dismissed EB-1A Case: Visual Effects And Animation

U.S. Citizenship 
and Immigration 
Services 
In Re: 21983129 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEPT. 14, 2022 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a visual effects artist and animator, seeks classification as an individual of 
extraordinary ability. See Immigration and Nationality Act (the Act) section 203(b )(1 )(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. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria, as required. 
The Petitioner appealed that decision, and we withdrew that decision and remanded the matter to the 
Director in February 2021, stating that the Director had not sufficiently considered some elements of 
the Petitioner's claims. The Director denied the petition for the second time in December 2021, stating 
that the Petitioner had satisfied only two of the threshold criteria, instead of the required three. The 
matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes immigrant visas available to individuals with 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; who seek to enter the United States to continue work in the area of 
extraordinary ability; and whose 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 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. The regulation at 8 C.F.R. § 204.5(h)(4) allows a 
petitioner to submit comparable evidence if they are able to demonstrate that the standards at 8 C.F.R 
§ 204.5(h)(3)(i)-(x) do not readily applyto the individual's occupation. 
Where a petitioner meets the initial evidence requirements through either a one-time achievement or 
meeting three lesser criteria, 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); Rijalv. USCJS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner entered the United States as an F-1 nonimmigrant student to study for a master of fine arts 
degree in animation atl I College of Art and Design. After completing that degree, he changed 
to H-1B nonimmigrant status in 2015 to work as creative manager for his design company. In 2022, he 
changed hisnonimmigrant status to H-4, dependent of anH-1 nonimmigrant. 
Because the Petitioner has not indicated or shown that he 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 Petitioner claimed to have satisfied six of these criteria, summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (vii), Display at artistic exhibitions or showcases; 
• (viii), Leading or critical role for distinguished organizations or establishments; 
• (ix), High remuneration for services; and 
• (x), Commercial success in the performing arts. 
The Petitioner also claimed to have submitted comparable evidence under 8 C.F.R. § 204.5(h)(4). 
In the second denial notice, the Director concluded that the Petitioner met two of the criteria, pertaining 
to display and high remuneration. On appeal, the Petitioner asserts that he also meets the criteria 
relating to prizes and leading or critical roles. He does not dispute the Director's determinations 
regarding memberships, commercial success, and comparable evidence. Therefore, the Petitioner has 
waived appeal regarding those issues. 1 
Upon review of the record, we agree with the Director that the Petitioner has satisfied the two criteria 
relating to display and remuneration. We will discuss the other claimed criteria below. 
1 See Matter of R-A-M-, 25 T&N Dec. 657, 658 n.2 (BIA 2012)(stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also Sepulveda v. US. Att'y Gen., 40 I F.3d 1226, 1228 n. 2 
(11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-
CV-2 7312011, 2011WL4711885 at* 1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandoned as he failed to 
raise them on appeal to theAAO). 
2 
Documentation of the alien 's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the.field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
We note that the Petitioner did not initially claim to have satisfied this criterion. His response to a request 
for evidence (RFE) mentioned his involvement in an award-winning project. At that point, the Director 
issued a second RFE which was largely limited to the question of whether the Petitioner himself had 
received the award. 
The Petitioner claims two awards under this criterion: 
• Finalist, I . IAwardsJ I category 
• 2018 Silver Award for Craft- Cinematography from 
In our February 2021 remand order, we took no position as to whether either claimed award meets 1he 
requirements of the regulatory criterion. Instead, we determined that the Director had applied incorrect 
standards, and instructed the Director to "reevaluate this evidence to determine whether the Petitioner 
was a recipient of an award, as well as whether any awards he received were for excellence in the field of 
computer graphics, visual effects and animation." The Director concluded that the Petitioner had not met 
these requirements. We agree, for the reasons explained below. 
The Petitioner acknowledges that he worked on a projectthat was a finalist for a I Award, but which 
did not win that award. The Petitioner asse1ts that "being a finalist for [a] prestigious award ought to be 
considered under 8 CPR§ 204.5(h)(3)(i)." The language of the regulation, however, requires "receipt of 
... prizes or awards." The Petitioner cites no support for the contention that finalists who did not actually 
receive an award should, nevertheless, be considered to have this requirement. A nomination that did not 
result in receipt of a prize or award does not satisfy the regulatory requirements for the criterion. 2 
Fmihem1ore, the Petitioner had previously acknowledged that the adve1iising campaign in question did 
not become a finalist for a I until after the petition's filing date. A petitioner must meet all eligibility 
requirements at the time of filing. 8 C.F.R. § I 03 .2(b )( 1 ). The award nomination had not yet occurred at 
the time of filing, and therefore it cannot contribute to a finding that the Petitioner was eligible when he 
filed the petition. 3 
Regarding the A ward from printouts from the awarding entity's 
website show that the named recipient was the marketing and adve1iising agency that produced a short 
promotional film on behalf of the Canadian Olympic Committee. As the regulation is worded, the focus 
should be on the person's receipt of the awards or prizes, as opposed to his or her employer's receipt of 
the awards orprizes. 6 USCISPolicy ManualF.2 (appendix), https://www.uscis.gov/policymanual. 
The web page about that specific award lists dozens of credits for individuals and agencies that 
participated in making the film. The Petitioner correctly asse1is that an individual might win an award as 
2 If the proceeding had reached a final merits determination, then we would have taken nominations into consideration, 
because nominations are a form ofrecognition even if they do not rise to the level of prizes or a wards. But because we 
have not rendered a final merits detenninationin this case, we neednot explore this issue in depth. 
3 If the Petitioner had established eligibility as of the time offiling, then we would have consideredlaterevidence in the 
context of whether he remained eligible while the petition was pending, which 8 C.F.R. § 103.2(b )(1) also requires. 
3 
part of a team, and need not be the only named recipient. Nevertheless, the page does not indicate that 
all the credited individuals and agencies individually received awards; the list of credits on the website is 
not, itself, an award. Participation in an award-winning endeavor is not the same thing as receipt of an 
award. Therefore, the Petitioner has not established his receipt of the award. 
Fmihermore, the prize or award must be for excellence in the Petitioner's field of endeavor. The web 
printout credits the Petitioner as the project's "CG [computer graphics] Artist." The submitted 
information does not indicate that the award was for excellence in computer graphics. 
The Petitioner contends that the long list of credits shows that "the awards were collective efforts and all 
the contributors were recognized." But the award does not recognize the collective efforts of all the 
participants. Rather, the website printouts show that there are several different categories of award, such 
as "Craft" and "Design," each with several subcategories. The award given to the Petitioner's employer 
is in the "Craft" category, and the ''Cinematography" subcategory. The website indicates that the 
"Cinematography" subcategory "[r]ecogniz[es] the art and science of beautiful film composition­
framing, lighting, angles and movement." Thus, the award does not recognize the overall product of all 
the participants' cooperation; it specifically recognizes the cinematography. The Petitioner has not shown 
that his computer-generated artwork played a role in the selection of the winner. This information further 
weighs against the argument that the Petitioner himself actually received the award. 
There is no indication that all the individuals credited on the website were involved in the film's 
cinematography. Apart from the Petitioner as the "CG Artist," other credited participants include 
"Copywriters," "Music," "Sound Design/Final Mix," and "Account Supervisor." Such roles have no 
demonstrated relevance to cinematography, and many of these roles fall within other award categories 
and subcategories, such as "Animation," "Editing," and "Sound Design" within the "Craft" categmy, and 
"Graphics" in the "Design" category. 
Given the above information, the Petitioner has not met his burden of proof to show that the Silver 
I A ward for "Craft- Cinematography" is an award that he personally received for excellence 
in his field of endeavor, as required by the language of 8 C.F.R. § 204.5(hX3)(i). 
Evidence that the alien has performed in a leading or critical role/or organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3Xviii). 
For a leading role, we look at whether the evidence establishes that the person is (or was) a leader within 
the organization or establishment or a division or department thereof. For a critical role, we look at 
whether the evidence establishes that the person has contributed in a way that is of significant importance 
to the outcome of the organization or establishment's activities or those of a division or department of the 
organization or establishment. 6 USCIS Policy Manual, supra, at F.2 appendix. 
The Petitioner asserted that "[a]s Creative Director [for his design company], he has played critical and 
leading roles in a number of productions for client companies ... on high level media projects for major 
corporations such as II II I andl I The named 
brands did not directly engage the Petitioner's services. Rather, those companies had contracted with 
various advertising agencies to produce advertising and marketing content, and the agencies, in tum, 
subcontracted some design work to the Petitioner. 
4 
Individuals from these agencies provided letters, providing details about the Petitioner's digital modeling 
work on various projects. For example, "he was solely responsible formodelingtexturing, animating and 
lighting [a] 30 second video" for I I he provided digital modeling for a television and social 
media campaign forl I and he "model[ ed] the environments and characters" for al I I !promotion "while the other team was focused on animation." These letters indicate some degree 
of demand for the Petitioner's digital modeling services, but they do not establish that his contracted roles 
on these projects were leading or critical for any organization or establishment with a distinguished 
reputation. 
The Director issued an RFE, stating that the submitted letters did not show how the Petitioner's roles were 
leading or critical for any "organization or establishment as a whole." 
In response, the Petitioner noted that the USCIS Policy Manual does not require an individual's role to be 
critical to entire organizations or establishments. Rather, it requires that an individual "has performed in 
a leading or critical role for an organization, establishment, or a division or department of an organization 
or establishment." The Petitioner asserted that he satisfied this requirement because he "has been 
responsible for critical campaigns and projects for distinguished media studios serving big name clientele 
for organizations in his field of endeavor." Individual campaigns and projects, however, are not divisions 
or departments of an organization or establishment. 
New letters submitted in response to the RFE provide more details about the Petitioner's modeling work 
on various projects, but these letters do not establish that how the Petitioner's work was critical to any 
organization or department or division thereof. 4 Assertions that his roles were critical to particular 
projects do not satisfy the criterion, because a project is not a department or division of an organization 
or establishment. The letters show that, on any given project, the Petitioner was part of a creative team 
that involved varying numbers of other artists and technicians performing assigned roles. The Petitioner 
has not established that his roles, in particular, were critical to the organizations or to departments or 
divisions thereof. Participation in a successful project is not automatically or presumptively a critical role 
for the organization, or a department or division of the organization, that unde1iook the project. 
We need not discuss, at length, the related but separate question of whether the advertising agencies have 
a distinguished reputation. 5 We note, nevertheless, that the Petitioner submits no evidence to address this 
point, relying instead on the prominence of some of the agencies' clients. The Petitioner asserts that he 
"has usedhis extraordinary abilities to make a difference to animation projects of major US corporations." 
Those corporations hiredadve1iising and marketing agencies for specific promotions, and those agencies, 
in turn, hired the Petitioner as a subcontractor to work on one aspect of their campaigns. The Petitioner 
has not shown that his indirect connection to the "major US corporations"as a subcontractor to advertising 
agencies amounts to a critical role for those corporations or divisions or departments thereof. 
The Petitioner has not met his burden of proof with regard to the requirements of this criterion. 
4 We also note that many of the projects discussed in the RFE response took place after the petition's filing date, and 
therefore cannot establish eligibility as of the filing date as required by 8 C.F.R. § 103.2(b)(l ). 
5 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 MatterofL-A-C-, 26 I&NDec. 516,526 
n.7(BIA2015) (declining to reach alternative issues on appeal where anapplicantis otherwise ineligible). 
5 
In light of the above conclusions, the Petitioner does not meet the initial evidentiary requirement of 
three criteria under 8 C.F.R. § 204.5(h)(3). 
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 detennination 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. U.S. Citizenship and 
Immigration Services 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 had some success providing image modeling for 
promotional use by prominent clients, but he has not shown that the recognition of his work rises to 
the required level of sustained national or international acclaim or demonstrates 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 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). 
The Petitioner has not met his burden of proof to establish eligibility as an individual of extraordinary 
ability. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
6