dismissed EB-1A Case: Fashion Design

U.S. Citizenship 
and Immigration 
Services 
In Re: 22642954 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR.29, 2023 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a fashion designer, seeks classification 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner met the initial evidentiary requirements through evidence of a one-time 
achievement or meeting at least three of the evidentiary criteria at 8 C.F.R. § 204.5(h)(3) . 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 
Section 203(b )(1 )(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 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate 
international 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 
he or she must provide sufficient qualifying documentation that meets at least three of the ten criteria 
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 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 of Chawathe, 25 I&N Dec. at 376. 
II. ANALYSIS 
Because the Petitioner has not indicated or established that she has received a major, internationally 
recognized award at 8 C.F.R. § 204.5(h)(3), she 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 determined that the Petitioner fulfilled one criterion regarding 
display at 8 C.F.R. § 204.5(h)(3)(vii). On appeal, the Petitioner maintains that she meets four 
additional criteria, either directly or indirectly through comparable evidence. After reviewing all the 
evidence, the record does not reflect that the Petitioner satisfies the requirements of at least three 
criteria. 1 
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) 
The Petitioner contends that because "[f]ashion [d]esigners are not researchers or experts in the field 
that are affiliated with colleges, universities or research institutions[,] this criterion does not readily 
apply to the occupation." However, this criterion is not as limiting as the Petitioner asserts. Outside 
of the academic arena, a scholarly article should be written for "learned" persons in the field2 and may 
appear "in professional or major trade publications or other major media." As the Petitioner has not 
1 While we do not discuss each piece of evidence in the record individually, we have reviewed and considered each one. 
2 '"Learned' is defined as having or demonstrating profound knowledge or scholarship." See 6 USCJS Policy Manual 
F.2(B)(2). https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2. 
2 
established that this criterion does not apply to her profession, we cannot consider comparable 
evidence. 
The record contains documentation of the Petitioner's video presentation at the 2020 ____ 
regarding "what to look for when buying children's wear." 
The presentation was given to a general audience, specifically Spanish speaking fashion lovers, not 
"learned" persons in the field. In addition, the Petitioner has not demonstrated that the presentation 
qualifies as major media. 
For the reasons above, the Petitioner has not met this criterion. 
Evidence that the alien has pe1formed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
In order to meet this criterion, the Petitioner must establish that she not only played a leading or critical 
role, but also that the organization or establishment for which she played that role is recognized as having 
a distinguished reputation. Organizations or establishments that enjoy a distinguished reputation are 
"marked by eminence, distinction, or excellence." See generally 6 USCIS Policy Manual, supra, F.2. 
( citing to the definition of distinguished, Merriam-Webster, https://www.merriamwebster.com/ 
dictionary/ distinguished). 
The Petitioner points to published articles about her company and that ofl I Collection to establish 
their distinguished reputation. However, the Petitioner has not sufficiently established how appearing 
in these newspapers demonstrates the distinguished reputation of either her company or I I 
Collection. While the accompanying articles are complimentary and the evidence establishes the 
newspapers' circulation statistics, it does not sufficiently demonstrate that either of the companies are 
marked by eminence, distinction, or excellence. For example, the Petitioner has not submitted 
evidence to indicate that the newspapers only publish material about organizations with a distinguished 
reputation. Without more, we cannot conclude that the Petitioner meets this criterion. 
Evidence of the alien's commercial successes in the pe,forming arts, as shown by box 
office receipts or record, cassette, compact disk, or video sales. 8 C.F.R. 
§ 204.5(h)(3)(x). 
The Petitioner asserts that this criterion does not readily apply to her occupation and that we should 
consider sales of her designs as comparable evidence. We agree. However, the burden is on the Petitioner 
to establish that the documentation submitted is indeed comparable to the evidence that would meet this 
criterion. 
The Petitioner cites to USCIS Policy Memorandum PM-602-0005.1, Evaluation of Evidentia,y 
Criteria in Certain Form 1-140 Petitions, (Dec. 22, 2010) which states, in pertinent part, that "[t]he 
evidence must show that the volume of sales and box office receipts reflect the alien 's commercial 
success relative to others involved in similar pursuits in the performing arts" ( emphasis added). While 
the record establishes that she sells her designs in stores, it does not demonstrate that the volume of 
her sales reflects her success relative to other fashion designers. Therefore, the Petitioner has not 
established that she meets this criterion through comparable evidence. 
3 
While the Petitioner asserts that she meets one additional criterion relating to published material at 8 
C.F.R. § 204.5(h)(3)(iii), it is unnecessary for us to reach a decision on this additional ground because 
she cannot meet the required number of three criteria. As the Petitioner cannot fulfill the initial 
evidentiary requirement under 8 C.F.R. § 204.5(h)(3), we reserve this issue. See INS v. Bagamasbad, 
429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required to make 
findings and decisions unnecessary to the results they reach); see also Matter of L-A-C-, 26 I&N Dec. 
516, n. 7 ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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. See Matter of Price, 
20 I&N Dec. at 954 ( concluding that even major league level athletes do not automatically meet the 
statutory standards for classification as an individual of "extraordinary ability,"); Visinscaia, 4 F. 
Supp. 3d at 131 (internal quotation marks omitted) (finding that the extraordinary ability designation 
is "extremely restrictive by design,"); Hamal v. Dep 't of Homeland Sec. (Hamal II), No. 19-cv-2534, 
2021 WL 2338316, at *5 (D.D.C. June 8, 2021) (determining that EB-1 visas are "reserved for a very 
small percentage of prospective immigrants"); see also Hamal v. Dep 't of Homeland Sec. (Hamal I), 
No. 19-cv-2534, 2020 WL 2934954, at * 1 (D.D.C. June 3, 2020) (citing Kazarian, 596 at 1122 
(upholding denial of petition of a published theoretical physicist specializing in non-Einsteinian 
theories of gravitation) (stating that "[c]ourts have found that even highly accomplished individuals 
fail to win this designation")). 
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 sustained national or international acclaim in the field, and she is one of the small percentage 
who has risen to the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act and 8 C.F.R. 
§ 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated her 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. 
4