dismissed EB-1A Case: Photography

U.S. Citizenship 
and Immigration 
Services 
In Re: 19609635 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 5, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a photographer, 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 Texas Service Center denied the petition, concluding that although the record 
demonstrated that the Petitioner met the initial evidentiary requirements for this classification, it did 
not establish the Petitioner's eligibility as an individual of extraordinary ability. 
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)(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 is a photographer who has displayed his work at exhibits in Venezuela, France, and the 
United States. He states that he wishes to continue to work as a photographer in the United States, 
and intends to operate a photo consulting business in Florida. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has 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 Director found that the Petitioner met three of the evidentiary 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to his receipt of lesser nationally or internationally 
recognized awards, the display of his work at artistic exhibitions, and his service as a judge of the 
work of other photographers. However, the Director then concluded that the totality of the evidence 
did not establish that the Petitioner is one of the small percentage of photographers at the top of the 
field, and thus was not eligible as an individual of extraordinary ability. 
On appeal, the Petitioner asserts that the Director did not consider the totality of the evidence in the 
record in making his determination. After reviewing the record, we agree with the Director's 
conclusion regarding the Petitioner's satisfaction of three of the evidentiary criteria, and will therefore 
tum to the final merits determination below. 
B. Final Merits Determination 
In a final merits determination, we examine and weigh the totality of the evidence to determine 
whether the Petitioner has sustained national or international acclaim and is one of the small 
percentage at the very top of the field of endeavor, and that his achievements have been recognized in 
the field through extensive documentation. The record, however, does not demonstrate that his 
achievements rise to a level of a "career of acclaimed work in the field" as contemplated by Congress. 
See H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). 
2 
As noted above, the Petitioner submitted evidence that his photographs have been displayed at several 
artistic exhibitions. The record shows that his work has been shown at several solo and group 
exhibitions in Venezuela, including the I Exhibition at the I I Gallery in in 
2014. His work has continued to be displayed in the United States at several exhibitions inl I 
Florida, such asl I's show in 2015 and the American Society of Media 
Photographers (ASMP) juried exhibition in 2016. The record also demonstrates that his work has 
been displayed by the French Alliance Foundation in Paris. 
On appeal, the Petitioner argues that several of these exhibitions included photographs from only the 
top artists in the field, which he asserts places him among that group. For instance, he states that the 
I I exhibition, which has displayed his work on multiple occasions, "is arguably the most 
important art show in the United States." The Petitioner contends that the exhibiting galleries at the 
exhibition are among the world's most respected art dealers, and thus his inclusion at this event 
evidences his stature as a leading photographer and his sustained acclaim. He also highlights the 
showcasing of his work at the ASMP's juried exhibition in 2016. According to the Petitioner, ASMP 
is "is a premier trade association for the world's most respected photographers." However, we note 
that the record does not include information about these exhibitions and organizations from 
independent sources, and thus lacks evidence to show that they are considered to be prestigious by the 
international photography community. This is also the case with the French Alliance Foundation and 
some of the other U.S. and Venezuelan exhibitions in which the Petitioner participated. We further 
note that the record does not include evidence of media attention or discussion of his work beyond 
that which has already been discussed. As constituted, the record lacks sufficient evidence to establish 
that the inclusion of his work in these exhibitions over several years is indicative of him being among 
the small percentage of photographers at the very top of the field. 
The Petitioner also received several awards for his work. At the 2013 I international 
photo competition, the Petitioner was the winner in the I I subdivision, and this accolade 
permitted him to participate in the international competition held in where he was one of 19 
finalists selected from artists representing more than 100 cities worldwide. While we acknowledge 
that the Petitioner won thd I subdivision of the competition, the number of awards given at the 
final event and the fact that the award received by the Petitioner is not the top award at the event 
indicates that he is not one of the small percentage of photographers at the top of his field on a national 
or international scale. 1 Although the Petitioner's receipt of the local I I award demonstrates 
some level of recognition, he did not receive the highest award at this event, and the record does not 
include evidence of recognition beyond the event and its organizers. 
The Petitioner also submitted evidence that he was one of the I !contestants" in a 2013 
photography contest held by the Metropolitan Mayor's Officel I entitled ______ 
According to an article published in El Universal, the competition was intended to provide 
photographers with an opportunity to show their view of the city from their camera's point of view. 
Although the article indicated that the winners were invited to organize a photo content for the 
anniversary of I there is little to no information regarding the details of the contest, such as the 
number of participants in the contest, whether it was open to both professional and amateur 
1 The record reflect that the "top winner" was awarded a one-week stay in with a solo exhibition at the __ 
Gallery, and the top five photographers, including the "top winner," received a one-year magazine subscription. 
3 
photographers, or the criteria used in selecting the winners. It is unclear whether the winners were 
chosen based upon an independent evaluation of the quality or artistic value of the candidate's work, 
or simply for participating. We cannot conclude that being one of 12 winners of this local contest 
would automatically earn a professional photographer sustained national acclaim and a place among 
the small percentage at the top of the field. 
Regarding media coverage, the Petitioner offered material from several organizations relating to him 
and his work. Although two notable articles covered him and discussed his work, the Petitioner did 
not demonstrate that such press coverage is consistent with the sustained national or international 
acclaim necessary for this highly restrictive classification. See section 203(b)(l)(A) of the Act. 
The record also demonstrates that the Petitioner served as a judge for various photo exhibitions and 
contests. After his success in thel I competition, the Petitioner was selected to serve 
as a juror for the 2013 _______ _.competition hosted by the French Alliance Foundation 
inl I According to a letter from the organization's general director, the Petitioner was selected 
as a juror for this event based on his receipt of thel I subdivision award the previous ear. The 
Petitioner also submitted documentation demonstrating that he served as a juror for the 
I I Show, hosted by Curator's Voice Art Projects (CVAP) inl I in ________ 
2017. The Petitioner submitted two letters from the organization's director thanking the Petitioner for 
his service and expertise, as well as an excerpt from CVAP's website which provided a brief overview 
of the organization. This evidence shows that the Petitioner has achieved some level of recognition 
from the French Alliance Foundation and CVAP. However, it does not establish that these exhibitions 
are prestigious or that selection as a juror for these exhibitions is reserved for those photographers at 
the top of the field. Without evidence that sets him apart from others in his field, such as evidence 
that he has a consistent history of reviewing or judging recognized, acclaimed individuals in his field, 
the Petitioner has not shown that his judging experience places him among that small percentage who 
has risen to the very top of the field of endeavor. 
As noted above, in order to establish eligibility as an individual of extraordinary ability, the Petitioner 
must show that he has been the subject of sustained national or international acclaim, that he is one of 
that small percentage who has risen to the top of his field, and that his achievements have been 
recognized in the field through extensive documentation. The Petitioner received an award for his 
photographs in the subdivision of I I in 2012 and was a finalist in the 
international portion of that competition shortly thereafter. The record also demonstrates that he was 
I !winners in a local competition the following year. However, while these awards 
indicate he was receiving acclaim for this work at a national level, it does not show that these awards 
were considered to be prestigious, or that his receipt of them placed him among top photographers. 
The Petitioner's participation as a judge of other photographer's work at three exhibitions between 
2013 and 201 7 demonstrates that his expertise as a photographer had begun to be recognized. 
Thereafter, the attention given to his artistic displays, and in particular to the display of the Petitioner's 
collections at thel I exhibitions, illustrates a growing level of appreciation and notice of his 
work in the field of photography, and the inclusion of his work at these exhibitions is a significant 
achievement and reflects his success in his field. However, the evidence does not establish, for 
example, that the many photographs exhibited at each exhibition are the work of nationally or 
internationally acclaimed artists at the top of their field, or that all artists whose work is included 
gamer such acclaim. The record does not contain sufficient evidence distinguishing him from others 
4 
in the field and does not demonstrate that his achievements are at a level that places him among the 
small percentage at the top of the field. Nor does the evidence establish that he has enjoyed sustained 
acclaim at the national or international level, 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. 
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 U.S. Citizenship and Immigration Services 
(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 which is 
adjudicated based on a different standard - statute, regulations, and case law. Many Form 1-140 
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 Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), 
aff'd, 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. See La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 
(E.D. La. 2000). 
III. CONCLUSION 
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). In this case, 
although the evidence shows that the Petitioner has raised his standing among his peers in the field of 
photography, it does not establish that he is yet one of that small percentage at the top of the field. 
For the reasons discussed above, the Petitioner has not demonstrated his 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. 
5