dismissed EB-1A Case: Fashion Photography

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-F-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 19.2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a high fashion photographer, seeks classification as an individual of extraordinary 
ability in the arts. 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 Form I-140. Immigrant Petition for Alien 
Worker, concluding that the Petitioner had not satisfied any of the initial evidentiary criteria, of 
which he must meet at least three. 
On appeal, the Petitioner submits a brief~ contending that he satisfies at least three criteria. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(I)(A) of the Act makes visas available to qualified 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 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 
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Matter of S-F-
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification ' s initial evidence 
requirements. First, a petitioner can demonstrate 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 documentation that meets at least three of the ten categories 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. USC IS, 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.O. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSTS 
The Petitioner is a high fashion photographer who currently works for 
Because he has not indicated or established that he has received a major, internationally recognized 
award, he must satisfy at least three of the ten criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). In denying 
the petition, the Director found that the Petitioner did not meet any of the initial evidentiary criteria . 
On appeal , the Petitioner maintains that he meets the following criteria: memberships under 
8 C.F.R. § 204.5(h)(3)(ii) , published material under 8 C.F.R. § 204.5(h)(3)(iii) , judging under 
8 C.F.R. § 204.5(h)(3)(iv), original contributions under § 204.5(h)(3)(v). artistic display under 8 
C.F.R. § 204.5(h)(3)(vii) , leading or critical role under 8 C.F.R. § 204.5(h)(3)(viii), and high salary 
under 8 C.F.R. § 204.5(h)(3)(ix). We have reviewed all of the evidence in the record and conclude 
that it does not support a finding that the Petitioner satisfies the plain language requirements of at 
least three criteria. 
A. Evidentiary Criteria 
Documentation of the alien ·s membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members. as judged by recognized 
national or international experts in their disciplines or.fields. 8 C.F.R. § 204.5(h)(3)(ii) . 
The Petitioner contends that his inclusion in the book, 
establishes his eligibility for this criterion and he references a recommendation letter from 
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Matter (?[S-F-
director for explained that 
annually produces and claims that the book is most 
influential resource regarding professional photographers and photo re-touchers in Japan. Further. 
asserted that the Petitioner "is a member of an extremely elite association of 
photographers who have been selected to be profiled in the 
Moreover, stated that "[t]the standards we have for selection of our profiled 
photographers are extremely high" and "one must be an established, powerful, and successful 
photographer to even be considered for our publication." 
The record also contains a letter from editor for 
who provided background information regarding the publication, including its 
establishment in 2012. stated that "the criteria for selecting photographers and photo 
retouchers is extremely low compared to ours" and "our company created a unique selection 
methodology, limiting the number of photographers to those who are established in a bona tide 
manner as industry-leading professionals now and into the future.·· Further, indicated 
that photographers are chosen "based on significant research conducted by our selection team 
through magazines, books. online publications, advertising credits, and overall professional 
competence" and the team then will go through portfolios and websites to finalize a decision. 
The regulation at 8 C.F.R. 204.5(h)(3)(ii) requires membership in associations that require 
outstanding achievements of their members, as judged by recognized national or international 
experts. Here, the record does not demonstrate that inclusion in the noted book constitutes 
"membership" in an association. In addition, although and indicated that 
the publication has standards for its "unique selection methodology," the Petitioner did not 
demonstrate that those standards are equivalent to "outstanding achievements." For instance. the 
authors did not explain what entails an "established, powerful, and successful photographer" and 
how they are considered as outstanding achievements. Moreover, the Petitioner did not establish 
that the publication's "selection team" is comprised of recognized national or international experts. 
Accordingly, the Petitioner did not show that inclusion in 
satisfies this regulatory criterion. 
In addition, the Petitioner claims that he meets this criterion based on his association with 
store and an online designer retailer, and he cites to a 
letter from associate creative director tor praised the 
Petitioner for his work and claimed that "other photographers are heavily influenced by [the 
Petitioner] simply because they will see his successful photographs at and/or 
(to name just two of his clients) and analyze why we chose his works over theirs." 
Furthermore, the Petitioner lists other photographers and argues that his collaboration with them 
shows his "extraordinary abilities as a matter of association." 
In order to satisfy this criterion, the Petitioner must establish that he is a member in an association 
that requires outstanding achievements of its members, as judged by recognized national or 
international experts. Here, the Petitioner did not demonstrate how being employed by 
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Matter of S-F-
or and working with other photographers constitutes "membership in 
associations" consistent with this regulatory criterion. Moreover, the Petitioner did not show that 
outstanding achievements are required to be employed by or or to 
collaborate with other photographers, as well as being judged by recognized national or international 
experts. 
Finally, the Petitioner argues that "any and all documentation that does not perfectly fit within the 
EB-1 standards as cited by the adjudicating <~{ficer behrw is re,\pec(fully and simultaneously 
submitted as comparable evidence showing the same" (emphasis in original). The regulation at 
8 C.F.R. § 204.5(h)(4) provides that "[i]f the above standards do not readily apply to the 
[petitioner's] occupation, the petitioner may submit comparable evidence to establish the 
[petitioner's] eligibility." Thus, a petitioner must demonstrate why the regulatory criterion does not 
pertain to his or her occupation and how the evidence submitted is "comparable" to the objective 
evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). In this case, the Petitioner did not establish that 
the membership criterion does not apply to photographers. In addition, he did not show how his 
evidence is comparable to the regulation at 8 C.F.R. § 204.5(h)(3 )(ii). For these reasons, the 
Petitioner does not satisfy this criterion. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's lVork in the field for which class[jication is sought. Such evidence 
shall include the title, date. and author ~lthe material, and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
The Petitioner argues that a article constitutes published 
material about him. The record contains a 2015 screenshot from depasha.com entitled, 
by The website article indicates 
an interview with the Petitioner reflecting published material about him relating to the photography 
field. However, the Petitioner did not demonstrate that depasha.com is a major medium. He did 
not, 
for example, provide comparative readership statistics showing that it enjoys major readership. 
Therefore, the Petitioner did not establish that the article meets this criterion. 
The record also contains a "Contributors" section from publications such as 
and The material, however, includes photographs and short biographies 
crediting the individuals' involvement in the articles, such as the reporter, editor, and photographer, 
rather than published material about the Petitioner in professional or major trade publications or 
other major media. Similarly, the Petitioner submitted samples of his work in magazines, such as 
in which his name appears in the captions of photographs as being credited for the 
photographs with no discussion about him. Articles that do not pertain to a petitioner do not meet 
this regulatory criterion. See. e.g, Negro-Plumpe v. Okin. 2:07-CV -820-ECR-RJJ at* l, *7 (D. Nev. 
Sept. 8, 2008) (upholding a finding that articles regarding a show are not about the actor). In 
addition, the evidence does not include title, date, or author of the material as required by this 
regulatory criterion. Furthermore, although we recognize the major status of the 
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Matter of S-F-
Petitioner did not show that the other magazines are professional or major trade publications or other 
major media. 1 
Finally, the record includes an article, ' from 
Although the Petitioner provided a quote, the article discusses Japanese 
fashion photographers launching a magazine and includes an interview with 
Therefore, the article is not about the Petitioner relating to his work. In addition, the Petitioner did 
not include the author of the article. Accordingly , the Petitioner did not demonstrate that he meets 
this criterion. 
Evidence of the alien's participation, either individually or on a panel. as a judge of the work (~l 
others in the same or an alliedfield of spec~fication for vvhich class{fication is sought. 8 C. F. R. 
§ 204.5(h)(3)(iv). 
In support of this criterion, the Petitioner contends he provided letters from colleagues attesting to 
his judging of the work of others. 2 Specifically, professional hairstylist, stated 
that the Petitioner "judges my work positively," "[the Petitioner] routinely chooses me to win; 
thereby judging my work in a consequential manner," and "[w]hen [The Petitioner] judges my work, 
he is always clear about the bases of his opinions." Further, a freelance creative 
and art director, indicated that the Petitioner "judges whether my set designer's set is good or 
bad," 
"is responsible for judging the work of the set designers and everything on set,'' "must judge the 
work of the makeup artists and hairstylists." and "judges how they follow his directions and he 
proceeds to readjust everything to meet the tina) goals of the shot." In addition, 
model agent for claimed that "[the Petitioner] is entirely responsible for 
knowing, formulating, and then judging how the images must be set up in order to be captured with 
his lens and camera,"' must defer to [the Petitioner's] power of judgment when it comes to 
which of our models will best suit the photoshoot he is about to handle,'' and "we must all rely on his 
expert judgment in determining what model will best fit the advertising profile.'' Moreover, 
fashion brand director for stated that the Petitioner "participates as a judge of the 
work of others every time he visits a photoshoot at this point in his career" (emphasis in original). 
The regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence 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 
specification for which classification is sought." In this case , the Petitioner has not shown that 
evaluating photoshoots in an informal capacity as part of one 's job duties equates to participation as 
a judge of the work of others in the field. The phrase "a judge" implies a formal designation in a 
judging capacity, either on a panel or individually, as specified by the regulatory criterion. Although 
the Petitioner's recommendation letters reference his "judgement,'' they do not establish that he 
1 
We note that the Petitioner offered screenshots from for relating to circulation data and 
highlighted publications, such as and The Petitioner, 
however, did not submit published material about him in these publications. 
2 
Although we discuss a sampling of the Petitioner's letters, we have reviewed and considered each one. 
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Matter of S-F-
participated as a judge of the work of others consistent with this regulatory criterion. 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), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Here, the record does not contain 
evidence reflecting that he served as a judge of other photographers. Accordingly, the Petitioner has 
not demonstrated that he meets this criterion. 
Evidence of the alien's original scient({ic. scholarly, artistic . athletic, or business-related 
contributions a_{ major sign(ficance in the.field. 8 C.F.R. § 204.5(h)(3 )(v). 
In order to satisfy the regulation at 8 C.F.R. § 204.5(h)(3)(v) , a petitioner must establish that not only 
has he made original contributions but that they have been of major significance in the field. For 
example, a petitioner may show that the contributions have been widely implemented throughout the 
field, have remarkably impacted or int1uenced the field, or have otherwise risen to a level of major 
significance in the field. The Petitioner argues that that his reference 
letters from fellow artists 
demonstrate his eligibility for this criterion. 
In his brief, the Petitioner claims that that his "work became multiple public postings in and around 
for ''an art company, and cites to a letter from art director for 
stated that the Petitioner was retained by in September 2016 to 
photographically enhance the "company's social media presence, print magazine presence, street 
posters , and our billboard presence on a major billboard" in However, the 
Petitioner filed his petition in January 2016, and discusses events that occurred after he 
filed his petition. A petitioner must establish that all eligibility requirements for the immigration 
benefit have been satisfied from the time of the tiling and continuing through adjudication. 8 C.F.R. 
§ 103 .2(b )(1 ). Notwithstanding this requirement, although explained why hired 
the Petitioner and praised him for the 
results he delivered to the company, she does not indicate how 
his contributions to are considered contributions of major significance to the field at large. 
See Visinscaia, 4 F. Supp. 3d at 134-35 (upholding a finding that a ballroom dancer had not met this 
criterion because she did not corroborate her impact in the field as a whole). 
Similarly, the Petitioner references a letter from director of editorial and 
content for . an apparel manufacturer. indicated that that 
hired the Petitioner in 2016 to shoot a website editorial for a new lineup of 
apparel. Again, described events that happened after the Petitioner tiled his 
petition. Nonetheless, while stated that was so impressed by 
Petitioner and his work that it decided to feature the website art on a billboard near Texas, 
she did not demonstrate how his work impacted the field in a significant manner beyond 
3 
' The record contains other similar recommendation letters that describe work performed by the Petitioner for businesses 
and individuals but do not establish how that work is considered to be of major significance in the general field. 
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Matter o.fS-F-
The record also contains numerous recommendation letters praising the Petitioner for his talent s and 
experience. For example , editor-in-chief for magazine , stated that the 
Petitioner "is an extraordinarily talented high fashion photographer." hairstylist. 
indicated that the Petitioner "has accumulated thousands and thousands of experience [sic] in this 
field." , fashion editor for . claimed that the Petitioner "is one of the most 
dedicated, serious, methodical, thoughtful , and artistically creative photographers in this industry.' ' 
Although the letters praise the Petitioner for his skills and work , they do not explain how the 
Petitioner' s contributions are "of major significance in the field ." Having a diverse skill set is not a 
contribution of major significance in and of itself. Rather, the record must be supported by evidence 
that the Petitioner has alread y used those unique skills to impact the field at a significant level. 
The letters considered above primarily contain attestations of the Petitioner's status in the field 
without providing specific examples of how his contributions rise to a level consistent with major 
significance. Letters that repeat the regulatory language but do not explain how an individual ' s 
contributions have already influenced the field are insufficient to establish original contributions of 
major significance in the field . Kazarian , 580 F.3d at I 036, aff"d in part 596 F.3d at 1115. In 2010, 
the Kazarian court reiterated that the U.S. Citizenship and Immigration Services' (USCIS) 
conclusion 
that the "letters from physics professors attesting to [the petitioner's] contributions in the 
field" were insufficient was "consistent with the relevant regulatory language. " 596 F.3d at 1122. 
Moreover , USCIS need not accept primarily conclusory statements . 1756. Inc. v. The U S. A ft y 
Gen., 745 F. Supp. 9, 15 (D.C. Dist. 1990). For these reasons , the Petitioner did not demon strate that 
he meets this criterion. 
Evidence of the display of the alien 's work in the f ield at artistic exhibitions or show cases. 
8 C.F.R. § 204 .5(h)(3)(vii). 
The Petitioner documented the display of his work at artistic exhibitions. As discussed above , the 
Petitioner's photography has been presented in various magazines and on websites. Accordingly , 
the Petitioner established that he satisfied this criterion . 
Evidence that the alien has performed in a leading or critical role for or14anizations or 
establishments that have a distinguish ed reputation. 8 C.F.R. § 204.5(h)(3)(viii) . 
The Petitioner contends that his recommendation letters demonstrated that he performed in a leading 
or critical role. Specifically , he cites to letters from and 
chief marketing officer for According to "delib eratel y 
seeks [the Petitioner] out due to his extraordinary abilities as a high fashion photographer, " "[he] has 
always occupied an ongoing , lead role in every one of our projects " and "[t]here is simply no way to 
characterize [the Petitioner] as anything but a lead or critical role for establishments he works for, 
including ' As it pertains to claimed that "[the 
Petitioner] had the ability to know the results of his ideas even before he shot them" and "[i]n times 
of extreme pressure , risk, and potential loss of money, [the Petitioner] sets up with courage and 
confidence to lead the team.'' Relatin g to stated that "profe ssionals like 
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Matter of S-F-
myself happily and willingly follow [the Petitioner's] lead because we have high confidence in his 
intrinsic abilities such that his credibility allows us to entirely trust his judgment" and "[the 
Petitioner] knows precisely how to achieve a perfect level of balance while emphasizing the shoe 
and the model. "4 
In general, a leading role is evidenced from the role itself. Here, the Petitioner's letters do not 
establish that his role as a photographer, hired to complete specific, short-term projects, for 
or reflects a leadership role in the overall establishments he 
served. While the authors praised the Petitioner for the quality of his work and indicated his role 
within the projects he worked, they do not show that he pertom1ed in a principal role for the 
companies as a whole. The Petitioner, for example, did not provide an organizational chart 
demonstrating where he fit in the overall hierarchy of the companies. 
In addition, a critical role is commonly one in which a petitioner was responsible for the success or 
standing of the organization or establishment. Again, while the authors were impressed with the 
results ofthe Petitioner's work, they did not indicate how the Petitioner's work contributed to the 
successes of the companies or impacted their reputations in the field. For instance, the reference 
letters did not show that the companies sold more products based on the Petitioner's photography 
and artwork in advertisements. Here, the Petitioner did not establish that his roles were essential to 
the companies' accomplishments. Accordingly, the Petitioner did not demonstrate that he meets this 
criterion. 
Evidence that the alien has commanded a high salary or other sign~ficantly hiRh remuneration 
for services, in relation to others in thefield. 8 C.F.R. § 204.5(h)(3)(ix). 
The Petitioner contends that he earns $170.000 per year, and that this shows that he commands a 
high salary in relation to others in the photography field. The record, however, contains the 
Petitioner's 2015 Form 1040, U.S. Individual Income Tax Return, reflecting that he reported 
$79,500 for total income. Although the Petitioner provided the 2014 and 2015 Form 1120, U.S. 
Corporation Income Tax Return, reflecting that the entity, ' ' had gross 
sales of $172,140 and $169,650 respectively, they relate to the business' income rather than to the 
Petitioner's salary. Thus, the record shows that the Petitioner commands a salary of $79,500 rather 
than $170,000. 
In order to satisfy this criterion, the Petitioner 
must demonstrate that he commands a high salary or 
other significantly high remuneration for services in relation to others in his field. The Petitioner 
provided the median ranges of photographers' salaries in the . New York area from 
the Foreign Labor Certification Data Center Online Wage Library reflecting $26,146 to $62,067 and 
reflecting $55,928 to $79,515. Further, the Petitioner presented data from 
4 
While the record includes other recommendation letters regarding the Petitioner's photos hoot projects for other 
companies and individuals, they do not reflect that he performed in a leading or critical role for the same reasons 
discussed in this section. 
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Afatter ofS-F-
reflecting yearly wages of $19,410 to $100,320. In addition, the Petitioner offered various job 
postings from indicating a starting salary of $20 to $35 per hour. 
While the Petitioner's salary is at the higher end of the spectrum for median wages of fully 
competent photographers in the New York area, he did not establish that he commands a "high 
salary" compared to other high fashion photographers. Moreover, the information from 
indicates that ''Top End Photographer Earnings" are $100,000, in which the Petitioner's salary is 
significantly lower. See Matter of Price, 20 l&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering 
a professional golfer's earnings versus other PGA Tour golfers); see also Grimson v. /11/S, 934 F. 
Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL entorcers); 
Mzmi v. INS, 891 F. Supp. 440, 444-45 (N.D. Ill. 1995) (comparing salary ofNHL defensive player 
to salary of other NHL defensemen). In addition, while the job postings reflect starting salaries that 
are less than the Petitioner, he did not demonstrate that he has commanded a high salary when 
compared to others in his field as a whole rather than a selective list of positions. For these reasons. 
the Petitioner did not establish that he meets this criterion. 
C. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although CSCIS has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the Petitioner, the prior approval does not preclude 
USCIS from denying an immigrant visa pe6tion which is adjudicated based on a different standard ­
statute, regulations, and case law. Many Fonn I-140 immigrant petitions are denied after USCIS 
approves prior nonimmigrant petitions. See. e.g. Q Data Consulting. Inc. v. Ilv'S, 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 Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990). 
Furthermore, our authority over the USCIS service centers, the office 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. llv'S, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
III. CONCLUSJO>J 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of 
final merits determination referenced in Kazarian , 596 F.3d at 1119-20. Nevertheless, we advise 
that we have reviewed the record in the aggregate, concluding that it does not support a finding that 
the Petitioner has established the level of expertise required for the classification sought. For the 
foregoing reasons, the Petitioner has not shown that he qualifies for classification as an individual of 
extraordinary ability. 
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Matter of S-F-
ORDER: The appeal is dismissed. 
Cite as Matter of S-F-, ID# 788657 (AAO Jan. 19, 2018) 
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