dismissed EB-1A Case: Film Actress

U.S. Citizenship 
and Immigration 
Services 
In Re: 17570790 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 09, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, I I film actress, 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 record did not 
establish that the Petitioner met the initial evidentiary requirement through either a one-time 
achievement (a major, internationally recognized award) or meeting three of the criteria under 
8 C.F.R . § 204.5(h)(3). 
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 de nova review , we will dismiss the appeal. 
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 
(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). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit 
comparable material if he or she is able to demonstrate that the standards at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) do not readily apply to the individual's occupation. 
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. ANALYSIS 
The Petitioner isl I film actress who has appeared in many films and videos. The evidence 
shows that she has received severall I industry awards and been nominated for others. She 
states that she intends to continue working in this field as an actress in the United States. 
A. Evidentiary Criteria 
The Petitioner initially claimed to be a recipient of major, internationally recognized awards based 
upon her receipt of the.__ _____ ___,' award in 2015 and 2016, as well as wins in other categories 
in later years. However, the Director concluded that these awards did not qualify as major, 
internationally recognized awards, and the Petitioner does not challenge this decision with any 
specificity or offer additional arguments on appeal. We therefore consider this issue to be abandoned. 
See Sepulveda v. US. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 09-
CV-27312011, 2011 WL 4711885 at *l, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's 
claims to be abandoned as he failed to raise them on appeal to the AAO). 
Because the Petitioner has not established that she has received a major, internationally recognized 
award, she must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x ). The Director concluded that the Petitioner met two of the evidentiary criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x), relating to lesser nationally or internationally recognized awards for 
excellence in her field, and published media about her and her work in the field. After review, we 
agree with those conclusions. 
On appeal, the Petitioner reasserts her previous claims that she also meets the evidentiary criteria 
relating to a leading or critical role, the display of her work at artistic exhibitions or showcases, and 
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commercial success in the performing arts. 1 After reviewing all of the evidence in the record, we find 
that the record does not support a conclusion that she meets the requirements of any of these criteria, 
and thus does not meet the initial evidence requirement for the requested classification. 
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) 
In his decision to deny the Petitioner's petition, the Director concluded that this criterion applies only 
to the display of physical works of art such as sculptures and paintings, not to musical or acting 
performances. He relied for this interpretation upon the district court decision in Negro-Plumpe v. 
Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008). However, in contrast to the broad 
precedential authority of the case law of a United States circuit court, the AAO is not bound to follow 
the published decision of a United States district court in cases arising within the same district. See 
Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's decision 
will be given due consideration when it is properly before the AAO; however, the analysis does not 
have to be followed as a matter of law. Id. at 719. Notably, the plain language of this criterion does 
not specify a particular form that a Petitioner's work must take in order to meet this criterion, only that 
it be displayed at an artistic exhibition or showcase. 2 We therefore withdraw that aspect of the 
Director's decision. 
The Petitioner responded to the Director's request for evidence (RFE) by highlighting evidence that 
her image appeared on billboards promoting an industry convention inl I as well as on box 
covers for DVDs of her movies. On appeal, she adds that her films and videos have appeared on 
streaming services, television, and at various exhibitions, such as thel I awards and trade 
show. However, in neither of these responses has she explained or established why these should be 
considered to be artistic in nature. We note that in her RFE response, the word "artistic" was used 
only in the title of the section addressing this criterion, not to specifically refer to any of the displays 
of her movies, whereas evidence was submitted under a different criterion regarding the commercial 
value of the appearance of her work on streaming services, websites, and DVDs. 
As for the conventions and award shows, the evidence indicates that the Petitioner served as a 
I I for several of the I I conventions inl I which included being personally 
available to take pictures with and sign autographs for attendees, and on one occasion accepted an 
award via Facetime. Similarly, for thd !convention and award show inl O I, she appeared 
on promotional material for the event. But while the evidence states that these conventions included 
live performances, autograph booths, and product exhibitions, it does not show that the Petitioner's 
movies were shown at these venues. Further, even if the movies, or snippets of the movies, were 
shown, these events have not been shown to be artistic in nature, but rather are focused on the 
1 As with her claim to have received a major, internationally recognized award, the Petitioner also does not specifically 
contest the findings of the Director relating to two additional criteria under 8 C.F.R. ~ 204.5(h)(3)(ii) and (vi). For the 
same reason her claim to a major, internationally recognized award has been abandoned, we will also consider her claims 
to those criteria abandoned. 
2 See 6 USCIS Policy Manual F.2(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2, stating that in 
the first step of the two-step adjudication of petitions under this classification, USCIS officers should dete1mine only if the 
evidence objectively meets the regulatory criteria. 
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promotion of actors, products, and business in th _______ ____, industry. Therefore, for all of 
these reasons, the Petitioner has not established that she meets this criterion. 
Evidence that the alien has pe1formed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
To meet this criterion, a petitioner must show that they played a role which was leading or critical for 
an organization or establishment, and that that organization or establishment has a distinguished 
reputation. If a petitioner claims to have served in a leading role, the evidence must establish that the 
alien is ( or was) a leader. A title, with appropriate matching duties, can help to establish if a role is ( or 
was), in fact, leading. On the other hand, if a critical role is claimed, the evidence must establish that 
the petitioner has contributed in a way that is of significant importance to the outcome of the 
organization or establishment's activities. A supporting role may be considered "critical" if the 
petitioner's performance in the role is (or was) important in that way. It is not the title of the petitioner's 
role, but rather the alien's performance in the role that determines whether the role is ( or was) critical. 3 
The Petitioner initially submitted letters from several businesses in the rdustryl in support 
of this criterion, including! I .__ _______ ___. and Evidence 
was also submitted regarding her activities for other companies, including .__ _______ ____, 
I ll I, and I I In responding to the Director's RFE, the Petitioner stated that 
she "stand[s] by our original submission." The Director determined that the Petitioner had not 
established that she played a qualifying role for these organizations, or that any of them have a 
distinguished reputation. 
On appeal, the Petitioner again asserts that she meets this criterion based on her role with most of these 
organizations, and submits new evidence pertaining to these and other establishments. While she 
refers to section 3. 8(b) of the AA O Practice Manual for the proposition that we will accept new 
evidence on appeal, we note that she specifically declined to submit such evidence when it was 
requested by the Director. Where, as here, a Petitioner has been put on notice of a deficiency in the 
evidence and has been given an opportunity to respond to that deficiency, the AAO will not accept 
evidence offered for the first time on appeal. Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter 
ofObaigbena, 19 I&N Dec. 533 (BIA 1988). In addition, the majority of this new evidence is dated 
after the filing of the petition, and either relates to events that occurred after that date or to an unknown 
date. 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. 8 C.F .R. § 103 .2(b )(1 ). 
We will therefore limit our review to the evidence in the record at the time of the Director's decision. 
This evidence includes a letter froml I project organizer for I I who 
verifies that the Petitioner was featured "in the past several conventions" as a •I l,, melgl 
that she had a booth at the convention and worked with the company to promote the convention. 
I lalso writes that the Petitioner was selected to moderate the main stage at the convention. 
However, she does not indicate that the Petitioner acted as a leader, either for the convention or the 
company itself, or that her role as a I I was critical to any success that the company may 
3 See 6 USCIS Policy Manual F.2(B)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2. 
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have enjoyed. A webpage which the Petitioner states is forl I shows pictures of more than 
60 actors, and thereby detracts from any claim that she held a leading position for the company. 
Another letter was written by I I CEO ofl l who indicates that his 
company worked with the Petitioner to create figurines I I of her for sale, along with 
other I I actresses. He states that the 3D model of the Petitioner is "one of our top selling 
items." But other than serving as a model and allowing herself to be scanned and photographed, 
presumably for a licensing fee, he does not state that the Petitioner played a critical role for the 
company, and there is no suggestion that she acted as a leader in this role. 4 
In support of her role withl I the Petitioner initiall submitted a letter from its CEO, 
I I He writes that the company, a producer of DVDs, works most frequently 
with the Petitioner in producing feature length films. ,__ __ _,adds that the Petitioner's DVDs are 
"the most popular and most viewed," and that the company has "sold many of DVDs featuring" her. 
We note that an article posted on the website! I states that the Petitioner and her husband 
founded and own this company, which it describes as a holding company, as well as its subsidiary 
~--------~The article also quotes the Petitioner as explaining that at the time (October 
2017) the company consisted of she and her husband and three other employees. This evidence is 
sufficient to demonstrate that the Petitioner plays a leading or critical role forl I 
However, the Petitioner has not established thatl I has a distinguished reputation.D 
states in his letter that the company produced IO DVDs in 2017, and "is currently building 
s biggest B2C (business to cons~ website, B2B 
~(_b_u_s-in_e_s_s_t_o_b_u_s-in_e_s_s )-d-i-st-n-.b-u-t1-. o-n-p-la_,tform, and is highly invested in~ biggest~ 
I companies." However, these statements are not supported by independent, documentary 
~ev_i_d_e_n-ce __ _.A page from the website I I shows several DVDs featuring the Petitioner as 
listed for sale, but this evidence does not speak to the company's re utation beyond confirming its 
production of a small number of DVDs. Further, the article on comments upon the 
Petitioner's reputation, which it indicates led to the foundation of but not on the 
company's reputation. The evidence is therefore insufficient to establish that~ _____ _, or its 
subsidiary! I has a distinguished reputation. 
The Petitioner also continues to assert that she plays a leading or critical role forl ,I which 
she describes as ' " The Au ust 18 2017 
article og I described above states that is "the official s okes erson fo 
I I which it describes as ~--~------------ ............ ' The Petitioner's 
position with this company is also confirmed by other media articles in the record, as well as an article 
about the company's anniversary party in a~-------~ magazine,! I 
However, this evidence does not confirm that as a spokesperson, the Petitioner served in a leading or 
critical role. Notably, the evidence does not include details about this role from officials of the 
company, such as the ways in which she acted as spokesperson and any positive impact that she had 
on the company as a spokesperson. 
4 We note that on appeaL the Petitioner submitted a second letter froml ,I dated December 29, 2019 and stating 
that the Petitioner joined the company as its CEO and leading consultant. Even ifwe were to consider this new evidence 
on appeal, it has minimal evidentiaiy weight, as the letter is not signed by I I and does not explain why he continues 
to identify himself as the company's CEO. 
5 
Even fewer details were submitted regarding her role as I t' forl [ with 
the evidence limited to two similar press releases which appeared onl I andl I As these 
appear to be mainly promotional in nature and do not provide details about the Petitioner's duties in 
this role, this evidence does not show that the Petitioner played a leading or critical role for this 
establishment. 
After review of all of the evidence submitted in support of this criterion, we agree with the Director's 
conclusion that the Petitioner does not meet this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 8 e.F.R. § 204.5(h)(3)(x) 
The Petitioner submitted several types of evidence under this criterion, including screenshots showing 
the number of times her movies or videos had been viewed, as well as evidence related to the sale of 
physical DVDs featuring her and receipts for subscription services that allow customers to view her 
movies and videos. In his decision, the Director concluded that since this evidence did not include 
box office receipts and sales receipts, the Petitioner did not meet this criterion. Also, the Director 
noted that the figures calculated by the Petitioner's representative were not supported by evidence in 
the record. 
The record includes pages from several websites, including in some instances the Petitioner's profile 
page on those websites, which shows the number of times that videos featuring her as an actress have 
been viewed. The Petitioner asserts that due to the changing nature of the way movies and videos are 
viewed, and the evidence of the effects of the eovrD 19 pandemic on box office sales as movie 
theatres in the United States closed for most of 2020, the number of views of the movies and videos 
in which the Petitioner appeared should be considered as comparable to the type of evidence called 
for under this criterion. 
We first note that in her appeal brief: the Petitioner refers to guidance from the users Policy Manual 
relating to the 0-1 nonimmigrant visa classification for her interpretation of the comparable evidence 
regulation at 8 e.F.R. § 204.5(h)(4), instead of the section of the users Policy Manual pertaining to 
the immigration benefit sought. In addition, despite claiming that this criterion does not apply to her 
occupation, the Petitioner has submitted evidence pertaining to sales of DVDs featuring her work, as 
well as receipts from a website which operates on a subscription model for the viewing of her work. 
She has therefore not established that this criterion does not apply to her occupation. 
However, assuming arguendo that she has established that this criterion does not apply to her 
occupation, and that the type of evidence she has submitted is in fact comparable to that specifically 
called for under this criterion, the Petitioner has still not established that she has enjoyed commercial 
success as a performing artist. First, regarding the number of times her videos and movies have been 
viewed or streamed across multiple websites, the Petitioner does not provide an exact or even 
approximate figure, stating only that this number is in the "tens of millions." Although the evidence 
does include evidence of those numbers from some of these websites, including the Petitioner's profile 
page onl I showing that her videos have been viewed a total of 5.5 million times, the 
evidence from other websites such as I I show far fewer, and the record lacks evidence of 
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the total number of views from other websites she mentions. Vague estimations which are not 
supported by documentary evidence cannot form the basis of a successful claim under this criterion. 
In addition, the Petitioner has not submitted evidence to establish that a certain quantity of streams or 
views of her videos and movies, whether considered individually or as a whole, can serve as a gauge 
of commercial success. On appeal, she puts forth the following explanation: 
The more streams a film gamers the more popular it is and the more revenue it 
generates. Streaming sites ... generate revenue through ad sales. The more streams or 
views a film gamers, the more the streaming site charges for ads. In the world of the 
internet, the more persons attracted to a website, the more advertisers pay to be placed 
on that website. 
While we do not dispute this general description of the business model used by some websites, it 
describes only an indirect connection between the number of views or streams of an individual's work 
and any commercial success it may enjoy. For that reason, the evidence submitted by the Petitioner 
is insufficient to show that is insufficient that her videos and films which have been streamed and 
viewed on such websites have been commercially successful. 
The Petitioner also submitted some evidence of sales of DVDs featuring her work, some of which is 
as vague as the evidence of the number of streams and views. For example,! ~ s letter states 
only that "we have sold many of DVDs featuring" the Petitioner, despite the evidence in the record 
showing thatl I is a subsidiary of a holding company founded and led by the Petitioner 
and her husband. Another letter froml I CEO ofl I a company which produces and 
distributes! I states that 12 videos featuring the Petitioner are "incredibly popular and are 
high sellers for us." More precise information was submitted in response to the Director's RFE, 
including a letter froml l CEO ot1 I who writes in a March 9, 2020 letter 
that "the last 2 years we sold more than 8500 movies" featuring the Petitioner, priced around 30 euros 
each. However, as noted in the Director's RFE, the number of sales alone are insufficient to 
demonstrate that the Petitioner's DVDs have been commercially successful, and the Petitioner has not 
provided evidence that this level of sales is considered commercially successful in her industry. 
Finally, the Petitioner also submitted evidence of revenue generated through websites using a 
subscription or similar model for access to her videos and films. The information from the website 
I !shows links for films featuring her, as well as the number of tickets needed to view 
them and the number of times they have been viewed. She also submitted a list of monthly earnings 
from the website! lwith the Petitioner receiving between $2600 and $4600 per month 
between January 2019 and August 2020. As noted by the Director in his decision, counsel's 
calculations based upon the data from! lare not supported by the evidence. In addition, 
the data froml lis, like the information regarding sales of DVDs featuring the Petitioner, 
insufficient by itself to establish commercial success. She does not offer further arguments regarding 
this evidence on appeal. 
For all of the reasons stated above, the Petitioner has not established that she meets this criterion. 
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III. CONCLUSION 
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 acclaim and recognition required for the classification sought. 
The Petitioner 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. USCIS 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 appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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