dismissed EB-1A Case: Fashion Design

U.S. Citizenship 
and Immigration 
Services 
In Re: 26351439 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 13, 2023 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a fashion designer and entrepreneur, seeks classification as an alien of extraordinary 
ability. See Immigration and Nationality Act (the Act) section 203(b )(1 )(A), 8 U.S.C. § 1153(b )(1 )(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 Texas Service Center denied the petition, concluding that while the record showed 
that the Petitioner met the initial evidence requirements for this classification, it did not establish that 
she has national or international acclaim and is one of the small percentage at the top of her field. The 
matter is now before us on appeal. 8 C.F .R. § 103 .3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To establish eligibility as an individual of extraordinary ability, a petitioner (or anyone on the 
petitioner's behalf) must establish that they: 
• Have extraordinary ability in the sciences, arts, education, business, or athletics; 
• Seek to enter the United States to continue work in their area of extraordinary ability; and that 
• Their entry into the United States will prospectively substantially benefit the United States . 
Extraordinary ability must be demonstrated by evidence of sustained national or international acclaim 
as well as extensive documentation that their achievements have been recognized in the field . Section 
203(b )(1) of the Act. 
The implementing regulation further states that 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." It also 
sets forth a multi-part analysis. A pet1t10ner can demonstrate international recogrnt10n of their 
achievements in the field through a one-time achievement (that is, a major, internationally recognized 
award). If such evidence is unavailable, then they must alternatively provide evidence that meets at 
least three of the ten listed criteria, which call for evidence about other awards they may have received, 
published material about them in qualifying media, and their authorship of scholarly articles, among 
other types of evidence. 8 C.F.R. §§ 204.5(h)(2),(3). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination, assessing whether the record shows that the 
individual possesses the acclaim and recognition required for this highly exclusive immigrant visa 
classification. 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). 
TI. ANALYSIS 
The Petitioner is a fashion designer and the co-founder and CEO of 
Colombia, with several clothing stores and franchises in Colombia operating under the brand 
She is also the owner and CEO of ,I a Florida company which does business as I I and 
distributes the company's clothing in the United States. The Petitioner states that she intends to 
continue working in the United State to expand the brand into additional areas. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that she 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). The Director found that the Petitioner met three of the evidentiary 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to published material about her and her work, 
participation as a judge of the work of others, and display of her work at artistic exhibitions or 
showcases. However, the Director concluded in his final merits determination that the Petitioner did 
not have the requisite acclaim and standing in her field to qualify as an individual of extraordinary 
ability. On appeal, the Petitioner asserts that she also meets the criterion pertaining to commercial 
success in the performing arts, and that she otherwise qualifies for the requested classification. 1 She 
also submits additional information with her brief. Where, as here, a petitioner has been put on notice 
of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the 
AAO will not accept evidence offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 
764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). As the Director notified the 
Petitioner in his request for evidence (RFE) of the deficiencies in the evidence she initially submitted 
1 The Petitioner does not challenge the Director's conclusions that she does not meet the cntena at 
8 C.F.R. §§ 204.5(h)(3)(ii),(v) and (ix), relating to evidence of her membership in associations which require outstanding 
achievements, her original business contributions of major significance, and her salary, respectively. In general, we will 
not address issues that were not raised with specificity on appeal. We will therefore consider these issues to be waived. 
See, e.g., Matter o(M-A-S-, 24 l&N Dec. 762, 767 n. 2 (BIA 2009). 
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and provided her an opportunity to respond, which she did, we will not consider the new evidence 
submitted on appeal. 
After reviewing all of the evidence in the record, we disagree with the Director's conclusion that she 
meets the initial evidence requirements, and conclude that she is not eligible for the requested 
classification. 
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 
necessa,y translation. 8 C.F.R. § 204.5(h)(3)(iii) 
The Director determined that the Petitioner meets this criterion, but did not provide an analysis of the 
evidence presented or explain his reasoning. We note that the plain language of this criterion requires 
that the evidence of published material include the title, date, and author of the material. In this case, 
the majority of the articles submitted, while they are about the Petitioner and her work as a fashion 
designer and entrepreneur, do not include the name of the author. One article, published on the website 
of El Hera/do de Mexico, includes the author's name as well as the other required information, and 
the evidence establishes that it qualifies as a major medium. We therefore conclude that the Petitioner 
meets this criterion. 
Evidence of the alien 's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specialization for which 
classification is sought. 8 C.F.R. § 204.5(h)(3)(iv) 
The Petitioner submitted evidence that she was a member of the jury for the 
_________________ beauty pageants in 2020, which can be considered 
an allied field to her specialization of fashion design. We agree with the Director that she meets this 
criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 8 C.F.R. § 204.5(h)(3)(vii) 
This criterion requires evidence that the individual's work has been displayed at an exhibition or 
showcase that is artistic in nature. The Petitioner submitted evidence that she exhibited clothing under 
the I I brand on three occasions at the ___________ Market, and at the 
I levent in I But there is no indication in the record that these events are artistic in 
nature. For example, the materials describing the __________ Market indicate that 
it is a commercial exhibition "for the business of fashion," and is attended by buyers representing 
boutiques and department stores. As such, we disagree with the Director and withdraw his conclusion 
that the Petitioner meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x) 
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In his decision, the Director stated only that the Petitioner did not submit evidence to establish that she 
meets this requirement. On appeal, the Petitioner submits definitions of the words "commercial" and 
"success", concluding that the phrase means that "the performing arts have made a lot of money 
commercially." However, the Petitioner has not established that she is a performing artist, nor has she 
submitted evidence of the type specifically called for in the regulation. While the Petitioner submitted 
a letter from an accountant in response to the RFE which attested to her income and net worth, there 
is no suggestion that she earned this income as a performing artist. We therefore conclude that she 
does not meet this criterion. 
B. Final Merits Determination 
Because of our withdrawal of the Director's affirmative conclusion regarding the criterion related to 
artistic displays of the Petitioner's work, we conclude that she does not meet the initial evidence 
requirement 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 have reviewed the entire record and conclude that it does not 
establish that the Petitioner has the acclaim and recognition required for the classification sought. 
In a final merits determination, we examine and weigh the totality of the evidence to determine 
whether the Petitioner has sustained national or international acclaim and is one of the small 
percentage at the very top of the field of endeavor, and that their achievements have been recognized 
in the field through extensive documentation. Here, the Petitioner has not offered sufficient evidence 
that she meets that standard. 
While the Director acknowledged that the Petitioner's work as a fashion designer and entrepreneur 
has been well received in her home country of Colombia, he concluded that the evidence did not show 
that it had received sustained national or international acclaim or that she is one of the small percentage 
at the very top of those fields. On appeal, the Petitioner refers to new evidence of her participation in 
additional trade exhibitions, a client suggesting that she has sold her apparel to more than 150 
boutiques, and evidence that a national retailer in the United States has ordered some of her apparel. 
As noted above, we will not consider this newly submitted evidence on appeal. In addition, eligibility 
for an immigration benefit must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N 
Dec. 169, 175 (Comm'r 1998). That decision, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 
1981 ), further provides that USCIS cannot "consider facts that come into being only subsequent to the 
filing of a petition." Id. at 176. 
While the Petitioner asserts that she has achieved international recognition and has risen to the top of 
her field through the establishment of her business and the sale of her apparel in Colombia, Ecuador, 
and the United States, the record does not include sufficient evidence that she has achieved the 
sustained recognition necessary for this highly restrictive immigrant visa classification. For example, 
media coverage of the Petitioner and her brand was almost exclusively published within the year 
before the filing of her petition. Further, the record does not adequately document any financial 
success for as a business or for the Petitioner personally. 
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III. CONCLUSION 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for those 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 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 that she is one of the small percentage who have 
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). 
ORDER: The appeal is dismissed. 
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