dismissed EB-1A Case: Fashion Design

CIS. Department of flomeland Sec~~rity 
20 Massachusetts Ave.. N.W.. Rm. 3000 
identifying deleled so ~asliinnton. DC 20529-2090 
- 
prevent ckariy unwarranted 
invasion of personal privacq 
 u.S. citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: MAR 0 6 2004 
EAC 06 039 5 1376 
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. $ 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
5 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
4 103.5(a)(l)(i). 
V 
>hn F. Grissom, Acting Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petition is now before the Administrative Appeals Office (AAO) 
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 that she sought to enter the United States for the purpose of continuing in her area of 
expertise. The director further determined the petitioner had not established the sustained 
national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) 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 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 to the United States will substantially benefit 
prospectively the United States. 
As used in this section, the term "extraordinary ability" means a level of expertise indicating that 
the individual is one of that small percentage who has risen to the very top of the field of 
endeavor. 8 C.F.R. 5 204.5(h)(2). The specific requirements for supporting documents to 
establish that an alien has sustained national or international acclaim and recognition in his or her 
field of expertise are set forth in the regulation at 8 C.F.R. 4 204.5(h)(3). The relevant criteria 
will be addressed below. It should be reiterated, however, that the petitioner must show that she 
has sustained national or international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a fashion 
designer. The regulation at 8 C.F.R. tj 204.5(h)(5) provides: 
No offer of employment required. Neither an offer for employment in the United 
States nor a labor certification is required for this classification; however, the 
petition must be accompanied by clear evidence that the alien is coming to the 
United States to continue work in the area of expertise. Such evidence may 
include letter(s) from prospective employer(s), evidence of prearranged 
commitments such as contracts, or a statement from the beneficiary detailing 
plans on how he or she intends to continue his or her work in the United States. 
The petitioner indicated on the Form 1-140, Immigrant Petition for Alien Worker, filed on 
November 22, 2005, that her occupation was that of fashion designer, producer and sales 
manager, and that her proposed employment was as a fashion designer. In her letter 
accompanying the petition,' the petitioner indicated that she was present in the United States as 
an HI-B nonimmigrant in a specialty occupation as a fashion designer, and indicated that she 
was "considered one of the top designer's [sic] in her field." 
In response to the director's request for evidence (WE) dated February 12, 2007, the petitioner 
stated that she worked as a general manager at RSL Media LLC. The petitioner further stated: 
The company publishes a business magazine, The New York Enterprise Report, 
for small to mid-sized businesses, operates a website, and conducts seminars and 
events to help business owners' community in the tri-state area. 
Currently, I am involved in nearly every aspect of this business. I oversee the 
sales department, which includes training the sales staff with the Sandler Training 
System. I also oversee the design department for the magazine, and supervise the 
art director, who is a contractor. In addition, I also oversee the financial 
administrative aspects of the company. 
Before working at The New York Enterprise Report, I worked for Pine1 
Swimwear as a Sales manager and Designer. There I helped develop the online 
store, and the e-marketing strategies. One of my achievements at Pine1 involved 
persuading Sports Illustrated to use one of the swimsuits design[ed] by me in its 
annual swimsuit issue, and to also place Pine1 products in the Victoria's Secret 
catalog. Both moves served to effectively promote the Pine1 brand, positioning 
the line among well know[n] brands as Donna Karan, Calvin Klein, Vix and 
others, and increase sales at a very fast pace. 
I 
The initial documentation submitted by the petitioner was signed by an "immigration consultant." The regulations, 
however, do not permit "Immigration Consultants" to appear as representatives before the U.S. Citizenship and 
Immigration Services (USCIS). 
The director determined that the petitioner's career is no longer in fashion design, and therefore 
she has not established that she sought to enter the United States for the purpose of continuing in 
her area of expertise. 
On appeal, the petitioner asserts that "it is not necessary that my current position be exactly in 
the field in which I claim extraordinary ability," and that her "expertise in the field of fashion 
design affords me the ability to hold my current position." The petitioner, however, submitted no 
documentation to indicate how her position as general manager of a business advice newsletter is 
a continuation of her claimed extraordinary ability as a fashion designer. 
Information submitted about The New York Enterprise Report indicates that it "features how-to- 
articles written by experts to help leaders of small businesses increase revenue, reduce costs and 
build value." In a February 27, 2007 letter, President and Editor-in-Chief of RSL 
Media, stated: 
During her tenure here, [the petitioner] has taken on major responsibilities and has 
managed various projects. Her expertise in sales has made her indispensable to 
our company. She oversees the sales department and participates in training the 
sales team. She works closely with our magazine's advertisers in preparing the 
ads that are placed in the magazine. She was the coordinator of our team that 
planned and executed the New York Enterprise Report Small Business Awards 
and for other conferences. Those events drew more than 1,000 attendees and 
sponsors. 
[The petitioner's] knowledge and talent in design has also played a major part in 
our company's success. She oversees the art direction process, which is 
outsourced to a contractor. She is also responsible for website design and 
development and has helped make our site more dynamic, more-up-to-date, and a 
better vehicle for disseminating information to our reader base (small business 
owners). 
Although 
 indicated in his letter that the petitioner's experience in the "design field" 
was a factor in her employment as a general manager with his company, he described her design 
duties as involving art direction and website design. There is no evidence that the petitioner will 
use her claimed extraordinary ability as a fashion designer. Further, although the petitioner 
indicated on her Form 1-140 that she also served as a producer and sales manager, the 
documentation that she submitted involved primarily marketing of the swimsuits that she 
designed. Mr. does not describe the precise nature of the sales department, whether its 
purpose is to market the magazine itself or to teach others how to market their products and 
services. There is no evidence in the record that the petitioner was involved in training of sales 
teams, website design or any other managerial experience in providing business advice or 
production of a magazine prior to her employment with RSL Media. 
The evidence does not establish that the petitioner seeks to enter the United States for the 
purpose of continuing to work in her area of expertise. 
The regulation at 8 C.F.R. 9 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, 
internationally recognized award). Barring the alien's receipt of such an award, the regulation 
outlines ten criteria, at least three of which must be satisfied for an alien to establish the 
sustained acclaim necessary to qualify as an alien of extraordinary ability. 
The petitioner has submitted evidence that, she claims, meets the following   rite ria.^ 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner did not initially claim to meet this criterion. However, in response to the RFE, the 
petitioner claimed to meet this criterion based on the magazine for which she worked receiving a 
"Journalist of the Year Award." We note first that a "Journalist of the Year Award" is not a prize 
or award in the petitioner's field of fashion design. Secondly, although he credited his entire 
team, the award was given to, not to his magazine or to the petitioner. 
The evidence does not establish that the petitioner meets this criterion. 
Published materials about the alien in professional or nzajor trade publications or other 
major media, relating to the alien's work in the field for which classzJication is sought. 
Such evidence shall include the title, hte, and author of the material, and any necessary 
tmnslation. 
In order to meet this criterion, published materials must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
The petitioner states that her designs have appeared on the cover of seven magazines, was 
featured in a 2006 Swimwear calendar, and that she has "designed, developed and marketed the 
entire Pine1 swimwear catalog." However, these publications only show models wearing the 
petitioner's designs, which is the purpose of the petitioner's work. Activities which nominally 
fall under a given regulatory criterion at 8 C.F.R. 5 204.5(h)(3) do not demonstrate national or 
international acclaim if they are inherent or routine in the occupation itself. Further, the modeling 
of the petitioner's work, without more, is not published articles about the petitioner or her work. 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
In response to the WE, the petitioner referred to her "current job position in the field of 
'publishing"' and her "published material for major corporations, RSLIMedia, New York 
Enterprise Report, Pinel, California Apparel News, etc." Work published by the petitioner for a 
"major corporation" does not meet the requirements of this criterion. The published work must 
be about the petitioner or her work and must appear in major media or a major trade publication. 
The evidence does not establish 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 speczfication for which class~fication is 
sought. 
The petitioner did not initially claim to meet this criterion. However, in response to the WE, the 
petitioner claimed to meet this criterion based on her participation in the selection of the winner 
of RSL Media's "Small Business/Sales award," which determined "which nominees had the best 
practices in sales management." The award is therefore not in the petitioner's field of endeavor 
as a fashion designer or in any allied field. Accordingly, the evidence does not establish that the 
petitioner meets this criterion. 
Further, the regulatory criteria are established to assist the petitioner in demonstrating national or 
international acclaim, and must be interpreted as a whole with the statute. Not all who sit as a 
judge on a panel will have extraordinary ability or will qualify under this criterion. The AAO 
interprets this regulation to require that the selection and participation process for serving as the 
judge of the work of others in the field be indicative of national or international acclaim in the 
field. The evidence does not establish that the petitioner was chosen to sit as a member of the 
judging team because of her national acclaim, or that the team was national in scope. 
Evidence of the alien 's original scientzfic, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in the fielcl. 
In her letter accompanying the petition, the petitioner stated that she was the "designer and 
national sales manager for Pine1 Swimwear" and that in that capacity, "she is responsible for the 
design and marketing of the entire line of inventory." However, the petitioner provided no 
evidence that her work constituted a contribution of major significance to her field. 
In response to the WE, the petitioner claimed that her "many projects . . . benefits the 
commercial business world." She alleged that she "has been directly responsible for many 
exhibitions" and submitted letters from her current and two past employers, who attested to her 
ability as a designer and sales manager. None of the employers indicate that the petitioner made 
a contribution of major significance to any field of endeavor. 
The evidence does not establish that the petitioner meets this criterion. 
Eviclence of the alien's authorship of scholarly articles in the field, in professional or 
major tmde publications or other major media. 
The petitioner did not initially claim to meet this criterion. In response to the RFE, the petitioner 
stated that her "published" work included the modeling of her swimsuit designs in various 
magazines and her work for RSL Media. However, the petitioner submitted no documentation to 
indicate that she authored any article, scholarly or otherwise. Accordingly, the evidence does not 
establish that she meets this criterion. 
Eviclence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The petitioner claims to meet this criterion based on the modeling of her work on seven 
magazine covers, the swimsuit calendar, in the New York Post, the Swim Journal, "and multiple 
issues of California Apparel News." The petitioner submitted a copy of June 8, 2005 issue of the 
New York Post, which featured the "Latin Swimwear Hall of Fame." However, nothing in the 
publication attributes any of the work to the petitioner. The petitioner also submitted copies of 
several women's purses, handbags, attaches and similar items. The petitioner made no 
representation that these designs were her own work and nothing in the documentation attributes 
these designs to the petitioner or indicates that they were showcased in any specific medium. 
In response to the RFE, the petitioner submitted a copy of the May 2005 magazine Island 
SunTimes, which features a model on the cover in a bikini. The magazine does not attribute the 
design to any particular company or individual. The petitioner also submitted copies of 
photographs of displays at the Pine1 stores and Pinel swimwear at trade shows. The petitioner 
submitted a copy of the cover of the Swimsuit 40"' Anniversary edition of Sports Illustrated, 
which attributed the design of a swimsuit worn by the model in an interior photograph to the 
petitioner. Other Pine1 designs appeared on the covers of Fucsia, Vogue, and Apparel News. 
None of these designs, however, were specifically attributed to the petitioner. 
A February 21, 2007 letter from the president of the company,, in Miami, 
Florida indicated that the petitioner was the lead designer on the 2004 and 2005 swimwear 
collections for the USA markets. We note that the petitioner's business card indicated that she 
was the national sales director for Pine1 Swimwear U.S.A., and presumably responsible for the 
sales and displays of all Pine1 swimwear in the United States. Therefore, although the petitioner 
was the "lead designer," the only evidence she presented of her personal design appeared in 
Sports Illustrated in 2004. Accordingly, a single design is not consistent with the petitioner's 
claim of sustained national and international acclaim as evidenced by the showcasing of her 
work. 
Although the director determined that the petitioner meets this criterion, his determination is not 
supported by the evidence of record. The wording of this criterion indicates it is intended for 
those in the visual arts such as sculptors and painters. While the fashion shows and sales displays 
may arguably fall within this language, the petitioner submitted documentation that only one 
swimsuit was her own work. Therefore, we withdraw the director's determination and find that 
the evidence provided does not establish that the petitioner meets this criterion. 
Eviclence that the alien has perforrnecl in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that she performed a leading or critical role for 
an organization or establishment and that the organization or establishment has a distinguished 
reputation. 
In documentation submitted with the petition, the petitioner stated that her work has appeared on 
the covers of magazines, newspapers and catalogs, and that "these companies rely on finding 
unique and fresh designs to showcase as the engine to ensure the continued viability in an 
industry that is ever changing and ruthless." However, as discussed above, although the various 
magazines attributed the designs on their covers to Pinel, they did not identify the petitioner as 
the designer. Further, there is no evidence to support the petitioner's statements that her work 
was critical to the success of the magazines. 
The petitioner also alleges that she served in a critical role for Pine1 Swimwear, where she 
increased sales to 70%. The petitioner, however, provided no baseline as a measure to the 
increase in sales. 
In response to the WE, the petitioner stated that all of her work had been with major 
corporations. Nonetheless, the pktitioner must establish not only that the companies with which 
she worked enjoyed a distinguished reputation but also that she served in a leading or critical role 
for the company. We note that in her February 21, 2007 letter, stated that the 
petitioner was assigned as Pinel's lead designer on the 2004 and 2005 swimwear collections in 
the United States. However, the petitioner submitted no documentation to establish that Pinel 
Swimwear is a company with a distinguished reputation. 
The evidence does not establish that the petitioner meets this criterion. 
The petitioner alleges on appeal that "the establishment of three of the ten criteria does not have 
to be done within any particular time frame in my career." While this is true, the petitioner must 
establish that she has achieved sustained national or international acclaim. Documentation of 
achievements distant from the date of the petition is not evidence that the petitioner has achieved 
sustained acclaim. The documentation submitted in support of a claim of extraordinary ability 
must clearly demonstrate that the alien has achieved sustained national or international acclaim 
and is one of the small percentage who has risen to the very top of her field of endeavor. 
Furthermore, contrary to the petitioner's assertions that "It especially is not required that they 
[the stated criterion] be done at my current position," the petitioner must establish that she 
intends to work in her stated area of expertise. Although when she submitted her petition, the 
petitioner apparently worked at Pine1 as a swimsuit designer and sales manager, she changed 
Page 9 
jobs and job responsibilities subsequent to the date the director issued the WE. A petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N 
Dec. 45,49 (Comm. 1971). If significant changes are made to the initial request for approval, the 
petitioner must file a new petition rather than seek approval of a petition that is not supported by 
the facts in the record. Although the petitioner and her employer allege that her design skills 
were factors in her selection for her current position, there is no evidence that she is actually 
using those skills in her current position. 
Review of the record does not establish that the petitioner has distinguished herself as a fashion 
designer to such an extent that she may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of her field. Therefore, 
the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the 
petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.