of the work of 
others translate [sic] into the judgments of how digital marketing strategies affect real clients." He 
further states that "judging the work of others within the digital marketing field requires judging actual 
clients' digital marketing strategies and not judging other digital marketing consultants directly from 
a bench of judges." 1 The record, however, does not include sufficient information and evidence 
demonstrating that the Petitioner's activities analyzing business strategies, issuing reports on website 
traffic, and making recommendations to clients constitute participation, either individually or on a 
panel, as a judge of the work of others in the field. Accordingly, the Petitioner has not established that 
he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field 8 C.F.R. § 204.5(h)(3)(v). 
As evidence under this criterion, the Petitioner submitted various letters of support discussing his work 
as a digital marketing consultant and documentation relating to his clients' business activities. The 
Director considered this documentation, but found that it was not sufficient to demonstrate that the 
Petitioner's work constituted original contributions of major significance in the field. For the reasons 
discussed below, we agree with that determination. 
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 contributions that were original 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 the field, or have otherwise risen to a level of major significance 
in the field. 
1 In addition, the Petitioner asserts that "the requirement that a digital marketing professional judge the work of other 
digital marketing professionals (i.e., as a bench judge) is simply not applicable to this industry." He argues therefore that 
his evidence for this criterion should be evaluated as comparable evidence under the regulation at 8 C.F.R. § 204.5(h)(4). 
We will address the Petitioner 's comparable evidence claim later in this decision . 
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Matter of P-O-
On appeal, the Petitioner asserts that the Director erred in determining that the letters of support from 
experts in the field were insufficient to meet this criterion. The Petitioner contends that he "submitted 
independent, objective evidence that corroborated the statements of his clients regarding his original 
contributions of major significance in the field." Specifically, he claims that attracting clients who 
retained his digital marketing services is corroborative evidence of his influence in the field. In 
addition, he points to two "expert opinion" letters from business education administrators, 
and who were not his clients and who discussed his digital marketing projects. 2 
We will address both of these letters below. 
With respect to the Petitioner's letters of support, the Director explained that "USCIS may, in its 
discretion, use such letters as advisory opinions submitted by expert witnesses," but noted that USCIS 
is "ultimately responsible for making the final determination of the alien's eligibility." See Matter of 
Caron Int'l, 19 I&N Dec. 791, 795 (Comm'r 1988). As a result, we evaluate the content of letters to 
determine whether they support his eligibility. See id at 795-96; 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"). 
The Petitioner argues that Matter of Caron Int'/ "addressed the question of whether a degree is required 
for a particular occupation" and therefore the decision "is irrelevant, and unsuitable" with respect to 
the facts in the instant case. Although Matter of Caron Int 'l related to a different visa classification, 
we find the aforementioned precedent decision's guidance relevant to evaluating information 
contained in recommendation letters offered under the regulatory criterion at 8 C.F.R. 
§ 204.5(h)(3)(v). 
Here, the Petitioner contends that experts in the field have offered testimony regarding his original 
contributions of major significance in the field of digital marketing. 3 However, as discussed below, 
the letters do not offer sufficiently detailed information, nor does the record include adequate 
corroborating documentation, to demonstrate the nature of specific "original contributions" that the 
Petitioner has made to the field that have been considered to be of major significance. 
For example, ===== Associate Dean for Academic Affairs in the School of Business 
at asserted that the Petitioner has "made significant and original 
contributions noted for their excellence in the field of digital marketing." Specifically, 
indicated that the Petitioner's "work with has continued to have great influence 
on the magazine's website, and marketing operations, allowing it to maintain its 
influence as a trend-setting and tastemaking publication in the art, fashion, and design worlds." 
also discussed the Petitioner's projects for and and how 
his marketing strategies improved their digital presence, but the evidence does not show that the impact 
of the Petitioner' s work for the aforementioned companies rises to the level of an original contribution 
of major significance in the field. 
2 The Petitioner argues that these t wo "expert advisory opinions are comparable evidence as s et forth by 8 C.F.R. 
§ 204.5(h)(4)." We will discuss the comparable evidence the Petitioner offers later in this decision. 
3 While we discuss a sampling of the recommendation letters, we have reviewed and considered each one. 
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Matter of P-O-
In addition, chief executive officer at stated that the 
Petitioner "is making marked and major influences on the industries that he is serving, such as gig 
economy platforms, designer fashion, art and luxury firms" and that "[h]e is able to gain the trust of 
his clients to make radical changes to their digital marketing plans, such as his ability with 
to install a total promotion pause." While further indicated that the Petitioner's work "is 
influencing the digital marketing industry because of the kind of client referrals he is gaining," the 
record does not demonstrate that his strategies have affected that industry or the field of digital 
marketing in a substantial way or that his work otherwise constitutes an original contribution of major 
significance in the field. 
Furthermore, the record contains letters from several of the Petitioner clients discussing how he 
improved their digital marketing strategies and helped expand their businesses. For instance, 
co-founder of asserted that the Petitioner's "findings and fast actions on or digital 
media presence led to the kind of growth in social engagement experience, customer base and revenue 
that had led us to really being a player in the competitive designer fashion retail business." Likewise, 
co-founder and managing director of indicated that her retail 
business "has been getting more and more press coverage and traffic because of how our digital brand 
reach is growing. Our digital presence grew substantially with [the Petitioner's] help." Similarly, 
founder of stated that the Petitioner's "work increased our platform's 
user base from roughly 15,000 users to 46,000 users as of early March 2018. Our company's main 
goal of growing our user base was essentially set on track because of [the Petitioner's] vital guidance. 
He has made an incredible impact on our startup company." 
The statements and information from the Petitioner's clients and two educators, however, are not 
sufficient to show that his work has widely affected the field beyond his clients' projects or has 
otherwise risen to the level of contributions of major significance in the field. The language of this 
regulatory criterion requires that the Petitioner's original contributions be "of major significance in 
the field" rather than mainly affecting digital marketing projects for his clients. See Visinscaia, 4 F. 
Supp. 3d at 134-35 (upholding a finding that a ballroom dancer had not met this criterion because she 
did not corroborate her impact in the field as a whole). Without sufficient evidence demonstrating 
that his work constitutes original contributions of major significance in the field, the Petitioner has not 
established that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
As evidence for this criterion, the Petitioner submitted documentation showing that he posted various 
articles to Linkedin ' s self-publishing platform. In addition, he presented information from Wikipedia 
describing Linkedin as "a business- and employment-oriented social networking service that operates 
via websites and mobile apps." The record also includes an article from Forbes.com , entitled "Read 
indicated that he taught a "Business Simulation" class taken by the Petitioner at 
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Matter of P-0-
This First, Before You Publish a Post on Linkedln," which states that "Linkedln' s platform makes 
long form publishing available to every subscriber." 5 
The aforementioned information and evidence is not sufficient to demonstrate that the Petitioner's 
articles on Linkedln' s self-publishing platform constitute "scholarly articles ... in professional or 
major trade publications or other major media." For example, the evidence does not show that the 
Petitioner's articles are scholarly in nature 6 or that Linkedln' s platform constitutes a professional or 
major trade publication or form of major media. 7 The Petitioner therefore has not established that he 
meets this criterion. 
B. Comparable Evidence 
On appeal, the Petitioner argues that the digital marketing reports that he prepared for clients that 
retained his consulting services, the expert advisory opinions, and the articles he posted to Linkedln's 
self-publishing platform should be considered as comparable to the evidence listed in the regulatory 
criteria at 8 C.F.R. § 204.5(h)(3)(iv), (v), and (vi), respectively. 8 The regulation at 8 C.F.R. 
§ 204.S(h)( 4) allows for comparable evidence if the listed criteria do not readily apply to his 
occupation. A petitioner should explain why he 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 he has included is 
"comparable" to that required under 8 C.F.R. § 204.5(h)(3). 9 
Here, the Petitioner has not shown that the listed criteria do not readily apply to his occupation. He 
has not asserted or demonstrated that he cannot offer evidence that meets at least three of the ten 
criteria. As discussed, the Petitioner has claimed to meet more than three criteria. Moreover, the 
Petitioner has not shown that digital marketing consultants cannot present evidence relating to the 
other regulatory criteria such as published material about them and commanding a high salary. See 
8 C.F.R. § 204.5(h)(3)(iii) and (ix). As such, the Petitioner has not established that he is eligible to 
meet the initial evidence requirements through the submission of comparable evidence. Furthermore, 
he has not demonstrated that the submitted documentation is truly comparable to the evidence required 
under the listed criteria at 8 C.F.R. § 204.5(h)(3)(iv), (v), and (vi), as claimed. 
5 This article provides entrepreneurial tips for those interested in building their companies' search engine optimization, but 
does not indicate that articles posted to Linkedln' s platform undergo an editorial process or that the platform otherwise 
constitutes a professional publication in the field of digital marketing. 
6 A scholarly article should be written for "learned" persons in the field. "Learned" is defined as having or demonstrating 
profound knowledge or scholarship. Learned persons include all persons having profound knowledge of a field. See 
USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14 9 (Dec. 22, 2010), 
https://www.uscis.gov/legal-resources/policy-memoranda. 
7 On appeal, the Petitioner contends that "the scholarly article standards stated by USCIS are inapplicable to his industry 
of digital marketing." He requests that his evidence for this criterion be evaluated as comparable evidence under the 
regulation at 8 C.F.R. § 204.5(h)(4). We will address the Petitioner's comparable evidence claim later in this decision. 
8 We note that our decision has already addressed this evidence under specific criteria, finding it insufficient to meet them. 
9 See USCIS Policy MemorandumPM-602-0005.1, supra, at 12. 
Matter of P-O-
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&NDec. 953,954 (Assoc. Comm'r. 1994). Here, the Petitioner 
has not shown that the significance and recognition of his work are indicative of the required sustained 
national or international acclaim or that they are 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 )(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 he 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 foregoing reasons, the Petitioner has not shown that he qualifies for classification 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. 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. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-O-, ID# 2481873 (AAO Mar. 19, 2019)