dismissed EB-1A Case: Video Game Art

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG . 14, 2024 In Re: 32432667 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a video game production business, seeks to classy the Beneficiary, an environment concept 
art lead, 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 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 Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 203 (b)( 1)(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). The regulation at 8 C.F.R. § 204.5(h)(4) allows a 
petitioner to submit comparable material if the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not readily 
apply to the individual's occupation. 
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 the Beneficiary 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 concluded the Beneficiary fulfilled only one - leading or 
critical role under 8 C.F.R. § 204.5(h)(3)(viii). On appeal, the Petitioner maintains the Beneficiary's 
qualification for five further criteria, including two additional criteria through the submission of 
comparable evidence. Issues and prior eligibility claims not raised on appeal are 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)). For the reasons discussed below, the Petitioner did not demonstrate the 
Beneficiary meets at least three categories of evidence. 
A. Evidentiary Criteria 
Documentation ofthe alien 's receipt oflesser nationally or internationally recognized 
prizes or awards for excellence in the.field ofendeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The Petitioner states that it "submitted evidence of the awards bestowed on the video games to which 
[the Beneficiary] contributed in a critical and essential capacity" and "did not provide evidence of 
awards that were received by [the Beneficiary] individually." In addition, the Petitioner argues the 
USCIS Policy Manual applies "a much stringent interpretation," indicating that "[t]he description of 
this type of evidence in the regulation indicates that the focus should be on the person's receipt of the 
awards or prizes, as opposed to the employer's receipt of the awards or prizes." 1 
1 See generally 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policymanual. 
2 
We do not concur with the Petitioner's argument. In determining eligibility for this criterion, we look 
to the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i), requiring "[d]ocumentation of the 
alien's receipt" ofprizes or awards. Prizes or awards not received by or bestowed upon the Beneficiary 
do not meet this regulatory criterion. In addition, we consider the term "alien's receipt" using its 
ordinary, common meaning. See, e.g., Perrin v. United States, 444 U.S. 37, 42 (1979) ("A 
fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted 
as taking their ordinary, contemporary, common meaning .... "). Thus, the USCIS Policy Manual's 
guidance is consistent with the regulation in instructing that the focus should be on the person's receipt 
of awards or prizes rather than on the employer's receipt of awards or prizes. Moreover, 
notwithstanding the Petitioner's own admission that the Beneficiary never individually received 
awards, the record does not contain evidence reflecting the awarding entities specifically naming or 
acknowledging the Beneficiary as an award recipient. 
Furthermore, the Petitioner asserts that video games "are not recognized through awards to individual 
contributors, such as to individual Visual Effects Artists, Animators, etc., but instead through awards 
issued to the video game project as a whole - it is ensemble work and not solo work." However, the 
record does not fully support the Petitioner's assertions of only awarding ensemble work rather than 
solo work. The Petitioner's evidence reflects numerous named nominees for various awards. For 
example, for the video game ___________ the British Academy of Film and 
Television Arts named 3 individuals for the 2020 "Best Narrative" category and the Motion Picture 
Sound Editors named 23 individuals for the 2021 "Outstanding Achievements in Sound Editing -
Computer Cinematic" category and 19 individuals for the 2021 "Outstanding Achievement in Sound 
Editing - Computer Interactive Game Play" category. In addition, individuals were named in "Art 
Direction, Fantasy," "Direction in a Game Cinema," and "Game, Franchise Action" categories for the 
2020 National Academy of Video Game Trade Reviewers. 
Because the Petitioner did not show the Beneficiary received any prizes or awards, we need not 
determine whether the prizes or awards are nationally or internationally recognized for excellence in 
the field. 
Accordingly, the Petitioner did not establish the Beneficiary fulfills 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). 
This regulatory criterion requires published material about the individual, relating to work in the field, 
in professional or major trade publications or other major media. 2 The Petitioner claims the 
Beneficiary's eligibility for this criterion based on digital material from kotaku.com, pcgamer.com, 
dexerto.com, and vgr.com and hardcover material from I I 
I I 
2 See generally 6 USC1S Policy Manual, supra, at F.2(B)(l). 
3 
At initial filing, in response to the Director's request for evidence (RFE), and on appeal, the Petitioner 
made the same assertions about each of these publications without submitting any evidence to 
corroborate its claims. For instance, the Petitioner claims that "Kotaku.com is ranked 585 in the US 
and 2,070 in the world out of approximately 30 million websites," "PCGamer.com is ranked 593 in 
the US and 1,233 in the world out of approximately 30 million websites," "Dexerto.com is ranked 
2,103 in the US and 5,548 in the world out of approximately 30 million websites," and "VGR.com is 
ranked 29,011 in the US and 80,397 in the world out of approximately 30 million websites." 
In evaluating whether a submitted publication is a professional publication, major trade publication, 
or major media, relevant factors include the intended audience (for professional and major trade 
publications) and the relative circulation, readership, or viewership (for major trade publications and 
other major media). 3 Because the Petitioner did not provide evidence to support its assertions or 
include any other evidence relating to the standing or status of any of the publications, the Petitioner 
did not demonstrate that any of these digital or hardcover publications constitute professional or major 
trade publications or other major media.4 Therefore, we need not address the Petitioner's arguments 
relating to whether the evidence qualifies as published material about the Beneficiary relating to his 
work in the field. 
Accordingly, the Petitioner did not show the Beneficiary satisfies this criterion. 
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. 5 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 
others in the same or allied field of specialization. 6 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. 7 
The Petitioner claims the Beneficiary's eligibility for this criterion based on him having "been invited 
to deliver master classes at the I I Initially, the Petitioner 
provided a letter from G-A-, chair of entertainment design atl Iwho stated that the Beneficiary 
"has been invited to give master classes and critiques as well as other presentations at I The 
letter, however, does not demonstrate that the Beneficiary actually participated in the judging of the 
work of others rather than being invited to give master classes and critiques. Moreover, the Petitioner 
did not show how the letter establishes that giving master classes and critiques involves serving as a 
3 See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). 
4 We note that the screenshots from vgr.com contain an "About" page indicating the mission and a "Meet Our Staff" 
section. However, the Petitioner did not establish how the information demonstrates professional or major trade 
publication or other major medium standing of the website. 
5 See generally 6 USC1S Policy Manual, supra, at F.2(B)(l). 
6 Id. 
7 Id. 
4 
judge of the work of others, consistent with this regulatory criterion. Furthermore, the letter does not 
elaborate and indicates who, when, and what the Beneficiary purportedly judged. 
Similarly, in response to the Director's RFE, the Petitioner submitted a letter from T-B-, acting chair 
and director of the entertainment design department atl Iwho stated that the Beneficiary "has 
been invited on numerous occasions to share his wealth of knowledge and expertise with our students" 
and "[e]ach interaction has been marked by [the Beneficiary's] dedication to imparting practical 
knowledge and preparing students for success in their future careers." Moreover, T-B- indicated: 
In the Entertainment Design Graduation class, [the Beneficiary] provided invaluable 
industry advice, portfolio suggestions, and professional critiques on concept art .... 
In the 3D Fundamentals class, [the Beneficiary] showcased his ability to translate 2D 
images into 3D sculptures while emphasizing the practical applications of these 
fundamentals in the context of concept art .... 
Furthermore, in the Design Process class, [the Beneficiary's] presentation provided a 
crucial introduction for our first-term students to the world of design in video games. 
His guidance on the design process, coupled with personalized assistance during the 
final assignment reviews, demonstrated his commitment to fostering the growth and 
development of emerging talent. 
Again, the Petitioner did not show how T-B-'s letter demonstrates the Beneficiary's participation as a 
judge of the work of others. Instead, the letter indicates that the Beneficiary provided advice, 
suggestions, and critiques, showcased his work, and made presentations. Further, the letter does not 
describe how any of the Beneficiary's actions involved participating as a judge of the work of others, 
including who, when, and what the Beneficiary purportedly judged. 
Without evidence reflecting the Beneficiary's participation as a judge of the work of others, including 
specific, detailed information, the Petitioner did not demonstrate the Beneficiary meets this criterion. 
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 in the field. 8 According to Form I-140, Immigrant Petition for Alien Workers, 
the Petitioner indicated the Beneficiary's job title as "Environment Concept Art Lead." In the initial 
cover letter, the Petitioner described the Beneficiary's job: 9 
[The Petitioner] has selected [ the Beneficiary] to work closely with our Art Director 
and Lead World Artist to conceptualize visual components and review the design and 
development of visual assets for [the Petitioner's] upcoming original next-generation 
AAA title. In this role, [the Beneficiary] will play a critical role in our productions, 
8 See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). 
9 The initial cover letter repeats the letter from R-E-, game director and co-founder for the Petitioner. 
5 
and in the success of our company as a whole. [The Beneficiary] will work closely 
with external teams around the world to give art feedback and direction for worlds 
being developed. He will drive the visual department of all internal worlds and maps, 
including Bluesky development, tasking the teams concept artist and external 
outsourcing artists. He will be critical to keep the production of [the Petitioner] in line 
with the strict art direction by creating thorough style guides and art guides for all 
external SIE partners and internal [Petitioner] art teams. He will be responsible for 
building and managing a strong AAA level concept art team and outsourcing artists. 
The Petitioner also provided paystubs indicating the Beneficiary earns approximately $82/hour or 
$1 71, 000/year. As comparative evidence, the Petitioner submitted screenshots from flcdatacenter. com 
for "Special Effects Artists and Animators" with the following description: "[ c ]reate special effects 
or animations using film, video, computers or other electronic tools and media for use in products, 
such as computer games, movies, music videos, and commercials." In addition, the Petitioner offered 
salary information from glassdoor.com and salary.com for "Concept Artists." 
However, the Petitioner did not offer comparable salary evidence pertaining to the Beneficiary's 
specific occupation as an "Environment Concept Art Lead." Specifically, the Beneficiary's position 
of a "Lead" suggests a higher job classification than an environment concept artist. Furthermore, the 
Petitioner's own job description contains further job duties and responsibilities than a special effects 
artist or animator or concept artist, justifying a more leading position. Thus, in order to meet this 
criterion, the Petitioner must show that the Beneficiary received a high salary in relation to other 
environment concept art leads rather than other special effects artists or animators or concept artists. 
Both precedent and case law support this application of 8 C.F.R. § 204.5(h)(3)(ix). See Matter of 
Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) ( considering a professional golfer's earnings 
versus other PGA Tour golfers); see also Skokos v. US. Dept. of Homeland Sec., 420 F. App'x 712, 
713-14 (9th Cir. 2011) (finding salary information for those performing lesser duties is not a 
comparison to others in the field); Crimson v. INS, 934 F. Supp. 965,968 (N.D. Ill. 1996) (considering 
NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 
1995) (comparing salary of NHL defensive player to salary of other NHL defensemen). Because the 
Petitioner did not provide sufficient evidence demonstrating the salaries of other environment concept 
art leads, the Petitioner did not establish the Beneficiary commands a high salary in relation to others 
in his field. 
Accordingly, the Petitioner did not demonstrate the Beneficiary meets this criterion. 
B. Comparable Evidence 
In both the RFE response and on appeal, the Petitioner requests the Beneficiary's eligibility be 
considered through comparable evidence and references regulations and policy relating to the 0-1 
nonimmigrant classification. For instance, in the RFE response, the Petitioner requested the 
Beneficiary's documentation be considered comparable as a "record of major commercial or critically 
acclaimed successes, as evidenced by such indicators as title, rating, standing in the field, box office 
receipts, motion pictures or television ratings" and "[e ]vidence that beneficiary has received 
significant recognition for achievements from organizations, critics, government agencies or other 
recognized experts in the field in which the beneficiary is engaged." However, these regulations fall 
6 
under the requirements for 0-1 nonimmigrants in the arts or motion picture or television industry - 8 
C.F.R. § 214.2(o)(3)(iv)(B)(4) and (5) or 8 C.F.R. § 214.2(o)(3)(v)(B)(4) and (5), respectively. 10 On 
appeal, the Petitioner references a draft memorandum in the adjudication of 0-1 nonimmigrants. 
Although the regulations for several immigrant and nonimmigrant classifications allow for the 
consideration of comparable evidence, we will not consider how regulation or policy relates to another 
immigrant or nonimmigrant category. Rather, we will apply the comparable evidence requirements 
and policy as they relate to the immigrant classification for individuals of extraordinary ability under 
8 C.F.R. § 204.5(h)(3). 11 
This regulatory provision provides petitioners the opportunity to submit comparable evidence to 
establish the person's eligibility, if it is determined that the evidentiary criteria described in the 
regulations do not readily apply to the person's occupation. 12 When evaluating such comparable 
evidence, officers must consider whether the regulatory criteria are readily applicable to the person's 
occupation and, if not, whether the evidence provided is truly comparable to the criteria listed in that 
regulation. 13 
On appeal, the Petitioner claims: 
. . . At least two of the criteria are not readily applicable to [the Beneficiary's] 
occupation and field of expertise, which include the criterion for "display of the alien's 
work in the field at artistic exhibitions or showcases," which is reserved for traditional 
artists showcasing their work in exhibitions, and the criterion "commercial successes 
in the performing arts," which typically only applies to performing artists. With respect 
to the latter criterion, the Service acknowledges in its decision that "[g]iven the very 
specific language at 8 C.F.R. 204.5(h)(3)(x), we are not persuaded that this criterion 
can apply to any field other than the performing arts." We therefore respectfully submit 
that the Service misapplied its own law and policy in wholly disregarding the evidence 
that [the Petitioner] submitted as other comparable evidence. 
Although the Petitioner indicates two criteria to apply comparable evidence, the Petitioner does not 
identify what evidence should be considered and how it is comparable to the regulatory criteria for the 
immigrant classification as an individual of extraordinary ability. The burden remains with the 
Petitioner to establish eligibility for the benefit sought. Chawathe, 25 I&N Dec. at 375-76. We note 
that the Petitioner's RFE response, referencing 0-1 nonimmigrant regulatory criteria, discussed 
evidence claiming the impact of his contributions with video games and acknowledgement for 
achievements in the field by others relate more to the original contributions criterion under the 
regulation at 8 C.F.R. § 204.5(h)(3)(v). 
10 The prov1s10ns for comparable evidence for 0-1 nonimmigrants under these categories fall within C.F.R. 
§ 214.2(o)(3)(iv)(C) or 8 C.F.R. § 214.2(o)(3)(v)(C), respectively. 
11 See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). 
12 See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). 
13 Id. 
7 
Without identifying such evidence and explaining how the documentation is comparable to the 
respective regulatory criteria, the Petitioner did not demonstrate the Beneficiary's eligibility for 
additional criteria through the submission of comparable evidence. 
C. 0-1 Nonimmigrant Status 
We note that the record reflects that the Beneficiary received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved 0-1 nonimmigrant visa 
petitions filed on behalf of the Beneficiary, the prior approval does not preclude USCIS from denying 
an immigrant visa petition which is adjudicated based on a different standard - statute, regulations, 
and case law. Many Form 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); 
IKEA US v. US Dept. ofJustice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), ajf'd, 905 F. 2d 41 (2d. Cir. 1990). Furthermore, our authority 
over the USCIS service centers, the office adjudicating the nonimmigrant visa petition, is comparable 
to the relationship between a court of appeals and a district court. Even if a service center director has 
approved a nonimmigrant petition on behalf of an individual, we are not bound to follow that finding 
in the adjudication of another immigration petition. See La. Philharmonic Orchestra v. INS, No. 98-
2855, 2000 WL 282785, at *2 (E.D. La. 2000). 14 
III. CONCLUSION 
The Petitioner did not establish 
the Beneficiary satisfies any additional categories of evidence, 
including through the submission of comparable evidence. Although the Petitioner also argues the 
Beneficiary's eligibility for the original contributions criterion under 8 C.F.R. § 204.5(h)(3)(v), we 
need not reach this additional ground because the Beneficiary cannot fulfill the initial evidentiary 
requirement of three under 8 C.F.R. § 204.5(h)(3). Further, we need not review the Director's 
favorable determination for the leading or critical role criterion under 8 C.F.R. § 204.5(h)(3)(viii), as 
well as provide the type of final merits determination referenced in Kazarian, 596 F.3d at 1119-20. 
Accordingly, we reserve these issues. 15 
Nevertheless, we have reviewed the record in the aggregate, concluding it does not support a 
conclusion that the Beneficiary has established the acclaim and recognition required for the 
classification sought. The Petitioner seeks a highly restrictive visa classification for the Beneficiary, 
intended for individuals already at the top of their respective fields, rather than those progressing 
toward the top. Price, 20 I&N Dec. at 954 (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 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. 
14 See also generally 6 USCIS Policy Manual, supra, at F.2(B)(3). 
15 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" 
on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 2015) 
( declining to reach alternate issues on appeal where applicants do not otherwise meet their burden of proof). 
8 
l 9-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 the Beneficiary's 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 Beneficiary 
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 Beneficiary among the 
upper echelon in his field. 
For the reasons discussed above, the Petitioner has not demonstrated the Beneficiary's 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. 
9