dismissed EB-1A Case: Video Editing

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 28, 2024 In Re: 30390318 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a video editor, seeks classification as an individual 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 Nebraska Service Center denied the petition, concluding that although the Petitioner 
satisfied three of the initial evidentiary criteria, he did not show his sustained national or international 
acclaim and demonstrate he is among the small percentage at the very top of the field of endeavor. 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)(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 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 fulfilled the following three claimed categories: judging at 8 
C.F.R. § 204.5(h)(3)(iv), display at 8 C.F.R. § 204.5(h)(3)(vii), and high salary at 8 C.F.R. 
§ 204.5(h)(3)(ix). In addition, the Director found the Petitioner did not meet the following two claimed 
criteria: leading or critical role at 8 C.F.R. § 204.5(h)(3)(viii) and commercial successes at 8 C.F.R. 
§ 204.5(h)(3)(x) through the submission of comparable evidence under 8 C.F.R. § 204.5(h)(4). 
On appeal, the Petitioner states that "this appeal contests only the Service's final merits 
determination." Because the Petitioner does not contest or rebut the Director's findings for the leading 
or critical role and commercial successes criteria, we determine them to be waived. An issue not raised 
on appeal is waived. See, e.g., Matter ofO-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, although the Director found the Petitioner met the judging and high salary criteria, the 
record does not support this determination. Accordingly, we withdraw the Director's favorable 
conclusions for these two criteria, discussed below. 
Evidence of the alien's participation, either individually or on a panel, as a judge ofthe 
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). 
USCIS determines whether the person has acted as the judge of the work of others in the same or an 
allied field of specification. 1 The petitioner must show that the person has not only been invited to 
judge the work of others, but also that the person actually participated in the judging of the work of 
1 See generally 6 USC1S Policy Manual F.2(B)(l ), https://www.uscis.gov/policy-manual. 
2 
others in the same or allied field of specialization. 2 For example, a petitioner might document the 
person's peer review work by submitting a copy of a request from a journal to the person to do the 
review, accompanied by evidence confirming that the person actually completed the review. 3 
The Petitioner did not initially claim eligibility for this criterion. In response to the Director's request 
for evidence (RFE), the cover letter indicated that the Petitioner "has participated as a judge for the 
work of others for the Television's Academy's Emmy Awards under the peer group ofl II for artistic and technical merit for the national and international television industry." In support 
of this claim, the Petitioner provided a "Voting" screenshot from the Television Academy's website 
reflecting "Congratulations you've finished voting in all eligible categories" and listed eight 
categories. However, the screenshot does not identify the Petitioner as the judge who participated in 
the voting. In fact, the screenshot does not recognize any individual who conducted the judging. 
Moreover, while the Petitioner offered a "Personal Information" screenshot indicating the Petitioner's 
membership status, the document does not show any voting history or substantiate the Petitioner's 
participation as a judge in the prior "Voting" screenshot. Even if the Petitioner judged this event, the 
Petitioner did not demonstrate he conducted this voting prior to the filing of the petition. Eligibility 
must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). Again, the Petitioner did not initially claim eligibility for this 
criterion and provided evidence in response to the Director's RFE. However, the evidence does not 
contain any dates for the voting, and the Petitioner did not establish when his purported judging 
occurred. 
In addition, the Petitioner claimed that he "has participated as a judge in the I Emmy 
Awards where television programs like news, programming, and sports within the I market 
are awarded." The Petitioner submitted a document without any identifying characteristics reflecting: 
"Thank You! Your submission has been received. Thank you for your RSVP to judge for the 
Emmy Awards." Similar to the discussion above, the document does not identify the Petitioner, 
or anybody else, as a judging participant. Furthermore, the document does not show actual judging 
but acknowledgment of an interest to judge at the I I Emmy A wards. 4 
Further, the Petitioner submitted another unidentified document reflecting a "Call for Judges -
Spanish" with the Petitioner's name, personal information, and employment questions. However, the 
document does not show the Petitioner actually participated as a judge at the event rather than an 
application to judge. Although the Petitioner presented additional documentation regarding 
background information about the I I Emmy A wards and membership requirements 
for the I Ithe evidence does not show the Petitioner's actual 
involvement in the judging process. 
Because the Petitioner did not establish his actual participation as a judge of the work of others, we 
withdraw the Director's favorable finding for this criterion. Accordingly, the Petitioner did not 
demonstrate he satisfies this criterion. 
2 Id. 
3 Id. 
4 The Emmy Awards were held on 2002 at the Television Academy's campus in 
___ California. See www.emmys.com. 
3 
Evidence that the alien has commanded a high sala,y or other significantly high 
remuneration for services, in relation to others in the.field. 8 C.F.R. § 204.5(h)(3)(ix). 
USCIS determines whether the person's salary or remuneration is high relative to the compensation 
paid to others working the field. 5 The Petitioner did not initially claim eligibility for this criterion. In 
response to the Director's RFE, the Petitioner submitted a copy of his 2022 Internal Revenue Service 
(IRS) Form 1040, U.S. Individual Income Tax Return and comparable editor salaries. The Petitioner, 
however, did not provide any substantiating documentation of his income that he reported on his tax 
return. For example, the Petitioner did not offer any accompanying IRS Form W-2, Wage and Tax 
Statement. The Petitioner also did not submit any other supporting evidence, such as paystubs, 
contracts, employer letters, or other documentation confirming his salary, employer, and occupation. 
Without corroborating evidence, the Petitioner's self-prepared and unsigned IRS Form 1040 is not 
sufficient to establish his salary as a video editor. Moreover, the Petitioner's evidence does not identify 
his employer or employers, how much he earned from each employer or employers, and whether his 
compensation was in an editor occupation or that he received income from other employment 
occupations. 
Furthermore, the Petitioner's 2022 IRS Form 1040, which is not dated and signed, is based on the total 
income for 2022. The Petitioner filed his petition in July 2022. Eligibility must be established at the 
time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Katigbak, 14 I&N Dec. at 49. Here, the Petitioner has 
not demonstrated his earnings prior to the filing of the petition and submits evidence relating to income 
received, in part, after the filing of the petition. 
Because he has not demonstrated his earnings as a video editor, the Petitioner has not shown that he 
commands a high salary relative to others in the field. Accordingly, we withdraw the favorable 
findings of the Director for this criterion. 
III. CONCLUSION 
The Petitioner did not meet the initial evidentiary requirement of at least three criteria under 8 C.F.R. 
§ 204.5(h)(3). Therefore, we need not provide the type of final merits determination referenced in 
Kazarian, 596 F.3d at 1119-20. Accordingly, we reserve this issue. 6 
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 
5 See 6 USCIS Policy Manual, supra, at F.2(B)(2). 
6 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter of L-A-C-, 26 l&N Dec. 516, n.7 
( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
4 
extraordinary ability designation is "extremely restrictive by design,"); Hamal v. Dep 't ofHomeland 
Sec. (Hamal II), 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 I), 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. 
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