dismissed EB-1A Case: Entertainment Advertising

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
f 
FILE: WAC 03 1 18 54147 Office: CALIFORNIA SERVICE CENTER Date: " 
IN RE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 4 1153(b)(l)(A) 
ON BEHALF OF PE'IITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returr~ed to 
the office chat originally decided your case. Any further inquiry must be made to that office. 
9 Robert P. Wiemann, Director 
Administrative Appeals Office 
WAC 03 118 54147 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien of extraordinary ability in the 
arts. The director determined that the petitioner had not established the sustained national or international 
acclaim requisite to classification as an alien with extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(I) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(A) Aliens with Extraordinary Ability. -- An alien is described in this subparagraph 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 recopized in ihe field through 
extensive documentation, 
(ii) the alien sezks 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 
thz United States. 
The applicable regulation defines the statutory term "extraordinary ability" as "a lev21 of expertrse indicating 
that the individual is one of that small percentage who have risen to the very top of the field of endeavor." 
8 C.F.R. $ 204.5(h)(2). Specific supporting evidence must accompany the petition to document the "sustained 
national or international acclaim" that the statute requires. 8 C.F.R. 5 204.5(h)(3). An alien can establish 
sustained national or international acclaim through evidence of a "one-time achievement (that is. a major, 
international recognized award)." Id. Absent such an award, an alien can establish the necessary sustained 
acclaim by meeting at least three of ten other regulatory criteria. Id. 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the arts zs an art director 
in the field of entertainment advertising. The director concluded that the petitioner met none of the ten 
regulatory criteria. Although we find flaws in the director's analysis of the law and evidznce in relation to two 
criteria, we affirm his ultimate decision. The evidence submitted, the director's decision and counsel's 
contentions are addressed In the following discussion of the regulatory criteria relevhnt to the petitioner's case. 
Documcntatiotz of the alien's r6cei.m of lesser nationally or inrerrzatiorzally recogrzired prices or awards for 
excellen~r in the field of e~deavor. 
The petitioner has won three first-place awards and one honorary mention at the Annual Key Art Awards in 
each of tht: four years ?receding the filing of his petition. In 1399, the petitioner won the first place award for 
WAC 03 118 54147 
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film festival posters for his art direction of the poster for "Primal Screen." In 2000, he received an honorary 
mention for international film posters for his art direction of the Home Box Office (HBO) film "lntroducing 
Dorothy Dandridge." In 2001, the petitioner won the first place award in this same category for his art direction 
of the poster for the Warner Brothers film "Man on the Moon." Finally, in 2002, the petitioner won the first 
place award for teaser posters for his creative direction of the poster for the Warner Brothers film "Ocean's 
Eleven." Although these awards were given to the petitioner's employer, Indika Entertainment Advertising 
(Indikaj, the petitioner is named as either "Art Director" or "Creative Director7' on each of the awards and the 
documents announcing the nominees. He is also pictured holding the 2002 award in a photograph taken at the 
3 1" Annual Key Art Awards ceremony in the July 2-8,2002 edition of The Hollywood Reporter. 
The director acknowledged the petitioner's receipt of these awards, but found them insufficient to meet this 
criterion because the petitioner "did not submit evidence to establish the origination, purpose, significance and 
scope of each award, as well as the criteria used to nominate and judge the participants and award winners." 
However, according to several press releases of, and articles in The Hollywood Reporter, the Annual Key Art 
Awards were established in 1972 to recognize outstanding individuals "actively involved in the creation, design, 
and production of art used in the marketing of motion pictures domestically and internationally." The awards 
honor "artists whose work directly influence[s] a film's Oscar consideration and box office success." Since 
1989, the program has been guided by the expertise of movie marketing professionals on the Key Art Adviscry 
Board. Each year a panel of distinguished judges view and rank over 1,000 entries in order to select four 
nominees for the top prize in 15 categories. Entries are "evaluated based on creativity, concept, impression, 
craftsmanship and execution" and the winners are honored at a ceremony attended by more than 1,000 
entertainment industry professionals.' 
The director also stated that th? petitioner "failed to include evide~ce that identifies previous winners of each 
award for the past three to five years. Thus, the evidence does not clearly establish that the awards rise to a 
national or international level of achievement." We fail to see how the names of previous winners would 
establish the national or international significance of the awards or why those names are required to establish 
the petitioner's own eligibility under this criterion. 
The evidence submitted establishes that the Key Art Awards are ilationally recognized honors in the field of 
film marketing and advertising. The petitioner has won four of these awards, one award for each of the four 
years preceding the filing of his petition. The petitioner's awards thus indtcate sustained national acclaim in his 
field. The director failed to fully consider this evidence that we find clearly establishes the petitioner's eligibilitlj 
under this criterion. 
S~cblished materid about the alien in professional or major trade puhlication.~ or orher majot. media, 
relating to the alien's work in the field for which classijicatioit is sozcght. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
The director corrzctly concluded that the materials submitted did not establish the petitioner's eligibility under 
this criterion. Although counsel claimed that the petitioner had received inteniational and national coverage in 
major media as arr "expert, visionary, and authority in the field of Art Directioii," be initially submitted only rwo 
I 
Although this information comes from a potentially biased source (The Holl~wcod Reporter is the sponsor of 
the Key Art Awards), counsel submits on appeal two articles that independently attest to the significance and 
przsrige of the awards within the field of motion picture advertising and nlarketir~g 
WAC 03 118 54147 
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articles with the petition. The article from the May 23, 2002 edition of The Hollywood Reporter discusses the 
nominees for the 31" Annual Key Art Awards. The article mentions that the petitioner's employer, lndika, tied 
with Walt Disney for the most nominations, but does not discuss the petitioner himself except to name him in a 
list with other nominees. This article is clearly not about the petitioner and does not discuss him or his work. 
The second article comes from the July 2-8, 2002 edition of The Hollywood Reporter and contains a brief 
review of the 31" Annual Key Art Awards ceremony. Again, the petitioner is not discussed in the article 
although he is pictured and named in one of several photographs taken at the ceremony that accompany the 
article.' This article is also not about the petitioner or his work. We do not contest the assertion that The 
Hollywood Reporter is a major trade publication for the movie industry. Yet because the articles are not about 
the petitioner, they cannot establish his eligibility under this criterion. 
On appeal, counsel submits an additional article from the July 1, 2002 edition of The Hollywood Reporter. This 
article reviews the ceremony for the 31" Annual Key Art Awards, but does not even mention the petitioner. 
Counsel also submits an article from the July 9, 2003 edition of Variety entitled "Epic pics shift into battle 
mode: Image is everything for two historical dramas" which discusses the work of the petitioner and his 
company on the posters for "The Last Samurai" and "Alexander." This article was published four months after 
the filing of the petition. Consequently, it cannot be used to establish the petitioner's eligibility at the time of 
filing. 8 C.F.R. 3 103.2(b)(12), Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
Evidence of the alien '3 participation, either irldividually or on a panel, as o judge of the work of others irl the 
same or an alliedfield of ,spec-$cation for which classification is sought. 
The petitioner submitted evidence that he participated as a judge fcr the final competition in the print categories 
of the 30' Annual Key Art Awards in 2 
Key Art Awards. According tc 
the judges were selected "basedm 
the design and creation of key art. 
explained that "[all1 of the judges, t? 
marketing professionals. These 92 individuals represent the editors, art directors, photographers, copywriters, 
marketin executives and presidents of the companies that have created some of the most exceptional key art 
today." hoes on to explain the formal judging process in detail. See Petitioner's Exhibit II(c). The 
director failed to consider this documentation of the petitioner's judging experience.' We find the evidence 
sufficient to establish the petitioner's eligibility in this category. 
Evidence sf the alien's origimal scientific, scholarlv, artistic, athletic, or bwiners-reluted contributions of 
major sign&$cance in the field 
kounse! initialiy cnly submitted the page with the petitioner's photograph. On appeal. he submits the entire 
article. 
' The direitor not or~ly disregarded this documentation, but stated thar the petitioner should have ~ubmitted 
"corroborative evidence of judging [which] would include, at a minimum, the actual evaluation sheets with 
the self-petitioner's personal comments." Such a requirement goes beyond the regulation and would not 
evidence 3 reputable competitiorl. We cannot imagine that any professional organization would allow Its 
judges :o retain their evaluation sheets upon completion. thus compromising the ~nteqity 3f the competitiorl. 
WAC 03 118 54147 
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The director correctly concluded that the petitioner did not meet this criterion. The petitioner submitted seven 
recommendation letters written by advertising and marketing executives in the motion picture, television and 
music recording industries. The letters attest to the petitioner's talent and success as an art director t on1 one 
letter describes him as "one of the top people in what is a highly competitive field." Letter o a 
Vice President of Marketing, United Artists. More importantly, all of these letters were solicited in preparation 
for the visa petition and were written by executives who retained the petitioner to work on specific projects. 
The letters thus carry less weight than pre-existing, independent evidence of the petitioner's contributions to his 
field. 
The petitioner also submitted numerous examples of his work on major film posters. On appeal, counsel 
contends that the petitioner's mere selection by major film companies to work on important projects establishes 
his eligibility under this category. Counsel misconstrues the nature of this regulatory criterion. The petitioner's 
portfolio demonstrates his successful employment as an art director in the field of motion picture advertising, 
but it does not establish that he has made original artistic contributions of major significance to his field. The 
petitioner does not provide evidence, for example, that other art directors in the entertainment advertising 
industry have been influenced by his work. Accordingly, the petitioner does not meet this criterion. 
Evidence that the alien has pelformed in a leading or critical role for organizations or establishments that 
have a disting~iished reputation. 
The director correctly determined that the petitioner did not meet this criterion. On appeal, counsel maintains 
that the petitioner's successful work on numerous high- rofile film posters and his duties as creative director 
establishes his leading or critical role for his employehTo support this contention, counsel submits 32 
copies of movie posters on which he has worked. Four of these posters appear to have been completed after 
the petition was filed and consequently cannot be considered as evidence of the petitioner's eligibility at the 
time of. filing. 8 C.F.R. 3 103.2(b)(12), Matter of Katigbak, 14 I&N Dec. at 49. Although the remaining 
posters demonstrate the company's success, they say nothing about the reputationr the petitioner's 
role in the company. Counsel also re-submits the seven recommendation letters that initially accompanied the 
petition. The letters all speak of the petitioner's talents and value as an individual. They do not discuss his role 
within or the reputation of Indika. The most that to this criterion I 
brief attestation that the petitioner "and his team at ave a unique creative 
Other evidence speaks to the petitioner's successful work for Indika, but also does not establish his actual ro!e in 
e petitioner is individually recognized on four Key Art Awards won by the cornpany and 
ttests that tne petitioner's work contributed to the successful prernier of the WB Television 
, "Everwood." However, the record is devoid of any evidence from Indika chat describes and 
er's exact role within the company. Although counsel refers to the petitioner as "Creative 
no evidence corroborates that claim and another individual ws also listed 
n many of the Key Art Awards and nominations won by t e company. onsequently, the 
petitioner does not meet this criterion. 
Evidence that the aliev ha5 conztnand~d a high salary or other significatztl?; high rernutleratiotz for services, 
in relation to others it1 the3eld. 
The director correctly concluded that the petitioner did not meet this criterion. The petitioner initially submitted 
evidence of his income from 1999 through August, 2002. Tn 1999, the petitioner's gross income was $60,586. 
WAC 03 118 54147 
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In 2000, his gross income declined to $5 1,923. In 200 1, the petitioner earned a gross income of $2 17,2 18. The 
petitioner's gross' income for 2002 through August was $71,154, or $8,894 per month.' If multiplied by 12 
months, this would equal a total annual income of only $106,728 in 2002. Although the petition was mailed on 
March 4, 2003, the petitioner provided no evidence of his total income for 2002 or his income for 2003 through 
February. The petitioner also did not provide evidence of the income of other art directors worlung in 
entertainment advertising. Consequently, the director could not find that the petitioner's income was 
significantly higher than others in his field. 
On appeal, counsel submits a printout from the U.S. Department of Labor website stating that as of January 3, 
2004, Level 2 art directors in all industries earn an annual salary of $109,782."he petitioner's income in 2001 
was substantially higher than the salary of art directors listed by this printout. However, better evidence would 
be that the petitioner's salary is comparable to the salary of top art directors in the field of entertainment 
advertising, rather than simply being higher than the average salary of art directors in all industries. In addition, 
the petitioner does not appear to have matched his 2001 income in any previous or subsequent years. 'Thus the 
evidence does not show that the petitioner repeatedly earned compensation high enough to reflect sustained 
national acclaim. Accordingly, the record is insufficient to establish the petitioner's eligibility under tnis 
criterion. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act only if the alien can 
establish extraordinary ability through extensive documentation of sustained national or international acclaim 
demonstrating that the alien has risen to the very top of his or her field. The petitioner bears this substantial 
burden of proof. Section 291 of the Act, 8 U.S.C. 1361. The petitioner in this case has not met that burden. 
The evidence shows that the petitioner is a talented art director who has won awards and judged the work of 
others in his field of entertainment advertising. However, the record is insufficient to establish that the 
petitioner is an alien with extraordinary ability in the arts. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
- - - 
4 
This figure is obtained by dividing the petitioner's income of $7 1,154 from January through August of 2002 
by eight. 
5 
Although the petitioner submitted evidence of his income in tht: years 1499 through August, 2002, counsel 
only submitted Department of Labor information regarding the salary of art directors for 2004.