dismissed EB-1A Case: Motion Graphics

U.S. Citizenship 
and Immigration 
Services 
MATTER OF S-H-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 3, 2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a motion graphics artist, seeks classification as an individual 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 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, Nebraska Service Center, denied the petition. The Director concluded that the 
Petitioner had satisfied only one of the regulatory criteria, of which a Petitioner must meet at least 
three. 
The matter is now before us on appeal. In her appeal, the Petitioner submits a brief stating that she 
meets at least two additional criteria. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b) ofthe Act states in pertinent part: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) 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, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
Matter ofS-H-
(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 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 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). 
Satisfaction of at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. See Kazarian v.1 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. USCJS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011); Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that the "truth is to be determined not by the 
quantity of evidence alone but by its quality" and that 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"). 
II. ANALYSIS 
The Petitioner is a motion graphics artist who has designed and developed various advertising 
projects. The Director found that she met the artistic display criterion under 8 C.F.R. 
§ 204.5(h)(3)(vii), but had not achieved any of the other criteria at 8 C.F.R. § 204.5(h)(3). On 
appeal, the Petitioner maintains that she is eligible for 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), the original 
contributions of major significance criterion under 8 C.F.R. § 204.5(h)(3)(v), and the high salary 
criterion under 8 C.F.R. § 204.5(h)(3)(ix). For the reasons discussed below, the record does not 
support a finding that the Petitioner meets the plain language requirements of at least two additional 
criteria she has addressed. 
A. Evidentiary Criteria 1 
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). 
1 We will discuss those criteria the Petitioner has raised and for which the record contains relevant evidence. 
2 
(b)(6)
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At the initial filing of the petition, the Petitioner claimed eligibility for this criterion based on a 
award. The Director issued a request for evidence (RFE) and 
informed the Petitioner that her evidence did ·not reflect that she received a lesser nationally or 
internationally recognized prize or award. Because the Petitioner did not address the awards 
criterion in her RFE response, the Director determined that the Petitioner abandoned her eligibility 
claim for this criterion. On appeal, the Petitioner states that the Director did not give a basis for her 
ineligibility 
The Petitioner's documentation reflects that her project, ' 
was presented at the conference. The Petitioner's evidence, however, 
does not document that she received a award or any other award from 
In addition, although the Petitioner presented background information regarding 
it relates to the conference rather than to the awards. The Petitioner does not offer any 
evidence on appeal showing that the award is nationally or internationally recognized for excellence 
in her field. Without evidence demonstrating that the Petitioner received the 
award and that it is nationally or internationally recognized for excellence, she has not 
established that she 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 field for which class(fication is sought. Such evidence 
shall include the title, date, and author ofthe material, and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
The Petitioner submitted documentation reflecting samples of her advertising work displayed in the 
media, such as and 
In addition, the Petitioner offered evidence that her conference 
presentations were included in DVD-ROM sets. The Petitioner further presented evidence described 
as materials she had authored, but she did not provide English language translations of the 
documents? 
In general, to meet this criterion, the material must be about the petitioner and, as stated in the 
regulations, be published in professional or major trade publications or other major media. 
Therefore, the submission of the Petitioner's artistic work, without published material that discusses 
her, does not meet this regulatory criterion. In addition, the record does not establish that the self­
authored documents constitute material about the Petitioner relating to her work. The Petitioner has 
not offered evidence of published articles that talk about her in professional or major trade 
publications or other major media consistent with the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). Therefore, the Petitioner has not established that she meets this criterion. 
2 8 C.F.R. § 103.2(b)(3) requires that any foreign language document must 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. 
3 
(b)(6)
Matter ofS-H-
Evidence of the alien's original scientific, scholarly, artistic, athletic, ·or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
Throughout the proceeding, the Petitioner has relied on reference letters to satisfy this criterion.3 
The Director considered the letters and concluded that although they praised the Petitioner for her 
talents as a graphic designer and animator, they did not show that her contributions have been of 
major significance to the field as a whole. On appeal, the Petitioner contends that the Director's 
decision was an arbitrary reading of the regulation and did not offer any legal authority to deny this 
criterion. 
Most of the letters focus on the Petitioner's work on projects with without 
explaining how her work is of major significance to the field as a whole. For instance, although 
a global brand director, indicated that the Petitioner's "interactive design skills 
were critical to the success of the project," he did not demonstrate that the 
Petitioner's contributions impacted the field beyond Similarly, 
current president and executive producer of indicated that he worked 
with the Petitioner on television advertisements when they were both at and stated 
that her "significant contribution[s] ... lead to us landing important new accounts." Again, 
does not offer evidence showing the Petitioner's contributions beyond 
While the letters credit the Petitioner with assisting successful campaign projects, they do not 
establish that the Petitioner significantly influenced the field. 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 
demonstrate her impact in the field as a 
whole). 
Further, the letters praise the Petitioner's skills and talents as "creative" and "rare." None of the 
letters, however, indicate how the Petitioner's skills or personal traits are original contributions 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 already 
used those unique skills to impact the field at a significant level in an original way. 
Moreover, the letters repeat the regulatory language and indicate that the Petitioner's contributions 
are "exceptional," "significant," and "outstanding" without describing how the Petitioner's 
contributions are of major significance in the field. Letters that repeat the regulatory language but 
do not explain how the petitioner's contributions have already influenced the field are insufficient to 
establish original contributions of major significance in the field. Kazarian, 580 F.3d at 1036 aff'd 
in part 596 F.3d at 1115. In 2010, the Kazarian court reiterated that the 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. The letters 
considered above primarily contain statements regarding the Petitioner's status in the field without 
providing specific examples of how those contributions rise to a level consistent with major 
3 We discuss only a sampling of these letters, but have reviewed and considered each one. 
4 
(b)(6)
Matter ofS-H-
significance in the field. 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), ajj'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, No. 95 CIV. 10729, *1, 
*5 (S.D.N.Y. Apr. 18, 1997). Moreover, USCIS need riot accept primarily conclusory assertions. 
1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Without supporting evidence, the Petitioner has not met her burden of establishing that she has made 
original contributions of major significance in the field. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The Petitioner documented the display of her work at artistic showcases. For instance, as previously 
discussed, the Petitioner's work was exhibited at as well as at the 
in Italy. Thus, the Director concluded that the Petitioner satisfied 
this criterion, and the Petitioner's documentation supports that finding. 
Evidence that the alien has commanded a high salary or other significantly high remuneration 
for services, in relation to others in the field. 
The Petitioner submitted copies of her paychecks with her current employer, reflecting 
hourly earnings of $52.88, or approximately $110,000 per year. In addition, the Petitioner presented 
copies of her paychecks with her previous employer, showing hourly 
earnings of $45.46, or approximately $95,000 per year. Finally, the Petitioner offered comparative 
salaries of motion graphic designers and multimedia artists and animators: 
• $64,750 (national average)-
• $66,000 ( California average) -
• $74,000 (California average)-
• $101,421 (Level 4 Wage4 for 
and 
• $112,000 (high national average) and $131,000 (high 
California- www.flcdatacenter, 
California average) -
The evidence provides average salary data for a motion graphics designer. Regarding 
the Petitioner's salary is at the high national average but below the high 
average for the California area, which is where the Petitioner resides. See Matter of 
Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering a professional golfer's earnings 
4 The Foreign Labor Certification (FLC) Data Center's Online Wage Library relies on the Bureau of Labor Statistics 
(BLS) Occupational Employment Statistics (OES) wage estimates. http://www.tlcdatacenter.com/faq.aspx. The OES 
program collects data on wage and salary workers in nonfarm establishments in order to produce employment and wage 
estimates for about 800 occupations. The BLS produces occupational employment and wage estimates for over 450 
industry classifications at the national level. The employment data are benchmarked to average employment levels. 
http://www .bls.gov/oes/oes _ emp.htm#estimates. 
5 
Matter ofS-H-
versus other PGA Tour golfers); see also Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) 
(considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 
444-45 (N. D. Ill. 1995) "(comparing salary of NHL defensive player to salary of other NHL 
defensemen). In the present case, the evidence the Petitioner submits does not establish that she has 
received a high salary or other significantly high remuneration for services in relation to others in the 
field. 
Summary 
As explained above, the evidence the Petitioner provided satisfies only one of the regulatory criteria. 
As a result, 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 listed at 8 C.F .R. 
§ 204.5(h)(3)(i)-(x). 
B. 0-1 Nonimmigrant Status 
We note the record of proceedings reflects that the Petitioner received 0-1 status, a classification 
reserved for nonimmigrants of extraordinary ability. Although USCIS 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 petition based on a different standard. Many Form I-140 
immigrant petitions are denied after USCIS approves prior nonimmigrant petitions. See, e.g., Q 
Data Consulting, Inc. v. INS, 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. Some nonimmigrant 
petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see 
also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding 
that prior approvals do not preclude USC IS from denying an extension of the original visa based on 
a reassessment of the individual's qualifications). 
Applications or petitions are not required to be approved where the petitioner has not demonstrated 
eligibility because of prior approvals that may have been erroneous. See, e.g., Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Agencies need not treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Furthermore, our authority over the service 
centers 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 the individual, we would 
not be bound to follow the contradictory decision of a service center. Louisiana PhilharmoniC 
Orchestra v. INS, No. 98-2855, 2000 WL 282785, *1, *3 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 122 S.Ct. 51 (2001). 
III. CONCLUSION 
Had the Petitioner satisfied at least three evidentiary categories, the next step would be a final merits 
determination that considers all of the filings in the context of whether or not the Petitioner has 
Matter ojS-H-
demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the field of endeavor," and (2) that the individual "has sustained 
national or international acclaim and that his or her achievements have been recognized in the field 
of expertise." 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-20. Although we 
need not provide the type of final merits determination referenced in Kazarian, a review of the 
record in the aggregate supports a finding that the Petitioner has not established the level of expertise 
required for the classification sought. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the Petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U .S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter ofS-H-, ID# 18287 (AAO Aug. 3, 2016) 
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