dismissed EB-1A Case: Television And Motion Picture Production

U.S. Citizenship 
and Immigration 
Services 
In Re: 24833125 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 14, 2023 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner is a television and motion picture producer who 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 )(1 )(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. 
After deciding the Petitioner did not establish he had a major, internationally recognized award, nor 
did he demonstrate he met at least three of the ten regulatory criteria, the Texas Service Center Director 
denied the Form 1-140, Immigrant Petition for Alien Workers (petition) . The matter is now before us 
on appeal. The Petitioner bears the burden of proof to demonstrate eligibility to U.S. Citizenship and 
Immigration Services (USCIS) by a preponderance of the evidence. Section 291 of the Act; Matter of 
Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). We review the questions in this matter de nova. 
Matter of Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, we will 
dismiss the appeal. 
I. LAW 
To qualify under this immigrant classification, the statute requires the filing party demonstrate: 
• The foreign national enjoys extraordinary ability in the sciences, arts, education, business, or 
athletics; 
• They seek to enter the country to continue working in the area of extraordinary ability; and 
• The foreign national's entry into the United States will substantially benefit the country in the 
future . 
Section 203(b)(l)(A)(i)-(iii) of the Act. 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. USC IS, 596 F .3d 1115, 1121 (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 Amin 
v. Mayorkas, 24 F.4th 383, 394 (5th Cir. 2022). 
II. ANALYSIS 
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). Before the Director, the Petitioner claimed he met five of the regulatory criteria. 
The Director decided that the Petitioner did not satisfy any of the claimed criteria. 
Specifically, his claims and evidence were not adequate relating to the criteria associated with prizes 
or awards, published material, judging, display of the Petitioner's work, or performing in a leading or 
critical role. On appeal, the Petitioner maintains they meet all five of the claimed evidentiary criteria. 
After reviewing all the evidence in the record, we conclude he has not satisfied at least three regulatory 
criteria meaning it is unnecessary that we perform a final merits determination on his case. 
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 Director determined that the Petitioner did not meet the requirements of this criterion. The 
Director discussed the material he submitted and noted that one article appeared in several publications 
reflecting the material had a different author in each publication. The Director then questioned 
whether the Petitioner established who actually authored the article and surmised that it was 
self-promoting material that is generally not considered to be published material about a foreign 
national. The determination that self-promoting material is generally not considered to qualify under 
this criterion is supported by agency policy. See generally 6 USCIS Policy Manual F.2 (Appendices), 
https://www.uscis.gov/policymanual (discussing marketing materials). The Director also noted two 
separate articles in which the evidence did not reflect the author's name, which falls short of meeting 
this criterion's requirements. 
On appeal, the Petitioner first addresses the evidence determined to be self-promoting material. Here, 
the Petitioner notes while these may be marketing materials, that does not disqualify them as sufficient 
evidence under this criterion. The Petitioner does not address USCIS policy indicating that this type 
of documentation will generally be insufficient. As a result, he has not met his burden under this 
criterion. 
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To address the Director's concerns about who actually authored any of the submitted articles, the 
Petitioner explains that the author of each article are the editors of the individual publications who 
decide whether to publish these promotional materials. First, the regulation requires qualifying 
evidence to include the author, and the Petitioner has not offered documentation that satisfies that 
requirement. The regulations have the force and effect oflaw and are binding on all USCIS employees, 
and we cannot simply ignore those requirements. MatterofL-, 20 I&N Dec. 553,556 (BIA 1992) (citing 
to Bridges v. Wixon, 326 U.S. 135, 153 ( 1945). So, setting aside the regulatory requirement that 
evidence include the author is not permissible. 
Second, the Petitioner's explanation does not adequately address one of the Director's concerns, that 
the Petitioner presented evidence containing inconsistencies. The Petitioner must resolve inconsistent 
information in the record. Such a correction should be demonstrated through the submission of 
relevant, independent, and objective evidence that reveals which information is the truth. See Matter 
of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). For this reason alone, the Petitioner's arguments on 
appeal will not prevail as the author of the material is not only required by the regulation but it is also 
material to eligibility. 
Third, the record lacks adequate support for the Petitioner's contention that all articles any publication 
publishes that lacks an individual author-especially relating to marketing materials-is authored by 
the editorial board. While this could be the case in some instances, for example the editorial board of 
a newspaper publishing an editorial article giving the editors' opinions, even the Petitioner's appeal 
brief admits the material in question is "self-promotional material" and that does not equate to an 
editorial article in a newspaper or periodical. 
When applying for an immigration benefit, filing parties take on additional burdens as prescribed in 
several authorities (statutes, regulations, policy, etc.) that might not be present for the general public 
in other situations. For example, for someone in the general public to show they have been the subject 
of media coverage, they only need to possess proof of the coverage. However, those applying to be 
classified as an alien with extraordinary abilities, they must document that the coverage was about 
them, in a particular type of publication, and they have to show several aspects about the material 
itself. Here, the Petitioner has not shown that the Director erred in their adverse determination, nor 
has he satisfied his burden under 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 specification for which classification is sought. 
8 C.F.R. § 204.5(h)(3)(iv). 
Before the Director, the Petitioner only claimed eligibility under this criterion based on his 
performance at a talent festival. The Director determined that the Petitioner did not meet the 
requirements of this criterion and concluded the evidence indicated he judged persons in an unrelated 
field instead of in his or an allied field. The Petitioner does not contest the Director's analysis or 
findings on appeal and instead shifts the focus of his claim to how his work as a television program 
producer qualifies him under this criterion. 
Filing parties should develop the record for their claims before the lower adjudicative body because 
this affords the lower entity to apply its expertise on the matter in the first instance, giving the appellate 
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entity some reasoning to review. New assertions advanced for the first time to an administrative 
appellate body are not properly before us. Matter of M-F-O-, 28 I&N Dec. 408, 410 n.4 (BIA 2021) 
(refusing to consider an appellant's humanitarian claims that were presented for the first time on 
appeal). An appellant may not fill in the gaps in their previous arguments by presenting new arguments 
or material for the record that was not presented to the lower entity. Chamu v. US. Att 'y Gen., 23 F .4th 
1325, 1332 (11th Cir. 2022). As the Petitioner did not offer this argument to the Director, the Director 
could not have erred on this issue and his new claims will not factor into our decision here. 
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). 
A leading role should be apparent by its position in the overall organizational hierarchy and the role's 
matching duties. A critical role should be apparent from the Petitioner's impact on the organization 
or the establishment's activities. The Petitioner's performance in any role should establish whether it 
was leading or critical for organizations or establishments as a whole. 
Ultimately, the leading or the critical role must be performed on behalf of the organization that enjoys 
a distinguished reputation, rather than for a subordinate group. See Strategati, LLC v. Sessions, No. 
3:18-CV-01200-H-AGS, 2019 WL 2330181, at *7 (S.D. Cal. May 31, 2019); Noroozi v. Napolitano, 
905 F. Supp. 2d 535, 545 (S.D.N.Y. 2012). USCIS policy reflects that organizations or establishments 
that enjoy a distinguished reputation are "marked by eminence, distinction, or excellence." See 
generally 6 USCIS Policy Manual, supra, F.2. (citing to the definition of distinguished, 
Merriam-Webster, https://www.merriam-webster.com/dictionary/distinguished). The Petitioner must 
submit evidence satisfying all of these elements to meet the plain language requirements of this 
criterion. 
The Petitioner claimed his role for lthe entity for which he works as a producer. 
The Director determined that the Petitioner did not meet the requirements of this criterion because he 
did not show this entity had a distinguished reputation. On appeal, the Petitioner claims that because 
I I is responsible for interviewing two respected artists in Latin America, this 
"evidences its reputation in the industry." He further posits that because the organization has been the 
subject of media and trade publication articles, this supports the fact that it has a distinguished 
reputation. Finally, he states that the organization's work appearing on television networks should 
lead us to find in his favor relating tol I reputation. 
Simply performing an interview of a respected artist or public figure does not transform an entity into 
one that enjoys a distinguished reputation. As USCIS policy requires, the organization or 
establishment should be marked by eminence, distinction, or excellence, or alternatively being proper 
for an eminent person. See generally 6 USCIS Policy Manual, supra, F.2. And the Petitioner does 
not explain how the Director erred by not finding the media and trade publication articles to 
sufficiently aid his eligibility claims under this criterion. 
We are also not persuaded by the Petitioner's view that a production company whose work appears on 
television networks should be considered distinguished simply through the act of the network's 
agreement to broadcast their content. This view does not take into account that lesser film and 
television production companies have productions that appeared on network television. Simply having 
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an organization's content broadcast falls short of demonstrating that company is marked by eminence, 
distinction, or excellence. 
The regulation and agency policy require the production of evidence that preponderantly satisfies the 
attendant requirements. As a result, the Petitioner's burden of proof comprises both the initial burden 
of production, as well as the ultimate burden of persuasion. Matter of Y-B-, 21 I&N Dec. 1136, 1142 
n.3 (BIA 1998). The Petitioner cannot simply assert that an organization enjoys a distinguished 
reputation based on a factor without offering evidence that adequately supports those claims. Again, 
here the Petitioner has not submitted evidence that meets the plain language requirements of this 
criterion. 
We conclude that although the Petitioner claims he meets five criteria, because his arguments fail on 
any of the criteria discussed above, that means he cannot numerically meet the required number of 
criteria and it is unnecessary for us to reach a decision on his other claims relating to awards or the 
display of his work. As the Petitioner cannot fulfill the initial evidentiary requirement of three criteria 
under 8 C.F.R. § 204.5(h)(3), we reserve our evaluation of those requirements. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds when 
another independent issue is dispositive of the appeal); see also Matter of D-L-S-, 28 I&N Dec. 568, 
576-77 n. l O (BIA 2022) ( declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
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 criteria. As a result, we do not need to 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 it does not support a finding 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 that goal. 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). 
Here, the Petitioner has not shown the significance of their 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. l O 1-723, 59 (Sept. 19, 1990); see also section 
203(b )(1 )(A). Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and they are one of the small percentage who has risen 
to the very top of the field of endeavor. See section 203(b)(l)(A) and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated their 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. 
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