remanded EB-1A Case: Performing Arts

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 16, 2024 In Re: 24443220 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner has a varied history in the performing arts and associated occupations and he seeks 
classification as an alien of extraordinary ability. See 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 Texas Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding that although the record established that the Petitioner met at least three oftheten 
regulatory criteria, he did not warrant an approval considering the totality of the evidence. The matter 
is now before us on appeal. The Petitioner bears the burden of proof to demonstrate eligibility to U.S. 
Citizenship and Immigration Services (USCIS) by a preponderance of the evidence. Section 291 of 
the Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). We review the questions in this 
matter de nova. Matter of Christo 's Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 
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 
To qualify under this immigrant classification
, the statute requires the filing party demonstrate: 
• The foreign national enjoys extraordinary ability in the sciences, arts, education, business, or 
athletics; 
• They seek to enter the country to continue working in the area of extraordinary ability; and 
• The foreign national's entry into the United States will substantially benefit the country in the 
future. 
Section 203(b)(1 )(A)(i)- (iii) 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-step analysis. In the first 
step, 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 material if he or she is able to demonstrate that 
the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not readily apply to the individual's occupation. 
Where a petitioner meets these initial evidence requirements, we then move to the second step to 
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, 
1121 (9th Cir. 2010) (discussing a two-step 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 Amin v. Mayorkas, 24 F.4th 383, 394 (5th Cir. 2022). 
II. ANALYSIS 
Before the Director, the Petitioner claimed he met eight of the regulatory criteria. The Director decided 
that the Petitioner satisfied four of the criteria relating to published material, judging, display of the 
Petitioner's work, and performing in a leading or critical role. But the Director concluded he did not 
satisfy the criteria associated with prizes or awards, original contributions, high salary or 
remuneration, or commercial success. Within the final merits determination, the Director decided the 
Petitioner's claims and evidence did not show that he is one of that small percentage who have risen 
to the top of the field of endeavor, nor did it reflect his achievements set him significantly above almost 
all others in the field at a national or international level and does not establish sustained acclaim. 
The Petitioner presents four procedural errors in the Director's decision for this appeal. Those relate to: 
(1) the Director's application ofthe sustained acclaim requirement; (2) the totality ofthe evidence method; 
(3) by improperly dismissing individual criteria under step one (8 C.F.R. § 204.5(h)(3)(i)-(x)) the 
Director failed to properly conduct a final merits analysis based on the totality of the evidence, and the 
failure to explain why the evidence did not meet the requisite level of acclaim resulting in an abuse of 
discretion. 
A Petitioner's Proposed Sustained National or International Acclaim Method is Incorrect 
Relating to the Petitioner's first argument that the Director did not properly approach the sustained 
acclaim evaluation, he posits there are two methods for demonstrating sustained national or international 
acclaim. Those consists of showing one is the recipient of a one-time achievement, or alternatively that 
satisfy at least three of the ten regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). But we do not fully 
agree with that opinion. First the USCIS Policy Manual speaks to this issue: 
When filing a petition for a person with extraordinary ability, the petitioner must submit 
evidence that the person has sustained national or international acclaim and that the 
person's achievements have been recognized in the field of expertise.[] In determining 
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whether the beneficiary has enjoyed "sustained" national or international acclaim, the 
officer should consider that such acclaim must be maintained.[] However, the term 
sustained does not imply an age limit on the beneficiary. A beneficiary may be very young 
or early in his or her career and still be able to show sustained acclaim. There is also no 
definitive time frame on what constitutes sustained. 
If a person was recognized for a particular achievement, the officer should determine 
whether the person continues to maintain a comparable level of acclaim in the field of 
expertise since the person was originally afforded that recognition. A person may, for 
example, have achieved national or international acclaim in the past but then failed to 
maintain a comparable level of acclaim thereafter. 
See generally 6 USCIS Policy Manual F.2(A)(l), https://www.uscis.gov/policymanual. 
We are not persuaded by the Petitioner's appellate arguments regarding what constitutes sustained 
acclaim, and he does not address the guidance within the USCIS Policy Manual. We will say that within 
this segment of the brief, the Petitioner's reading of the regulation does not take into account that the 
one-time achievement and the ten regulatory criteria are intended as the first step ( e.g., the means) paving 
one's way to get to the end-or step two-being the final merits determination. The Kazarian decision 
supports this interpretation when it found evaluating sustained acclaim under the ten regulatory criteria 
rested on an improper understanding of the regulatory requirements. Kazarian v. USCIS, 596 F.3d at 
1121. 
Sustained national or international acclaim played a role in two of the regulatory areas the Director 
discussed in their final merits determination. First when discussing the display of the Petitioner's work, 
then for his performance in a leading or critical role for organizations or establishments. 
Regarding the display of the Petitioner's work, the Director discussed the display of his film in 20 l Oand 
determined that did not demonstrate his work has "been consistently displayed at the top exhibit and 
showcase venues throughout the national or international communities for the field." Here, the Director 
did not simply list the 20 l Odisplay as any event, but instead they evaluated the level associated with the 
display (e.g., top exhibitions and showcase venues). On appeal, the Petitioner notes 15 subsequent 
instances where his work was on display without addressing the level at which the display occurred. On 
remand, the Director should consider whether any of those instances in 2019 resulted in acclaim on a 
national or international level, and whether all of the instances lead the Director to decide they are 
commensurate with those who are part of the small fraction of individuals at the very top of the 
Petitioner's field of endeavor. 
Turning to the Petitioner's leading or critical role and whether that reflected his sustained national or 
international acclaim in this area, the Director noted the Petitioner's roles dated back to 2011 and 2014 
and decided this was insufficient to demonstrate sustained acclaim considering the seven-year gap from 
2014 to the petition filing year. Within the Petitioner's appeal he only offers a discussion relating to the 
definition of sustained acclaim that we addressed above and determined his interpretation of that 
regulatory requirement to be incorrect. In other words, although the Petitioner contests the Director's 
conclusion in this regulatory area in the final merits determination, he does not offer any additional 
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instances in which he performed in a leading or critical role that should be factored into any future final 
merits analysis in this regulatory topical area. 
B. The Director's Totality of the Evidence Method was Proper 
Next, the Petitioner's second argument in the appeal is that the Director erred in their totality of the 
evidence analysis, which we also do not find to be persuasive. The Petitioner proposes that demonstrating 
one has received a one-time achievement, or meeting three of the criteria is all that is required to 
demonstrate: (1) a level of expertise indicating the individual is one of that small percentage who has 
risen to the very top of the field of endeavor; (2) sustained national or international acclaim; and (3) there 
is extensive documentation regarding their achievements. The Petitioner's proposed methodology is 
directly refuted by both the Kazarian decision and USCIS Policy Manual, and the Petitioner doesn't argue 
why those authorities should be set aside in favor of the method he proposes in this appeal. 
We do not agree with the Petitioner's assertions in the appeal brief that USCIS is restrained in the method 
it utilizes to perform a final merits determination. The adjudicating officer is free to address a petitioner's 
achievements in each ofthe regulatory areas ( e.g., prizes or awards, membership, published material, etc.) 
to evaluate the level of the petitioner's national or international acclaim and the extent to which their 
achievements have been recognized in the field to determine whether they have established: 
a) The foreign national has sustained national or international acclaim; 
b) His or her achievements have been recognized in the field of expertise through extensive 
documentation; and 
c) The beneficiary has attained a level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the field of endeavor. 
And that is the method the Director utilized here. The Petitioner claims there is no basis in the plain 
language of the regulation to support the method the Director used. The Kazarian decision described the 
appropriate two-part adjudicative approach to evaluating evidence and in 2010 USCIS amended its policy 
based on that approach. See generally USCIS Policy Memorandum PM-602-0005.1, Evaluation of 
Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator's Field Manual 
(AFM) Chapter 22.2, AFM Update ADJ 1-14 3 (Dec. 22, 2010). 
Although the Petitioner does discuss the Kazarian decision, it appears he misunderstands its findings. In 
fact the Kazarian court stated: "While other authors' citations ( or a lack thereof) might be relevant to the 
final merits determination ofwhether a petitioner is at the ve,y top ofhis or her field ofendeavor, they 
are not relevant to the antecedent procedural question of whether the petitioner has provided at least three 
types of evidence." Kazarian, 596 F.3d at 1121 (emphasis added). This serves as the Kazarian court's 
acknowledgement that it is within the final merits determination that USCIS is to evaluate the qualitative 
statutory and regulatory requirements. 
In the Petitioner's final point under his second procedural argument, he points to an unpublished 2017 
decision from this office that performed a final merits determination. But that decision related to a 
different classification altogether and the Petitioner has not shown why that is relevant to the restrictive 
immigrant classification he seeks in this petition. The unpublished decision relates to a foreign national 
applying for 0-1 status, a classification reserved for nonimmigrants of extraordinary ability. We note 
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that nonimmigrant classification is based on a different standard-statute, regulations, case law, and 
agency policy. Considering the Petitioner has not argued how these two distinctly different 
classifications are handled procedurally in the same manner, we will not offer any additional analysis 
for the Petitioner's final point here. 
C. Petitioner's Claims that Dismissing Regulatory Criteria Adversely Affects the Final Merits Analysis 
is Incorrect 
That brings us to the Petitioner's third appellate argument, and the appeal brief begins that section with 
the following: 
As a result of the adjudication errors described above, the Service deprived the Petitioner 
of a proper Final-Merits Analysis of the big-picture totality ofthe evidence, by improperly 
dismissing criterion one-by-one using an incorrect definition of 'sustained,' by 
erroneously applying standards intended for the totality of the evidence to evidence for 
individual criteria which produces circular logic, and by abusing its discretion by ignoring 
evidence and by failing to explain why other evidence was dismissed as insufficient. 
Petitioner's counsel does not offer clear arguments here. Counsel's complex sentence structure 
diminishes their argument's clarity, making it difficult to follow and obscuring their key points. It appears 
counsel is attempting to argue one of two points, but we cannot be sure so we will address both. The first 
possibility we could glean is counsel is alleging that by dismissing individual regulatory requirements 
under step one-improperly dismissing them according to the Petitioner-this negatively affects the final 
merits determination analysis. 
The second possibility could be that counsel alleges that because the Director organized their final merits 
discussion of the evidence in a sequential order-similar to the way they reviewed the evidence to 
evaluate whether the Petitioner met the plain language of the criteria under step one-that they erred by 
essentially isolating evidence into each particular section or area. And by doing so, the Director did not 
collectively consider the evidence in the final merits when they determined he did not meet the regulatory 
requirements for extraordinary ability at 8 C.F.R. § 204.5(h)(2) (the definition of extraordinary ability) 
and (h)(3) (relating to sustained acclaim and that his achievements have been recognized in the field of 
expertise). 
To address what we consider counsel's first possible argument, in theory, this is not accurate because 
even if USCIS determines a filing party's claims and evidence do not fit squarely within the regulatory 
requirements in step one (8 C.F.R. § 204.5(h)(3)(i)-(x)), the officer is still required to consider all of 
the claims and evidence in the final merits determination regardless of whether it was directly 
applicable to any of the criteria. The USCIS Policy Manual lays out this guidance: 
At this step, officers consider any potentially relevant evidence in the record, even if such 
evidence does not fit one of the above regulatory criteria or was not presented as 
comparable evidence. The officers consider all evidence in the totality. Some evidence 
may weigh more favorably on its own, while other evidence is more persuasive when 
viewed with other evidence. 
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See generally 6 USCJS Policy Manual, supra, F.2(B)(2). That is to say-in theory-ifUSeIS declines 
to grant an individual criterion we will still fully address the level of acclaim and whether that places 
a foreign national among those at the top of the field in a final merits analysis. But "in practice" in 
this case, we depart from the "in theory" situation because the Director did not discuss and consider 
all of the regulatory areas in their final merits determination. In the final merits, the Director did not 
evaluate the acclaim associated with the Petitioner's prizes or awards, contributions, or high salary or 
significantly high remuneration and as the users Policy Manual reflects, this is required. The 
Director should offer a more thorough final merits determination on remand. 
Moving to counsel's second possible argument within the blocked quote immediately above, we view 
the methodology the Director utilized to conduct the final merits determination to be one acceptable 
approach. And the Petitioner does not identify any source or authority that might establish the 
Director's method was incorrect. We therefore, will not address this issue further. 
D. The Final Merits' Topical Areas Did Not Include Sufficient Analysis 
Here, we close out the Petitioner's procedural allegation of error. The Petitioner claims that the final 
merits determination involves articulating a reason rationale to explain why the evidence presented in 
step one was not sufficiently persuasive to determine that the foreign national has sustained national or 
international acclaim and was among those at the very top of their field of endeavor. The Petitioner 
alleges the Director summarily dismissed evidence with only a conclusory statement that the record does 
not demonstrate that he has risen to the very top of the field or that he has sustained a claim that is 
sufficient level. The Petitioner advances this methodology is arbitrary and capricious, it is an abuse of 
discretion, and it deprives him of due process by not providing an explanation for how users reached 
its conclusion. 
Because some of the regulatory areas in the final merits determination contain more salient analysis than 
others, we will discuss each area in the denial to consider the Petitioner's allegations. We first reiterate 
that the decision's final merits determination did not include any discussion regarding prizes or awards, 
contributions, or high salary or significantly high remuneration and that was an error on the Director's 
part. Next, in reviewing the Director's discussion of the Petitioner's achievements in the areas of 
published material about him, his judging experience, and the display of his work, the Director 
discussed some of his accolades, but it is not apparent that they fully considered all of the evidence 
under each area. 
Then, for the final topical area, leading or critical role, we first revisit the basis for the Director's 
adverse determination for this subject. The Director acknowledged two of the Petitioner's claims but 
decided that his performance from 2011 to 2014 did not demonstrate the requisite level of sustained 
acclaim. On appeal, the Petitioner begins claiming the Director did not use a proper concept of 
sustained and offers his own definition. Above we explained why the Petitioner's concept of this term 
is not controlling here. Additionally, the users Policy Manual not only offers a definition of that 
term, but more importantly the agency has explained how its officers are to apply it. The users 
Policy Manual states: 
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In determining whether the beneficiary has enjoyed "sustained" national or 
international acclaim, the officer should consider that such acclaim must be 
maintained.[] .... 
If a person was recognized for a particular achievement, the officer should determine 
whether the person continues to maintain a comparable level of acclaim in the field of 
expertise since the person was originally afforded that recognition. A person may, for 
example, have achieved national or international acclaim in the past but then failed to 
maintain a comparable level of acclaim thereafter. 
Id. at F.2(A)(l). It appears the Director followed the policy guidance when they determined the hiatus 
between 2014 and 2021 was a situation in which he "achieved national or international acclaim in the 
past but then failed to maintain a comparable level of acclaim thereafter." 
Second, the Petitioner claims that his exile from his home country should factor into the final merits 
analysis, but does not address why he was unable to serve in a similar role for other organizations or 
establishments outside of his country considering some of his other accolades ( display of his work) 
also occurred in multiple countries. 
And we address the Petitioner's final argument, the abuse of discretion allegation. Petitioner's counsel 
makes this contention without a citation to any authority as a basis for the claim. And it does not appear 
this allegation is even within our jurisdiction or authority to decide, which is established through DHS 
Delegation No. 0150.1 para. (2)(U) (Mar. 1, 2003) ( delegating appellate authority over those case types 
listed at 8 C.F.R. § 103.l(f)(3)(iii) (2003)). As we state above, the standard of review we use in these 
administrative proceedings is de novo and we generally do not rule on an abuse of discretion standard. 1 
Abuse of discretion is a standard of review appellate courts use to review lower court decisions and is not 
applicable in these proceedings. Relating to administrative law, 5 U.S. Code § 706(2)(a) governs the 
abuse of discretion concept. That statute states that when a federal court is reviewing an administrative 
agency's decision, the court will set it aside when the decision was either "arbitrary, capricious, an abuse 
of discretion, or otherwise not in accordance with law." But as one can see, this too relates to how federal 
courts review an administrative agency's decision and falls outside of this office's authority. Based on a 
lack ofjurisdiction on this topic, we will not consider these claims any further. 
III. CONCLUSION 
As we discuss above, the denial decision did not include all of the required types of analysis and we 
will remand the matter for a new decision. On remand, the Director should determine whether the 
Petitioner has sustained national or international acclaim and received recognition for achievements 
in his field, identifying him as one of that small percentage who has risen to the very top of the field. 
The Director should also consider any potentially relevant evidence in the record, even if it does not 
1 This is not to say that within our de novo review, we avoid any evaluating a denial decision's discretionary elements. 
We review questions oflaw, policy, fact, and discretion on a de novo basis. Christo 's Inc., 26 I&N Dec. at 537 n.2; Matter 
ofSimeio Solutions, LLC, 26 I&N Dec. 542, 542 n.l (AAO 2015). 
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fit one of the initial evidentiary criteria or was not presented as comparable evidence. Id. at F.2(8)(2). 
The petition's approval or denial depends on the evidence's type and quality. Id. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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