remanded EB-1A Case: Fashion Design

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 10, 2024 In Re: 33737185 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a fashion designer, 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 met the initial evidence requirements for the classification by establishing 
the Petitioner' s receipt of a major, internationally recognized award, or by meeting three of the ten 
evidentiary criteria at 8 C.F.R. § 204.5(h)(3). 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 Christa 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for 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). 6 USCIS Policy Manual F.2, https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-2. 
II. ANALYSIS 
The Petitioner is a fashion designer who co-founded (D-), 
1 Her work with D- largely involves 
creating and marketing D-' s products using its patented and trademarked software, described on the 
patent as "Software-as-a-service (SaaS) featuring software for use in photo editing," providing 
The record contains material documenting 
the sale of D-' s products on social media platforms, such as media articles discussing the creation of 
D-' s fashionable attire for I I avatars for purchase by I I end users. According to media 
reports, D- offered "more than 3,000 articles of digital clothing[], for people to outfit their own internet 
images or that of their avatars" in 2023. The Petitioner intends to pursue her career in the fashion 
design field through her work with D-. 
As a preliminary matter, we acknowledge that the Petitioner has been the beneficiary of an approved 
0-1 petition. Although USCIS has approved at least one 0-1 nonimmigrant visa petition filed on 
behalf of the Petitioner, the 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 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 regulatory criteria by providing 
sufficient evidence (1) that material had been published about her in major trade publications or major 
media, and (2) of her leading or critical role with a distinguished organization. See 
1 The Petitioner indicated in the petition that she intends to be employed within the "Fashion Designers" occupation should 
this petition be approved. DOL's Occupational Information Network (O*NET) summary report for "Fashion Designers," 
may be viewed athttps://www.onetonline.org/link/summary/27-1022.00. 
2 
8 C.F.R. § 204.5(h)(3)(iii) and (viii). On appeal, the Petitioner asserts that she also meets several 
other criteria, including the artistic display criterion at 8 C.F.R. § 204.5(h)(3)(vii). She asserts that the 
Director erred in determining that she did not meet the plain language of these initial regulatory 
requirements. 
As more fully discussed below, we conclude that the Petitioner has met the criterion at 8 C.F.R. § 
204.5(h)(3)(vii). Because the Petitioner has shown that she satisfies at least three criteria, we will 
remand the matter to the Director to evaluate the totality of the evidence in the context of a final merits 
determination to determine whether the Petitioner has demonstrated 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. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 8 C.F.R. § 204.5(h)(3)(vii) 
The plain language of this criterion requires evidence (1) of a petitioner's work in the field, and (2) 
that their work in the field has been displayed in an artistic exhibition or showcase. The petitioner 
must satisfy both elements to meet the plain language requirements of this criterion. 
The Petitioner submitted evidence that her artistic works were showcased at fashion related 
exhibitions. We note that the Director analyzed the evidence under this criterion and concluded that 
the display ofD-'s fashion designs at the (C-) and 
I (T-) exhibitions did not constitute the display of the Petitioner's own work, 
and as such the Petitioner did not meet the first element of the plain language requirements for this 
criterion. Based on our de novo review, we conclude that the evidence of record suggests otherwise. 
For instance, according to the testimonial letters and the webpages submitted about the exhibition at 
C-, the Petitioner attended the exhibition and assisted in the creation of collaborative digital fashions 
for the personal avatars of other participants at the event. Likewise, for T-' s exhibition the Petitioner 
created and presented a digital dress in the artwork to adorn the avatars of other artists involved with 
this artistic display. 
The testimonial letters and documentary evidence about D-' s business in the record indicates that the 
Petitioner co-founded this company and since its inception has performed in a variety of creative roles 
therein that extend beyond administrative oversight, to include integrating various technologies and 
providing creative direction to create the patented and trademarked software used in the design of the 
digital attire and accessories that form the basis for D-' s online products. We therefore agree with the 
Petitioner that, more likely than not, she meets the plain language requirements for this criterion, and 
the Director erred in concluding otherwise. 
For the reasons discussed above, we withdraw this aspect of the Director's decision and remand the 
matter for further review and entry of a new decision. Because the Petitioner has established her 
qualifications under criteria at 8 C.F.R. § 204.5(h)(3)(iii), (vii), and (viii), on remand, the Director 
should conduct a final merits review of the evidence of record. 
As extraordinary ability is an elite level of accomplishment whose recognition necessarily entails a 
judgement call, it cannot be established through meeting at least three of the evidentiary criteria alone. 
3 
The final merits determination is the ultimate statutory inquiry of whether the applicant has 
extraordinary ability as demonstrated by sustained national or international acclaim. Amin v. 
Mayorkas, 24 F.4th 383, at 395 (2022). The Petitioner seeks a highly restrictive visa classification, 
intended for the handful of individuals at the top of their respective fields. USCIS has long held that 
even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter ofPrice, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994). As contemplated 
by Congress, the Petitioner must demonstrate the required sustained national or international acclaim, 
consistent with a "career of acclaimed work in the field." H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); 
see also section 203(b)(l)(A) of the Act. 
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)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-
20. We express no opinion regarding the ultimate resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
4