dismissed EB-1A Case: Photography

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 26, 2024 In Re: 34818623 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a photographer, 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)(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 the Petitioner did not satisfy at 
least three of the initial evidentiary criteria. The matter is now before us on appeal. 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 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)(A) 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 sustained 
acclaim and the recognition of achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award) or 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). 
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 
Because the Petitioner has not indicated or established his receipt of 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 determined the Petitioner did not fulfill any of the nine claimed 
categories of evidence. On appeal, the Petitioner maintains his qualification for four criteria. Issues 
and prior eligibility claims not raised on appeal are waived. See, e.g., Matter of O-R-E-, 28 I&N Dec. 
330, 336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012)). 
In addition, the Petitioner submits new evidence and argues new eligibility claims on appeal. Because 
the Petitioner was put on notice and given a reasonable opportunity to provide this evidence and make 
these claims, we will not consider them for the first time on appeal. See 8 C.F.R. 
§ 103.2(b)(l l) (requiring all requested evidence be submitted together at one time); Matter ofSoriano, 
19 I&N Dec. 764, 766 (BIA 1988) ( declining to consider new evidence submitted on appeal because 
"the petitioner was put on notice of the required evidence and given a reasonable opportunity to 
provide it for the record before the denial"). Thus, we will only address the evidence and claims 
brought before the Director and contested on appeal. For the reasons discussed below, the Petitioner 
did not establish he meets at least three categories of evidence. 
Documentation of the alien 's membership in associations in the field for which 
class[fication 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). 
USCIS determines if the association for which the person claims membership requires that members 
have outstanding achievements in the field as judged by recognized experts in that field. 1 The 
petitioner must show that membership in the association requires outstanding achievements in the field 
for which classification is sought, as judged by recognized national or international experts. 2 
1 See generally 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policymanuaL 
2 Id. 
2 
On appeal, the Petitioner maintains his eligibility for this criterion based on his membership with the 
Professional Photographers of America (PP A) and the Brazilian Association of Visual Authors Rights 
(AUTIS). The record reflects the Petitioner submitted evidence of his membership with PP A and 
AUTIS. However, the Petitioner did not demonstrate that membership with PPA or AUTIS requires 
outstanding achievements of its members, as judged by recognized national or international experts in 
the field. This criterion not only requires the Petitioner to establish his membership but also show that 
membership in the association requires outstanding achievements and recognized national or 
international experts judge such membership. Here, the Petitioner did not offer evidence before the 
Director to establish that he fulfills all elements of this criterion. 
Accordingly, the Petitioner did not show he satisfies this 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 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). 
USCIS first determines whether the published material was related to the person and the person's 
specific work in the field for which classification is sought. 3 USCIS then determines whether the 
publication qualifies as a professional publication, major trade publication, or other major media 
publication. 4 
Initially, the Petitioner submitted foreign language articles without any English language translations. 
Any document in a foreign language must be accompanied by a full English language translation. 8 
C.F.R. § 103.2(b )(3). Translators must certify that the English language translation is complete and 
accurate, and that they are competent to translate from the foreign language into English. Id. In 
addition, the Petitioner presented an English language article where he is credited as the photographer 
in the accompanying caption but does not discuss the Petitioner and his work. 5 See also, e.g., Negro­
Plwnpe v. Okin, 2:07-CV-820-ECR-RJJ at *l, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that 
articles regarding a show are not about the actor). Furthermore, the Petitioner did not provide evidence 
showing the articles were published or posted in professional or major trade publications or other 
major media. 6 
In response to the Director's request for evidence (RFE), the Petitioner submitted two screenshots 
posted on Y ouTube claiming to be an interview with him on the program, on 
Sistema Brasileiro de Televisao. However, the Petitioner did not provide a transcript of the purported 
3 See generally 6 USeIS Policy Manual, supra, at F.2(B)(l). 
4 Id. 
5 Similarly, it appears that his foreign language articles credit him as the photographer in the accompanying captions 
without any discussion of him. 
6 See generally 6 users Policy Manual, supra, at F .2(B)(l) (in evaluating whether a submitted publication is a professional 
publication, major trade publication, or major media, relevant factors include the intended business audience (for 
professional and major trade publications) and the relative circulation, readership, or viewership (for major trade 
publications and other major media). 
3 
interview demonstrating published material about the Petitioner relating to his work. 7 Moreover, the 
Petitioner did not present evidence establishing that the television program qualifies as a professional 
or major trade publication or other major median. 
For these reasons, the Petitioner did not establish he fulfills this criterion. 
III. CONCLUSION 
The Petitioner did not show he satisfies two categories of evidence, discussed above. Although the 
Petitioner also argues eligibility for the judging criterion under 8 C.F.R. 
§ 204.5(h)(3)(iv) and scholarly articles under 8 C.F.R. § 204.5(h)(3)(vi), we need not reach these 
additional grounds because the Petitioner cannot fulfill the initial evidentiary requirement of three 
under 8 C.F.R. § 204.5(h)(3). We also need not provide the type of final merits determination 
referenced in Kazarian, 596 F.3d at 1119-20. Accordingly, we reserve these issues. 8 
Nevertheless, we have reviewed the record in the aggregate, concluding it does not support 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 those progressing toward the top. Matter ofPrice, 20 
I&N Dec. 953, 954 (Assoc. Comm'r 1994) ( concluding that even major league level athletes do not 
automatically meet the statutory standards for classification as an individual of "extraordinary 
ability,"); Visinscaia, 4 F. Supp. 3d at 131 (internal quotation marks omitted) (finding that the 
extraordinary ability designation is "extremely restrictive by design,"); Hamal v. Dep 't ofHomeland 
Sec. (Hamal 11), No. 19-cv-2534, 2021 WL 2338316, at *5 (D.D.C. June 8, 2021), aff'd, 2023 WL 
1156801 (D.C. Cir. Jan. 31, 2023) (determining that EB-1 visas are "reserved for a very small 
percentage of prospective immigrants"). See also Hamal v. Dep 't ofHomeland Sec. (Hamal 1), No. 
19-cv-2534, 2020 WL 2934954, at *1 (D.D.C. June 3, 2020) (citing Kazarian, 596 at 1122 (upholding 
denial of petition of a published theoretical physicist specializing in non-Einsteinian theories of 
gravitation) (stating that "[c]ourts have found that even highly accomplished individuals fail to win 
this designation")); Lee v. Ziglar, 237 F. Supp. 2d 914, 918 (N.D. Ill. 2002) (finding that "arguably 
one of the most famous baseball players in Korean history" did not qualify for visa as a baseball 
coach). Here, the Petitioner has not shown the significance of his work is indicative of the required 
sustained national or international acclaim or 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 the Petitioner has 
garnered national or international acclaim in the field, and he is one of the small percentage who has 
risen to the very top of the field of endeavor. See section 203(b)(l)(A) of the Act and 8 C.F.R. 
§ 204.5(h)(2). The record does not contain sufficient evidence establishing the Petitioner among the 
upper echelon in his field. 
7 See generally 6 USCIS Policy Manual, supra, at F.2(B)(l) (indicating an example of qualifying media may include 
transcripts of professional or major audio or video coverage of the person and the person's work). 
8 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision); see also Matter of L-A-C-, 26 l&N Dec. 516, n.7 
( declining to reach alternative issues on appeal where applicants do not otherwise meet their burden of proof). 
4 
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