dismissed O-1B Case: Cinematography

"Identifying data deleted to 
prevent clearly unwarr~ted 
invasion of personal pnvacy 
pUBLIC COPY 
FILE: Office: CALIFORNIA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: NOV 1 5 2010 
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(15)(O)(i) of the Immigration and 
Nationality Act, 8 U.S.C. § 1l01(a)(15)(O)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion. 
The fee for a Form I-290B is currently $585, but will increase to $630 on November 23, 2010. Any appeal or 
motion filed on or after November 23,2010 must be filed with the $630 fee. Please be aware that 8 C.F.R. § 
103.5(a)(1)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
Thank you, 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscls.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner, a talent agency, filed this petition seeking to classify the beneficiary pursuant to section 
101(a)(IS)(0)(i) of the Immigration and Nationality Act (the Act), as an alien with extraordinary achievement in 
the motion picture and television industry. The petitioner seeks to have the beneficiary work as a 
CinematographerlDirector of Photography for various employers in the United States for a period of three years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary has a 
demonstrated record of extraordinary achievement in the motion picture and television industry. In denying the 
petition, the director determined that the petitioner failed to establish that the beneficiary has been nominated for 
or has been the recipient of a significant national or international award, pursuant to 8 C.F.R. § 214.2(0 )(3)(v)(A), 
or that he has met at least three of the six evidentiary criteria set forth at 8 C.F.R.§ 214.2(0)(3)(v)(B). 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director erred by failing to 
consider evidence of a major film project offered to the beneficiary subsequent to the filing of the petition, and 
failed to give the proper weight to evidence submitted to establish the beneficiary's previous experience and 
critical roles in the film and television industry. Counsel submits a brief and additional evidence in support of the 
appeal. 
I. The Law 
Section 101(a)(lS)(0)(i) of the Act, 8 U.S.c. § 1101(a)(lS)(0)(i), provides classification to a qualified alien who 
has, with regard to motion picture and television productions, a demonstrated record of extraordinary 
achievement, whose achievements have been recognized in the field through extensive documentation, and who 
seeks to enter the United States to continue work in the area of extraordinary achievement. The extraordinary 
ability provisions of this visa classification are intended to be highly restrictive. See 137 Congo Rec. Sl8247 
(daily ed., Nov. 16, 1991). 
The regulation at 8 C.F.R. § 214.2(0)(3)(ii) provides the following pertinent definition: 
Extraordinary achievement with respect to motion picture and television productions, as 
commonly defined in the industry, means a very high level of accomplishment in the motion 
picture or television industry evidenced by a degree of skill and recognition significantly 
above that ordinarily encountered to the extent that the person is recognized as outstanding, 
notable, or leading in the motion picture or television field. 
The regulation at 8 C.F.R. § 214.2(0)(3)(v) states, in pertinent part: 
Evidentiary criteria for an 0-1 alien of extraordinary achievement in the motion picture or 
television industry. To qualify as an alien of extraordinary achievement in the motion picture or 
television industry, the alien must be recognized as having a demonstrated record of 
extraordinary achievement as evidenced by the following: 
Page 3 
(A) Evidence that the alien has been nominated for, or has been the recipient of, significant 
national or international awards or prizes in the particular field such as an Academy 
Award, an Emmy, a Grammy, or a Director's Guild Award; or 
(B) At least three of the following forms of documentation: 
(1) Evidence that the alien has performed, and will perform, services as a lead or 
starring participant in productions or events which have a distinguished 
reputation as evidenced by critical reviews, advertisements, publicity releases, 
publications, contracts, or endorsements; 
(2) Evidence that the alien has achieved national or international recognition for 
achievements evidenced by critical reviews or other published materials by or 
about the individual in major newspapers, trade journals, magazines, or other 
publications; 
(3) Evidence that the alien has performed, and will perform, in a lead, starring, or 
critical role for organizations and establishments that have a distinguished 
reputation evidenced by articles in newspapers, trade journals, publications, or 
testimonials; 
(4) Evidence that the alien has a record of major commercial or critically acclaimed 
successes as evidenced by such indicators as title, rating, standing in the field, 
box office receipts, motion picture or television ratings, and other occupational 
achievements reported in trade journals, major newspapers, or other 
publications; 
(5) Evidence that the alien has received significant recognition for achievements 
from organizations, critics, government agencies, or other recognized experts in 
the field in which the alien is engaged. Such testimonials must be in a form 
which clearly indicates the author's authority, expertise, and knowledge of the 
alien's achievements; or 
(6) Evidence that the alien has either commanded a high salary or will command a 
high salary or other substantial remuneration for services in relation to others in 
the field, as evidenced by contracts or other reliable evidence. 
Additionally, the regulation at 8 C.F.R. § 214.2(0)(2)(iii) provides: 
The evidence submitted with an 0 petition shall conform to the following: 
(A) Affidavits, contracts, awards, and similar documentation must reflect the nature of the 
alien's achievement and be executed by an officer or responsible person employed by the 
institution, firm, establishment, or organization where the work was performed. 
Page 4 
(B) Affidavits written by present or former employers or recognized experts certifying to the 
recognition and extraordinary ability ... shall specifically describe the alien's recognition 
and ability or achievement in factual terms and set forth the expertise of the affiant and the 
manner in which the affiant acquired such information. 
In addition, the regulation at 8 C.F.R. § 2l4.2(0)(2)(ii) requires the petitioner to submit copies of any written 
contracts between the petitioner and the beneficiary; an explanation of the nature of the events or activities, along 
with an itinerary; and two consultations, one from an appropriate union and one from an appropriate 
management organization. 
The decision of u.s. Citizenship and Immigration Services (USCIS) in a particular case is dependent upon the 
quality of the evidence submitted by the petitioner, not just the quantity of the evidence. The mere fact that the 
petitioner has submitted evidence relating to three of the criteria as required by the regulation does not 
necessarily establish that the alien is eligible for 0-1 classification. 59 Fed Reg at 41820. 
In determining the beneficiary'S eligibility under these criteria, the AAO will follow a two-part approach set forth 
in a 2010 decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kazarian v. USCIS, 2010 WL 
725317 (9th Cir. March 4, 2010). Similar to the regulations governing this nonimmigrant classification, the 
regulations reviewed by the Kazarian court require the petitioner to submit evidence pertaining to at least three 
out of ten alternative criteria in order to establish a beneficiary's eligibility as an alien with extraordinary ability. 
Cj 8 C.F.R. § 204.5(h)(3). 
Specifically, the Kazarian court stated that "the proper procedure is to count the types of evidence provided 
(which the AAO did)," and if the petitioner failed to submit sufficient evidence, "the proper conclusion is that the 
applicant has failed to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id 
at *6 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as the corollary 
to this procedure: 
If a petitioner has submitted the requisite evidence, US CIS determines whether the evidence 
demonstrates both a "level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top ofthe[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2), 
and "that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(3). Only aliens 
whose achievements have garnered "sustained national or international acclaim" are eligible for 
an "extraordinary ability" visa. 8 U.S.C. § 1 1 53(b)(1)(A)(i). 
Id. at *3. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if qualifying under at 
least three criteria, considered in the context of a fmal merits determination. The final merits determination 
analyzes whether the evidence is consistent with the statutory requirement of "extensive documentation" and the 
regulatory defmition of "extraordinary achievement" as a "very high level of accomplishment in the motion 
picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily 
encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion 
picture or television field." 
Page 5 
The AAO finds the Kazarian court's two part approach to be appropriate for evaluating the regulatory criteria set 
forth for 0-1 nonimmigrant petitions for aliens of extraordinary ability and extraordinary achievement at 8 C.F.R. 
§ 214.2(0)(3)(iii), (iv) and (v). Therefore, in reviewing Service Center decisions, the AAO will apply the test set 
forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a new analysis if the director 
reached his or her conclusion by using a one-step analysis rather than the two-step analysis dictated by the 
Kazarian court. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO reviews appeals on 
a de novo basis). 
In the present matter, the petitioner has not established that the beneficiary has a demonstrated record of 
extraordinary achievement to the extent that his accomplishments are recognized as outstanding, notable, or 
leading in the motion picture or television field. 8 C.F.R. §§ 214.2(0)(3)(ii) and (v). 
II. The Beneficiary's Eligibility under the Evidentiary Criteria 
The beneficiary in this matter is a native and citizen of SlH!<.a~'Jl". 
Communications majoring in film and video, from July 2006. In 
he received a Master of Fine Arts in Filmmaking, majoring in Cinematography, from the .. 
in Los Angeles, California. 
If the petitioner establishes through the submission of documentary evidence that the beneficiary has been 
nominated for or has received a significant national or international award or prize in his or her field pursuant to 8 
C.F.R. § 214.2(0)(3)(v)(A), then it will meet its burden of proof with respect to the beneficiary'S eligibility for 0-
1 classification. Here, the petitioner has not submitted evidence that the beneficiary has been nominated for or 
received a significant national or international award or prize comparable to an Academy, Emmyor Grammy 
Award. 
As there is no evidence that the beneficiary has been nominated for or received a significant national or 
international award or prize, the petitioner must establish the beneficiary's eligibility under at least three of the six 
criteria set forth at 8 C.F.R. § 214.2(0)(3)(v)(B). The petitioner has submitted evidence related to the criteria at 8 
C.F.R. §§ 214.2(0)(3)(v)(B)(l), (3), (5) and (6). The remaining two criteria will not be addressed. 
1. Evidence that the alien has performed, and will perform, services as a lead or starring 
participant in productions or events which have a distinguished reputation as evidenced by 
critical reviews, advertisements, publicity releases, publications, contracts, or endorsements 
In order to meet criterion number one, the petitioner must submit evidence that the beneficiary has performed, and 
will perform, services as a lead or starring participant in productions or events which have a distinguished 
reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or 
endorsements. 8 C.F.R. § 214.2(0)(3)(v)(B)(l). 
The AAO will first address the evidence submitted to establish that the beneficiary has performed services as a 
lead or starring participant in productions or events which have a distinguished reputation. 
The record shows that the beneficiary worked in the role of cinematographer on the short films 
in 2009. The beneficiary'S other work in film and television has included 
Page 6 
camera, electrical and sound department crew roles, u', ,,,,.u,, ... ,,,,,, 
In a letter dated December 7, 2009, counsel for the petitioner stated that the meets this criterion based 
upon his role as cinematographer for the short films Counsel noted that _ 
_ "has earned several awards at film festivals including the Delray Beach Film Festival and the West 
Hollywood Film Festival," and is scheduled for international distribution through the Canadian company Ouat! 
Media. Counsel also noted that '_ was selected by and is currently screening at several film festivals 
worldwide. " 
Counsel further stated that the beneficiary held "various crew positions for the 
are "also scheduled for release 
produced by Insomnia Media Group, and stars actors 
The petitioner submitted an Internet Movie Database (IMDB) listing for the movie but 
did not provide any additional evidence related to this project. 
Finally, counsel stated that the beneficiary "filled the critical role of Boom Operator" on full­
length feature film produced in Singapore. Counsel stated that the film "gained cult status with its comprehensive 
online web marketing strategy and promotions as reported by Variety " was screened at the TORUN 
Film Festival and Jakarta Film Festival, and received three nominations in the 
While the petitioner submitted evidence that the beneficiary worked on each of the above-referenced films, 
including testimonials, screen shots and various internet printouts, the petitioner did not provide critical reviews, 
advertisements, publicity releases, publications, contracts or endorsements related to these projects. See 8 C.F.R. 
§ 214.2(0)(3)(v)(B)(1). 
The director issued a request for additional evidence ("RFE") on January 4, 2010. The director requested that the 
petitioner "provide evidence to establish that the beneficiary has a sustained record of performing services as a 
lead or starring participant as a CinematographerlDirector of Photography in productions which have a 
distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, 
contracts or endorsements." The director advised that "the fact that the beneficiary played roles such as grip, best 
boy and boom operator do not establish the beneficiary's extraordinary ability as a CinematographerlDirector of 
Photography. " 
In response to the RFE, counsel indicated that that the beneficiary meets this criterion based on his role as 
Director of Photography on the film In this regard, counsel stated: 
Page 7 
In that capacity, he was solely responsible for the camera and lighting crews, and 
artistic and technical decisions needed to achieve the "vision" required by the 
_. He selected the film stock, lenses, filters, etc. to create the film noir look of the movie. 
He was ultimately responsible for decisions relating to filming, lighting, and framing. 
We contend that [the beneficiary] as the Director of Photography, played a critical role in the 
production of that film. 
Ouat! Media, Inc., a Canadian company that distributes shorts and other films to audiences 
around the world, has purchased the international distribution rights to _. According 
to the agreement, Ouat! Reserves the right to package and distribute the film worldwide for 4 
years from November 2009. 
The petitioner submitted a copy of the distribution agreement for the film, and evidence that the film was 
screened at the West Hollywood International Film Festival and the Delray Beach Film Festival. 
Counsel further stated that the beneficiary meets this criterion based on his various crew positions on Hallmark 
Channel movies including and 
Counsel noted that "Hallmark has produced family-oriented original programs, including an 
incredibly popular series of 'inspirational' made-for-TV movies." Counsel reiterated that all of these movies are 
scheduled for release in 2010. Finally, counsel emphasized that the miniseries "The Storm" was aired on NBC in 
July and August of 2009. Counsel contended that all of these productions "clearly have a distinguished 
reputation. " 
Counsel acknowledged the director's observation that the beneficiary's work as a "grip, best boy, and boom 
operator" does not demonstrate his extraordinary ability as a CinematographerlDirector of Photography. Counsel 
asserted that "his work on these projects "is directly related to his ability as a Cinematographer." In this regard, 
the petitioner submitted a letter from lighting designer/producer Randy Newman who worked with the 
beneficiary on four of the above-referenced Hallmark Channel made-for-television movies . 
••••• tated that he personally headed the grip department as the Key Grip, while the beneficiary was his 
"second in command as the Best Boy grip." He indicates that the beneficiary had a team of up to ten grips and 
was in charge of staffing the department and pre-rigging and lighting upcoming sets. ~her stated: 
For the pre-rig and lighting, [the beneficiary] would work off [the director of photography's] 
lighting style template incorporating any specific camera or technical rigs that were necessary. 
[The beneficiary] had significant creative control and used his team of up to 7 grips to effectively 
bring his plan to fruition .... 
Page 8 
Another one of [the beneficiary's] responsibilities was the requisition and maintenance of 
specialized filmmaking equipment that included cranes, dollies, job arms and other camera 
support equipment while staying under budget. The tools, machinery and equipment required 
for rigging also came under his overview. 
Time spent as a Best Boy Grip enhances one's abilities as a Cinematographer. [The beneficiary] 
has a unique ability to visualize a scene's visual style while taking into consideration the 
feasibility and technicalities that would be necessary to bring his visualization to screen .... 
In my opinion the Best Boy Grip plays a critical role in the production of any film, and in 
particular the films that [the beneficiary] and I worked on together. And his experience as a Best 
Boy Grip is directly related to the skills and knowledge that a successful Cinematographer must 
have. 
The director determined that the submitted evidence does not satisfY this criterion. The director noted that the 
petitioner submitted evidence that the beneficiary served as a cinematographer/director of photography for the 
films and observed that the only supporting evidence provided with respect to 
was in the form of screen shots, which clearly cannot establish the distinguished reputation of the 
film. The director further found that, while the petitioner provided evidence that the film had 
enjoyed some success, the evidence of record fell short of establishing that the film has a distinguished reputation. 
The director acknowledged that the beneficiary had served in the roles of grip, best boy grip, boom operator and 
other crew roles for other film and television projects, but emphasized that such roles "do not establish the 
beneficiary'S success as a CinematographerlDirector of Photography. " 
On appeal, counsel asserts that the director erred by concluding that crew positions such as grip and best boy do 
not establish the beneficiary'S ability as a cinematographer. The petitioner submits a letter from 
•••• , cinematographer and instructor who further explains how crew PO~iltHJnS 
such as grip and rigger are directly related to the position of Director ofPhotography._ states: 
A good [Director of Photography (DP)] is a master of all of the sub-skills under his control. This 
includes the skills of the Grip, Electric and Camera departments. 
It is in that vein of thought that I feel that the amount of time that a cinematographer spends 
working in the Grip and Electric Departments is directly related to that person's abilities as a 
cinematographer. It is here that the bulk of the DP's trade is plied. A DP who does not light is 
but a Cameraman, and thus the lighting is the most important aspect of a DP's skill set. The art 
of creatively molding, adding and subtracting light is what sets a good DP apart from others. 
This is exactly the job scope ofthe Grips and Electrics. 
On set the Electrics are responsible for the placement and providing power to the lights needed 
and the Grips are responsible for the creative molding of the lights to achieve the look specified 
by the Director of Photography as well as the rigging of lights, cameras and other production­
centric equipment. 
Page 9 
On most productions, the Grip and Electric departments work independent of the Director of 
Photography, based on the visual style of the film set forth by the DP. Though the ultimate 
responsibility for the visual style lies with the DP, the grips and electrics are his right and left 
hands on set. 
Upon review, the AAO concurs with the director's determination that the petitioner failed to establish that the 
beneficiary performed services as a lead or starring participant in productions or events which have a 
distinguished reputation. 
Much of the beneficiary'S film and television experience to date has been in the production crew positions of 
grip and best boy grip. The director perhaps erred in stating that such positions are not "related to" the 
beneficiary'S intended work as a director of photography/cinematographer in the United States. However, the 
critical factor that must be established is whether the crew positions the beneficiary held for the allegedly 
distinguished Hallmark Channel movies (which were unaired at the time of filing) and the NBC miniseries 
'_' were as a "lead or starring participant." The petitioner has not presented persuasive evidence to 
establish that a role as a grip or best boy grip can be considered a "lead" role among the production crew of a 
film or television show. While grips undoubtedly perform essential duties and best boy grips may supervise 
other grips, grips clearly do not receive the level of recognition attributed to a director, director of 
photography, or other prominent technical or artistic positions on a film or television crew such that they are 
considered leading participants in the production. Furthermore, the plain language of this criterion requires 
the petitioner to submit critical reviews, advertisements, publicity releases, publications, contracts, or 
endorsements in support of this criterion. The petitioner has not submitted such evidence with respect to the 
beneficiary'S past projects, with the exception of a review and a rating report for "The Storm." Going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner has established that the beneficiary, as cinematographer/director of photography, was a lead or 
starring participant in the production of the short films As noted by the director, 
the only supporting documentary evidence submitted regarding screen shots from the film, and 
therefore, the petitioner has not submitted evidence to establish the film's distinguished reputation. The petitioner 
provided evidence that been screened at two film festivals and evidence that the film's director 
has signed a distribution agreement. Counsel asserts that the film has received critical acclaim and "earned 
several awards at film festivals," but the record contains no evidence of such awards, no published critical reviews 
of the film, and no other published evidence regarding the film, its distinguished reputation, or the reputation and 
selection criteria of the two festivals that have screened the movie. Again, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter 
of Soffici, 22 I&N Dec. at 165. While its selection for screening at film festivals is an indicator of some measure 
of success, the evidence submitted falls significantly short of establishing that has enjoyed a 
distinguished reputation as of the date of filing. 
Based on the foregoing, the petitioner has not submitted evidence that the beneficiary has served as a lead or 
starring participant in productions that have a distinguished reputation and therefore cannot meet the plain 
language of this criterion, which requires evidence of both past and upcoming leading or starring participation in 
Page 10 
distinguished productions. Nevertheless, the director also considered whether the beneficiary will perform 
services as a lead or starring participant in events or productions with a distinguished reputation. 
At the time of filing, the petitioner submitted contracts establishing that the beneficiary will work as Director of 
Photography for seven feature-length films including, The World View, The Hoffards, The Kade Factor, The 
Bone Zone, Catatonic, Male Rising, and The Disorganized, during the requested three-year term of employment. 
The petitioner did not specifically claim or submit evidence to establish the distinguished reputation of these 
upcoming productions. 
~ the ~itted evidence that the beneficiary has been selected to work as the 
____ on ' ___ ' a miniseries about John F. Kennedy and his family that is scheduled 
to air on The History Channel in 201l. The beneficiary signed a contract for this project on February 10,2010. 
The petitioner did not submit any additional evidence related to the above-referenced projects for which the 
beneficiary was under contract at the time of filing. 
The director, citing Matter of Bardouille 18 I&N Dec. 114 (BIA 1981), stated that USCIS cannot consider facts 
that have come into being only subsequent to the filing of the petition. The director therefore declined to consider 
evidence related to "The Kennedys." 
On appeal, counsel asserts that Matter of Bardouille is inapplicable in this matter, and emphasizes that the 
regulations at 8 C.F.R. §§ 214.2(0)(3)(v)(B)(1) and (3) require the petitioner to provide evidence of future 
performances or services, events that come into after the has been filed. Accordingly, counsel 
asserts that the beneficiary's upcoming position as should have been 
considered. In addition, the petitioner submits new evidence on appeal to establish that the beneficiary has been 
offered the position of for the feature film _ which is scheduled to begin 
shooting in the fall of2010 and will be distributed by DreamWorks SKG. 
The AAO notes that a visa petition may not be approved at a future date after the petitioner or beneficiary 
becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). 
A petition shall be denied where evidence submitted in response to a request for evidence does not establish filing 
eligibility at the time the petition was filed. 8 C.F.R. § 103.2(b)(l2). 
In order to meet this criterion, the petitioner must establish that the beneficiary, as of the date the petition was 
filed, has provided and will provide services as a lead or starring participant in productions or events with a 
distinguished reputation. Here, for the reasons discussed above, the petitioner failed to establish that the 
beneficiary has served in such a role in the past. The petitioner also failed to submit evidence that the film 
projects on the beneficiary's proposed itinerary as of the date of filing have a distinguished reputation. Instead 
the petitioner claims that the projects offered to the beneficiary while the petition has been pending 
adjudication and appeal, specifically are qualifying under this criteria. 
Therefore, the petitioner did not establish that the beneficiary's eligibility under this criteria as of the date of 
filing of the petition. 
The AAO notes for the record that both 
with a distinguished reputation and the beneficiary's offered position as 
considered providing services as a leading participant. However, even 
been shown to be productions 
could be 
Page 11 
beneficiary prior to filing the petition, the plain language of this evidentiary criterion clearly requires evidence 
of past qualifying lead or starring participation in productions with a distinguished reputation, a requirement 
that has not been met. Accordingly, the AAO concurs with the director that the petitioner has not submitted 
evidence to satisfy the evidentiary criterion at 8 C.F.R. § 214.2(0)(3)(v)(B)(1). 
2. Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for 
organizations and establishments that have a distinguished reputation evidenced by articles in 
newspapers, trade journals, publications, or testimonials 
To meet the criterion at 8 C.F.R. § 214.2(0)(3)(v)(B)(3), the petitioner 
produced more than 100 films and shows for television, including but not limited to original Hallmark Channel 
'Movie of the Week.'" The petitioner further relied on the beneficiary's position as for the 
Insomnia Media Group film _. Counsel noted that Insomnia has produced the HBO Television series 
••• and is scheduled to produce _ an original The petitioner 
provided filmographies for both establish the 
distinguished reputation of these organizations. As noted above, the as a 
• on the for NBC and the Hallmark Channel, and as a best boy 
The petitioner submitted testimonial evidence from 
worked with the beneficiary on the Larry Levinson Productions projects. 
[The beneficiary] and I have worked together as part of a team in the Grip and Electric 
department with Larry Levinson Productions. As Department Head, [the beneficiary'S] direction 
is vital to the success of the group. Recently, we have collaborated on such big budget projects 
as_ an NBC produced mini-series, and multiple Hallmark Channel feature films. [The 
beneficiary] is a key contributor and an invaluable asset to the crew he works with and the 
success of the projects. 
who 
At the time of filing, counsel did not claim or submit evidence to establish the distinguished reputation of the 
persons or organizations that have offered the beneficiary employment for the of 0-1 
classification. These to the contracts, include 
Camera Set Pictures, The petitioner submitted reference letters 
from but none of them discussed the upcoming projects. 
In the RFE issued on January 4, 2010, the director requested that the beneficiary "submit evidence to establish 
that the beneficiary has performed and will perform in a lead, starring or critical role rather than performing 
supporting roles," along with "evidence of the organizations' or establishments' distinguished reputation." The 
director further requested articles in newspapers, trade journals, publications or testimonials to corroborate the 
beneficiary'S claim that he has performed and will perform in a lead or starring role. 
In response, the petitioner submitted a second letter from address the beneficiary'S role in the 
Larry Levinson Productions projects. The contents of this letter were quoted extensively in the preceding section 
and will not be repeated here. The petitioner also submitted evidence related to the beneficiary'S newly signed 
Page 12 
contract to serve as 
this criterion. 
production of "The Kennedys" in support of 
The director determined that the petitioner's evidence failed to satisfy this criterion. The director, while 
acknowledging the distinguished reputation of Larry Levinson Productions and Insomnia Media Group, 
determined that positions such as grip and best boy grip do not establish the beneficiary's success as a 
cinematographer or director of photography. The director once again declined to consider evidence related to the 
beneficiary's contract to serve as Director of Photography for The History Channel's "The Kennedys" miniseries, 
emphasizing that USCIS cannot consider facts that have come into being only subsequent to the filing of the 
petition. 
On not considering the beneficiary's newly signed contract to 
and concluded that the roles as 
~~~ ~ ~ 
petitioner again relies on the letter from and submits new evidence related to the beneficiary's 
newly offered employment as director of photography for the feature film _ 
Upon review, the AAO concurs with the director's determination that the submitted evidence fails to satisfy the 
evidentiary criterion at 8 C.F.R. § 2l4.2(0)(3)(v)(B)(3). 
As discussed above, the petitioner must establish the beneficiary's eligibility as of the date of filing the petition. 
The petitioner has not submitted evidence to establish that the beneficiary's prospective employers in the United 
States, based on the contracts he had signed as of the date of filing, are organizations or establishments that have a 
distinguished reputation. The limited documentary evidence submitted merely confirms that the beneficiary will 
be serving as director of photography for seven films for employers of unknown reputation over a period of three 
years. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
While the AAO acknowledges that the beneficiary will have a leading or critical role in the filming of '_ 
and that the organizations producing these films have a distinguished reputation, the 
petitioner cannot meet this criteria based solely on projects that came into being after the petition was filed. 
Furthermore, as discussed above, the petitioner has not established that the beneficiary's previous roles of best 
boy grip or grip, while related to the position of director of photography and requiring some of the same 
knowledge, can be considered to be lead, starring, or critical to the success of a film or television production. The 
petitioner has submitted two letters from who served as the beneficiary's colleague and direct 
supervisor for the movies and the NBC production "The Storm." 
Although states that "the Best Boy Grip plays a critical role in the production of any film," the AAO 
finds such statement insufficient to support a finding that this type of work is widely recognized in the industry to 
be a critical role within a movie production crew. Based on statement, a best boy grip reports to a 
higher-level "key grip," while all grips are responsible to follow a lighting template and artistic vision designed by 
the director of photography. Clearly, the technical and artistic production of a film requires the contributions of 
many highly skilled workers, any of whom could be said to perform "critical" duties. While it appears that a best 
boy grip is able to function with some autonomy, it is also evident that the position is not in the upper echelon of 
Page 13 
the crew hierarchy such that, for example, the person is recognized in a movie's or television show's opening 
credits. 
Based on the foregoing, the petitioner has not submitted evidence that the beneficiary has performed, and will 
perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished 
reputation, evidenced by articles in newspapers, trade journals, publications, or testimonials. 8 C.F.R. § 
214.2(0 )(3)(v)(B)(3). 
3. Evidence that the alien has received significant recognition for achievements from 
organizations, critics, government agencies, or other recognized experts in the field in which 
the alien is engaged Such testimonials must be in a form which clearly indicates the author's 
authority, expertise, and knowledge of the alien's achievements 
In order to meet the fifth regulatory criterion, the petitioner may submit evidence that the beneficiary has 
received significant recognition for achievements from organizations, critics, government agencies, or other 
recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which 
clearly indicates the author's authority, expertise, and knowledge of the alien's achievements. 8 C.F.R. § 
214.2( 0 )(3)(v)(B)(5). 
Further, the regulation at 8 C.F.R. § 214.2(0)(2)(iii)(D) provides that affidavits written by present or former 
employers or recognized experts certifying to the alien's recognition and extraordinary ability shall specifically 
describe the alien's recognition and ability or achievement in factual terms and set forth the expertise of the 
affiant and the manner in which the affiant acquired such information. 
The petition was accompanied by extensive testimonial evidence from persons who have worked with the 
beneficiary on film or television projects. The petitioner submitted a letter from 
Entertainment Post, a company that provides post-production services to film studios. 
the beneficiary used his company's services to provide visual post-production services for the film 
He states: 
Throughout the whole post-production process, [the beneficiary] was well-prepared and 
professional. He demonstrated a methodical and well-planned approach, rarely seen in veteran 
filmmakers. Having captured high quality images and sound, it made it easy for us to deliver a 
well-polished final product. ... 
. . . . [The beneficiary is an extremely talented individual, and his continued ability to work in the 
US will have a beneficial impact on the American Film Industry for years to come. 
Randy Newman, who worked with the beneficiary on the above-referenced 
miniseries '_' states: 
and the NBC 
Having worked with countless others in the industry, I can state with conviction that [the 
beneficiary's] talents surpass those of his peers, and that he is among the top few percent of 
people working in the field. I highly recommend [the beneficiary's] application for working 
status be accepted and support all efforts on his behalf. The Entertainment industry is a very 
Page 14 
challenging and extremely work intensive one. [The beneficiary's] future contribution to the 
business will be an asset to all involved professionally and personally. 
The petitioner also provided a letter from at the New 
York Film Academy. states: 
I have screened [the beneficiary's] work as a _f Photography and a Cinematographer, 
and can attest that he has delivered exceptional results on every project he has worked on. For 
example, '_ is a glowing example of [the beneficiary's] ability to realize the 
director's vision onto the screen. He has a keen eye and a unique visual style, underscored by a 
strong work ethic. There is no doubt in my mind that he is an extraordinary talent, and that he 
will contribute to the success of every project he touches. His contribution will shape many 
talented writers, actors and filmmaker's careers. I look forward to seeing his future endeavors 
that will bring pride to our filmmaking industry. 
states that he has collaborated with the beneficiary on multiple film nr""",,,1-,, 
UUI.I"'tJlUU team for films such as 
_ states that 
creative ability is unmatched in the field." 
The petitioner provided a letter from 
Calderon states: 
another faculty member of New York Film Academy. Mr. 
I had the pleasure of serving as [the beneficiary's] mentor as he wrote the screenplay for the 
feature film _ I was extremely impressed with the maturity, intelligence and 
sensitivity of his work and his clear sense of purpose and dedication to his goals. His insight and 
execution surpassed that of most of his peers. 
I also observed the product of beneficiary's] work as a cinematographer, when he served as 
cinematographer for the film His unique combination of technical skill, artistic 
sensibilities and work ethic is recognizable in the final Someone with less talent would 
not be able to create a film that is as accomplished as 
_ further states that the beneficiary "has earned the respect of his instructors and colleagues" and "will 
be an invaluable asset to the American and global film industries." 
worked with the beneficiary on _ and has offered him a director of photography 
position in the United States. He states that the beneficiary is "an extremely talented cinematographer whose 
artistic ability matches his technical expertise." _speaks highly of the beneficiary'S "attitude and work 
ethic" and states that the beneficiary is "always an irreplaceable member of my crew." 
_ an actress who states that she worked with the beneficiary on a short film, states that the beneficiary 
"was one ofthe most accomplished people" she's worked with and "will be an asset to any crew he works with." 
Page 15 
The petitioner also submitted a letter from _ who states that he has worked with the beneficiary on three 
commercials. compliments the beneficiary's "expert knowledge of cameras and light," his work ethic, 
attitude, communication skills, his "affmity for his fellow man" and his "firm grasp on reality." He states that the 
beneficiary "has a hunger for the business," "wants to succeed and will do what it takes to keep his career on 
track," and "is good for business." 
_ who states that he has worked as a key grip on more than 20 feature films, refers to the beneficiary 
as a "reliable co-worker/employee." He indicates that he has noticed the beneficiary's "eye for detail and artistic 
flair," and his "rare talent for lighting and cinematography," and as such has hired him to work on numerous 
commercials, music videos and features. 
The petitioner also submitted a letter from who states that he collaborated with the 
beneficiary on the film and "was impressed with his technical skills including his advanced 
knowledge of lighting techniques, his artistic eye, and his knowledge of the practicalities of gripping." • 
_ states that he "instantly recognized that his talent and ability went beyond that of his peers," and as such 
has hired him to work on seven films and televisions shows in the grip department. 
_ a sound editor/mixer who worked on the film _, states that he was impressed with the 
beneficiary's "use of light and shadows" in the film. He describes the beneficiary as "talented, driven and a 
pleasure to work with." 
In addition, the petitioner submitted a letter from who states that he is a freelance 
cinematographer who has worked on three feature films and 14 short films. _compliments the 
beneficiary's work as a key grip and gaffer on two of his short films, and his "eye for lighting." He states that the 
beneficiary "has an incredible work ethic" and is "a person of extraordinary ability in the industry." 
_ the lead actor in states that the beneficiary has "a great eye and an amazing 
knowledge of color temperature and filters." He indicates that the beneficiary's "technical expertise, combined 
with the artistic sensibilities, far exceeds the standard in the industry" and is "extraordinary in the field." 
Finally, the petitioner provided a letter from who works as a chief lighting technician and key 
grip in the motion picture and television industry. With respect to the beneficiary, states: 
His practical set knowledge coupled with his highly creative eye makes him a huge asset to my 
team. As a Cinematographer himself, he is able to be pre-emptive with what the Director of 
Photography will need. His ability to see the script visually is one which sets him apart from 
many others in his field. 
[The beneficiary] is on my "First Call" list and will continue to be a main component of my 
team. I have seen what he can do and am confident that he will be one of the main contenders to 
shoot the next film I am going to produce. . . . His career has just started but I foresee him 
attaining great heights in the Film Industry. 
In the RFE issued on January 4, 2010, the director observed "the significance of the beneficiary's 
accomplishments has not been established." The director noted that the testimonials provided attest to the 
Page 16 
beneficiary's talents and abilities, and that many of the testimonials related to the beneficiary's skills as a best 
boy/grip or his work as a cinematographer on The director advised that the petitioner should 
provide testimonials from recognized experts that discuss the beneficiary's record of achievements as a 
Cinematographer / Director of Photography. 
In response to the RFE, counsel asserted that the director's request was not supported by the regulations, noting 
that 8 C.F.R. § 214.2(0)(3)(v)(B)(5) requests "evidence that the alien has achieved significant recognition for 
achievements." Counsel emphasized that the petitioner "is not required to demonstrate that the beneficiary's 
accomplishments are 'significant' or that the beneficiary has a 'record' of achievements." Counsel contended that 
the petitioner must only demonstrate that the beneficiary has received "significant recognition" for his work in the 
field from "other recognized experts." 
Counsel noted that the petitioner submitted advisory opinions from the 
Employees (IA TSE) and the Alliance of Motion Picture and Television Producers (AMPTP), the union and 
management organizations that oversee cinematographers in the film and television industries, and that such 
organizations are clearly "recognized experts" in the field. Counsel· further emphasized that the beneficiary 
"'F,HU',",WU, acclaim and recognition from other experts in the field such as 
The petitioner's response to the RFE also included a letter Emmy-winning director of the FOX 
television series~ _ states that he met the beneficiary at a film festival screening of_in 
2009. He further states: 
I know that [the beneficiary] is a strong, dynamic and much desired Artist. He brings to all his 
work a sense of magic and dramatic purpose filled with tension and suspense. He now needs to 
challenge himself against the best the world has to offer in the American Film and Television 
Community. American Directors, Producers and now major Studios will certainly become aware 
of his brilliance. This February he will work with me to take the History Channel in a whole 
new direction with there [sic] first introduction of Scripted Television in the series _ 
_ centered around American royal family. [The beneficiary] and myself are in regular 
contact and we will be going into pre-production at the end of this month .... 
It is without hesitation that I say that [the beneficiary] is one of the most extraordinary young 
talents in cinematography today. I myself am incredibly excited to start work with [the 
beneficiary] and help him develop his career here in the United States .... 
_ states that the beneficiary "has successfully started to build a career in the United States" and "will 
continue to make strong contributions to the film and television industries." 
The director determined that the evidence submitted meets this criterion. The AAO disagrees. The plain language 
of this regulatory criterion requires the petitioner to submit evidence that the beneficiary has received significant 
recognition/or achievements. As noted by the director in the RFE, the testimonial letters submitted to satisfy this 
criterion indicate that the beneficiary is recognized by his colleagues for his work ethic, attitude, technical and 
artistic skills, and innate talent in the cinematography field. All of these attributes have clearly made the 
Page 17 
beneficiary increasingly in demand as a cinematographer and production crew member. However, it is unclear 
what, exactly, constitute the beneficiary'S recognized achievements in the field. 
The regulation at 8 C.F.R. § 214.2(0)(2)(iii)(C) provides that affidavits written by present or former 
employers or recognized experts certifying to the recognition and extraordinary ability ... shall specifically 
describe the alien's recognition and ability or achievement in factual terms and set forth the expertise of the 
affiant and the manner in which the affiant acquired such information. Here, it would be accurate to state that 
the beneficiary has received significant recognition for his talent and for his great potential, rather than for 
any existing achievements in the field. Several of the persons who provided testimonials acknowledge that 
the beneficiary is just beginning his career in the industry. 
The AAO notes that the letters submitted are from the beneficiary'S own current and former employers, 
instructors or co-workers and discuss his talents and work ethic rather than his achievements in the motion 
picture and television field. While some of the letters could be considered to be from experts in the field, the 
letters do not discuss the beneficiary's achievements beyond confirming that he performed his work admirably 
in prior projects. 
The favorable opinions of experts in the field, while not without evidentiary weight, are not a solid basis for a 
successful extraordinary achievement claim.l While such letters are important in providing details about the 
beneficiary'S role in various projects, they cannot by themselves establish his recognition beyond his 
immediate circle of professional contacts. USCIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). 
However, USCIS is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support the alien's 
eligibility. See id. at 795-796. Thus, the content of the writers' statements and how they became aware of the 
beneficiary's reputation are important considerations. Even when written by independent experts, letters 
solicited by an alien in support of an immigration petition are of less weight than preexisting, independent 
evidence of achievements that one would expect of a director of photography who is outstanding, notable or 
leading in the field. 
1 Letters may generally be divided into two types of testimonial evidence: expert opinion evidence and 
written testimonial evidence. Opinion testimony is based on one's well-qualified belief or idea, rather than 
direct knowledge of the facts at issue. Blacks Law Dictionary 1515 (8th Ed. 2007) (defining "opinion 
testimony"). Written testimonial evidence, on the other hand, is testimony about whether something occurred 
or did not occur, based on the witness' direct personal knowledge. Id. (defining "written testimony"); see 
also id at 1514 (defining "affirmative testimony"). 
Depending on the specificity, detail, or credibility of a letter, USCIS may give the document more or less 
persuasive weight in a proceeding. The Board of Immigration Appeals (the Board) has held that testimony 
should not be disregarded simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 
1332 (BIA 2000) (citing cases). The Board also held, however: "We not only encourage, but require the 
introduction of corroborative testimonial and documentary evidence, where available." Id. If testimonial 
evidence lacks specificity, detail, or credibility, there is a there is a greater need for the petitioner to submit 
corrobative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
Page 18 
Accordingly, the petitioner has not established that the beneficiary meets this criterion. 
4. Evidence that the alien has either commanded a high salary or will command a high salary or 
other substantial remuneration for services in relation to others in the field, as evidenced by 
contracts or other reliable evidence 
The sixth and final criterion requires the petitioner to submit evidence that the beneficiary has either commanded 
a high salary or will command a high salary or other substantial remuneration for services in relation to others in 
the field, as evidenced by contracts or other reliable evidence. 8 C.P.R. § 214.2(0)(3)(v)(B)(6). The director 
determined that the beneficiary meets this criterion based on contracts indicating that he will earn more than 
$365,000 during the requested term of employment. The AAO agrees that this criterion has been met. 
III. Final Merits Determination 
Kazarian sets forth a two-part approach where the evidence is first counted and then, if qualifying under three 
criteria, considered in the context of a final merits determination. As discussed above, the petitioner established 
eligibility for one of the six criteria, of which three are required under the regulation at 8 c.p.R. § 
214.2( 0 )(3)(v)(B). 
Notwithstanding the above, a final merits determination considers all of the evidence in the context of whether or 
not the petitioner has demonstrated: (1) that the beneficiary has achieved a very high level of accomplishment in 
the motion picture or television industry evidenced by a degree of skill and recognition significantly above 
that ordinarily encountered to the extent that he is recognized as outstanding, notable, or leading in the motion 
picture or television field, pursuant to 8 c.P.R. § 214.2(o)(3)(ii); and (2) that the beneficiary is recognized as 
having a demonstrated record of extraordinary achievement, pursuant to 8 C.P.R. § 214.2(o)(3)(v). See Kazarian, 
2010 WL 725317 at *3. 
Upon review, the AAO finds that the petitioner has not established that the beneficiary has a demonstrated record 
of extraordinary achievement in the motion picture industry or that he is recognized in the field as outstanding, 
notable or leading. 
The specific deficiencies in the documentation submitted by the petitioner have already been addressed in our 
preceding discussion of the regulatory criteria at 8 C.P.R. § 214.2(o)(3)(v)(B). The petitioner submitted extensive 
evidence relating to the beneficiary'S work experience. Although the evidence establishes that the beneficiary has 
been employed consistently in the field, there is no evidence that the beneficiary is recognized as having a 
demonstrated record of extraordinary achievement in motion picture or television production, or that he is leading 
or notable within the industry as a cinematographer or director of photography. 
The beneficiary is clearly a talented artist who has gained the admiration and respect of those with whom he has 
worked directly. However, the beneficiary is also a recent film school graduate who simply has not yet 
established "a demonstrated record" of extraordinary achievement. Based on the high-profile projects that the 
beneficiary was offered while the petition was pending, it appears that he is increasingly in demand as a director 
of photography. However, as noted above, the petitioner must establish that the beneficiary was eligible for the 
classification at the time of filing the petition, and based on his existing record of achievement. The petitioner 
failed to establish that the beneficiary's past employment has included lead, starring or critical roles for 
Page 19 
productions or organizations that have a distinguished reputation or that he had been offered such roles as of the 
date the petition was filed. 
Unusual in its specificity, section lOl(a)(15)(O)(i) of the Act clearly requires "extensive documentation" of the 
alien's achievements. The AAO emphasizes that four out of the six criteria set forth at 8 C.F.R. § 
214.2(0)(3)(iv)(B) require the petitioner to submit various types of published materials to establish the 
beneficiary's recognition for achievements, such as critical reviews, advertisements, publicity releases, and 
newspaper, magazine or trade journal articles. Therefore, it is significant that the petitioner has not submitted any 
evidence that the beneficiary's name has ever appeared in any publication. Absent evidence that the regulatory 
criteria are not applicable to the beneficiary'S occupation, pursuant to 8 C.F.R. § 214.2(0)(3)(iv)(C), the petitioner 
must submit some published materials about the beneficiary in order to establish his eligibility for this 
classification. It is not reasonable to include the beneficiary among the group of cinematographers recognized in 
the field as leading, renowned or well-known if the petitioner does not establish that he has received some form of 
independent recognition in the industry, beyond the praise of his co-workers and supervisors, based on his 
reputation or achievements. 
Therefore, the conclusion we reach by considering each evidentiary criterion separately is consistent with a 
review of the evidence in the aggregate. Even in the aggregate, the evidence does not distinguish the 
beneficiary as a cinematographer who has achieved a level of distinction to the extent that he can be deemed 
to be renowned, leading, or well-known in the motion picture and television field. 8 C.F.R. § 2l4.2(0)(3)(ii). 
The beneficiary relies on the praise of his employers and co-workers and the reputation of the productions with 
which he has worked. While the evidence may distinguish the beneficiary from other aspiring cinematographers, 
the petitioner must establish that the beneficiary is recognized based on his own reputation as leading, renowned 
or well-known in comparison with all cinematographers. The documentation submitted in support of a claim of 
extraordinary achievement must clearly demonstrate that the beneficiary has achieved a very high level of 
accomplishment in the motion picture industry. The beneficiary does not have a demonstrated record of 
extraordinary achievement nor have his achievements been recognized in the field through extensive 
documentation. Accordingly, the appeal will be dismissed. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.c. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.