dismissed EB-1A Case: E-Commerce

U.S. Citizenship 
and Immigration 
Services 
In Re: 7403421 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 13, 2020 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an e-commerce based gourmet food delivery company, seeks to classify the Beneficiary, 
its chief executive officer (CEO), 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 
established that the Beneficiary meets only two of the ten initial evidentiary criteria for this 
classification, of which he must satisfy at least three. 
On appeal, the Petitioner asserts that the Beneficiary meets up to three additional criteria and is 
otherwise qualified for the benefit sought. 
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) 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 a 
beneficiary's 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 it must provide sufficient qualifying documentation on behalf of the 
beneficiary 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). 
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). 
II. ANALYSIS 
The Petitioner operates an e-commerce based business that allows'------~----' customers to 
order individual gourmet meals prepared by private chefs for home delivery. The Beneficiar has 
been em lo ed in the United States as the Petitioner's CEO since 2016. He is also a founder of 
and 
.__ _____ ----r----,__ ________________ ____,, , as well as the founder 
and chairman of a restaurant group that includes the aforementioned Argentina-based '-----~ 
businesses. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that the Beneficiary 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 Beneficiary met two of the evidentiary criteria, relating to published 
materials and leading roles in organizations that have a distinguishTi reputation ]he record reflects 
that the Beneficiary and his business partner were featured in a~----~ issue of Forbes 
magazine (Argentina edition) and therefore we agree with the Director's determination that the 
evidence satisfies the published materials criterion at 8 C.F.R. § 204.5(h)(3)(iii). In addition, we agree 
that the Petitioner t,rovided suffirent evidence to establish that the Beneficiary served in a leading 
role forl and the other I companies, as well as evidence to establish that these 
businesses enjoy a distinguished reputation in Argentina. 8 C.F.R. § 204.5(h)(3)(viii). 
On appeal, the Petitioner asserts that the Beneficiary meets up to three additional criteria, discussed 
below. After reviewing all of the evidence in the record, we find the Petitioner has not established 
that the Beneficiary meets at least three criteria. 
Documentation of the individual'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) 
2 
In order to fulfill this criterion, the Petitioner must demonstrate the Beneficiary's receipt of lesser 
nationally or internationally recognized prizes or awards for excellence in the field of endeavor. 1 The 
description of this type of evidence in the regulation provides that the focus should be on "the alien's" 
receipt of the awards or prizes, as opposed to his or her employer's receipt of the awards or prizes. 2 
The Petitioner initially claimed that the Beneficiary satisfied this criterion based on the following: 
• CEO of the Year (2013), awarded bvl !Argentina 
• Forbes Argentina- I I 
• Mobile Marketing Association's 2013 I IAward awarded tq !(Bronze 
award in mobile commerce) 
• Golden Fork Award for "Best Restamant wit: Delivery,",....a .... w ..... a .... r .... d ... e .... d ..... t .... o'Ll ___ ~ _____ ____J 
• 20141 I Restaurant itj._ _____ _.Jawarded tol I by Cuisine et Vins 
magazme. 
The Director determined that the Petitioner did not establish that the Beneficiary himself was the 
recipient of the awards issued tol land.__ _____ __. We agree with the Director's 
determination with respect to these awards and note that the Petitioner has not contested that 
determination on appeal. 3 
In regard to the 2013 CEO of the Year award from I I Argentina, the Director acknowledged that 
the Petitioner provided evidence that the Beneficiary, as opposed to his company or employer, was 
the recipient of the award. However, the Director determined that the Petitioner did not provide 
sufficient supporting evidence to demonstrate that the Beneficiary received a nationally or 
internationally recognized award for excellence. Specifically, the Director noted that the record lacked 
evidence from the awarding entity demonstrating the criteria used to grant the award, information 
regarding the number of prizes awarded, or other information, such as public announcements or media 
announcing the award winners. 
On appeal, the Petitioner asserts that the Director "misapplied the regulations" by requiring a public 
award announcement, and emphasizes that "the regulations only require that the award be of national 
or international recognition." In addition, the Petitioner maintains that the award was accompanied 
by a blog post published onl !Argentina's website, which served as public announcement of the 
Beneficiary's receipt of the award. 4 
~e with the Director's determination that the Petitioner did not establish that the Beneficiary's 
L__JArgentina CEO of the Year award is a nationally or internationally recognized award for 
excellence. The Petitioner described! las "an invitation-only membership organization, which 
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 Id. 
3 We note, however, that we considered these awards in determining that the Beneficiary has held a leading role with 
organizations or establishments that have a distinguished reputation. See 8 C.F.R. § 204.5(h)(3)(viii1----------, 
4 The Petitioner also submits new evidence demonstrating that the announcement appeared on L__J Argentina's 
Facebook page. 
3 
is highly selective and ... is composed of multimillion dollar corporations, executive officers, and 
business owners," with 20,000 members and affiliates in 16 countries. However, the fact that the 
organization is international is not sufficient to establish that any award granted by the organization 
(or one of its country affiliates) is a nationally or internationally recognized prize or award for 
excellence that meets the plain language of this criterion. 
USCIS policy guidance provides that relevant considerations regarding whether the basis for granting 
the prizes or awards was excellence in the field include, but are not limited to, the criteria used to grant 
the prizes or awards, the national or international significance of the prizes or awards in the field, and 
the number of awardees or prize recipients as well as any limitations on competitors. 5 The Director 
did not misapply the regulation to the facts presented in determining that the award certificate, the 
blog post, and general information about the awarding entity were not sufficient to establish that all 
elements of the criterion were met. 
The Beneficiary's award certificate froml !Argentina indicates that he was recognized "[f]or 
his outstanding contribution in I IN° 51 coordinated by the Chairl I,, 
However, the record does not clarify to what "Group N° 51" refers or identify the Benerciar~ s I 
"outstanding contribution" to this group. The evidence suggests that the awards granted by 
Argentina were likely limited to members, but the record otherwise contains no information regarding 
how the award recipients were selected. Further, although the Petitioner provided evidence that 
I !Argentina recognized the 2013 winners on its own website's blog and on social media, the 
record does not demonstrate that the award is nationally recognized in the field, as opposed to 
recognized within the I I Argentina organization. Therefore, I e ag,cel with the Director's 
determination that the Petitioner did not establish that the Beneficiary's Argentina CEO of the 
Year award meets this criterion. 
Finally, the Petitioner claims on appeal that the Director overlooked or disregarded evidence that the 
Beneficiary was recognized by Forbes magazine (Argentina) in its I I issue published in 
I I 2013. The Petitioner correctly notes that the Director did not discuss this evidence under the 
awards criterion. 
However, the record does not establish that the Petitioner's recognition by Forbes magazine is a "prize 
or award" as reauired hv the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i). The 
Beneficiary andl Is chief financial officer were recognized in the magazine, which contains 
a foll-page photograph of them and a brief article that discusses their success in growing the~ 
I I chain in the city." The Petitioner did not provide evidence that the 
Beneficiary received an award or prize from Forbes Argentina, and did not respond to the Director's 
request for evidence such as a photograph of the award or copy of the award certificate. Therefore, 
while we acknowledge that an appearance on a Forbes list such as this one provides notable publicity 
that satisfies the published materials criterion and would be weighed under a final merits 
determination, the record does not establish that it is a prize or award that satisfies all elements of this 
criterion. 
5 See USCIS Policy Memorandum PM 602-0005 .1, supra at 6 (indicating that an award limited to competitors from a 
single institution, for example, may have little national or international significance). 
4 
Documentation of the individual'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) 
The Petitioner argues that the Beneficiary meets this criterion based on: (1) his membership in 
in which he is also a founder oftheOArgentina chapter; and (2) L_ ____________ --,.J-'~~==, 
the Petitioner's acceptance as an.__ __ __,accelerator program participant. In order to satisfy this 
criterion, the Petitioner must show that the Beneficiary is a member of an association and that such 
membership is based on being judged by recognized national or international experts as having 
outstanding achievements in the field for which classification is sought. 6 
As it relates toO the Petitioner rovided screenshots from the or anization's website which describe 
Oas "a.__ ___________ ~----~~-~-----------' According to 
the website, a prospective member "must be the owner, founder or rnajorit stakeholder of a business 
earning a minimum o~ land' corn anies 
must have either privately raised fonds of at lea~ I, publically-raiseµ..:fi.qds of.__ ___ __,, 
and a minimum of 10 employees." According to the information published byLJ once a membership 
application is received, it "will be reviewed by your local chapter to ensure that all criteria is [sic] 
met." 
The Os website reflects that, after receipt and initial review of a~lication, the local chapter 
schedules an interview "to farther explore [the applicant's] interest inLJ" 7 However, based on this 
limited description of the interview stage, it does not appear to involve additional requirements or 
substantive review by national or international experts to determine whether a given applicant has 
demonstrated outstanding achievements. Therefore, the record does not substantiate that D s 
membership application extends beyond requiring that that an applicant be an owner, founder or 
majority stakeholder of a company that meets the stated income and financing requirements. 
On appeal, the Petitioner maintains that satisfying□ s minimum income and financing requirements 
is in itself evidence of an outstanding achievement. It submits an article ublished by Inc. magazine, 
which rnentionsOas an organization "that maintains a level of eer ualifications 
for entry," and an article from Fundera which states that '.__~------~-----------' 
I , I" While the record reflects tha0sets what appears to be a fairly high bar for membership, 
the fact remains that it is an objective, bright-line threshold. Based on the information provided 
regarding the membership requirements, it is reasonable to conclude that an applicant who meets this 
6 See USCIS Policy Memorandum PM 602-0005.1, supra, at 6 (providing an example of admission to membership in the 
National Academy of Sciences as a Foreign Associate that requires individuals to be nominated by an academy member, 
and membership is ultimately granted based upon recognition of the individual's distinguished achievements in original 
research). 
7 We note that former counsel stated that the interview with the D local chapter involves "fmther scrutinizing [an 
applicant's] talents and entrepreneurial spirit and extraordinary ability before approving the applicant for membership," 
but this statement was not supported by the information provided on the Dwebsite, and this claim has not been repeated 
on appeal. Asseitions of counsel do not constitute evidence. Matter of Obaigbena, 19 T&N Dec. 533, 534 n.2 (BIA 1988) 
( citing Matter of Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BIA 1980)). Counsel's statements must be substantiated in the 
record with independent evidence. 
5 
threshold and pays the membership dues will be granted membership. The Petitioner did not establish 
thatOrequires outstanding achievements of their members, as judged by recognized national or 
international experts in their disciplines or fields (emphasis added). 8 C.F.R. § 204.5(h)(3)(ii). 
The record also establishes that the Beneficiary is one of eight founding board members of Os 
Argentina chapter. The Petitioner provided a partial copy of0s Chapter Formation Guidebook, 
and asserted that "not everyDmember is qualified and capable of leading a group of officers in 
creating a local chapter in their community." The "Chapter Launch Application" found in this 
guidebook requires basic information regarding the proposed chapter, the name of the "Chapter 
Champion," and the names of eight founding board members. However, the Petitioner did not 
establish that the founding members are required to meet membership requirements other than those 
applicable to regular members, despite taking on additional responsibiities. Further, the record does 
not establish that founding board members for a new chapter undergo a process in which they are 
judged by national or international experts based on their outstanding individual achievements. 
Therefore, the record does not establish that the Beneficiary's membership on the0Argentina board 
satisfies this criterion. 
The Petitioner also maintains that the Beneficiary satisfies this criterion based on his association with 
I la.__ ___________ __. The record contains media coverage of~ lthat 
establishes that the program is both highly-regarded and very competitive. The program has two 
application cycles annually which typically draw applications from approximately 2000 companies, 
with only 12 or so companies accepted. The Petitioner submitted an article published by StrictlyVC, 
which indicates that program applicants "are asked to submit a two-minute video, along with an essay, 
about their company." Based on these materials,! 0 ~s two co-founders choose between 100 
and 200 teams for interviews, and eventually "choor a dozen of them to coach over the following 10 
to 12 weeks." The teams selected receive froml O I in exchange for~ , I 
share of their company, and at the end of the mentorship program, the company's co-founders work 
with the startups for six additional weeks to secure I I. After that, each company becomes 
an alumnus of the program and the cycle begins again. 
The Petitioner submitted a I 12015 letter from I I founder and managing director, 
I I who addresses the highly competitive nature of the program and notes that it makes 
"the endorsement from I ~highly elite and prestigious international membership and award." 
I I explains thatl O _ chooses start-ups with "company founders who already have a 
history of extraordinary entrepreneurial and leadership accomplishments," noting that they consider 
"the potential for the business to generate a massive impact, as well as the personal qualifications of 
the founders and their ability to lead a company from inception along the critical trajectory towards 
success." 
However, the totality of the evidence provided regarding I ~ and its activities does not establish 
that its start-up incubator program is an "association" in the Beneficiary's field or that it admits 
individuals as "members" as required by the plain language of the criterion at 8 C.F.R. 
§ 204.5(h)(3)(ii). For example, the announcement of new program participants on I Is 
website lists company names, not the names of the participating companies' founders. While the 
evidence supports the Petitioner's claim that it was accepted to this program, in part, based on the 
Beneficiary's past business achievements and proven leadership abilities, the Beneficiary's 
6 
membership as an individual in an assocrnt10n in accordance with the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ii) has not been established. For the foregoing reasons, the Petitioner has not met this 
burden. 
Evidence of the individual's original scientific, scholarly, artistic, athletic, or business­
related contributions of major sign[ficance in the field. 8 C.F.R. § 204.5(h)(3)(v) 
The Petitioner maintains that the Beneficiary has made original contributions of major significance in 
the food service industry based on his leadership of both I land the petitioning company. The 
Petitioner also asserts that the Director did not apply the preponderance of the evidence standard in 
determining that the Beneficiary's acknowledged original contributions were not shown to be of 
"major significance." 
In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v), a petitioner must establish that the 
beneficiary has made original contributions of major significance in the field. 8 The contributions must 
have already been realized, rather than being prospective possibilities. It must also establish that the 
Beneficiary's contributions rise to the level of major significance in the field as a whole, rather than 
to a project or to an organization. The phrase "major significance" is not superfluous and thus has 
meaning. See Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F.3d 28, 31 (3d Cir. 1995), 
quoted in APWU v. Potter, 343 F.3d 619, 626 (2d Cir. 2003). 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 in the field. 
With respect tol I the Petitioner maintains that the Beneficiary made a contribution of major 
significance to the food delivery industry in Argentina. Specifically, it states that he 1 I 
I , I food for all Argentinians" based on his "ingenious marriage of smartphone ordering and 
marketing a previously! I food item to a mass audience ?t lourrir price P,Oints." The 
Petitioner asserts that the Beneficiary's selection for the Forbesllist, and I , ~s 
receipt of a Mobile Marketing Association! I bronze award for mobile commerce, are strong 
evidence of the company's major impact on the industry. Upon review of this evidence, as well as 
testimonials and other media coverage regarding! I the Petitioner has not established the 
major significance of the Beneficiary's contribution to Argentina's food industry. 
A 2011 article published by La Nacion, j I' indicates thatl l's 
original business model was to 'I I' that could compete at the same 
price point ar pjzza and evipanadas" and to spread the market beyond the existing dine-in I I 
restaurants in~_ ----~J Another 2011 article titled 'published by Clarin, 
includes quotes from the Beneficiar about and its business model, but also quotes 
representatives from I I and '-------1 which appear to operate simi~elivery 
businesses in the same geographic area in Argentina. The article acknowledges c===:J as the 
"leading company in the delivery category," but does not support the Petitioner's claim that the 
company remarkably impacted the industry in which it operates. Similarly, an article published by 
Brando magazine, notes that I ts business has "modified the frequency and habit in the 
followers of this food," but it does not establish that the Beneficiary's business model rises to the level 
8 See USCIS Policy Memorandum PM 602-0005.1, supra, at 8. 
7 
of an original business contribution of major significance. On appeal, the Petitioner also re-submits 
and references an article in PlanetaJoy, "a prominent Argfutiuiau food m1~lication," titled I I 
.__ ___ ---. _________ __,_._"_T_h_e_a_rt_,icle is about~_ -----~Jrestaurant, but mentions 
"the ownersi..,------i-----,--,---....,..,....-,-----,1" in its introduction to the restaurant. The passing 
reference to ~--.......... as "revolutionary" in this article does not provide sufficient information to 
explain how the Beneficiary remarkably influenced his field by implementing the concept of ~ I 
delivery business. 
The Petitioner also submitted testimonials from business experts and investors who highly pr~ 
Beneficiar( s business acumen and , , achieved withl 19 For exampleL__J 
I Executive Chairman o '--~-~---' states that the Beneficiary, with little overhead, 
"was able to popularize and commodity L--___,-__,way that it had never been in Argentina, making 
the food into a cultural fad and elevating · · illion dollar franchise" I I 
~ I Chairman and Board Director with , notes that I I "made an 
1 J food accessible to thousands of consumers by creating an e-commerce model with 
commissary kitchen and delivery messengers, which cut the costs ar5ociated ]lith traditional brick and 
mortarl !restaurants." I ~ states that the.__ __ _____. business model, "which 
integrated technology, the current economic trends, and the consumer demand, provided a completely 
novel method of operating a business in the food industry, pushing the boundaries of traditional 
restaurants." While he praises the originality of the Beneficiary's idea, he does not describe in detail 
how the Beneficiary's business model remarkably impacted the food industry in Argentina or beyond. 
With respect to the petitioning company, the Petitioner states that, as of the date of the appeal, it has 
raised cumulative investments of nearly $6.5 million, and emphasizes that "the brand is unique from 
competitors in the meal preparation delivery industry in that its meals come pre-made from private 
chefs, providing the work of accomplished chefs to consumers at affordable prices." The Petitioner 
maintains that the concept behind the company is of major significance in the food industry "q.S....the., 
first affordable private chef-to-consumer service directly fulfilling a U.S. consumer need in theL_J 
I • lmarket." The supporting evidence reflects that the Petitioner's business plan is based on a 
novel concept, has received considerable interest and fonding from investors, and has achieved steady 
growth since the Petitioner relocated to the United States to direct the company as its CEO in 2016. 
However, the Petitioner has not articulated a claim that the company has had a wider impact on the 
food industry, as opposed to offering a well-received new food delivery option to consumers in some 
parts ofl I 
The Petitioner provided a letter froml I Vice President of.__ _________ who 
praises the Petitioner's creative business talent, notes that investors consider the petitioning company 
to be a "promising venture" expected to "grow aggressivelf' and opines that the Beneficiary "will 
make a great contribution to the United States." In addition,_ I expresses his 
opinion that the Beneficiary's "innovative contributions and leadership acumen" will allow the 
Petitioner to "positively impact the restaurant industry and stimulate the local economy," He farther 
states that the Petitioner "will impact the way that brick and mortar business in the restaurant industry 
operate here in the United States" and refers to it as a "once-in-a-generation company." But he does 
not explain how the Beneficiary has already made a contribution of major significance to the U.S. food 
9 Although we discuss a sampling of the submitted letters, we have reviewed and considered each one. 
8 
industry or how it is expected to change the way traditional restaurants operate. Rather, he generally 
asserts that "this business model envisions a new food system that will reach out to millions of 
consumers." 
The record reflects that the Beneficiary has achieved considerable success as a food industry 
entrepreneur by developing novel concepts and successfully raising fonds and implementing his 
business plans, first in Argentina and now in the United States. However, the submitted letters do not 
reflect detailed information explaining how the Beneficiary's original contributions are tantamount to 
major significance in the field. Letters that specifically articulate how a petitioner's contributions are 
of major significance to the field and its impact on subsequent work add value. 10 On the other hand, 
letters that lack specifics and use hyperbolic language do not add value, and are not considered to be 
probative evidence that may form the basis for meeting this criterion. 11 Moreover, USCIS need not 
accept primarily conclusory statements. 1756, Inc. v. The US. Atty Gen., 745 F. Supp. 9, 15 (D.C. 
Dist. 1990). 
For the reasons discussed above, considered both individually and collectively, the Petitioner has not 
shown that the Beneficiary has made original contributions of major significance in the field. 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner 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 Petitioner, 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 1-140 immigrant petitions are correctly 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), ajfd, 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 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 
Beneficiary has established the acclaim and recognition required for the classification sought. 
10 See USCIS Policy Memorandum PM 602-0005.1, supra, at 8-9. 
11 Id. at 9. 
9 
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 the Petitioner's 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 Beneficiary 
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 reasons discussed above, the Petitioner has not demonstrated the Beneficiary's 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. 
10