dismissed EB-1A Case: Photography

U.S. Citizenship 
and Immigration 
Services 
In Re : 20899882 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 15, 2022 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a wedding photographer, seeks classification as an individual of extraordinary ability. 
See Immigration and Nationality Act (the Act) section 203(b )(1 )(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 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. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
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)(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; who seek to enter the United States to continue work in the area of 
extraordinary ability; and whose 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 the initial evidence requirements through either a one-time achievement or 
meeting three lesser criteria, 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); Rijalv. USCJS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. ANALYSIS 
After operating his own photographic studio in South Africa for over a decade, the Petitioner entered the 
United States in 2018 as an 0-1 B nonimmigrant of extraordinary ability in the arts. 1 Since 2018, he has 
served as creative director of photography for I in New York, which photographs 
corporate events. He also continues to operate his own wedding photography business. 
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 claims to have satisfied seven of these criteria, summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iii), Published material about the individual in professional or major media; 
• (iv), Participation as a judge of the work of others; 
• (vii), Display at artistic exhibitions or showcases; 
• (viii), Leading or critical role for distinguished organizations or establishments; and 
• (ix), High remuneration for services. 
The Director concluded that the Petitioner met two of the criteria, pertaining to judging the work of 
others and display of his work. On appeal, the Petitioner maintains that he meets the other five claimed 
criteria. Upon review of the record, we agree with the Director that the Petitioner has satisfied only 
two of the claimed criteria. We will discuss the other claimed criteria below. 
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). 
The Petitioner has documented his receipt of various awards. On appeal, he limits his arguments to what 
he calls his "most important award," the 2017 Wedding Photographer of the Year Award from 
I 1. 2 The prize included a trophy and several thousand dollars' worth of 
1 We acknowledge that 0-1 B nonimmigrant status relates to extraordinary ability, but the record of proceeding for the 
a pp roved nonimmigrant petition is not before us, and we cannot determine whether the facts in that case were the same as 
those in the present proceeding, orwhetherthenonimmigrant petition was approved in error. Also, the nonimmigrant and 
immigrantcategorieshavedifforentdefinitions and standards for persons of the arts. "Extraordinary ability in the field of 
arts" in the non immigrant 0-IB category means distinction. 8 C.F.R. § 214.2(0 )(3)(ii). But in the immigrant context, 
"extraordinary ability" reflects thatthe individual is among the small percentage atthe very top of the field. 
2 Because the Petitioner does not contest the Director's conclusions regarding his other claimed a wards, he has waived 
appeal on those issues. SccMattcrojR-A-M-, 25 I&NDec. 657, 658n.2 (BIA2012) (stating that when a filing party fails 
2 
photographic equipment. The executive director of stated: "The Awards aims 
to recognize great work and provide an accolade for the best work in the industry .... The awards 
receive 5,000 photographic entries fromeachannual contest from over 1000 photographers ... in Africa." 
In a request for evidence (RFE), the Director requested evidence of "the national or international 
significance of the awards or prizes." In response, the Petitioner stated: is is considered 
the most prestigious photography/cinematography competition in Africa." The passive voice of this 
sentence does not establish who holds that opinion. Letters from within the unsupported by 
additional evidence, do not necessarily reflect a national or international consensus in the field. 
The Petitioner added: "to show the significance of the awards we provide several articles and website 
coverage of past winners of this national competition." Most of the accompanying materials are from 
I I own website. The Petitioner also submitted a printout from a blog on another photographer's 
personal website, in which she listed her award as one of her "favorite achievements." Printouts 
from other websites, some of them unidentified, appear to be promotional in nature, including materials 
about a trade convention organized by the same individuals behind thee=] 
In denying the petition, the Director concluded that the Petitioner did not "submitmajortrade publications 
or other major media conveying that the awards are nationally or internationallyreco gnized for excellence 
in the field of endeavor beyond the awarding entities." On appeal, the Petitioner asserts that the Director 
impermissibly imposed a new requirement beyond the wording of the regulations. 
Evidence of an a ward's recognition need not take the form of "major media," but the Director is correct 
that recognition of the award should extend "beyond the awarding entities" to effectively demonstrate its 
national or international significance The burden is on the Petitioner to establish the national or 
international significance of the prizes and awards. If a prize does not receive media attention when 
awarded, then there must be some other means to show the recognition afforded to it. Assertions by the 
about its own reputation and recognition do not suffice in this regard. The Petitioner has not 
submitted sufficient evidence to establish national or international recognition orl I awards outside 
the itself. 
We note the submitted evidence about the value of the prize, but the Petitioner submitted no basis to 
compare the prize to others in the field. Likewise, the Petitioner has shown that a number of companies 
in the industry sponsor the competition and related trade exposition, but the Petitioner offers no support 
for the assertion that "[l]arge multinational companies such as these do not sponsor small, unimportant 
competitions." The Petitioner, who bears the burden of proof: did not submit any corroborating evidence, 
such as statements from the sponsoring companies, or cite any source for this claim. As such, it appears 
to be an unsupported assumption rather than a statement of demonstrable fact. 
The Petitioner has not satisfied the requirements of this criterion. 
to appeal an issue addressed in an adverse decision, that issue is waived). See also Sepulveda v. US.Atty Gen., 40 I 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, 2011WL4711885 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). 
3 
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). 
The Petitioner initially claimed several memberships, but limits his arguments on appeal to his 
membership in the International Society of Professional Wedding Photographers (ISPWP). A printout 
from the ISPWP' s website lists five requirements for membership: 
Experience Applicants musthavephotographedaminimum of50weddings as the 
primary in-charge photographer. ... 
Talent Applicants must submit their website and wedding galleries forreview 
and evaluation. The online galleries must demonstrate artistic and 
technical ability .... 
Integrity Applicants must have no outstanding complaints with consumer 
protection organizations such as the Better Business Bureau. 
Professionalism Applicants must agree to operate in accordance with the ISPWP Code 
of Conduct. ... 
References Applicants must be sponsored by an existing ISPWP member, or they 
must submit two client references and two wedding photographer 
references. This provides evidence as to their professionalism, 
reputation, and experience. 
The website further indicates that applicants "have to be voted in by current members." 
In the RFE, the Director stated that the Petitioner had not established that the ISPWP requires outstanding 
achievements of its members, as judged by recognized national or international experts. In response, the 
executive directorofthe ISPWP stated that membership is "limited to the best wedding photographers in 
the world." The official repeated essentially the same membership requirements quoted above. 
In the denial notice, the Director stated that the listed membership requirements are not outstanding 
achievements, and the Petitioner did not establish that recognized national or international experts judge 
the achievements of applicants for membership in the ISPWP. 
On appeal, the Petitioner contends: "There are a plethoraofhoops to jump through in order to be accepted 
into this organization," such that "it becomes obvious to the reader that the criterion for membership is 
absolutely tantamount to requiring 'outstanding achievements of its members.'" The Petitioner does not 
address the requirement that the achievements must be judged by recognized national or international 
experts. 
The Petitioner also notes that the USCIS Po licy Manual names the National Academy of Sciences (NAS) 
as an example of an association with qualifying membership requirements. The Petitioner asserts that the 
NAS "requires candidates to be nominated by an academy member," which "is the EXACT situation with 
regards to Beneficiary's ISPWP membership" ( emphasis in the original). But the record does not 
establish a strong similarity. Materials in the record show that an applicant for ISPWP membership may 
have a member sponsor, but can substitute two letters of reference from clients or other photographers 
4 
(who need not be ISPWP members themselves) instead of member sponsorship. The Petitioner does not 
establish that the NAS solicits applications for membership, as the ISPWP does, or that the NAS's 
membership requirements are comparable to experience and adherence to a code of ethics. 
We agree with the Director that the Petitioner has not shown the ISPWP' s membership requirements rise 
to the level of outstanding achievements as contemplated by 8 C.F.R. § 204.5(h)(3)(ii). The Petitioner 
has not satisfied the requirements of 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 classtfication is sought 
Such evidence shall include the title, date, and author of the material, and any necessa,y 
translation. 8 C.F.R. § 204.5(h)(3)(iii). 
The published material submitted under this criterion should be about the person, relating to the person's 
work in the field. Marketing materials created for the purpose of selling the person's products or 
promoting the person's services are not generally considered to be published material about the 
beneficiary. The person and the person's work need not be the only subject of the material; published 
material that covers a broader topic but includes a substantial discussion of the person's work in the field 
and mentions the person in connection to the work may beconsideredmaterial "about'' the person relating 
to the person's work. 6 USCIS Policy Manual F.2 (appendix), https://www.uscis.gov/policymanual. 
Under this criterion, the Petitioner submitted copies of pages from 
I I using the Petitioner's photographs as examples of proper posing and angles. The Petitioner is 
one of about 60 credited contributors to the book. The Petitioner also submitted printouts of several social 
media and blog posts using his photographs. While the Petitioner received credit for his photographs, the 
book and posts are not about him. He is not the principal subject of the materials, nor do those materials 
include a substantial discussion of his work. 
The Petitioner also photographed the wedding of a media personality. Social media posts and screen 
captures in the record indicate that the wedding was at least partially televised, and the Petitioner was 
credited as the photographer, but the wedding itself was clearly the subject of the coverage, and there is 
no indication that the coverage included substantial discussion of the Petitioner and his work as a 
photographer. 
The Petitioner features heavily in online videos and podcast interviews. These videos are on channels 
operated byl I which is a retailer of photographic equipment: I I which engaged the Petitioner 
as a brand ambassador, orl land the Petitioner himself. The Petitioner has not submitted 
transcripts from these videos, but given their sources, they appear to be promotional in nature. A letter 
froml I sales manager for thel I indicates that brand ambassadors "represent the 
brand of and their roducts," and that the Petitioner worked with the sales manager "to bring 
awareness of the ____ within the province." Marketing materials created for the pmpose of 
selling the person's products or promoting the person's services are not generally considered to be 
published material about the beneficiary. 6 USCJS Policy Manual, supra, at F.2 appendix. The situation 
here appears to be comparable, in that the Petitioner received this covera e not because of his own work 
as a photographer, but because of a promotional arrangement with re · onal sales 
manager confirmed that the purpose of these appearances was "to promote _______ 
5 
I 
The Petitioner also appeared on podcasts and in video interviews on various social media sites, but the 
record does not include transcripts to show the actual content of these materials. The regulation requires 
the submission of the published material itself, rather than screenshots to show that an interview took 
place. The Petitioner provides figures regarding some of these materials, for instance indicating that 948 
viewers watched an interview on the ISPWP' s Face book page, butthe Petitioner did not provide a basis 
for comparison to show that these figures are consistent with major trade publications or other major 
media. The Petitioner appeared on a podcast, and he established that an associated 
Instagram page has nearly 34,000 followers, but he did not establish that these followers correlate to the 
number of podcast listeners. 
On appeal, the Petitioner states that the Director didnottake into consideration thatthenature of published 
media has evolved, and now includes a great deal of online content. But the Director did not state that 
the submittedmaterialsdo notqualifyas "published materials" simply because they appearedonline. The 
Director concluded that the Petitioner had not shown that the submitted materials meet the regulatory 
requirements, and that the inclusion of the Petitioner's photographs in published materials about 
individual weddings does not make those materials about the Petitioner. Nothing submitted on appeal 
overcomes the identified deficiencies. 
The Petitioner has not satisfied the requirements of 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). 
For a critical role, we look at whether the evidence establishes that the person has contributed in a way 
that is of significant importance to the outcome of the organization or establishment's activities or those 
of a division or depar1ment of the organization or establishment. 6 USCJS Policy Manual, supra, at F.2 
appendix. 
Initially, the Petitioner asserted that he performed in critical roles as a brand ambassador for I and 
forl I a manufacturer of camera straps. On appeal, he does not pursue the claim regarding 
sales manager stated that the company's brand ambassadors, ca11ed0 
"represent the brand of and their products ... on a national and international and 
international platform .... I I then gets feedback on theirproductsandservices." The sales manager 
indicated that the Petitionerrepresented the brand at various trade shows and reviewed and demonstrated 
its products on social media. The sales manager stated that the Petitioner's work "helped to boost the 
sales of [certain] Photographic Equipment in South Africa
1
" but he did not provide specific information 
about the Petitioner's effect on those sales. A printout from !website identifies the Petitioner as 
one of nine lofSouthAfrica." 
The sales manager's letter describes the Petitioner's promotional work but does not explain how the 
Petitioner's role was of significant impmtance to the outcome of the activities of or a division or 
department thereof. 
6 
In response to the Director's RFE, the Petitioner submitted a letter from the managing director of I 
___ who stated that the Petitioner "undeniably played a critical role for our company" with his 
product reviews. The official asserts: "Each time we released a video or article with [the Petitioner's] 
reviews, we saw sales of the products endorsed by [the Petitioner] rapidly rise." This vague statement 
does not provide enough information to show a reliable correlation between the Petitioner's reviews and 
increases in sales. The information in the record indicates that the Petitioner reviewed new products, 
which would not have had a significant sales histmy before the release of the reviews. The Petitioner 
sometimes reviewed products before their general release, as shown by commentary in one printout, 
indicating that retailers were "still awaiting ... local pricing and availability information." Also, the 
record does not indicate that the Petitioner's reviews were more influential than those of other reviewers, 
including those who reviewed the products independently rather than atl I invitation. 
The Petitioner has also asserted that "his photography studio [in South Africa] undeniably has a 
distinguished reputation," because he has photo graphed celebrity weddings and his work has appeared in 
prominent publications. In the United States, the Petitioner has photographed various events on behalf of 
I I The record indicates that these companies have secured lucrative and sometimes 
high-profile work, and the Petitioner contends that prominent clients "can choose any photography 
studio," and therefore their selection of the Petitioner's studio andl !demonstrates 
that those entities have a distinguished reputation. But the record does not establish how and why those 
clients chose the companies, and therefore does not satisfy the Petitioner's burden of proof to establish 
this element. 
The Petitioner has not satisfied the requirements of this criterion. 
Evidence that the alien has commanded a high salary or other sign#ficantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix). 
After the Director determined that the Petitioner had not satisfied this criterion, the Petitioner asserts on 
appeal that the Director's conclusion rested in part on a misreading of the evidence, and in part on 
inconsequential technicalities. We need not explore these finer points, because review of the evidence 
shows that the Petitioner has not actually documented his salary. 
Copies of invoices and promotional materials show the rates that the Petitioner's studios billed clients in 
South Africa and the United States. In South Africa, he offered packages for 10-12 hours of photography 
for R25,000 to R50,000. Invoices from the Petitioner's more recent work in the United States show fees 
between $1250 and $6000 for "12 hours of coverage." These fees, however, cover a number of expenses 
apart from the Beneficiary's own salary. The R50,000 package, for example, included a second 
photographer, for whom the Petitioner's studio would charge R4000 if hired separately; a 30 x 40 album, 
which would cost R9000 separately; 50 "Jumbo Prints," worth RI 500; and two "Parent Albums" which 
would costR2500, along with other expenses separate from the Petitioner's salary. Clearly, the Petitioner 
would have personally received only a fraction of the total fee, and he did not document how much of his 
fee he personally received as salary. 
Salary survey documents in the record have little evidentiary weight because the Petitioner has not 
established his actual salary, and therefore the Petitioner has not provided a suitable basis for comparison. 
7 
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 determination 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 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 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 ). Here, the Petitioner has not shown that the recognition of his work is 
indicative of the required sustained national or international acclaim or demonstrates 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 section203(b )(l)(A) of the Act and 8 C.F.R. § 204.5(h)(2). The record shows that the 
Petitioner is a successful photographer, who has attracted some prominent clients and achieved a 
degree of visibility as a brand ambassador for I I The evidence submitted, however, does not 
rise to the level of satisfying at least three of the threshold criteria at 8 C.F.R. § 204.5(h)(3), and it 
does not show that he has earned sustained national or international acclaim that places him at the top 
of his field. 
The Petitioner has not demonstrated eligibility as an individual of extraordinary ability. The appeal 
will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
8