sustained EB-1A Case: Fashion Model And Actress

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
*'" ' \ 
f; 
P 
FILE: WAC 03 005 5341 3 Office: CALIFORNIA SERVICE CENTER Date: APR 0 5 2005 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
u hobert P. Wiernann, Director 
Administrative Appeals Office 
WAC 03 005 5341 3 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be sustained and the 
petition will be approved. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien of extraordinary ability. On 
Part 6 of the petition, the petitioner indicated that her proposed employment would be as a fashion model. The 
director determined the petitioner had not established the sustained national or international acclaim as a fashion 
model necessary to qualify for classification as an alien of extraordinary ability. The director further concluded 
that the record suggested that the petitioner actually intended to work as an actress and that she had not 
demonstrated national or international acclaim as an actress. 
On appeal, counsel asserts that the petitioner's accomplishments as an actress reflect on her acclaim as a model 
and notes that the petitioner has continued to work as a model. Recently models have frequently acted in 
movies and on television. This trend has somewhat blurred the line between modeling and acting. The record 
adequately reflects that the petitioner continues to pursue both types of jobs at the highest level nationally. 
Thus. we will consider all of the evidence submitted below. 
One of counsel's other assertions bears mention despite our ultimate decision to sustain the appeal. Specifically, 
counsel continues to assert on appeal that the petitioner's nonimmigrant visa as an alien of extraordinary 
ability is "prima facie" evidence that she has met at least three of the regulatory criteria. Counsel asserts that 
"the regulations for the 0-1 and EB-1 visas of extraordinary ability are virtually identical." This assertion is 
simply untrue for aliens in the petitioner's field. 8 C.F.R. 5 214.2(0)(3)(ii) defines extraordinary ability in the 
arts (including the performing arts) as "distinction." The regulation at 8 C.F.R. $ 204.5(h)(3), however, requires 
sustained national or international acclaim. While the regulation at 8 C.F.R. 5 214.2(0)(3)(iii) contains the same 
regulatory criteria as 8 C.F.R. 5 204.5(h)(3), the nonimmigrant regulations refer only to aliens who seek 
extraordinary ability in the fields of science, education, business or athletics. The nonimmigrant regulations 
contain entirely separate regulatory criteria for aliens in the field of art and the motion picture or television 
industry, a distinction the immigrant regulations do not make. As such, the petitioner's approval for a non- 
immigrant visa under the lesser standard of "distinction" is not evidence of her eligibility for the similarly titled 
immigrant visa. Regardless, each petition must be adjudicated on its own merits under the regulations that apply 
to the benefit sought. Thus, the petitioner's eligibility will be evaluated under the ten regulatory criteria 
discussed below. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(A) Aliens with Extraordinary Ability. -- An alien is described in this subparagraph 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, 
WAC 03 005 53413 
Page 3 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit prospectively 
the United States. 
As used in this section, the term "extraordinary ability" means 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. 8 C.F.R. 5 204.5(h)(2). 
The specific requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F.R. 
# 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, that the petitioner 
must show that she has sustained national or international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a fashion model and actress. 
The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or international 
acclaim through evidence of a one-time achievement (that is, a major, international recognized award). Barring 
the alien's receipt of such an award, the regulation outlines ten criteria, at least three of which must be satisfied 
for an alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary ability. The 
petitioner meets the following criteria. 
Published materials about the alien in professional or major tradi publications or other major media, 
relating to the alien S work in the field for which classiJication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
Articles devoted solely to the petitioner and her career appear in Elle Canada, Hello, REV, The Philippine 
Reporter, Balita USA, Canadian Living, the Toronto Sun and the Toronto Star. Smaller pieces about the 
petitioner appear in 0, Unwind Magazine, Flaunt and Flare. Curiously, the director ignores all of these articles, 
focusing solely on an article dated after the petition was filed. The director does not make clear whether or not 
the petitioner meets this criterion. While the articles about the petitioner may not have all appeared in nationally 
distributed publications, some of them clearly did. Thus, we find that the petitioner meets this criterion. 
Evidence that the alien has commanded a high salary or other signzjicantly high remuneration for services, 
in relation to others in the$eld 
The director acknowledged the submission of evidence relating to the petitioner's income as a fashion model, 
but concluded that the petitioner's primary income came from acting and did not reflect on her abilities as a 
fashion model. Submission of the petitioner's tax returns demonstrating sustained income over one year would 
have been more persuasive. Nevertheless, the record demonstrates that the petitioner has commanded 
approximately $5,000 in gross wages for an eight-hour day as a fashion model. Subtracting the $1,050 
commission to her agent, this translates to $493.75 per hour. The petitioner submitted evidence that the level 
two hourly wage for models in Los Angeles is $17.55. While we normally require evidence comparing the 
petitioner's wage to a national wage, the petitioner's hourly wage is so much higher than the level two wage (28 
times higher), we find sufficient evidence that the petitioner commands significantly high remuneration for her 
services as a model. Thus, the petitioner meets this criterion. 
WAC 03 005 534 13 
Page 4 
Evidence of commercial successes in the performing arts, as shown by box ofJice receipts or record, cassette, 
compact disk, or video sales. 
The petitioner played a critical role opposite Cuba Gooding, Jr. in Disney's "Snow Dogs." The film ranked 
second behind "Black Hawk Down" in its opening weekend, displacing "Lord of the Rings," with a $17.5 
million take and ultimately grossed $1 15 million internationally. Thus, it enjoyed commercial success.' The 
petitioner is prominently pictured on the film's promotional materials and is featured in printed previews of the 
film. As such, the record sufficiently establishes the petitioner's role in the film's success. After the date of 
filing, the petitioner appeared in a leading role in "My Baby's Daddy.'' Once again, the promotional materials 
feature the petitioner prominently. While this evidence does not relate to her eligibility at the time of filing, it 
does demonstrate her continued work at the top of her field. In light of the above, we find the petitioner meets 
this criterion. 
In review, while not all of the petitioner's evidence carries the weight imputed to it by counsel, the petitioner has 
established that she has been recognized as an alien of extraordinary ability who has achieved sustained national 
acclaim and whose achievements have been recognized in her field of expertise. The petitioner has established 
that she seeks to continue working in the same field in the United States. Therefore, the petitioner has 
established eligibility for the benefits sought under section 203 of the Act. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 
U.S.C. 5 136 1. The petitioner has sustained that burden. 
ORDER: The decision of the director is withdrawn. The appeal is sustained and the petition is approved. 
I While the film was not critically acclaimed and there is no evidence it was nominated for any awards, the 
film's reputation is more relevant to the criterion relating to a leading role for an organization with a 
distinguished reputation set forth at 8 C.F.R. fj 204.5(h)(3)(viii). We do not need to address that criterion as the 
petitioner meets the requisite three.