Case Study: AAO Sustained an EB1-A Appeal of a Petition for a Film Director Using Two-Part Test

by Victoria Chen, Esq., J.D.

Background: The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. s 1153(b)(1)(A), as an alien of extraordinary ability. The director determined that the petitioner had not established the sustained national or international acclaim required for classification as an alien of extraordinary ability as a film director.

USCIS Decision: The director determined the petitioner had not established that the beneficiary qualifies for classification as an alien of extraordinary ability.

AAO decision The AAO sustained the appeal, opining that the petitioner’s evidence has met at least three of the regulatory criteria and passed the totality test. Specifically, the AAO found that the petitioner’s evidence satisfies the following three criteria.

1. Published materials about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation.

The petitioner submitted articles about the beneficiary appearing in major media such as The Toronto Star, the National Post, and the Times News Network. Therefore, we find that the petitioner’s evidence satisfies this criterion.

2. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an alliedjield of specification for which classification is sought.

The petitioner submitted evidence showing that the beneficiary “served as a judge for the Best Short Film Category at the Indian Film Festival of Los Angeles.” We find that the evidence submitted by the petitioner is adequate to satisfy this criterion.

3. Evidence of the display of the alien’s work in the jield at artistic exhibitions or showcases.

The petitioner submitted evidence indicating that films the beneficiary has directed have been shown at the Toronto International Film Festival, American Film Institute Festival, Chicago International Film Festival, Philadelphia Festival of World Cinema, Montreal Film Festival, and Flanders International Film Festival. The petitioner also submitted evidence showing that the beneficiary’s film Maya was the first runner up for the People’s Choice Award at the Toronto International Film Festival in 2001 and that the film received award nominations at the Flanders International Film Festival and at the Chicago International Film Festival. The AAO did not find these prizes were sufficient to satisfy the criterion of “less nationally or internationally recognized prize/award.” However, the beneficiary’s second place at the Toronto International Film Festival and other award nominations are adequate to distinguish his work from that of the other directors whose films were featured at these festivals. Hence, the AAO found that the evidence submitted by the petitioner is adequate to satisfy this criterion.

Tatality Test: The AAO decides that in this case, the totality of the evidence establishes an overall pattern of sustained national acclaim and extraordinary ability. And the petitioner has sustained the burden of proof. Accordingly, the decision of the director denying the petition was withdrawn and the petition was approved by the AAO.

from Chen Immigration Law Associates

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