dismissed EB-1A Case: Fashion Design

U.S. Citizenship 
and Immigration 
Services 
MATTER OF L-B-M-, INC 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 25,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a fashion accessories designer and manufacturer, seeks to classify the Beneficiary as 
an "alien of extraordinary ability" in the arts. See Immigration and Nationality Act (the Act) 
section 203(b )(1 )(A), 8 U.S.C. § 1153(b )(1 )(A). This classification makes visas available to foreign 
nationals 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, Texas Service Center, denied the petition, concluding that the Petitioner had not 
provided documentation that the Beneficiary satisfied the initial evidence requirements set forth at 
8 C.F.R § 204.5(h)(3), which requires documentation of a one-time achievement or evidence that 
meets at least three of the ten regulatory criteria. 
The matter is now before us on appeal. In its appeal, the Petitioner contends that the Beneficiary, a 
creative director, meets more, than three criteria based on her awards, published material, original 
contributions, and display of her work. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
The Petitioner may demonstrate the Beneficiary's extraordinary ability through sustained national or 
international acclaim and achievements that have been recognized in her field through extensive 
documentation. Specifically, section 203(b)(l)(A) ofthe Act states: 
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, 
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Matter of L-B-M-, Inc 
(ii) the alien seeks to enter the United States to continue work m 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 sustained 
acclaim and the recognition of the beneficiary's achievements in the field through a one-time 
achievement (that is a major, internationally recognized award). If the petitioner does not submit this 
documentation for the. beneficiary, then it must provide sufficient qualifying evidence that meets at least 
three of the ten criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
' 
Satisfaction of at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. See Kazarian v. US CIS, 596 F .3d 1115 (9th Cir. 201 0) (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), aff'd, 683 
F.3d. 1030 (9th Cir. 2012); Matter o.fChawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that 
the "truth is to be determined not by the quantity of evidence <;1lone but by its quality" and that U.S. 
Citizenship and Immigration Services (USCIS) examines "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"). Accordingly, where a 
petitioner submits qualifying evidence for the beneficiary under at least three criteria, we will 
determine whether the totality of 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. 
II. ANALYSIS 
A. Willful Misrepresentation of a Material Fact 
On September 19, 2016, we issued a notice of intent to dismiss (NOID) the petition, advising the 
Petitioner of derogatory information regarding documentation submitted in support of the Form I-
140, Immigrant Petition for Alien Worker. The NOID specifically observed that the Petitioner 
signed the Form I-140, thereby certifying under penalty of perjury that "this petition and the 
evidence submitted with it are all true and correct." We further stated: 
The regulatory criterion at 8 C.F.R § 204.5(h)(3)(iii) permits a petitioner to submit 
"[p ]ublished fuaterial about the alien in ... professional or major trade publications or 
other major media." You submitted an article from entitled 
in which the Beneficiary's name was substituted for that of artist 
We obtained the actual article online at http://www. 
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Matter of L-B-M-, Inc 
accessed on August 9, 2016, a copy ofwhich 
has been incorporated into the record of proceeding and a copy is attached to this 
notice. 
In addition, you submitted an article in entitled ' 
in which the Beneficiary's name was substituted for ' 
the artist actually mentioned. We obtained the actual article online at 
http:// 
accessed on August 9, 2016, a copy of which has been incorporated into the record of 
proceeding with a copy also attached to this notice. 
In accordance with the regulation at 8 C.F.R. § 103.2(b)(16)(i), the Petitioner was afforded 33 days in 
which to respond to the NOID. The Petitioner did not respond to our notice.1 With regard to the 
aforementioned derogatory information, the Petitioner has not resolved the inconsistencies with 
independent and objective evidence pointing to where the truth lies. See Matter of Ho, 19 I&N Dec. 
582, 591-592 (BIA 1988). 
According to section 204(b) of the Act, US CIS has the authority to issue a determination regarding 
whether the facts stated in a petition filed pyrsuant to section 203(b) of the Act are true. In this 
matter, the record shows that the Petitioner has made material misrepresentations regarding 
published material about the Beneficiary. 
As outlined by the Board of Immigration Appeals (BIA), a material misrepresentation requires that 
the individual willfully make a material misstatement to a government official for the purpose of 
obtaining an immigration benefit to which one is not entitled. Matter of Kai Hing Hui, 15 I&N Dec. 
288, 289-90 (BIA 1975). The term "willfully" means knowingly and intentionally, as distinguished 
from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter of 
Tijam, 22 I&N Dec. 408, 425 (BIA 1998); Matter of Healy and Goodchild, 17 I&N Dec. 22, 28 
(BIA 1979). To be considered material, the misrepresentation must be one which "tends to shut off 
a line of inquiry which is relevant to the beneficiary's eligibility, and which might well have resulted 
in a proper determination that he be excluded." Matter oJNg, 17 I&N Dec. 536, 537 (BIA 1980). 
Accordingly, for an immigration officer to find a willful and material misrepresentation in visa 
petition proceedings, he or she must determine: 1) that the petitioner or beneficiary made a false 
representation to an authorized official of the United States government; 2) that the 
misrepresentation was willfully made; and 3) that the fact misrepresented was material. See Matter 
ofM-, 6 I&N Dec. 149 (BIA 1954); Matter o.fL-L-, 9 I&N Dec. 324 (BIA 1961); Matter o.fKai Hing 
Hui, 15 I&N Dec. at 288. 
1 On October 11, 2016, we received a letter from the Petitioner's former counsel withdrawing his legal representation 
regarding the petition. 
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Matter of L-B-M-, Inc 
. First, the Petitioner made false claims regarding published material about the Beneficiary. A 
misrepresentation can be made to. a government official in an oral interview, on the face of a written 
application or petition, or by submitting evidence containing false information. Genco Op. No. 91-
39 (INS), 1991 WL 1185150 (April30, 1991). Here, the Petitioner's submission oftwo articles in 
support of the Form I-140 that falsely substituted the Beneficiary's nam~. constituted 
misrepresentations to a government official. 
Second, the Petitioner willfully made the misrepresentations. The Petitioner signed the Form I-140 
petition, certifying under penalty of perjury that the petition and the submitted evidence are all true 
and correct. See section 287(b) of the Act, 8 U.S.C. § 1357(b); see also 8 C.P.R. § 103.2(a)(2). 
More specifically, the signature portion of the Form I-140, at part 8, required the Petitioner to make 
the following affirmation: "I certify, under penalty of perjury under the laws of the United States of 
America, that this petition and the evidence submitted with it are all true and correct." On the basis 
of this affirmation, made under penalty of perjury, we conclude that the Petitioner willfully and 
knowingly made the misrepresentations. 
Third, the evidence is material to the Beneficiary's eligibility. To be considered material, a false 
statement must be shown to have been predictably capable of affecting the decision of the decision­
making body. Kungys v. US, 485 U.S. 759 (1988). In the context of a visa petition, a 
misrepresented fact is material if the misrepresentation cuts off a line of inquiry which is relevant to 
the eligibility criteria and that inquiry might well have resulted in the denial of the visa petition. See 
Matter of Ng, 17 I&N Dec. at 537. In the present matter, the misrepresentations made by the 
Petitioner related to the Beneficiary's eligibility for the regulatory criterion at 8 C.P.R. 
§ 204.5(h)(3)(iii). Accordingly, we conclude that the misrepresentations were material to the 
Beneficiary's eligibility. 
By filing the instant petition and making false claims regarding published material about the 
Beneficiary, the Petitioner has sought to procure a benefit provided under the Act through willful 
misrepresentation of a material fact. Because the Petitioner did not provide competent independent 
and objective evidence to overcome, fully and persuasively, our determination that it submitted 
falsified documentation, we find that the Petitioner has willfully misrepresented a material fact. The 
Petitioner knowingly misled USCIS on elements material to the Beneficiary's eligibility for a benefit 
sought under the immigration laws of the United States. 
In addition; the submission of falsified articles seriously compromises the credibility of the Petitioner 
and the remaining documentation of record. Unresolved material inconsistencies may lead us to 
reevaluate the reliability and sufficiency of other evidence submitted in support of the requested 
immigration benefit. Matter of Ho, 19 I&N Dec. at 591-592. Nonetheless, we will address the 
Director's finding that the Petitioner has not shown that the Beneficiary meets at least three of the ten 
regulatory categories of evidence to establish the basic eligibil~ty requirements. 
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Matter of L-B-M- , Inc 
B. Evidentiary Criteria 
The Beneficiary serves as creative director for the Petitioner, a company that 
designs and 
manufactures fashion accessories. According to the Petitioner, she has "full and overall 
responsibility for handling all phases of visual and artwork design for the company's products ." The 
Director found that the Beneficiary met the artistic display criterion under 8 C.F.R. 
§ 204.5(h)(3)(vii), but had not satisfied any of the other criteria_at 8 C.F.R. § 204.5(h)(3). On 
appeal, the Petitioner maintains that the Beneficiary meets the awards criterion under 8 C.F.R. 
§ 204.5(h)(3)(i), the published material criterion under 8 C.F.R. § 204.5(h)(3)(iii), and the original 
contributions criterion under 8 C.F.R. § 
204.5(h)(3)(v). We have reviewed the entire record of 
proceedings, and it does not support a conclusion that the Beneficiary meets the plain language 
requirements of at least three criteria. 
As the Beneficiary has not received a major, internationally recognized award, the Petitioner must 
demonstrate that she satisfies -at least three of the alternate regulatory criteria at 8 C .F.R. 
§ 204.5(h)(3)(i)-(x). 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 8 C;F.R. § 204.5(h)(3)(i). 
The Petitioner submitted an event program for the 
exhibition ' indicating that the Beneficiary was one of four ' 
who displayed their work at The ' section of the 
program stated (note: errors in the original text have not been changed): ' 
In addition, the program described 
the exhibition as "the 
The Petitioner also provided an 2009 article in entitled 
The article stated: ' (Chairwoman 
a non-profit art organization that encourages and supports established and promising artists, hosted 
the and its fundraising dinner on the at 
Furthermore, the article listed the first and second place award winners and then 
identified the Beneficiary as one of four other recipients who received "additional awards." Another 
article, dated 2010 and entitled · 
mentioned the Beneficiary as one of multiple 
Regarding the Beneficiary's two awards · mentioned in 
there are no objective circulation figures for the publication showing that its news 
coverage is indicative of national or international recognition. 
5 
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Matter of L-B-M-, Inc 
With respect to the Beneficiary's awards from the the Petitioner did not submit 
evidence demonstrating their national or international recognition in the visual arts field. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) specifically requires that the beneficiary's awards 
be nationally or internationally recognized in the field of endeavor and it is the petitioner's burden to 
establish every element of this criterion. The record does not establish that the aforementioned awards 
were recognized at a level commensurate with nationally or internationally recognized awards for 
excellence in the field. 
In addition, the Petitioner offered a 2008 with 
an 2009 
and an 2010' with 
The plain language of this criterion requires receipt of 
nationally or internationally recognized prizes or awards for excellence in the field. The 
consignment agreement and artist contracts do not constitute prizes or awards for excellence, and the 
record does not include documentary evidence of their national or international recognition in the 
field of endeavor. 
In light of the above, the Petitioner has not established that the Beneficiary meets this regulatory 
criterion. 
Published material about the alien in professional or major trade publications or other 
major media .. relating to the alien 's work in the jieldfor which classification is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 8 C.F.R. § 204.5(h)(3)(iii). 
As previously discussed, the Petitioner submitted articles in and that 
falsely substituted the Beneficiary's name. Despite our issuance of a NOID informing the Petitioner 
of the deficiencies, it did not offer a response to contest our findings. The falsified articles cast 
doubt on the reliability and sufficiency of the remaining evidence offered in support of this criterion. 
See Matter ofHo, 19 I&N Dec. at 591-92. 
The Petitioner also provided a 201 0 article in entitled 
but its author was not 
identified and it does not mention the Beneficiary. The plain language of the regulation requires 
"published material about the alien." Articles that are not about the Beneficiary do not meet this 
regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-00820 at* 1, *7 (D. Nev. Sept. 2008) 
(upholding a finding that articles about a show are not about the actor). The Petitioner also 
submitted a document from stating that it "is the most influential Chinese-language 
newspaper in North America." USCIS, however, need not rely on self-promotional material. See 
Braga v. Poulos, No. CV 06 5105 SJO, aff'd 317 Fed. Appx. 680 (C.A.9) (concluding that USCIS did 
not have to rely on self-serving assertions on the cover of a magazine as to the magazine's status as 
major media). 
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Matter of L-B-M-, Inc 
As previously mentioned under the awards criterion, the Petitioner submitted two articles in 
dated 2009 and 20 1 0. The 2009 article entitled 
is about the 
and its fundraising dinner," and only briefly mentions the Beneficiary. The 
2010 article entitled ' is about the 
exhibition and just lists the Beneficiary as an award recipient. Additionally, the author of the 
2010 article was not identified and there is no evidence showing that 
is a form of major media. 
In addition, the Petitioner provided an 2010 article in a 
Chinese language newspaper. The Petitioner did not offer an English language translation of the 
article as required by the regulation at 8 C.F .R. § 103 .2(b )(3 ), which states in pertinent part: 
Translations. Any document containing foreign language submitted to USCIS shall 
be accompanied by a full English language translation which the translator has 
certified as complete and accurate, and by the translator's certification that he or she 
is competent to translate from the foreign language into English. 
Without a full English language translation, the Petitioner has not established that the article meets 
this regulatory criterion. Furthermore, the Petitioner did not provide evidence demonstrating that 
is a form of major media. 
Finally, the Petitioner subm'itted an 2010 article in a Japanese 
language newspaper, but the English language translation accompanying the article was not certified 
by the translator as required by the regulation at 8 C.F.R. § 103.2(b)(3). Moreover, the author was 
not identified, the article is about the ' and not the Beneficiary, and there is no 
evidence indicating that the newspaper is a form of major media. 
In light of the above, the Petitioner has not established that the Beneficiary meets this regulatory 
criterion. 
Evidence of the alien's original scientific, scholarly, artistic. athletic, or business­
related contributions of major sign(ficance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The Petitioner stated: "With well over 40 disparate art pieces and project specific appearances in 
exhibitions and in galleries over her young career she has a prolific and persistent record of engaging 
the art world and producing art which meets the highest standards." The regulations include a 
separate criterion for display of one's work in the field at artistic exhibitions at 8 C.F.R. 
§ 204.5(h)(3)(vii), and the appearances of the Beneficiary's art at exhibitions and galleries will be 
addressed there. Evidence relating to or even meeting the display criterion is not presumptive evidence 
that the Beneficiary also meets this criterion. Because separate criteria exist for artistic display and 
original contributions of major significance in the field, USCIS does not view the two as being 
interchangeable. To hold otherwise would render meaningless the regulatory requirement that a 
beneficiary meet at least three separate criteria. Regardless, the Petitioner has not shown that the 
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Matter of L-B-M-, Inc 
Beneficiary's artwork rises to the level of original contributions of major significance in the field. For 
example, there is no documentary evidence demonstrating that the Beneficiary's art has influenced 
others in the creative design or visual arts fields, that any of her specific works are widely viewed as 
important pieces of contemporary art, or that her original work otherwise equates to artistic 
contributions of major significance in the field. 
In addition, the Petitioner submitted design sheets for multiple scarves that the Beneficiary created, 
and two sales tables listing products that "incorporated designs and artwork created by [the 
Beneficiary]." According to the first table, 229,015 units were sold for a total of$674,551.55. The 
second table indicated that 297,848 units were sold for a total of $813,222.50. Neither table 
identified the specific time periods during which the units were sold. Furthermore, there is no 
documentary evidence showing how the sales of scarves designed by the Beneficiary compared to 
those of competing designers or were otherwise of major significance in the fashion accessories 
industry. 
While the Beneficiary's design work has helped the Petitioner sell its fashion accessories, there is no 
indication her product designs and artwork have affected the field in a substantial way or otherwise 
constitute original artistic contributions of major significance in the field. The plain language of the 
regulatory criterion at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the alien's original scientific, 
scholarly, artistic, athletic, or business-related contributions" that are "of major significance in the 
field." Here, the evidence must be reviewed to see whether it rises to the level of original artistic 
contributions "of major significance in the field." The phrase "major significance" is not 
superfluous and, thus, it has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 
F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Po[fer, 343 F.3d 619, 626 (2
11
d Cir. Sep 15, 2003). 
president of the petitioning entity, stated that the Beneficiary's "design work will 
positively impact the industry as a whole for many years to come. Her creations are hallmarks to the 
industry in its entirety and her designs have sparked and inspired fashion trends within our product 
category and beyond." does not identify the Beneficiary's specific creations that are 
"hallmarks to the industry in its entirety" or provide actual examples of their impact on fashion 
trends. USCIS need not rely on unsubstantiated statements. See 1756, Inc. v. US. Att'y Gen., 745 F. 
Supp. 9, 15 (D.D.C. 1990) (holding that an agency need not credit conclusory assertions m 
immigration benefits adjudications). 
also claimed that the Beneficiary "is a leader and a force within the confines of her field" 
and that she has the vision to transform company products "into fashion statements that challenge 
our competition and the entire fashion industry to keep up," but did not offer specific examples of 
company product transformations that have substantially influenced the fashion industry or were 
otherwise of major significance in the field. Vague, solicited letters that do not explain how the 
beneficiary's contributions have already influenced the field are insufficient to establish original 
contributions of major significance in the field. Kazarian v. USC IS, 580 F.3d 1030, 1036 (9th Cir. 
2009) aff'd in part 596 F.3d 1115 (9th Cir. 201 0). In 2010, the Kazarian court reiterated that the 
USCIS' conclusion that the "letters from physics professors attesting to [the individual's] 
contributions in the field" were insufficient was "consistent with the relevant regulatory 
8 
(b)(6)
Matter of L-B-M-, Inc 
language." 596 F.3d at 1122. It is not enough to be a talented 'designer or visual artist and to have 
others attest to that talent. An individual must have demonstrably impacted her field in order to meet 
this regulatory criterion. 
We have addressed specific affirmations above. Generalized conclusory statements that do 
not identify specific contributions or their impact in the field have little probative value. See 1756. Inc., 
745 F. Supp. at 15. In addition, uncorroborated statements are insufficient. See Visinscaia, 4 
F.Supp3d at 134-35; Matter ofCaron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988) (holding 
that an agency "may, in its discretion, use as advisory opinions statements ... submitted in evidence 
as expert testimony," but is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought and "is not required to accept or may give less weight" to 
evidence that is "in any way questionable"). The submission of reference letters supporting the 
petition is not presumptive evidence of eligibility; users may evaluate the content of those letters 
as to whether they support the beneficiary's eligibility. Id. See also A1atter of V-K-, 24 I&N Dec. 
500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be evidence as to 
"fact"). Without additional, specific evidence showing that the Beneficiary's work has been 
unusually influential, substantially impacted the field, or has otherwise risen to the level of original 
contributions of major significance, the Petitioner has not established that she meets this regulatory 
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). 
The Petitioner provided documentation indicating that the Beneficiary exhibited her work at such 
locations as the and the 
As the Petitioner submitted articles in and 
that falsely substituted the Beneficiary's name when discussing her exhibitions at 
those articles cast doubt on the reliability and sufficiency of the evidence offered in support 
of this criterion. See Matter of Ho, 19 I&N Dec. at 591-92. Accordingly, we withdraw the 
Director's finding that the Beneficiary meets this regulatory criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix). 
In Part 6 of the Form 1-140, the Petitioner listed the Beneficiary's wages as $90,000 per year, but it 
did not offer documentation of her earnings. Although the Director issued a request for evidence 
(RFE) instructing the Petitioner to submit "the Beneficiary's W-2 or 1099 forms for years in which 
[she] has received a high salary," it did not provide any of those forms in its response. By not 
submitting documentary evidence in support of its statements regarding the salary or remuneration 
earned by the Beneficiary, the Petitioner has not satisfied its burden of proof. See Matter of Sofjici, 
22 I&N Dec:/158, 165 (Comm'r 1998) (citing Matter o.fTreasure Craft ofCalifornia, 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). 
-' I 
9 
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Matter of L-B-M-, Inc 
While the Petitioner did not document the stated wages of $90,000 per year, the record includes the 
Beneficiary's 2010 · with the 
which includes: "The Gallery shall pay the artist an annual salary of $50,000 .... " The 
Petitioner also provided median annual wage information for fashion designers from the U.S. Bureau 
of Labor Statistics (BLS) and The BLS stated that the median annual wage for 
fashion designers was $62,800 in May 2012, while indicated that their median annual 
wage was $46,992. As the Beneficiary's $50,000 contract salary was below the BLS median for 
fashion designers and just over three thousand dollars above the median amount identified by 
the Petitioner has not demonstrated that she received a high salary relative to other fashion 
designers. 
In addition, although the Petitioner compares her compensation to fashion designers, the Beneficiary 
currently serves as its "creative director" in a managerial capacity, and previously executed a 
contract with the as an "artist." The Petitioner 
must present evidence showing that the Beneficiary has earned a high salary or significantly high 
remuneration in comparison with those performing similar services in the field. See Matter of Price, 
20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering a professional golfer's earnings versus 
other PGA Tour golfers); see also Skokos v. US. Dept. of Homeland Sec., 420 F. App'x 712, 713-14 
(9th Cir. 2011) (fin~ing average salary information for those performing lesser duties is not a 
comparison to others in the field); Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) 
(considering NHL enforcer's salary versus other NHL enforcers); 1Yfuni v. INS, 891 F. Supp. 440, 
444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NHL 
defensemen). Accordingly, the Petitioner has not established that the median annual wage 
information for fashion designers constitutes an appropriate basis for comparison. 
Because it did not submit the requested evidence of the Beneficiary's salary or remuneration, the 
Director determined that the Petitioner had not established the Beneficiary's eligibility for this 
criterion. On appeal, the Petitioner does not contest the Director's findings for this criterion, or offer 
any additional arguments or evidence. We find the Petitioner has not established that the Beneficiary 
meets this regulatory criterion. I 
B. Summary 
For the reasons ,discussed above, we agree with the Director that the Petitioner has not submitted 
the 
required initial evidence of either a one-time achievement or documentation that the Beneficiary 
meets at least three of the ten criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
Had the Petitioner included the requisite material under at least three evidentiary categories, in 
accordance with the Kazarian opinion, our next step of analysis would be a final merits' 
determination that considers all of the submissions in the context of whether the Beneficiary has 
achieved: ( 1) a "level of expertise indicating that {he] is one of that small percentage who have risen 
to the very top of the field of endeavor," and (2) "that the [beneficiary] has sustained national or 
international acclaim" and that his "achievements have been recognized in the field of expertise." 
8 C.P.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-20. As the Petitioner has not done 
10 
Matter of L-B-M-, Inc 
so, the proper conclusion is that the Beneficiary has not satisfied the antecedent regulatory 
requirement of presenting initial evidence set forth at 8 C.F.R. § 204.5(h)(3)(i)-(x). See Kazarian, 
596 F.3d at 1122. Nevertheless, although we need not provide the type of final merits determination 
referenced in Kazarian, a review of the record in the aggregate does not support a finding that the 
Beneficiary has achieved the level of expertise required for this classification. 
C. 0-1 Nonimmigrant Status 
We note the record of proceedings reflects that the Beneficiary received 0- !status, a classification 
reserved for nonimmigrants of extraordinary ability. Although USC IS has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the Beneficiary, the prior approval does not preclude 
USCIS from denying an immigrant visa petition which is adjudicated based on a different standard­
statute, regulations, and case law. Many Form 1-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant petitions. See, e.g, Q Data Consulting, Inc. v. IlvTS, 293 F. Supp. 2d 25 
(D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers 
Co. Ltd., 724 F. Supp. at 1103. Furthermore, our authority over a USCIS service center, the office 
responsible for adjudicating the nonimmigrant visa petition, is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of an individual, we are not bound to follow that finding in the 
adjudication of another immigration petition. Louisiana Philharmonic Orchestra v. Ih'S, No. 98-
2855, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(2001). 
IV. CONCLUSION 
The Petitioner has not demonstrated by a preponderance of the evidence that the Beneficiary is an 
individual of extraordinary ability under section 203(b )(1 )(A) of the Act. Furthermore, the Petitioner 
has sought to procure a benefit provided under the Act through willful misrepresentation of a 
material fact. Accordingly, the Petitioner has not established the Beneficiary's eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; j\1atter of Otiende, 26 I&N 
Dec. 127, 128 (BIA 2013). 
ORDER: The appeal is dismissed. 
Cite as j\1atter of L-B-M-, Inc, ID# 74066 (AAO Nov. 25, 2016) 
11