dismissed EB-1A Case: Media Production And Advertising

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 17, 2024 In Re: 30233386 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner , who seeks employment as a creative director, seeks classification as an individual of 
extraordinary ability. See Immigration and Nationality Act (the Act) section 203(b)(l)(A) , 8 U.S.C. 
§ l 153(b )(1 )(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 had satisfied at least three of ten initial evidentiary criteria, as required . 
The matter is now before us on appeal under 8 C.F .R. § 103 .3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes immigrant visas available to individuals with 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. These individuals must seek to enter the United States to continue work in 
the area of extraordinary ability, and their entry into the United States will substantially benefit 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 their achievements in the field through a one-time 
achievement in the form of a major, internationally recognized award. Or the petitioner can submit 
evidence 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. If those standards 
do not readily apply to the individual 's occupation, then the regulation at 8 C.F.R. § 204.5(h)(4) allows 
the submission of comparable evidence . 
Once a petitioner has met the initial evidence requirements, the next step is a final merits 
determination, in which we 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 asserted that, after earning an associate' s degree in public relations in 2011, he 
founded 
"a business development company" in Nigeria involved in media production and advertising. The 
Petitioner has served as his company's chief executive officer (CEO) and creative director. The 
Petitioner stated that his company produced radio and television programs and a record album. The 
Petitioner has been in the United States since he entered as a B-2 nonimmigrant visitor in July 2021. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or shown that he received a major, internationally recognized 
award, he must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x). The Petitioner initially claimed to have satisfied four of these criteria, summarized below: 
• (ii), Membership in associations that require outstanding achievements; 
• (v), Original contributions of major significance; 
• (viii), Leading or critical role for distinguished organizations or establishments; and 
• (ix), High remuneration for services. 
The Director concluded that the Petitioner had not met any of the claimed criteria. On appeal, the 
Petitioner does not contest the Director's conclusions regarding the criterion for leading and critical 
roles, and therefore we consider that issue to be abandoned. 1 The Petitioner maintains that he meets 
the other three claimed criteria. As discussed below, we agree with the Director that the Petitioner has 
not established eligibility for the classification he seeks. 
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). 
Initially, the Petitioner claimed to be "an accredited member of APCON," the Advertising Practitioners 
Council of Nigeria. He submitted a copy of a certificate indicating that he participated in a "Professional 
1 See Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also Sepulveda v. US. Att 'y Gen... 40 l F .3d 1226, 1228 n. 2 
(11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-
CV-27312011, 2011 WL 4711885 at* 1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandoned as he failed to 
raise them on appeal to the AAO). 
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Development Seminar/Workshop" conducted by APCON, but he did not submit evidence identifying 
him as a member of APCON, or establishing that APCON requires outstanding achievements of its 
members as judged by recognized national or international experts. The Petitioner has not further pursued 
this claim. 
The Petitioner is a member of the Electronic Media Content Owners Association of Nigeria (EM COAN). 
The Petitioner submitted a letter from EMCOAN officials describing the organization and attesting to the 
Beneficiary's service in various capacities. But the Petitioner's initial submission did not include 
evidence ofEMCOAN's membership requirements. 
In a request for evidence (RFE), the Director instructed the Petitioner to submit documentation of 
EMCOAN's membership requirements and evidence to establish that recognized national or international 
experts are responsible for admitting new members. In response, the Petitioner submitted a copy of 
EMCOAN's Constitution. Article 5 of that Constitution reads: 
1. Membership of EMCOAN shall be open to any natural or legal person who is an 
owner of programmes solely intended for broadcast on television, radio, online and 
sundry new media. 
2. There shall be two categories of membership ofEMCOAN: 
a. Corporate members 
b. Associate Members 
3. Corporate members shall be those who have joined with duly registered companies 
with the CAC [ Corporate Affairs Commission] and have paid the prescribed corporate 
membership fees. 
4. Associate Members shall be categorised as any person with a verifiable and proven 
track record of Media Content producing in the Nigerian industry over a period of 6 
months prior to application/registration and have joined the association as an 
individual without a registered company. 
Article 8 indicates that membership applications are "submitted to the General Secretary of EM COAN 
and ... directed to the Executives," who, "if satisfied, shall present the application at its next General 
meeting for ratification. . . . The approval of the application shall be decided upon by simple majority of 
the members present and voting." The Constitution does not specify any criteria that voting members 
must consider, other than the factors listed in Article 5. 
Background information furnished by EMCOAN described the organization as "the umbrella body of 
Chief Executives [sic] Officers (CEOs) of Content Owners in Nigeria," and stated: "EMCOAN and its 
members controls [sic] up to 80% of all the television and radio programmes in Nigeria." Given this 
information, the Petitioner asserted: "it is clear that the leadership and the members are high powered 
and elite members in the broadcast industry in Nigeria." 
The Director denied the petition, stating that the evidence, including EMCOAN's Constitution, "does not 
demonstrate that the association requires outstanding achievements of their members as judged by 
recognized national or international experts in their disciplines or fields." 
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On appeal, the Petitioner asserts that, given the status of EMCOAN's membership, the association's 
admission process involves recognized national or international experts in the field. But while 
EMCOAN's membership and leadership includes "high powered and elite members in the broadcast 
industry," the Petitioner has not established that EMCOAN requires outstanding achievements of its 
members. 
Under Article 5 ofEMCOAN's Constitution, "any ... person" who owns broadcast content qualifies for 
membership. The record indicates that the Petitioner joined EMCOAN as a c01porate member; his 
membership certificate names his company, and therefore he did not join as an individual member 
"without a registered company." The Petitioner has not shown that the Beneficiary's ownership of a 
registered media production company is, itself, an outstanding achievement. Article 8 of EMCOAN's 
Constitution does not indicate that the membership application process involves weighing the 
achievements of applicants. The document requires executives "to state [their] reasons for" rejecting a 
membership application, but there is no similar requirement to justify their acceptance of an application. 
Also, the record indicates that most Nigerian media content is created by EMCOAN members, and that 
EMCOAN considers itself "the umbrella body" for those creators. This information appears to indicate 
that most of Nigeria's content creators are EM COAN members. Such a scope of membership does not 
tend to indicate that membership is, itself, an elite privilege reserved for those content owners with 
outstanding achievements. 
On appeal, the Petitioner submits a letter attribute to the president of EMCOAN, acknowledging the 
requirements listed in the organization's Constitution, but adding that each candidate must also "be vetted 
by the existing membership determine ifhe or she is indeed part of the highest and most skilled echelons 
of the broadcasting professions." The Petitioner has not supported this new claim with documentary 
evidence to confirm that such vetting is part of the admission process. The new claim appears to conflict 
with the clause in the Constitution specifying that "[m ]embership of EM COAN shall be open to any 
natural or legal person who is an owner of programmes solely intended for broadcast" ( emphasis added). 
The same EMCOAN official wrote an earlier letter in support of the petition, which did not indicate that 
the membership application process involved steps or requirements beyond those spelled out in the 
organizations' governing documents. 
The Petitioner has not met his burden ofproof to established, by a preponderance of the evidence, that he 
meets the requirements of this 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). 
The Petitioner stated: "As a Creative Director the [Petitioner] makes approximately 3,600,000.00 
Nigerian Naira annually. Salary reports from Nigeria report approximately N300,000 per month salary 
for Creative Directors .... Accordingly, the [Petitioner] earns more than others in the field." But N3.6 
million per year is equivalent to, not higher than, N300,000 per month. 
The Petitioner has not submitted consistent, reliable evidence to support the figures claimed above. 
Regarding his own compensation, the Petitioner did not directly document his salary with evidence such 
as pay receipts. The Petitioner submitted bank statements from his personal account and that of his 
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company from 2017 to 2022, but the documents do not show regular deposits consistent with salary 
payments. The Petitioner's personal statements show credits in varying amounts at irregular intervals 
from a number of different sources, including several from his own spouse. The Petitioner's company 
was the source of many of these payments from 2017 to 2021, but the Petitioner did not document the 
nature or purpose of these transactions to establish that they constitute salary or remuneration for services. 
The payments from the company to the Petitioner varied widely in terms of both amount and timing, and 
do not readily distinguish between base salary, bonuses, reimbursement for expenses, and payments for 
other reasons. 
In the RFE, the Director stated that the Petitioner "did not provide supporting fmancial documentation 
( e.g., payroll records or income tax forms) demonstrating [his] actual earnings for any given period of 
time." In response, the Petitioner submitted additional copies of the same bank documents. He did not 
explain the absence of documentation to explain the purposes of the transactions, nor did he acknowledge 
this element of the RFE. The Petitioner noted the total credits into his personal account, but as noted 
above, those funds came from a number of different sources and the Petitioner did not establish which 
credits were related to remuneration for services. These totals vary widely, with the highest figure being 
nearly N24 million in 2017. The following year, 2018, the Petitioner's personal account received less 
than N800,000 from all sources combined. 
To establish a basis for comparison with others in his field, the Petitioner initially submitted screen 
captures from two salary survey websites. My Salary Scale stated: "The average net salary for Creative 
Director in Nigeria is N286K," but this average was an estimate, derived from only 12 sample figures. 
The other screen capture, from Salary Explorer, indicated that monthly salaries for '"a Creative Director 
in Nigeria" ranged from N174,000 to N498,000, averaging N327,000, which is higher than the 
Petitioner's claimed salary. 
In the RFE, the Director stated that the Petitioner had not provided "official wage statistics as a basis for 
comparison" between the Beneficiary's compensation and that of others in his field. In response, the 
Petitioner submitted printouts from various survey sources. A report from Salary Explorer indicated that 
the yearly salary of a creative director in Nigeria ranges from N2..08 million to N5 .97 million, with a mean 
salary ofN3.93 million and a median salary ofN3.54 million. The mean salary, roughly consistent with 
the less detailed Salary E-.,;plorer information submitted earlier, is higher than the N3 .6 million that the 
Petitioner initially claimed to have earned per year. 
The Petitioner also submitted a graph from Payscale, indicating a median annual salary of N1.75 million, 
and statistics from Glassdoor indicting that "[t]he estimated total pay for a Creative Director [in Nigeria] 
is NGN 407,000 per month," comprising N215,000 in base salary and Nl92,000 in additional pay such 
as "bonus, commission, tips, and profit sharing." As with the first set of figures, the newly submitted 
numbers are not consistent with one another, raising doubts about the comprehensiveness and accuracy 
of the surveys. The Glassdoor printout shows figures from various employers that are considerably 
higher than the Petitioner's initial claim ofN3.6 million per year; one reported salary was N25 million 
per year, and two others were each N15 million. 
In the denial notice, the Director concluded that the Petitioner's evidence did not distinguish his salary 
from other, umelated income, and therefore the Petitioner has not established what his salary actually 
was. The Petitioner does not address this issue on appeal. 
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The Director also determined that the Petitioner had not established a reliable basis to compare the 
Petitioner's earnings with those ofothers in the same field. On appeal, the Petitioner asserts that "Nigeria 
... is still considered a developing country," and therefore "the evidence of high salary will not be as 
sophisticated [as the evidence available from] a developed country like the US." The Petitioner asserts 
that the wage survey data in the record should be sufficient to show that he has earned a comparatively 
high salary. 
As shown above, the Petitioner submitted figures from four different sources, which provided very 
different figures, with no evidence to show which was the most reliable among them. Some websites 
provide user-reported salary data, which may not be a valid comparison if, for example, too few users 
reported their salaries or the data is othe1wise not credible or reliable. See generally 6 USCIS Policy 
Manual F .2(B)(l ), https://www.uscis.gov/policy-manual. 
Fmihennore, all the survey data concerns individuals employed as creative directors. The Petitioner does 
not claim to have been employed solely as a creative director. Rather, he was the CEO of his own 
company, where the responsibilities of a creative director were only part ofhis duties. The Petitioner has 
not explained why it is appropriate to compare the salary he received as the CEO of his own company to 
those of individuals employed solely or primarily as creative directors. 
For the reasons discussed above, the Petitioner has not established his salary or other remuneration, and 
he has not submitted adequate evidence to allow a meaningful comparison to others in the field. 
Therefore, the Petitioner has not satisfied the requirements of this criterion. 
In light of the above conclusions, the Petitioner has not met the requirements of at least three of the 
criteria at 8 C.F.R. § 204.5(h)(3). Detailed discussion of the remaining criterion at 8 C.F.R. 
§ 204.5(h)(3)(v), pertaining to original contributions of major significance in the field, cannot change the 
outcome of this appeal. Therefore, we reserve this issue. 2 
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 lesser criteria. As a result, we need not provide the type 
of final merits dete1mination 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 supp01i a conclusion 
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. U.S. Citizenship and 
Immigration Services 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). The Petitioner has established that his company has worked on publicity 
campaigns for some high-profile clients, but the record does not establish that the Petitioner has earned 
2 See INS v. Bagamasbad, 429 U.S. 24, 25-26 ( 1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter olL-A-C-, 26 I&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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a degree of recognition sufficient to show the required sustained national or international acclaim or 
demonstrate 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 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 example, 
the Petitioner stated that he was involved in an adve1iising campaign that involved the construction of 
a 14-meter-high fiberglass beer bottle. The Petitioner discussed the originality of the concept, and 
submitted media articles about the bottle, but he did not show that the project resulted in acclaim or 
recognition for him personally as the statute and regulations require. 
The Petitioner has not demonstrated eligibility as an individual of extraordinary ability. We will 
therefore dismiss the appeal. 
ORDER: The appeal is dismissed. 
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