dismissed EB-1A Case: Fashion Design And Photography

U.S. Citizenship 
and Immigration 
Services 
In Re: 10599 841 
Motion on Admini strative Appe als Office Decision 
Non-Pr ecedent Decision of the 
Administrati ve Appeals Office 
Date: SEPT. 24, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Abili ty) 
The Petitioner , an artisan , photo grapher , and fashion designer , seeks classification as an individual of 
extraordinary ability . This first prefer ence classification makes immigrant visas available to thos e 
who can demonstrate their extraordinary ability through sustained national or international acclaim 
and whose achie vements have been recogni zed in their field through extensive documentation . 
The Director of the Nebra ska Service Center denied the petition , and we dismissed the appe al. 
Subs equently , we denied two previou s motions. 1 The matter is now befor e us on a third motion to 
recon sider and a motion to reopen . 
In these proceedings , it is the Petitioner's burd en to establish eligibility for the reque sted benefit. See 
section 291 of the Act, 8 U.S .C. § 1361. Upon review , we will deny the motions. 
I. LAW 
The tenn "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 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 detennination); see also 
1 See In Re: 5303295 (Jan. 16, 2020), for our most recent decision. 
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). 
Further, a motion to reconsider is based on an incorrect application of law or policy, and a motion to 
reopen is based on documentary evidence of new fact s. The requirements of a motion to reconsider 
are located at 8 C.F.R. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
II. BACKGROUND 
The Director determined that the Petitioner satisfied only one criterion , display under 8 C.F.R. 
§ 204.5(h)(3)(vii). In her first motion, we concluded that the Petitioner met a second criterion, leading 
or critical role under 8 C.F.R. § 204.5(h)(3)(viii). In her second motion, although the Petitioner 
presented additional evidence relating to published material under 8 C.F.R. § 204.5(h)(3)(iii) and high 
salary under 8 C.F.R. § 204.5(h)(3)(ix), we decided that she did not establish her eligibility for either 
one. Thus, the Petitioner did not demonstrate that she fulfilled at least three of the ten criteria, in order 
to conduct a final merits determination referenced in Kazarian, 596 F.3d at 1119-20. 
III. ANALYSIS 
A. Motion to Reconsider 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceeding at the 
time of the decision. See 8 C.F.R. § 103.5(a)(3). At the outset, the Petitioner contends that "[i]f the 
Petitioner satisfied at least one of the 'published material" or "high salary" criterium , she would 
qqualify [sic] as an alien with extraordinary ability." However , once a petitioner meets at least three 
criteria, the totality of the evidence is then considered in a final merits determination to assess whether 
the record reflects sustained national or internationa l acclaim and demonstrates that the individual is 
among the small percentage at the very top of the field of endeavor. See Kazarian, 596 F.3d at 1119-
20. Further, after extraordinary ability is shown , then a petitioner must establish that he or she seeks 
to enter the United States to continue to work the area of extraordinary ability, and that he or she will 
substantially benefit prospectively the United States. See section 203(b)(l)(A)(ii) and (ii) of the Act. 
Regarding our decision relating to the published material criterion, the Petitioner argues : 
As it is evident from the last decision in the present case, USCIS operates under the 
presumptio n that the published material be "primari ly about the beneficiary and the 
beneficiary's work," when there is no basis in the regulations for this requirement. 
In the present case, the articles presented in Domus Design not only mention the 
Petitioner but also refer to her as the interior photographer. In addition, the article of 
I I 2006 states on its last page : I I 
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I. I have used stylish accessories to soften the strict orthogonal details, inspired by 
the Japanese home. This resulted in a delicate glamour, which was a finishing touch in 
the interior design of the apartment - light, dynamic, room inspiring to explore the 
beauty of the universe." 
In our most recent decision, however , we did not require that published material be primarily about 
the beneficiary. In fact, we stated: 
In the instant motion, she agal provi
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es two articles published in the magazine domus 
design. The first, published in 2006, has already been submitted, reviewed, and 
considered. Accordingly, we will not address it in this proceeding. The second, 
published in C]2007, while previously submitted lacked a complete translation . On 
second motion, the Petitioner provides this article, which credits her with "photographs 
in the interior," and its complete translation. She asserts that it features her work, and 
directs our attention to a page in which the editor references "fresh paints posters with 
large lilies." However , the article is about the apartment and its design, not about the 
Petitioner . Articles that are not about a petitioner do not meet this regulatory criterion. 
See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1 (D. Nev. Sept. 8, 2008) 
(upholding a finding that articles regarding a show are not about the actor). 
(footnotes omitted). 
Again, the Petitioner did not establish that the articles from domus design reflect "[p ]ublished material 
about the alien . .. relating to the alien' s work in the field" consistent with the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). (emphasis added). The articles contain descriptions and photographs of the interior 
of apartments without showing published material about her. Although the articles mention the 
Petitioner as one of the designers, they do not discuss her; and therefore, dol not reresent published 
material about her. In fact, as evidenced by the Petitioner's quote from the 2016 article, the 
material indicates a discussion of the stylish accessories in the apartment rather than about her. 
Moreover, the Petitioner did not demonstrate that domus design qualifies as a professional or major 
trade publication or other major medium. The Petitioner does not contest or address our decision 
regarding this issue, nor did she show that we incorrectly applied law or policy. 
As it relates to the high salary criterion, in her first motion, the Petitioner presented an interior design 
proposal and a copy of a 2017 IRS Form 1099 reflecting nonemployee compensation of $9,800; 
however, she did not include evidence demonstrating how this remuneration compared with that of 
other interior designers. In the second motion, she submitted evidence of occupational employment 
and wage estimate entries from the U.S. Bureau of Labor Statistics, average salary reports from 
Payscale.com, and a printout of job postings from indeed.com and upwork.com for fashion designers 
and photographers. However, we concluded that her evidence reflects remuneration as an interior 
designer as opposed to her comparable salary evidence for fashion designers and photographers. 
Further, the Petitioner did not provide evidence of past remuneration for work in the fields of fashion 
design and photography . 
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On motion, the Petitioner claims that she "acted in this project as a photographer, not an interior 
designer." Specifically, the Petitioner asserts: 
[She] has used her Photographs to consult with [the] client. The customer provided the 
photographer [the Petitioner] with the alleged designs of the bedrooms of his future 
home. The photographer had the task of creating bedding with a collage from his 
copyright photographs from thel I series. 
During conversations with the customer, different photos were tested, colors that were 
in tune with the taste of the client were selected. Unique combinations of photographs 
by shades were created in the order that the customer chose. His requirements were to 
create such a color of fabric from photographs that would soothe and delight the eye, 
create an atmosphere of comfort and lift his mood. After the final selection of 
photographs, [she] created collages from photographs selected by the client, and then 
the designer who created the bedroom interior design wrote them in the design for 
clarity, at the request of the customer. 
Although she submits copies of photographs claiming to be from the project, the Petitioner did not 
demonstrate that they corroborate her assertions on motion. The Petitioner did not establish that she 
perfmmed work for the "Bedroom Design Concept" as a photographer. In fact, the Petitioner first 
claims that she used her photographs and then later claims that she created a collage from the client's 
photographs. 
Notwithstanding the above, the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires the Petitioner to show 
that she command a high salary or other significantly high remuneration for services in relation to 
others in the field. Although she provided salary data for fashion designers and photographers, the 
Petitioner did not demonstrate that she earned a salary. Rather, as evidenced by the IRS Form 1099, 
the client compensated her for services for the "Bedroom Design Concept." Thus, the Petitioner must 
establish that she commanded significantly high remuneration for services for work on the design 
project in relation to other remuneration for services of other interior designers. Furthermore, the 
comparison to average salaries of fashion designers and photographers does not meet this criterion. 
For the reasons discussed above, the Petitioner did not establish that we incmrectly applied law or 
policy in our latest decision. Therefore, we will deny her motion to reconsider. 
B. Motion to Reopen 
We will similarly deny the Petitioner's motion to reopen. A motion to reopen must state new facts 
and be supported by documentaiy evidence. See 8 C.F.R. § 103.5(a)(2). Regarding the published 
material criterion, the Petitioner submits a 2014 article from Photographer reflecting published 
material about her relating to her work. However, the Petitioner did not demonstrate that 
Photographer qualifies as a professional or major trade publication or other major medium. Although 
she presents screenshots from Photographer's website, the Petitioner did not present objective, 
probative evidence to corroborate the website's assertions. USCIS need not rely on the self­
promotional material of the publisher. See Braga v. Poulos, No. CV 06 5105 SJO (C.D. CA July 6, 
2007), aff'd 2009 WL 604888 (9th Cir. 2009) ( concluding that self-serving assertions on the cover of 
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a magazine as to the magazine's status is not reliant evidence of a major medium). Furthermore, while 
the website and inside cover of the magazine claim a circulation of 21,500 copies, the Petitioner did 
not show the significance of the figures to establish Photographer's status as a professional or major 
trade publication or other major medium. 2 
As it relates to the high salary criterion, the Petitioner asserts that she "is now submitting an invoice 
and pictures for work performed atl I for which she was paid a total of 
$3,374.79 for one digital print Size: 18" on metallic paper and framing showing an extremely high 
remuneration for one digital print size of 18" x 24." However, the invoice and check are dated after 
the filing of the initial petition. The Petitioner must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of the filing and continuing through 
adjudication. See 8 C.F.R. § 103.2(b)(l); Matter of Katigbak, 14 l&N Dec. 45, 49 (Reg'l Comm'r 
1971). Accordingly, we need not further address this claim on motion. 
As discussed, the Petitioner's evidence does not satisfy at least three of the evidentiary criteria. 
Accordingly, we will deny her motion to reopen. 
IV. CONCLUSION 
The Petitioner has not shown that we incorrectly denied her previous motion based on the record 
before us, nor does her new evidence on motion demonstrate that she has fulfilled at least three criteria. 
ORDER: The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is denied. 
2 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14 7 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html.See USCIS Policy Memorandum PM 602-0005.1, supra, 
(providing that evidence of published material in professional or major trade publications or in other major media 
publications about the alien should establish that the circulation, on-line or in piint, is high compared to other circulation 
statistics and show the intended audience of the publication). 
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