remanded EB-1A Case: Writing

U.S. Citizenship 
and Immigration 
Services 
In Re: 16169597 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WLY 15, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a writer, seeks classification as an individual 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 Director of the Nebraska Service Center denied the petition, concluding that although the record 
established that the Petitioner satisfied the initial evidentiary requirements, it did not establish, as 
required, that the Petitioner has sustained national or international acclaim and is an individual in the 
small percentage at the very top of the field. 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 withdraw the Director's 
decision and remand the matter for entry of a new decision consistent with our discussion below. 
I. LAW 
Section 203(b)(l)(A) of the Act makes immigrant visas available to individuals with extraordinary 
ability if: 
(i) the alien has 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, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's 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). 
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 writes fiction and non-fiction under a variant of his legal name. 1 In addition to nonfiction 
essays b)og posts and short stories the Petitioner bis written two novels, one of~which,lwith the title 
I _ resulted in his prosecution i under public 
decency laws. His conviction and imprisonment in 2015 drew si nificant international attention. The 
Petitioner also worked as an editor at the ma azme The Petitioner is a fellow at the 
I I at the University of~------~ 
We agree with the Director that the Petitioner has satisfied three of the ten regulatory criteria at 
8 C.F.R. § 204.5(h)(3), pertaining to lesser nationally or internationally recognized prizes or awards; 
published material about the individual in professional or major media; and participation as a judge of 
the work of others. The Petitioner claims to satisfy a fourth criterion at 8 C.F.R. § 204.5(h)(3)(v), 
relating original contributions of major significance, but we need not reach a conclusion on this claim 
in order to proceed to the final merits determination. 
In a final merits determination, the Petitioner must demonstrate, by a preponderance of the evidence, 
his sustained national or international acclaim and that he is one of the small percentage at the very 
top of the field of endeavor, and that his achievements have been recognized in the field through 
extensive documentation. See Kazarian, 596 F.3d at 1119-20. 2 
The Director determined that the Petitioner did not establish the necessary sustained acclaim. The 
Director cited two factors in support of this conclusion. Firstly, regarding the explicit nature of some 
1 Many record materials show the name I t but there is no indication that the Petitioner uses this name on legal 
identification documents. 
2 See also 6 USC1S Policy Manual F.2(B)(2), https://www.uscis.gov/policymanual (stating that USCIS officers should then 
evaluate the evidence together when considering the petition in its entirety to determine if the petitioner has established, 
by a preponderance of the evidence, the required high level of expertise for the immigrant classification). 
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of the Petitioner's writings, the Director stated that "such material is common in the United States and 
does not demonstrate that the petitioner is one of that small percentage who has risen to the top of the 
field." The Petitioner, however, had not claimed that his choice of subject matter or his use of explicit 
language placed him at the top of the field. The above observation, therefore, is not a valid basis for 
denying the petition. 
Secondly, the Director concluded that letters written in support of the petition "describe the petitioner's 
work in terms of social and political activism, which is not a field of endeavor under this visa 
classification." This is, at best, an incomplete summary of the submitted letters, many of which discuss 
the literary and artistic merit of the Petitioner's fiction, as well as the quality and impact of his journalism. 
For the reasons explained above, the Director's discussion of these issues does not suffice as a final merits 
determination. We will therefore withdraw the denial decision based on that analysis, and remand the 
matter for a new decision, taking the issues below into account. 
The record shows that the Petitioner rose to international prominence when his imprisonment made him 
a potent symbol for advocates of freedom of speech and of the press. The key issue is whether the 
Petitioner has earned acclaim as an extraordinary writer, separate from the attention that attended his 
prosecution. Publicity for one's circumstances is not the same as acclaim for one's achievements. 
The Director was correct in observing that the petition relies heavily on letters newly writtr spectfically 
to support the petition. Some of the letters suggest that the Petitioner was well-known in before 
his prosecution, which could rise to the level of national acclaim and thereby qualify him for the 
classification he seeks. But such a conclusion would require direct, contemporaneous evidence, rather 
than new letters claiming that the Petitioner has been well-known for years. 
The value of such letters lies in giving perspective and context to the other evidence in the record; they 
cannot fully take the place of that evidence. The letters include several claims of fact for which objective, 
primary evidence ought to exist. These claims may be true, but they have minimal weight without 
corroborating evidence. 
For instance, an associate professor a~ !University who translated I I into English asserts 
that he has "been following [the Petitioner's] work for more than ten years," and has used that work in 
"numerous peer-reviewed articles, conference papers, book chapters, and interviews" during that time. 
But he does not identify or submit these works. If the Petitioner's work was the subject of scholarly 
commentary before 2015, then those materials ought to be available for submission and consideration. 
Likewise! I was not the Petitioner's first novel. The record indicates he published! I in 
2007. Contemporary evidence such as reviews and comparative sales figures could help to establish 
recognition as a novelist, outside of the context of the controversy surrounding! I 
Evidence of the Petitioner's pre-2015 career as a journalist could also shed valuable light on the 
Petitioner's reputation and recognition. 
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The Director did not issue a request for evidence to give the Petitioner an opportunity to fill this critical 
gap in the record. Instead, the Director issued a notice of intent to deny the petition, which serves a 
different function (to notify a petitioner of potentially disqualifying information). 
Therefore, we will remand the matter so that the Director may ( 1) issue a request for information to allow 
the Petitioner an opportunity to produce documentary evidence that predates his prosecution, thereby 
demonstrating that he did not rise to public attention only because his work was deemed to run afoul of 
I llaws; and (2) render a new final merits determination that more fully considers the totality of 
the record. 
III. CONCLUSION 
The final merits determination in the original decision was deficient in that it focused on peripheral 
issues. Also, several letters in the record include claims which, if true, may warrant approval of the 
petition, but the Director did not provide the Petitioner with an adequate opportunity to supplement 
the record with evidence to corroborate those claims. 
As the matter will be remanded, the Director should request any additional evidence deemed warranted 
and allow the Petitioner to submit such evidence within a reasonable period of time. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis, which, if adverse, shall be certified 
to us for review. 
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