dismissed EB-1A Case: Visual Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 20480162 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 12, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an artist, seeks classification as an individual of extraordinary ability. See Immigration 
and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § l 153(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 that the record did not 
establish that the Petitioner had satisfied at least three of the ten initial evidentiary criteria for this 
classification, 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 by a 
preponderance of the evidence . Section 291 of the Act; Matter of Chawathe, 25 I&N Dec. 369, 375 
(AAO 2010). Upon de nova 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 their achievements in the field through a one-time achievement (that 
is, a major, internationally recognized award). If the petitioner does not submit this evidence, then 
they must provide sufficient 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 
The Petitioner is a visual artist who has displayed her work internationally. She also commercially 
markets her designs and illustrations on paper and stationery products. The Petitioner intends to 
continue working as a visual artist in the United States. 
Because the Petitioner has not indicated or established that she has received a major, internationally 
recognized award, she must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R . § 204 .5(h)(3)(i)-(x). The Director determined that the Petitioner met two of the claimed 
evidentiary criteria relating to published material at 8 C.F.R. § 204.5(h)(3)(iii) and artistic display at 
8 C.F.R. § 204 .5(h)(3)(vii) , and we agree with that determination. 
On appeal, the Petitioner asserts that she also meets the evidentiary criteria relating to leading or 
critical role under 8 C.F .R. § 204 .5(h)(3)(viii) and high salary under 8 C.F.R. § 204 .5(h)(3)(ix) . The 
Petitioner has not pursued her initial claim that she meets the criterion relating to lesser nationally or 
internationally recognized awards under 8 C.F.R. § 204.5(h)(3)(i), nor does she contest the Director's 
decision relating to this criterion on appeal. Therefore, we deem this issue to be waived and will not 
address this criterion in our decision . See, e.g., Matter of M-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 
2009). 
We will address the Petitioner's claims with respect to the individual evidentiary criteria below. 
A. Evidentiary Criteria 
Evidence that the individual 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 the purposes of this criterion, a leading role should be apparent by its position in the overall 
organizational hierarchy and through 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 
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performance in this role should establish whether the role was critical for the organization or 
establishment as a whole. 
The Petitioner claims that she performed in a leading and critical role for 
The Petitioner submitted letters from I Director, who explained thatl 
I I is a company registered in both Venezuela and the United States that produces __ 
products, such as _______ She further states that the Petitioner is co-director of the 
company, as well as the company's lead and sole artist, and that the Petitioner's original designs and 
illustrations are used on the company's! I The Petitioner also submitted a copy of 
the company's registration documents and bylaws, which indicate that the Petitioner is the majority 
partner/shareholder of the company. This evidence is sufficient to demonstrate that the Petitioner 
plays a leading or critical role for I 
However, the Petitioner has not established that I has a distinguished reputation. 
I I states in her letter that the company has acquired numerous contracts with companies such 
as I 11 andl I who have purchased the Petitioner's 
artistic designs or commissioned unique works. She concludes that the acquisition of ongoing 
contracts with such prestigious clients "is a marker of a company with a highly esteemed and 
distinguished reputation in the industry." However, these statements are not supported by 
independent, documentary evidence. Although the record includes testimonial letters from these 
clients praising the Petitioner's artwork and artistic vision, and confirming their acquisition of her 
work, these letters do not speak to the company's reputation beyond the personal opinions of some of 
its clients. Further, although the record contains media articles complementing the Petitioner's 
achievements as a visual artist and acknowled in that her work is commercially marketed I 
these articles comment upon the 
Petitioner's reputation, but not on the company's reputation. The evidence is therefore insufficient to 
establish thatl I has a distinguished reputation. 
On appeal, the Petitioner asserts that she is I I and that the company is just a legal medium 
through which she operates. She states that "if it is established that I equals [the Petitioner], 
one and other are interchangeable, then I have submitted enough documentation of interviews, press 
releases, followers on social network, published books, that it does have the necessary recognition by 
itself" In order to fulfill this criterion, however, the Petitioner must demonstrate that she "performed 
in a leading or critical role/or organizations or establishments that have a distinguished reputation." 
( emphasis added). The Petitioner, as an individual artist, is not an "organization or establishment" as 
contemplated by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). Here, the 
Petitioner has not submitted independent evidence sufficient to establish thatl I has a 
distinguished reputation, as required. While the Petitioner documented her personal career 
achievements and her reputation in the industry, the record is insufficient to demonstrate thatl I 
is recognized as having a reputation marked by eminence, distinction or excellence as required by this 
criterion. 
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For the reasons discussed above, the Petitioner has not provided evidence establishing her eligibility 
for this criterion. 1 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix) 
In order to satisfy this criterion, the Petitioner must demonstrate that she commanded a high salary or 
other significantly high remuneration for services in relation to others in her field. See Matter of Price, 
20 I&N Dec. 953, 954 (Assoc. Comm 'r 1994) ( considering professional golfer's earnings versus other 
PGA Tour golfers); see also Grimson 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). 
The Petitioner submitted numerous urchase orders and invoices from 2014, which demonstrate the 
purchase of ___________________ by I The 
Petitioner also submitted a 2019 printout from www.payscale.com which documents the average 
annual salary for a visual artist. In denying the petition, the Director determined that the purchase 
orders and invoices were insufficient to establish the Petitioner's earnings and to show that her income 
was significantly high in relation to others in the field as required by this criterion. Specifically, the 
Director noted that the purchase orders and invoices did not reflect compensation to the Petitioner, 
and therefore were not sufficient evidence of the Petitioner's salary or renumeration for services. 
Upon review, we agree with the Director's finding. The Petitioner's name is not depicted on the 
purchase orders or invoices to establish that she is the intended recipient. Rather, the invoices are 
billed by I without specifying that the Petitioner was the supplier of the services represented 
or the intended recipient of the amounts due. On appeal, the Petitioner claims that the invoices and 
purchase orders are sufficient evidence of her earnings as all of her operations are done through 
and she receives the majority of the profits rather than a traditional salary. 
While her assertions are noted, the Petitioner has not supplemented the record with evidence of the 
actual salary or other remuneration that she has commanded for her services. The record is not 
supported by verifiable business or personal tax documentation, and none of the evidence the 
Petitioner offered confirms the amount of compensation provided to her by I in any given 
year. Moreover, based on her assertion that she received the "majority" of the company's profits, the 
amounts listed on the purchase orders and invoices do not necessarily match the amounts that the 
Petitioner actually received, and therefore do not serve as a basis for comparison to the remuneration 
of other visual artists absent additional evidence pertaining to her actual amount of compensation. 
The record is insufficient to allow us to determine the amount of the Petitioner's actual income or 
remuneration, and therefore it cannot establish her eligibility under this criterion. Without a proper 
basis for comparison and evidence showing her comprehensive earnings during a sustained period 
1 We acknowledge the Petitioner's initial claims that she also performed in a leading or critical role forl I clients, 
including U l andl I as well as for an international art fair. On 
appeal, the Petitioner does not pursue these claims regarding her role with these organizations. Consequently, we deem 
these claims to be waived and will not address them in our decision. See, e.g., Matter of M-A-S -, 24 I&N Dec. at 767 n.2. 
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predating the filing of the petition, we cannot conclude that the Petitioner has commanded 
a high salary or other significantly high remuneration for services in relation to others in her field. 
Accordingly, the Petitioner has not established that she meets this criterion. 
B. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner received 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved at least one 0-1 nonimmigrant 
visa petition filed on behalf of the Petitioner, the prior approval does not preclude USC IS from denying 
an immigrant visa petition which is adjudicated based on a different standard - statute, regulations, 
and case law. Many Form I-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Sunlift Int'l v. Mayorkas, et al., 2021 WL 3111627 (N.D. Cal. 
2021); Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of 
Justice , 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co., Ltd. v. Sava , 724 F. Supp. at 1108, ajfd, 
905 F. 2d at 41. 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). 
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. Here, the Petitioner 
has established that she is a skilled visual artist and that she has gained recognition for her unique 
designs and illustrations. But she has not shown that this recognition rises to the required level of 
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. 101-723, 59 (Sept. 19, 1990); see also section 
203(b )( 1 )(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 section 
203(b )( 1 )(A) of the Act and 8 C.F .R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated her eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons . 
ORDER: The appeal is dismissed. 
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