dismissed EB-1A Case: Fashion Design And Photography

U.S. Citizenship 
and Immigration 
Services 
In Re: 17202685 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 30, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an artisan, photographer, and fashion designer, seeks classification as an alien 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 Nebraska Service Center denied the petition, concluding that the Petitioner did not 
meet the initial evidentiary requirements for the requested classification through evidence of either a 
major, internationally recognized award or meeting at least three of the evidentiary criteria under 
8 CF.R. § 204.5(h)(3). We dismissed the Petitioner's appeal I as well as three subsequent motions.2 
The matter is now before us on a fourth motion to reopen and reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motion the to reconsider. 
Because the Petitioner has established that she meets a third criterion, the motion to reopen is granted 
in part and dismissed in part. The petition remains denied. 
I. LAW 
Section 203(b )(1) 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 
1 See Matter of O-S-, ID# 1291424 (AAO Jul. 5, 2018) 
2 See Matter ofO-S- , ID # 2000787 (AAO Feb. 15, 2019) ; In Re 5303295 (AAO Jan. 16, 20202) ; In Re 10599841 (AAO 
Sep. 24, 2020) . In February 2019 decision, we concluded that the Petitioner met a second criterion , leading or critical role 
under 8 C.F.R. § 204.5(h)(3)(viii) . 
(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). 
II. MOTION REQUIREMENTS 
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 newfacts. 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. 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reopening or 
reconsideration, a petitioner must not only meet the formal filing requirements (such as submission of 
a properly completed Form 1-290B, Notice of Appeal or Motion, with the correct fee), but also show 
proper cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See 8 C.F.R. § 103.5(a)(4). 
By regulation, the scope of a motion is limited to "the prior decision." 8 C.F.R. § 103.5(a)(l)(i). 
Therefore, the filing before us is not a motion to reopen and reconsider the denial of the petition or the 
initial dismissal of the appeal, but to reopen and reconsider our most recent decision. 
II. ANALYSIS 
The Petitioner is an artisan, photographer, and fashion designer who usd I as the focus of her 
work. In his decision, the Director determined that the Petitioner met only the criterion relating to the 
display of her work under 8 C.F.R. § 204.5(h)(3)(vii). After review of her first motion, we concluded 
2 
that she also met a second criterion for her leading or critical role under 8 C.F.R. § 204.5(h)(3)(viii). 
In her last two motions, the Petitioner submitted new evidence in support of her qualification under 
the criteria relating to published material about her and a high salary in relation to others in her field, 
but in both cases we concluded that the new evidence was insufficient to show that she met either 
criteria. 
Here, in her fourth motion, she submits additional evidence in support of those two criteria as well the 
criterion at 8 C.F.R. § 204.5(h)(3)(v), relating to original contributions of major significance. 
However, our previous decision did not consider her qualification under this criterion, as she did not 
submit new evidence relating to this criterion with her third motion or state any reasons for 
reconsideration of her qualification under this criterion. 3 We will therefore not consider the new 
evidence or her assertions of error at prior stages of the proceeding with regard to this criterion. 
A. Motion to Reconsider 
The Petitioner checked box l .fin Part 2 of Form I-290B to indicate that she is filing a combined 
motion to reopen and reconsider. However, in her brief the Petitioner only includes a section titled 
"Basis for Motion to Reopen," and does not assert that our previous decision was incorrect based on 
the evidence ofrecord at the time of that decision. See 8 C.F.R. § 103.5(a)(3). Therefore, she has not 
met the requirements for a motion to reconsider. 
B. Motion to Reopen 
The Petitioner first addresses her claim to the criterion at 8 C.F.R. § 204.5(h)(3)(iii), published 
material about her and her work in professional or major trade publications or other major media. 
With this motion, she submits new evidence relating to a previously submitted article published in the 
magazine Photographer inl 1 12014. We concluded in our previous decision that although this 
article was about her and her work as a photographer, the record did not establish that the magazine 
qualifies as a professional or major trade publication or other major media. The new evidence includes 
an article indicating that the author of the Photograr her article received the top prize in a photography 
contest, as well as a letter in which I _ a fashion and beauty photographer, describes 
Photographer as a "professional magazine." However, she also submits the same presentation about 
the magazine which was submitted with her previous motion, in which its target audience is described 
as "amateur photographers." This contradictory evidence therefore does not establish that it qualifies 
as a professional or major trade publication or other major media. 
In addition, the Petitioner points to the index page of Photographer, which states that it is an "Official 
magazine~------------------~ inl I' and submits webpages 
with short descriptions of both organizations. The evidence regarding! I does not explain any 
relationship with the magazine, or how~ such relationship would show it to be a professional 
magazine. Similarly, the evidence aboutL_j indicates that it is a federation of national photographic 
associations, but does not verify or explain any relationship with Photographer. 
3 The Petitioner's most recent mention of the criterion at 8 C.F.R. § 204.5(h)(3)(v) occurred in her first combined motion. 
in which she specifically stated that she was not submitting additional evidence to meet this criterion. 
3 
The Petitioner also submits evidence about the circulation of several fashion magazines, which appears 
to have been taken from a Vogue Ukraine presskit, and asserts that since it shows that Marie Claire 
has a circulation less than that of Photographer and "is a major media and a competitor," then 
Photographer should be considered as major media." However, these figures do not support either 
magazine's status as a major medium in the Ukraine market, since Marie Claire's are by far the lowest 
of the magazines shown. Further, these circulation figures are for fashion magazines only, and any 
comparison between their circulation figures does not lead to the conclusion that Photographer should 
be considered to be a professional magazine. 
The Petitioner also submits for the first time copies of two articles from Vogue Ukraine, published in 
I 12013 anO 2014. The latter article, titled I I' reports on the opening of a perfume 
store in D Ukraine, but focuses mainly on the Petitioner and her photos one of which is used in 
the decor of the store. The interviewer asks her about her connection with and her hoto ra h 
of them. The earlier article mentions the Petitioner as a member of a jury for a.__ ______ ___, 
competition, but the article is about the competition. 
As mentioned above, the Petitioner also submits print readership figures from a Vogue Ukraine 
presskit, which compares the readership of Vogue Ukraine to three other fashion magazines in Ukraine 
from 2013 to 2019 and cites to an outside source for these figures. According to this information, the 
readership of this magazine was well ahead of the other well-known fashion titles at the time of the 
c=]201
1
4 puf1ication and at the time of the filing of this petition. Therefore, we conclude that based 
upon the 2014 article in Vogue Ukraine, the Petitioner has established that she meets the criterion 
at 8 C.F.R. § 204.5(h)(3)(iii). 
Further, the Petitioner has included additional evidence with her motion, including an interview of her 
on the website photoindustria.ru, and a contract and invoices related to the Petitioner's design of0 
I I for a customer. Although the Petitioner also asserts that she meets the criterion at 8 C.F .R. § 
204.5(h)(3)(ix) relating to a high salary or very high remuneration compared to others in her field, she 
has now met the requisite three criteria to meet the initial evidentiary requirements of this 
classification. Therefore, we will consider this evidence together with the balance of the record when 
conducting a final merits determination. 
C. Final Merits Determination 
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 her achievements have been recognized in 
the field through extensive documentation. Here, the Petitioner has not offered sufficient evidence 
that she meets that standard. 
As noted at the outset, the Petitioner describes herself as a photographer, artisan, and fashion designer, 
and has submitted some evidence relevant to each of these pursuits. Because the bulk of the evidence 
concerns her work as a photographer, we will primarily focus on this aspect of her endeavor in our 
analysis. We note that over the course of these proceedings, the Petitioner has submitted several 
documents relating to events which took place after the initial filing of her petition on August 7,2017. 
However, a petitioner must establish that all eligibility requirements for the immigration benefit have 
4 
been satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b )(I). 
We will therefore not consider such evidence in our analysis. 
The evidence relating to the Petitioner's work as a photographer shows that it has been exhibited on 
two occasions in Ukraine. The first exhibition, titler I I occurred on I I and 
D 2007 inl Pkraine (known at the time as_ I.) The evidence regarding this 
exhibition includes announcements naming the Petitioner and another artist, photographs of the event, 
and still images of two interviews, together with transcripts of these short interviews by provided by 
the Petitioner. We first note that it is not apparent that the first interview was broadcast on television 
channelO despite the Petitioner's statement and the logo that can be seen on the interviewer's 
microphone, as the source of the images is not apparent. More importantly, even if it was broadcast 
or posted online, the information from Private TVI !indicates that it broadcasts only in that local 
area. 
Similarly, still images submitted from a second video interview of the Petitioner at this event indicate 
that it was done for a program named ' which the record shows is broadcast on television 
channelOanother local or regional channel in.__ __ -,--,_ _ __, However, the video images were 
taken from the Petitioner's Y ouTube account, not channel s. This evidence does not show that this 
interview was either broadcast or distributed in any other way by channelD 
The record shows that print media discussion of this exhibition was also local in nature, as shown by 
a paragraph published in th~ I 2008 issue of Ajisha magazine. The magazine's cover indicates 
that it focuses on events and entertainment in I I and no farther information regarding its 
circulation was provided. Considered together with the video interviews, this evidence does not show 
that the Petitioner gained acclaim beyond I I to the national or international level as a result of 
this exhibition of her photographs. 
The second exhibition of the Petitioner's I I photography,~-------~ occurred at 
th~ I Museum froml I 2017. This is supported by a letter from the museum, 
an announcement and poster about the exhibition, and a brief video report about the exhib~ted 
to the You Tube channel I t The Petitioner submitted information about L___Jbut 
as noted in one of our previous decisions, this was not sufficient to show that it is major media and 
this would have suggested national acclaim. We further note that the screenshots of this video indicate 
that it had been viewed only 23 times at the time, which does not indicate that coverage of this exhibit 
drew wide interest from the public or in the field of photography. Other evidence of media coverage 
of this event included several brief mentions in online blogs. As with the Petitioner's first exhibition 
held 10 years earlier, the totality of the evidence does not show extensive media coverage which would 
signal acclaim for the Petitioner's work at the national or international level. 
We further note that, in a second letter from thel lofthel I Museum, she 
states that the exhibition "was attended by a total of 2,690 viewers, photographers and art collectors, 
which highly praised the collection," and that 6 of the 17 photographs that were exhibited were 
purchased by private collectors. However, there is no indication of whether this was an exceptional 
number of visitors over a two-week period, or whether the number of photographs sold or the amount 
paid reflected a status for the Petitioner as one of the small percentage of photographers at the top the 
field. 
5 
The Petitioner also submitted evidence of the display of her photographs in non-artistic settings, 
including a cafe i~ I which was a finalist for a national restaurant award, and a small chain of 
perfume stores in five cities in Ukraine. Letters from the owners of both of these businesses confirm 
that her work decorates their establishments, and they are supported with photographs. In addition, 
ther-----iio14 Vogue Ukraine article discussed above covers the opening of one of the I I 
c==]perfume stores irC::]Ukraine, and states that the Petitioner's photographs "decorate almost 
all the boutiques of this chain." This evidence shows that she has been able to sell herl I 
photographs commercially, and that this work has been mentioned in major, national media on at least 
one occasion. But it does not demonstrate that her work was acclaimed in the field of photography. 
Images of her work as a photographer have also appeared in publications, including the cover of Oscar 
Millionaires Flair magazine for issues published in~------------~ 2010, as well 
as in pages of those and other issues of this magazine. The editor in chief of this magazine stated in a 
letter that the Petitioner partnered with the magazine to provide her prints and write some articles, and 
the record includes information about the circulation of Oscar Millionaires Flair from its own website. 
As we noted in previous decisions in this matter, this evidence, as well as that concerning the magazine 
domus design in which images of her photographs also appeared, did not show that either magazine 
could be considered as a professional or major medium. While she was credited with this work in 
both magazines, the record does not establish that these depictions of her work were indicative of 
acclaim in her field, or brought her further acclaim as a photographer. 
Similarly, as described above, the Petitioner's photographic work was also featured in thec=]2014 
issue of the Ukrainian magazine Photographer. While the evidence indicates that this publication is 
focused on the field of photography, and the accompanying article is complementary of the Petitioner's 
work, we noted above that it is not a professional magazine, and its circulation figures were not 
independently verified. As such, this article shows that the Petitioner's photographs received some 
level of attention in her field at the amateur level. 
As mentioned above, the Petitioner submitted an article for the first time with this motion which was 
published on the website photoindustria.ru onl 1201 7, one week before the filing of the instant 
petition. We note that this article, which is an interview of the Petitioner about her work as a 
photographer, does not show the name of its author, and the record does not include information about 
this website other than a brief report from SimilarWeb. Given this lack of supporting information, 
this evidence is of minimal probability. 4 
The Petitioner's work as a photographer also ties in,.u..,....J.J.J.:.L....L.,;J..a.1.LU...."'-'"-""-,l_ashion designer. The record 
includes evidence showing the marketing and sale of and other items featuring her 
photographs and otherl !designs under the " brand, primarily on websites 
such as teespring.com, redbubble.com, and etsy.com. owner of a boutique inl I 
4 We further note that many of the questions asked of the Petitioner in this interview include statements which mirror the 
language of the regulations for this classification. For instance, "You are one of a rare percentage of photographers who 
have extraordinary talent in photography" closely mirrors the definition of "extraordinary ability" at 
8 C.F.R. § 204.5(h)(2). Repeating the language of the statute or regulations does not satisfy the petitioner's burden of 
proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, No. 95 CIV. 10729, *1, *5 (S.D.N.Y. Apr. 18, 1997). These statements are also not suppo11ed 
by documentary evidence in the record. 
6 
writes in a letter that her store sold the Petitioner's dresses and tee shirts, and that they were "top 
sellers at our store." The record includes a list of invoices for the sale of pictures, clothing, and other 
items, including some for purchases byl I as well as a small number of those invoices and 
associated receipts, but does not include audited financial statements or tax returns for either the 
Petitioner or her business which might serve to verify these documents and any commercial success 
they may have enjoyed. Further, even ifl ~s statement regarding the sales success of the 
Petitioner's clothing was supported by documentary evidence, this evidence from a single boutique 
would not be sufficient to show acclaim for the Petitioner's work on a broader level. 
Other letters were submitted from individual purchasers ofl I clothing items, including 
I ~ a buyer for a boutique inl I an~ I who states that she serves 
as the I for the Petitioner's brand. Although these writers and others complement the 
Petitioner's clothing designs and indicate that they enjoy their purchases, such statements do not show 
that Petitioner's status as a top fashion designer. 
The Petitioner' sD clothing designs were also featured in one article in the D 20 l 2 issue of the 
previously mentioned Oscar Millionaires Flair, which introduces herl lbrand and 
includes 4 pictures of a model wearing her dresses. But as previously noted, the Petitioner has not 
shown that this magazine is a professional magazine in the fields of either photography or fashion, and 
that such an article would therefore reflect an elevated or prestigious standing in either field. 
The record also includes evidence of the Petitioner's work as an interior designer, generally using her 
photographs to decorate interiors or as part of a design theme. An example of this includes the 
previously mentioned cafe, which the owner indicates the Petitioner also decorated with framed 
postcards, handmade! I, and a chandelier with~--------~ Another 
example is the article in thd I 2006 issue of domus design, in which she is credited as one of two 
designers for a small apartment. The Petitioner also submitted design prlposalsl and a 201 7 Form 
l 099 showing that she completed work for a bedroom design, including incorporating her 
I I photography. This evidence verifies that she has infrequently worked as an interior designer, 
but does not show national or international level acclaim for this work. 
Turning to the Petitioner's work as an artisan, pages from her Etsy account show that she created and 
sold I l ::tnd similar items asl I an§s letter indicates that these items were 
also sold along with her tee shirts and dresses at the boutique. A letter from I I 
Creative Director of the I !Museum in Korea, explains that she discovered the 
Petitioner's Etsy account in 2014 and purchased about 50 of thesec=J for display. Considered 
together, the letters establish that the Petitioner has made and sold thesec=J andl I, but does 
not show this activity led to acclaim for her as an artisan. 
The Petitioner has also submitted evidence which she asserts show her earnings from all of the 
activities described above, as well as evidence which she asserts shows that her earnings are high when 
compared to others working in these fields, thus showing that she is one of the small percentage at the 
very top of these fields. As we have noted in our previous decisions, the invoices, receipts, and 
unaudited financial statements submitted are not verifiable evidence of the Petitioner's remuneration. 
In addition, the Petitioner has not established that her earnings of $9800 for the design of a client's 
7 
bedroom, as shown on her 2017 Form 1099, is sufficient to show that her compensation is indicative 
of a status as one of small percentage of interior designers at the top of the field. 
The record further includes a contract between the Petitioner and her current husband dated! I 
D2015, in which he is to provide her with "financial support," as well as invoices indicating that the 
Petitioner received payments in Ukrainian hryvnia under this contract on three occasions. However, 
the source of these payments is not apparent, and this evidence does not demonstrate that these three 
invoices reflect remuneration received by the Petitioner for her work as a photographer, fashion and 
interior designer and artisan. 
The totality of the evidence discussed above shows that the Petitioner has gained some amount of 
notoriety as a photographer and a fashion designer, with two artistic exhibitions of her work primarily 
drawing the attention of local media. She has also had some success in selling her photography for 
commercial settings, and in creating and selling clothing based upon her photographs. However, she 
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. USCTS 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 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 petition will therefore remain denied. 
ORDER: The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is granted in part and dismissed in part. 
8