dismissed EB-1A Case: Performing Arts

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 17, 2024 In Re: 31124996 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner seeks classification as an individual of extraordinary ability. 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 Texas Service Center denied the petition, concluding that while the Petitioner 
established the initial evidence requirements by meeting at least three of the evidentiary criteria under 
8 C.F.R. § 204.5(h)(3), the record did not establish that she possesses sustained national or 
international acclaim and is one of the very few at the top of her field. On appeal, the Petitioner asserts 
that the Director did not consider the totality of the record in making their decision. 
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 novo. Matter of Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 
203(b)(l) 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). 
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 seeks classification as an individual of extraordinary ability as a "performing artist." 
She has been working as an actor and producer, primarily in film and theater productions but also in 
television, for more than fifteen years. In the recent years she has been working in the motion picture 
industry as a nonimmigrant, primarily in the I I California area, while occasionally 
participating in performing arts projects abroad. In response to the Director's request for evidence she 
clarified her intention to continue to work in this field, noting for instance that she will "[p]erform for 
film, stage, and television productions. Make creative decisions about film, stage, and television 
productions. Write original or adapted material for performances." 
As a preliminary matter, we acknowledge that the Petitioner has been the Beneficiary of an approved 
O-lB petition. Although USCIS has approved at least one O-lB nonimmigrant visa petition filed on 
behalf of the Petitioner, this prior approval does not preclude USCIS from denying an immigrant visa 
petition which is adjudicated based on a different statute, regulations, and case law. The nonimmigrant 
and immigrant categories have different criteria, definitions and standards for persons working in the 
arts. "Extraordinary ability in the field of arts" in the nonimmigrant 0-1 B category means distinction. 
8 C.F.R. § 214.2(o)(3)(ii). But in the immigrant context, "extraordinary ability" reflects that the 
individual is among the small percentage at the very top of the field. 8 C.F.R. § 204.5(h)(2). 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or 
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 found that the Petitioner met four of the evidentiary criteria 
at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to published material about her in qualifying media, her 
participation as a judge of the work of others, the display of her work in artistic exhibitions or 
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showcases, and her performance in a leading or critical role for organizations or establishments that 
have a distinguished reputation. On appeal, the Petitioner asserts that she also satisfies an additional 
evidentiary criterion, relating to her receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 1 After reviewing all of the evidence in the record, we 
agree with the Director that she has met the requisite three criteria, but also that the record does not 
establish that she qualifies as an individual of extraordinary ability. 
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 classification is sought. 
Such evidence shall include the title, date, and author of the material, and any 
necessary translation. 8 C.F.R. § 204.5(h)(3)(iii) 
The record includes copies of several articles published in Italian media which discuss or mention the 
Petitioner and her work in varying degrees. For purposes of this criterion, while published material 
need not be primarily or only about a petitioner to qualify, it cannot be solely about their employer or 
another organization with which they are associated. 6 USCIS Policy Manual at F.2, 
https://www.uscis.gov/policymanual. Here, the Director acknowledged that one publication, II Resto 
Del Carlino, qualifies as major media, and that the record contains articles published by this newspaper 
which discussed the Petitioner and her work in the field. We therefore agree that the Petitioner meets 
this criterion. 
Evidence 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 specialization for which 
class[fication is sought. 8 C.F.R. § 204.5(h)(3)(iv) 
To support her claim to meeting this criterion, the Petitioner submitted letters and articles confirming 
that she participated as a judge of the work of others in the field at Movievalley Bazzacinema Short 
Film Festivals over a period of several years and at the Burbank International Film Festival in 2022. 
She also provided information about these festivals. Accordingly, we agree with the Director that the 
Petitioner meets this criterion based upon the evidence of her work as a judge at these festivals. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 8 C.F.R. § 204.5(h)(3)(vii) 
The Petitioner submitted evidence of her work as an actor and as a film producer in films that were 
exhibited at film festivals. We note that the Director analyzed the evidence under this criterion by 
differentiating between the film work that the Petitioner performed as an actor and as a producer. The 
Director concluded that the display of her work as an actor at film festivals qualified her for the 
criterion, but the display of her work as a film producer at these events did not. The Director did not 
explain their reasons for making this distinction. Based on our de novo review, we conclude the 
Petitioner presented evidence sufficient to show that her work both as an actor and as a film producer 
has been exhibited at film festivals over the years, and thus meets the plain language requirements for 
1 The Petitioner does not assert nor does the record establish that she satisfies any of the other criteria 
at 8 C.F.R. § 204.5(h)(3). 
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this criterion. We agree with the Director's ultimate determination that the Petitioner satisfied this 
criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
In determining whether an individual has met the plain language of this criterion, we first determine 
whether they have performed in a leading or critical role for an organization, establishment, or a 
division or department of an organization or establishment. In general, a leading role may be 
evidenced from the role itself, and a critical role is one in which an individual is responsible for the 
success or standing of the organization or establishment. 
Second, we determine whether the organization or establishment, or the department or division for 
which the person holds or held a leading or critical role, has a distinguished reputation. Merriam­
Webster's online dictionary defines "distinguished" as marked by eminence, distinction, or excellence 
or befitting an eminent person. See Merriam-Webster Dictionary's definition of "distinguished." To 
establish that the entity enjoys a distinguished reputation, a petitioner may offer (for example) 
prestigious awards, media coverage, or published rankings to demonstrate that an organization or 
establishment has a distinguished reputation. 
The Petitioner stated that she qualifies for this criterion based on her work with a production company, 
(F-), which she started and still operates with her colleague, I l(Mr. S-). 
The Petitioner initially presented pages from F-'s website which indicate that the company is "[a] film 
production company born in 2016 with the goal of developing new and audacious projects ... We are 
currently producing our own projects, but we would be thrilled to discuss your scripts or proposals: 
we look forward to getting to know your ideas." The Petition initially stated that F- "is a distinguished 
organization that has produced multiple award-winning films. The multitude of awards received by 
F- evidences the production company's excellence in the industry as a distinguished organization." 
She asserted, among other things, that she performed in leading and critical roles as an actor and a 
producer in films created under F-' s auspices. 
The Director issued a request for evidence (RFE) asking for additional evidence that would establish 
that the Petitioner has performed in a leading or critical role for F-, and that F- enjoys a distinguished 
reputation. In response, she provided a letter from Mr. S- in which he explains how her performance 
as co-founder, actor, producer, and writer for F- has been critical to the organization's success. The 
Petitioner provided another letter from director of F-' s film 
stating that the Petitioner's production activities were critical to the film's success. 
Based on this evidence, the Director determined that the Petitioner had performed in leading and 
critical roles for F- and satisfied this criterion. While we agree with the Director that the Petitioner 
has shown she performed in leading and critical roles for F-, we conclude that the Director erred by 
not addressing whether F- has a distinguished reputation in denying the petition. Therefore, we 
withdraw the Director's determination that the Petitioner has met the plain language of this criterion. 
While we acknowledge that F- has been involved in the production of a few films that have garnered 
awards at film festivals, the Petitioner did not substantiate her assertions regarding F-' s reputation with 
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sufficient supporting documentary evidence, as requested by the Director. Therefore, she does not 
satisfy this criterion through her work with F-. 
The Director also determined that although the Petitioner presented information about her involvement 
with two other film companies (K- and E-), she did not submit evidence sufficient to show that the 
two films are organizations or establishments that have a distinguished reputation. The Director also 
observed that the Petitioner had not provided evidence, such as testimony from K- or E-, to establish 
she had performed in leading or critical roles for those organizations, even though the Director had 
requested such evidence. Therefore, we agree with the Director that the evidence in the record falls 
short in establishing that her work on films associated with K- and E- meets the plain language of this 
criterion. This criterion has not been met. 
As noted above, on appeal the Petitioner asserts that she also meets an additional criterion. However, 
because we have determined that she has met the requisite three criteria to meet the initial evidence 
requirements for this classification, we will not consider her claims to this criterion. 
B. Final Merits Determination 
As noted above, once an individual has established that they meet the initial evidence requirement, we 
conduct a final merits determination. In a final merits determination, we examine and weigh the 
totality of the evidence to determine whether an individual has sustained national or international 
acclaim and is one of the small percentage at the very top of their field of endeavor, and that their 
achievements have been recognized in the field through extensive documentation. As extraordinary 
ability is an elite level of accomplishment whose recognition necessarily entails a judgement call, it 
cannot be established through meeting at least three of the evidentiary criteria alone. The final merits 
determination is the ultimate statutory inquiry of whether the applicant has extraordinary ability as 
demonstrated by sustained national or international acclaim. Amin v. Mayorkas, 24 F.4th 383, at 395 
(2022). 
On appeal, the Petitioner relies on the evidence presented to the Director, which they considered in 
denying the petition. She asserts that they incorrectly conducted the final merits determination by 
failing to properly review and weigh the entire record of evidence submitted in support of the petition 
as part of that analysis. Based on our de novo review, the Director's denial encompassed sufficient 
explanations about the deficiencies in the Petitioner's evidence. Contrary to the Petitioner's assertions 
on appeal, we conclude the record does not reflect that the Director gave the Petitioner's evidence 
insufficient weight in collectively analyzing it in totality within their final merits determination. 
In the denial, the Director acknowledged that the Petitioner's evidence included letters of 
recommendation, media articles, and printed material about the theatrical performances, films, 
production companies, and festivals which she has worked or been associated with. They concluded 
that the totality of the evidence fell short of demonstrating that she meets the requirements for 
classification as an alien with extraordinary ability in the performing arts. We agree. 
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We reviewed and collectively considered the entire record, including the media articles provided about 
the Petitioner and her work. 2 We determine that the Petitioner has not met her burden through this 
evidence to show that she has received critical acclaim or commercial success at the national or 
international level as a erformin artist. For exam le, in a 2010 news a er article, entitled 
the author states that at the age of 22 the Petitioner "participated in [a] prestigious film festival 
as a protagonist, presenting [her] movie that also moved her very deeply." The article goes on to 
discuss her experiences working with a film director who had recently passed away. The article does 
not discuss the significance of the Petitioner's acting performance but rather seems to focus on the 
juxtaposition of the Petitioner's status as a young, inexperienced actor with the end of the career of a 
renowned director who had passed away. 
Another article published in 2011, focused entirely on another individual, I I and 
discussed Ms.I I directorial debut in a film in which the Petitioner had an acting role. We don't 
see how this article constitutes evidence about the Petitioner. Another article, published in 2012, is 
sub-captioned -
Notably, this article focuses on the Petitioner's life as a "young actress" amongst stellar actors and 
directors in California, not the significance of her acting performances. A 201 7 article about one of 
the festivals where the Petitioner performed as a judge, notes that she and Mr. S- were provided 
"technical services to the festival while also being part of the jury," but does not touch on her 
accomplishments as a performing artist. 
Other articles discuss her work as a judge at film festivals but do not describe her work in terms that 
suggest she has garnered sustained national or international acclaim through her performing arts 
activities. For example, in one article which principally discusses the events at a film festival, it is 
noted that the "young artist, [the Petitioner], handed out the plaques for the contest." 
The record also contains an article that discusses a pedophilia documentary that was filmed by the 
Petitioner and Mr. S-. The article provides general statistics about pedophilia, emphasizes that the 
sexual abuse of minors is a matter of huge concern, and notes that "[ c ]rowd fonding has also been 
launched to support the high costs of the movie." But the article does not discuss the significance of 
the Petitioner's work on this project to the motion picture industry, nor does it suggest in any other 
way that the Petitioner garnered sustained acclaim through this work. 
There are other articles in the record that similarly discuss the Petitioner; some also mention in passing 
that the Petitioner has been involved with films that have garnered awards at various film festivals. 
However, this media falls short to establish to establish the Petitioner's contention on appeal that she 
"has been featured extensively in nationally and internationally circulated media that have discussed 
the merits of her work, accomplishments, and achievements in her field." Therefore, we agree with 
the Director's determination that the level and frequency of publication about the Petitioner in the 
record are not indicative of the Petitioner attaining a position at the top of the field and sustaining 
national or international acclaim for achievements as a performing artist. 
2 While we may not discuss every document submitted in support of the petition, we have reviewed and considered each 
one. 
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We also agree with the Director that the evidence does not establish that the Petitioner was asked to 
judge the Movievalley Bazzacinema Short Film Festivals due to her national or international acclaim 
in the performing arts. As discussed by the Director, a submitted article simply states that she was 
"part of the jury" in 201 7. According to the letter from I I the Petitioner was invited to judge 
the Burbank International Film Festival because the board "value[s] her experience as an awarded 
filmmaker and actress." The writer goes on to state that the board determined that the Petitioner's 
participation as a judge could help the festival become "Oscar-qualifying." But the letter does not 
sufficiently convey that she was selected to serve as a judge at the Burbank International Film Festival 
due to holding a high position and being esteemed in the field at the national or international level. 
Moreover, the Petitioner has not shown the Burbank International Film Festival burnished its 
reputation or advanced its prestige through the Petitioner's judging work as asserted in Ms.I I 
letter. 
We acknowledge that some of the films the Petitioner produced and has acted in have attracted 
attention and received awards in recent years, but the evidence does not collectively establish that she 
has achieved or sustained a high level of national or international renown for her work as a performing 
artist. On appeal, the Petitioner points to awards she received for the films: ______ 
I I She notes, among other things, thatl lwon the Best Comedy Award at 
the I IFilm Festival, won Best Film at the ___________ 
Film Festival, while won Best LGBTQ Film at the Film Festival. 
In response to the RFE, the Petitioner provided letters from individuals involved with these festivals 
who each provide a few sentences acknowledging her involvement in these film projects and indicate 
that she should be credited with these awards. However, these letters are all dated after the date of the 
RFE in which the Director requested such evidence and were written at least a year or more after the 
granting of the awards at the festivals. 
For instance, the letter submitted to confirm her receipt of the I I award at the I I Film 
Festival was written in 2023, two years after the award itself was given in 2021. Here, the record lacks 
contemporaneous probative evidence to illustrate that the awards the Petitioner received are 
recognized as being prestigious in the performing arts field at the national or international level, or 
that they otherwise brought acclaim to the Petitioner as an actor or as a producer. In evaluating the 
evidence, eligibility is to be determined not by the quantity of evidence alone but by its quality. Matter 
ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). Based on this lack of probative evidence, we agree 
with the Director that the Petitioner had not established that she enjoys sustained acclaim as a 
performing artist at the national or international level. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for those 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 ofPrice, 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 section203(b)(l)(A) 
of the Act. 
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Moreover, the record does not otherwise demonstrate that the Petitioner has garnered sustained 
national or international acclaim in the field, and that she is one of the small percentage who have 
risen to the very top of the field of contemporary dance. See section 203(b)(l)(A) of the Act and 8 
C.F.R. § 204.5(h)(2). We therefore agree with the Director's conclusion that the Petitioner has not 
established her eligibility as an individual of extraordinary ability. 
ORDER: The appeal is dismissed. 
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