dismissed EB-1A Case: Photography

U.S. Citizenship 
and Immigration 
Services 
In Re : 24218383 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 06, 2023 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a photographer, seeks classification as an individual of extraordinary ability in the arts. 
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 the Petitioner had not 
established eligibility as an individual of extraordinary ability, either as the recipient of a major, 
internationally recognized award, or by meeting at least three of the ten regulatory criteria listed at 
8 C.F.R. § 204.5(h)(3)(i) - (x). 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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). 
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 does not argue and has not 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 the Petitioner met one evidentiary criterion, that 
of 8 C.F.R. § 204.5(h)(3)(viii), related to the foreign national's performance in a leading or critical 
role for organizations or establishments that have a distinguished reputation. On appeal, the Petitioner 
asserts that he meets additional evidentiary criteria, which we analyze below. Additionally, for the 
reasons described below, we withdraw the Director's finding that the Petitioner has established 
eligibility under 8 C.F.R. § 204.5(h)(3)(viii) and instead conclude that he has not established eligibility 
under any criteria. While we do not discuss each piece of evidence individually, we have reviewed 
and considered each one. 
A. Evidentiary Criteria 
Documentation of the individual'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) 
In order to fulfill this criterion, the Petitioner must demonstrate that he received prizes or awards that 
are nationally or internationally recognized for excellence in the field of endeavor. 1 The Petitioner 
provided evidence that he received a 201 7 first place award in the category of "news photography" 
from the I The Director notified the Petitioner in a request 
for evidence (RFE) that the record did not sufficiently demonstrate how thel I award is nationally 
or internationally recognized or that the award is given for excellence in the Petitioner's field of 
1 See generally USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 
Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14 6 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
2 
endeavor. In response, the Petitioner provided the contest rules and entry requirements, information 
about the award, printouts of various media outlets' announcement of the winners, and readership 
figures of the media outlets. Nevertheless, the Director determined that the Petitioner had not 
established the national or international recognition of the I I award. We agree. 
As the Director noted, multiple media printouts refer to the competition as "statewide." While the 
various media that announced past winners may have national or international readership, the evidence 
provided does not sufficiently demonstrate that the media announced! I winners beyond state or 
local editions of the media. While we understand the Petitioner's assertion that media outlets such as 
USA Today announced thel !winners, the evidence reflects these announcements may have been 
local news, as evidenced by USA Today's online article within the I I Florida! I 
and references to the Florida re ional USA Toda Network. Other media announcin I I winners 
include the 
Although the parent companies of these local newspapers, or even the local 
newspapers themselves, may have national or international readership, this is insufficient to support a 
finding that the laward is a nationally or internationally recognized award. To further illustrate, 
the Petitioner provided evidence of the contest rules, which state that contest submissions must have 
appeared "in a daily newspaper in Florida ... and must have been the work of staff members of the 
newspaper or Florida-based staff members of a news organization." This supports a conclusion that 
thel I awards are recognized locally or statewide, rather than nationally or internationally. 
On appeal, the Petitioner emphasizes that awards under this category must be nationally or 
internationally recognized, not nationally or internationally distributed. While we acknowledge the 
distinction, the evidence provided nevertheless does not support a finding that thel laward is 
nationally or internationally recognized. Therefore, the Petitioner has not established eligibility under 
this criterion. 2 
Published material about the individual in professional or major trade publications or 
other major media, relating to the individual's work in the field.for which class[fication 
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). 
In order to fulfill this criterion, the Petitioner must demonstrate published material about him in 
professional or major trade publications or other major media, as well as the title, date, and author of 
the material. 3 The Petitioner asserted that I I 
published materials about him. 
Thel 2021 I I article contains an interview conducted with the Petitioner. 
Although this article is about the Petitioner's photographs, the record contains little to no evidence to 
support a finding that I lis a professional or major trade publication or other major media. 
Rather, the evidence demonstrates that is an individual's online blog, not a major 
2 The evidence suggests that thee=] award may be given for a level of achievement in journalism, which differs from 
the Petitioner's field of claimed extraordinary ability (photography). While we need not discuss this issue, as the evidence 
does not support a finding of the national or international recognition of the a award, we conclude that for this 
additional reason, the award does not support the Petitioner's eligibility under this criterion. 
3 See generally USCIS Policy Memorandum PM 602-0005.1, supra, at 7. 
3 
medium. In addition, the evidence does not show that I lis a professional publication or 
a major trade (photography) publication. The I I printout evidences a 2016 
announcement that the Petitioner will provide photographic news coverage of the I I I soccer event. Although the announcement introduces the Petitioner as the photographer 
selected for the soccer games, the evidence does not sufficiently establish that the article is about the 
Petitioner. Rather, the announcement appears to be for the purpose of generating excitement at the 
historic participation of a particular team in the games. Although the 
I article contains three questions for the Petitioner and his responses to those questions 
in an interview-style format, the article is undated and does not establish eligibility at the time of 
filing. 4 Similar to I I the record contains little to no supporting evidence to establish that 
I I are professional or major trade publications or other major media. 
Accordingly, the Petitioner has not established eligibility under this criterion. 5 
Evidence of the display of the alien's work in the.field at artistic exhibitions or showcases. 
8 C.FR. § 204.5(h)(3)(vii) 
In order to demonstrate eligibility for this criterion, a petitioner must show that his work was on 
display, and that the venues were artistic exhibitions or showcases. By regulation, the exhibition or 
showcase must have been "artistic." 6 
We acknowledge that online and print media outlets published the Petitioner's photographs; however, 
the Petitioner did not demonstrate that any of the media featuring his photographs were "artistic" 
consistent with this regulatory criterion. See Kazarian, 596 F.3d at 1122 (finding that self-publishing 
a textbook, lecturing at a community college, and presenting at conferences were not displays at artistic 
exhibitions or showcases consistent with the relevant regulatory language). The publication of his 
photographs in the media are the result of newsworthy events and not necessarily because of the artistic 
nature of the photograph or the event. In other words, the record reflects that the media feature his 
photographs because he covers particular events. On appeal, the Petitioner emphasizes that the media 
featuring the Petitioner's work are major publications. While we acknowledge this assertion, the 
criterion here involves artistic exhibitions or showcases, not major publications. The Petitioner has not 
presented evidence that his photographs appeared in venues such as a gallery, museum, or other artistic 
context. Accordingly, the evidence does not support eligibility under 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.FR. § 204.5(h)(3)(viii) 
The Petitioner must establish that he has performed in a leading or critical role. For a "leading" role, 
we consider evidence establishing that a petitioner is ( or was) a leader within the organization or 
4 Tt is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. 
§ 1361; Matter of Skirball Cultural Ctr., 25 T&N Dec. 799, 806 ( AAO 2012). The Petitioner did not include the date of 
the material. The inclusion of the title, date, and author of the material is not optional but a regulatory requirement. 
See 8 C.F.R. § 204.5(h)(3)(iii). In addition, the English translation of this article contains the date December 12, 2021, 
which is after the filing date of the petition. 
5 Additionally, parts of the printouts appear to be untranslated and are therefore not in accordance with 8 C.F.R. 
§ 103.2(b )(3). 
6 See generally USCIS Policy Memorandum PM 602-0005.1, supra, at 9. 
4 
establishment. 7 For a "critical" role, we look to evidence that establishes a petitioner has contributed 
in a way that is of significant importance to the outcome of the organization or establishment's 
activities. 8 While the Director determined that the Petitioner established eligibility under this criterion, 
for the reasons below, we withdraw that finding. 
The Petitioner asserted that: 
As a lead Photographer, [the Petitioner] is responsible for the overall look and success 
of these publications as he oversees and coordinates all aspects of the photography for 
the particular publication; ensuring that it is perfect for audiences and consumers to 
enjoy. Therefore, each time [the Petitioner] works to produce quality photographs for 
these major media establishments, he is performing in a leading and critical role for 
them as the success and attraction of the publications ultimately depend on the quality 
and selection of his work. ... Throughout his career, he has served in leadership 
positions for major organizations responsible for overseeing the creation of 
photographic imagery and content for their publications. 
( emphasis removed . Althou h the Petitioner provided evidence that his photographs appeared in 
media, such as the he has not provided evidence that he served in a leading or critical 
role within the or other organizations. The letters froml I 
I I current and former photojournalists with the respectively, state that the 
Petitioner served as an intern at thel IThe letters also state that the Petitioner serves as 
a contract photographer for __________ While the Petitioner did not provide 
information on what a contract photographer is or does, it appears as though he may work for a third­
party that contracts his photography services out to various media, of which I I may 
be one. While both letters praise the Petitioner's talents and abilities, neither letter provides sufficient 
detail concerning how the Petitioner's role was leading or critical. 
Although the Petitioner may assert that photographers in general are critical to the functioning of 
media, the Petitioner has not sufficiently documented how his role within the media organizations was 
leading or critical. 9 The Petitioner asserted that "the success and attraction of the publications 
ultimately depend on the quality and selection of his work;" however, he has not provided sufficient 
evidence to substantiate this claim. He has not provided evidence that, for instance, he is the only 
photographer at the events and the only source of photographs for a particular medium. Nor has he 
offered sufficient evidence to demonstrate, for example, that people subscribe to and read the media 
publications due to his photographs, as opposed to the written content of the publications. 
The record contains a list of images the Petitioner purportedly submitted to numerous different media 
sources. The Petitioner provided little explanation for the significance and evidentiary relevance of 
this list. We cannot, for example, determine whether the list: (1) suggests that the Petitioner works 
for a third-party that contracts with media organizations for photographic coverage services; 
(2) demonstrates that the Petitioner attends events to take photographs, but the media may or may not 
7 See generally USCTS Policy Memorandum PM 602-0005.1, supra, at 10. 
8 Id. 
9 Here, it "is not the title of the person's role, but rather the person's performance in the role that determines whether the 
role is ( or was) critical." Id. 
5 
select the Petitioner's photographs; (3) shows that the Petitioner works for one media organization, 
such as I I which may sell the Petitioner's photographs to other media outlets; or 
(4) demonstrates that the Petitioner works for each individual media outlet listed. In addition, the 
evidence does not support the Petitioner's assertion that he "oversees and coordinates all aspects of 
the photography for the particular publication" and "served in leadership positions for major 
organizations." Although the Petitioner provided evidence that his photographs appeared in media, 
he has not provided sufficient evidence to demonstrate that he performed in a leading or critical role 
for organizations or establishments. 10 
B. Comparable Evidence 
The regulation at 8 C.F.R. § 204.5(h)(4) allows for comparable evidence if the listed criteria do not 
readily apply to the Petitioner's occupation. 11 Here, we must consider whether the regulatory criteria 
are readily applicable to the Petitioner's occupation and, if not, whether the evidence provided is truly 
comparable to the criteria listed in that regulation. 12 A petitioner should explain why he has not 
submitted evidence that would satisfy at least three of the criteria set forth in 8 C.F.R. § 204.5(h)(3), 
as well as why the evidence he has included is "comparable" to that required under 8 C.F.R. 
§ 204.5(h)(3). 13 General assertions that any of the ten objective criteria do not readily apply to an 
occupation are not probative and should be discounted. 14 
Here, the Petitioner did not show why he cannot offer evidence that meets at least three criteria. In 
fact, the Petitioner asserted that he has already established eligibility under four criteria, that of 8 
C.F.R. § 204.5(h)(3)(i), (iii), (vii), and (viii), which we analyzed above. Simply because the 
Petitioner's evidence does not establish eligibility under one or more criteria does not mean that the 
criteria are not readily applicable to the photographer occupation. Nevertheless, because the Director's 
explanation regarding comparable evidence is both confusing and contradictory, we provide the below 
analysis. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
The regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires the Petitioner's "authorship of scholarly articles 
in the field, in professional or major trade publications or other major media." 15 In general, the 
article(s) should have footnotes, endnotes, or a bibliography, and may include graphs, charts, videos, 
or pictures as illustrations of the concepts expressed. 16 For other fields, a scholarly article should be 
written for learned persons in the field. Learned persons include all persons having profound 
knowledge of a field. 17 
10 Because the evidence does not support a finding that the Petitioner performed in a leading or critical role for 
organizations or establishments, we need not analyze whether the organizations or establishments have distinguished 
reputations. 
11 See generally USCTS Policy Memorandum PM-602-0005.1, supra, at 12. 
12 Id. 
13 Id. 
14 Id. 
15 See generally USCIS Policy Memorandum PM-602-0005.1, supra, at 9. 
16 Id. 
17 Id. 
6 
Here, the Petitioner has not claimed, nor submitted, evidence that he has written any articles. Rather, 
he stated that he "is not placed in a position where he has the opportunity to teach about photography 
via a scholarly article or text." Instead, the Petitioner submitted evidence that his photographs 
appeared in various media publications and asserted that the wide readership of the media is 
comparable evidence to the authorship of scholarly articles in the field, in professional or major trade 
publications or other major media. Specifically, he stated that he "communicates with his audience 
and transmits information in an even more effective way than he would if he were drafting articles .. ,, 
Although the Petitioner could have written scholarly articles about photography techniques or cameras 
and specifically acknowledges that "photographers can publish scholarly articles," he requested that 
we accept comparable evidence instead. While we do not doubt the legitimacy and power of visual 
communication, this criterion pertains to the authorship of scholarly articles in professional or major 
trade publications or other major media. As "photographers can publish scholarly articles," he has not 
demonstrated that this criterion does not readily apply to him. Furthermore, the Petitioner has not 
established how the evidence he provided is comparable. 18 
Evidence of commercial successes in the peiforming arts, as shown by box office receipts 
or record, cassette, compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x) 
The Petitioner asserts the readership figures of the media in which his images are published is comparable 
evidence under 8 C.F.R. § 204.5(h)(4). Specifically, he explained that "his success is measured in terms 
ofreadership figures and his "broadcasts" are exhibited to an audience who sees his work on various print 
and digital media ... success as a news photographer lies in the amount of people his work is exposed to 
.... " While we acknowledge this argument, the "commercial successes" criterion does not refer to 
readership figures or the number of people exposed to his work. 19 Rather, criterion (x) concerns the 
commercial success of projects in which the individual participated, documented by evidence such as 
box office receipts for films or record sales. Even if we view his photographs as performing arts 
projects, readership figures would not establish commercial success. The purchase price of the 
copyrights to specific photographs could be more probative evidence of "commercial successes," but 
even this would not constitute "box office receipts or record, cassette, compact disk, or video sales" as 
the regulation requires. Accordingly, the Petitioner has not established how the evidence he provided 
is comparable. 
18 Although we do not discuss the merits of the "comparable" evidence, we note that even ifwe considered it, the Petitioner 
has not established how it would meet the definition of scholarly. The media publications cover sports, local news, and 
breaking news, among other topics. The general public is the intended audience of the articles and images in the media. 
The Petitioner has not submitted evidence that his work is scholarly in nature, as news articles for general public 
consumption do not necessarily demonstrate that the intended audience is learned on a particular topic, let alone 
photography specifically. 
19 For instance, the Petitioner offered little evidence to establish that the Petitioner's specific photographic contributions 
drive the overall readership figures for a particular medium, as opposed to the written content or other photos within a 
medium driving the readership figures. To further illustrate, the commercial success of, or widespread attendance at, an 
event, such as the Kentucky Derby or the Orange Bowl, does not have any apparent connection to the photographers hired 
to cover the event. 
7 
We conclude the Petitioner has not shown why he cannot offer evidence that meets at least three 
criteria. His assertions that he has already established eligibility under four criteria reinforce this 
conclusion. Simply because the Petitioner's evidence does not establish eligibility under one or more 
criteria does not mean that the criteria are not readily applicable to the photographer occupation. 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement award 
or documents that meet at least three of the ten 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 reviewed 
the record and conclude that, in the aggregate, it does not support a finding that the Petitioner has 
established the acclaim and recognition required for the classification sought. 
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. 
ORDER: The appeal is dismissed. 
8