dismissed EB-1A Case: Visual Arts

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 10, 2024 In Re: 35143376 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a visual 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 Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish his satisfaction of at least three initial evidentiary criteria. Specifically, the Director found 
the Petitioner met only one (display under 8 C.F.R. § 204.5(h)(3)(vii)) of the six claimed categories 
of evidence. We dismissed a subsequent appeal, determining that although he demonstrated eligibility 
for a second criterion (published material under 8 C.F.R. § 204.5(h)(3)(iii)), the Petitioner did not meet 
any other criteria. The matter is now before us on combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motions. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). See Matter ofCoelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that new evidence 
have the potential to change the outcome). A motion to reconsider must establish that our prior 
decision was based on an incorrect application of law or policy and that the decision was incorrect 
based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
Our review on motion is limited to reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may 
grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit. 
II. ANALYSIS 
A. Motion to Reopen 
On motion, the Petitioner does not state new facts and submit documentary evidence. Instead, the 
Petitioner contests the correctness of our prior decision, which will be addressed below. Accordingly, 
the Petitioner's motion to reopen does not meet the requirements under 8 C.F.R. § 103.5(a)(2) and will 
be dismissed. 
B. Motion to Reconsider 
The Petitioner contends we erred in determining that he did not fulfill two additional criteria. 
Specifically, the Petitioner asserts: 
The Original Petition did not argue [the Petitioner's] authorship of scholarly articles, 
however, evidence was provided for this category with the petition as well as the 
Response to the RFE [request for evidence] clearly meets the plain language of this 
category based on his published scholarly articles. Additionally, the appeal brief our 
office sent to the AAO also argues this category, however, the decision by the AAO, 
for some reason, does not even address it. We respectfully request that you read and 
review the evidence resubmitted with this submission that clearly demonstrates how 
[the Petitioner] fulfills this category. 
Both of the Petitioner's cover letters submitted in support of the initial petition and in response to the 
Director's RFE do not claim eligibility for the scholarly articles criterion under 8 C.F.R. 
§ 204.5(h)(3)(vi). Specifically, the Petitioner's initial cover letter asserts his eligibility for the 
following criteria: awards under 8 C.F.R. § 204.5(h)(3)(i), published material under 8 C.F.R. 
§ 204.5(h)(3)(iii), original contributions under 8 C.F.R. § 204.5(h)(3)(v), display under 8 C.F.R. 
§ 204.5(h)(3)(vii), and leading or critical role under 8 C.F.R. § 204.5(h)(3)(viii). In response to the 
Director's RFE, the Petitioner's accompanying cover letter discusses the same criteria, including the 
high salary criterion under 8 C.F.R. § 204.5(h)(3)(ix). In fact, the cover letters provide an analysis 
specifying which evidence related to the applicable criteria. The letters make no mention, indication, 
or assertion of the Petitioner's eligibility for the scholarly articles criterion. The burden remains with 
the Petitioner to establish eligibility for the benefit rather than for the Director to guess or assume 
which eligibility requirements, if any, the evidence relates. See 8 C.F.R. § 103 .2(b)(1 ); Chawathe, 25 
I&N Dec. at 375-76. 
The Petitioner was put on notice and given reasonable opportunities, both at initial filing and in 
response to the Director's RFE, to claim eligibility for the scholarly articles criterion. Because the 
Petitioner did not argue eligibility for this criterion before the Director, we did not consider the 
Petitioner's eligibility claim for this issue for the first time on appeal. Generally, appellate bodies will 
not decide issues in the first instance or consider claims raised for the first time in an appeal. Nat 'l 
Rifle Ass'n ofAm. v. Vullo, No. 22-842, 2024 WL 2751216, at *10 n.5 (U.S. May 30, 2024). 
2 
In addition, the Petitioner asserts that under the awards criterion "the denial decision issued by the 
AAO claims that additional evidence is still required to fulfill this category" and provides an excerpt 
of our decision: 
For example, the decision issued by the AAO claims: ".... the Petitioner did not provide 
sufficient documentation on the process of how individuals are selected and awarded 
the fellowship, and information regarding the individuals who determine who is 
selected for the fellowship. In addition, the record does not contain official results or 
other evidence demonstrating the number of entrants in the competition in the year he 
was awarded the fellowship. 
The Petitioner misconstrues our decision by only quoting a partial section, attempting to show that we 
required specific evidence to meet this criterion. The following is the actual discussion from our 
decision: 
On appeal, the Petitioner reiterates that he was awarded the 2019 
IFellowship. The Petitioner further explained that the
I Iart museum in the world with a 
mission to exhibit and preserve I I art and foster the artists who create it. In 
a letter by the executive director of the museum, the author explained that the 10 months 
fellowship is a program "made up of seminars and mentorship services designed to help 
artists maximize their potential while also engaging in critical discourse." The 
Petitioner further states on appeal that this fellowship is an "internationally recognized 
prize since it has been frequently featured in major art publications such as Artnet, 
which attracts 6.2 million monthly website visitors." However, the record does not 
contain any additional information or supporting evidence regarding the competition 
to support the Petitioner's claim that his selection for this fellowship should be 
considered a nationally or internationally award for excellence in the field of visual art. 
For example, the Petitioner did not provide sufficient documentation on the process of 
how individuals are selected and awarded the fellowship, and information regarding 
the individuals who determine who is selected for the fellowship. In addition, the 
record does not contain official results or other evidence demonstrating the number of 
entrants in the competition in the year he was awarded the fellowship. 
The Petitioner also did not provide sufficient evidence of the level of recognition 
associated with this award. On appeal, the Petitioner claims that this fellowship is 
internationally recognized because it has been featured in major art publications. While 
the fellowship may receive media attention, the record lacks sufficient evidence 
verifying that this fellowship is a nationally or internationally recognized award for 
excellence in the field, or evidence that the Petitioner himself received any recognition 
from outside the issuing organization. Even if the media attention evidences national 
or international recognition, the Petitioner did not provide sufficient evidence to 
establish whether the award itself is nationally or internationally recognized and 
awarded for excellence in the field of visual arts. 
3 
Although the Petitioner does not discuss any other awards on appeal, a review of the 
awards discussed in the initial petition also do not contain sufficient evidence regarding 
the rules and selection process for granting the awards, official results for the entire 
competition, the number of competitors and prize winners in each age and category, or 
other evidence related to the specific category in which he received an award. Further, 
the Petitioner did not provide sufficient evidence to determine that the Petitioner's 
awards for the noted competitions are a nationally or internationally recognized prize 
or award for excellence in the field of visual arts. 
As indicated above, we determined the Petitioner did not establish that his 2019 
____ Fellowship met this criterion because he did not provide sufficient documentation or 
offer additional information demonstrating the national or international recognition for excellence in 
the field. Moreover, we offered examples of evidence and information that may show the fellowship's 
eligibility but did not require the Petitioner to submit particular evidence, as asserted on motion. 
Moreover, the Petitioner argues that he provided a list of names for 11 other artists who received the 
Fellowship in 2019. The record contains screenshots from I lorg 
indicating the names of past fellowship recipients since 2017. Although the Petitioner claims "[t]his 
vital evidence," the Petitioner did not demonstrate the significance of the documentation or explain 
how evidence of past recipients' names reflects the fellowship's national or international recognition 
for excellence in the field. Likewise, while the Petitioner asserts that applications are "by invitation 
only," the Petitioner did not show how this establishes the fellowship as a nationally or internationally 
recognized prize or award for excellence in the field. 
Furthermore, the Petitioner contends that he provided an article posted on advocate.com, which 
reported on an exhibition and indicated his receipt of the fellowship, and screenshots from artnet.com 
announcing an exhibition and indicating that "[t]he Fellows come from disparate backgrounds and 
engage in equally divergent art practices, and their artwork presents a multitude of positions within 
contemporary queer identity." However, the Petitioner did not establish how the evidence shows the 
national or international recognition for excellence in the field for the fellowship. The evidence, for 
instance, does not discuss or indicate the recognition of the fellowship in the field or otherwise reflect 
the field's view of the fellowship as a nationally or internationally recognized prize or award. 
Moreover, the Petitioner did not demonstrate how two articles mentioning the fellowship or fellows 
reflect the national or international recognition for excellence in the field. While the Petitioner claims 
that "the Ihas been featured in various major media outlets and major 
art publications," the issue for the criterion is the national or international recognition of the prize or 
award rather than the reputation or publicity of the awarding entity, institution, or organization. 
For the reasons discussed above, the Petitioner did not overcome the grounds for dismissal of the 
awards criterion. Because the Petitioner did not demonstrate his motion satisfies the requirements for 
a motion to reconsider under 8 C.F.R. 103.5(a)(3), we will dismiss the motion to reconsider. 
III. CONCLUSION 
The Petitioner did not establish new facts in order to reopen the proceeding. Furthermore, the 
Petitioner did not show how we erred in law or policy. 
4 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
5