remanded EB-1A Case: Art

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 26, 2024 In Re: 30663088 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, an artist, seeks classification as an individual of extraordinary ability. 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 the record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria, as required. 
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 withdraw the Director's decision and remand this matter for the entry of a new decision 
consistent with the following analysis. 
I. LAW 
An individual is eligible for the extraordinary ability classification if they have extraordinary ability 
in the sciences, arts, education, business, or athletics which has been demonstrated by sustained 
national or international acclaim and their achievements have been recognized in the field through 
extensive documentation; they seek to enter the United States to continue work in the area of 
extraordinary ability; and their entry into the United States will substantially benefit prospectively the 
United States. Section 203(b )( 1 )(A) of the Act. 
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 may demonstrate 
international recognition of their achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award). Absent such an achievement, a petitioner must provide 
sufficient qualifying documentation demonstrating that they meet at least three of the ten criteria listed 
at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
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 an artist whose work has been featured in several exhibitions in New York. She 
studied illustration at the __________ and painting at the ________ 
The Petitioner intends to continue her work as an artist in the United States. 
As a preliminary matter, we acknowledge that the Petitioner has been the Beneficiary of an approved 
O-lB petition. Although USCIS has approved at least one O-lB nonimmigrant visa petition filed on 
behalf of the Petitioner, this prior approval does not preclude USCIS from denying an immigrant visa 
petition which is adjudicated based on a different statute, regulations, and case law. The nonimmigrant 
and immigrant categories have different criteria, definitions and standards for persons working in the 
arts. "Extraordinary ability in the field of arts" in the nonimmigrant 0-1 B category means distinction. 
8 C.F.R. § 214.2(o)(3)(ii). But in the immigrant context, "extraordinary ability" reflects that the 
individual is among the small percentage at the very top of the field. 8 C.F.R. § 204.5(h)(2). 
Because the Petitioner has not indicated or shown that she 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 criteria she claimed to have satisfied: 
participation as a judge of the work of others in her field and the display of her work at artistic 
exhibitions or showcases. See 8 C .F.R. § 204.5(h)(3)(iv) and (vii). The record supports that 
determination. However, the Director concluded the Petitioner did not establish that she meets the 
criteria at 8 C.F.R. § 204.5(h)(3)(i), (iii), (v), (viii), or (ix). On appeal, the Petitioner asserts that she 
meets these criteria, and she contends that the Director incorrectly evaluated supporting evidence. 
Upon review, we conclude that the Petitioner has met the criteria at 8 C.F.R. § 204.5(h)(3)(iii). 
Published material about the individual in professional or major trade publications or 
other major media, relating to the individual'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). 
The Petitioner submitted articles from websites showing that she was interviewed and that her work 
has been discussed in several publications, including Art in America, Artforum, Cultured, 
Hyperallergic, Brooklyn Rail, and Canadian Art. In denying the petition, the Director characterized 
these articles as originating from "web portals" that are "not subject to editorial review" and "open to 
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self-creation material," therefore having "no evidentiary weight." The record includes documentation 
concerning circulation, revenues, and distribution data. However, the record also includes credible 
letters from museum curators and senior members of artist residency programs discussing the 
prominence of the publications in which the Petitioner was published in the field of visual arts. We 
conclude that the record includes sufficient evidence demonstrating that the publications in which the 
Petitioner was published are, more likely than not ,widely known in the arts community and target a 
professional audience. As such, we consider them to be professional publications. 
As to material that has been published about the Petitioner in other major media, the Petitioner 
submitted an article from Time Out, a widely known international magazine that specializes in 
highlighting events in cities throughout the world. The article featured the Petitioner's work in its 
201 7 article, _____________ The Petitioner also submitted articles from The 
New York Times discussin her artwork and the work of other contemporary artists, including I I 
which highlights the Petitioner as one of six within a group 
show, and __________________ which features "noteworthy gallery 
shows." The Petitioner further submitted a piece from the New York Times titled, ______ 
_______________ The piece depicts hand-drawn artwork from these artists 
created during the first weeks of the global pandemic and includes accompanying quotes from the 
artists. The Director determined that the article was not "specifically published material about" the 
Petitioner. We disagree with this determination. The submitted evidence reflects that the Petitioner 
was one of a few artists featured in a major publication in a populous city known for its abundance of 
artists, and these individuals were singled out to express their experience through their art and personal 
opinions during a prominent international event. The article was about the viewpoints of several 
artists, including that of the Petitioner. The evidence of record meets the plain language of this 
criterion. 
III. CONCLUSION 
The Petitioner has met the requisite three often initial evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(iii), 
(iv), and (vii). We therefore need not consider whether she met additional claimed criteria at 8 C.F.R. 
§ 204.5(h)(3)(i), (v), (viii), or (ix). 
We will withdraw the Director's denial of the petition and remand the matter for further review and 
entry of a new decision. The Director may request any additional evidence considered pertinent to the 
new determination and any other issues. As such, we express no opinion regarding the ultimate 
resolution of this matter on remand. On remand, the Director should conduct a final merits review of 
the evidence of record. The new decision should include an analysis of the totality of the evidence 
evaluating whether the Petitioner has demonstrated, by a preponderance of the evidence, her sustained 
national or international acclaim, her status as one of the small percentage at the very top of her field 
of endeavor, and that her achievements have been recognized in the field through extensive 
documentation. See section 203(b )(1 )(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 
596 F.3d at 1119-20. 
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ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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