EB1 for Digital Graphics Designers

The EB-1A immigration petition is available for individuals with extraordinary ability in the sciences, arts, education, business and athletics fields. For the purpose of the petition, "extraordinary ability" is defined as the level of expertise indicating that the individual is one of that small percentage who has risen to the very top of the field of endeavor.  Within the arts and business fields, I often met clients who are graphic designers, and in more recent years, digital graphic designers. Compares to traditional graphic designers who use Illustrator or PS with a focus on pre-print production, digital graphic designers works on website design, mobile apps, and other online content for many industries. The Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) recently issued a judgment that denies a digital graphic designer's immigration petition. This article discusses the current AAO case, and to provide guidance to art/business field experts about their immigration petitions.  

The digital graphic designer (the "Designer") in this case is holding an O1 "extraordinary ability" non-immigrant visa and currently working in the U.S. as the co-founder and Director of Design for a company which creates iPhone game applications. In his immigration petition, the Designer tried to establish that he satisfied four out of the ten regulatory criteria: performed a leading or critical role at his organization, received international or national awards, received a high salary compares to others in his field, and there are major media published material about him. (For the ten regulatory criteria, see "EB1 Basics") 

The USCIS service center denied this digital graphic designer's initial petition by concluding that he only satisfied one of the criteria. The designer appealed to the AAO, but the AAO did not revoke the service center's decision and dismissed the appeal. The judgment gives a detailed explanation of why the evidence the Designer filed is not enough to prove that he satisfies the criteria. AAO also pointed out evidence that does not match with the Designer's situation, which should not be filed if the Designer's immigration attorney paid more attention to the details. (The importance of hiring  an immigration attorney who is specialized in your specific type of petition.)  

AAO denies that the Designer received national or international awards based on two reasons. First, the award was issued to the company, not the Designer himself. Second, not enough supporting documents to establish that the award is nationally or internationally recognized for excellence in the field. The Designer provided letters of recommendation from other co-founders of the company to prove that the Designer's team effort was critical for the company to win the award. The award itself also claimed to be the nation's biggest competition of design thinking and open innovation. But the problem is that no third-party evidence, such as media articles, were provided to show the above factors.

The criterion of "major media published material about" the Designer was rejected for similar reasons. Most of the media articles the Designer provided are about the company. While some articles referrer the Designer's role as co-founder, they are not specifically about him. Only briefly mentioned the Designer's name does not establish that the articles are ABOUT the Designer.

The biggest mistake of the Designer's filing is related to the "high salary" criteria. The Designer provided Department of Labor data and industry data of the salary for the "graphic designer" position. AAO pointed out that the comparative salary data should instead be about the "Director of Graphic Design" position. These two positions are different in the level of expertise, education, and years of work experience. Therefore, the evidence does not include sufficient comparative salary data to prove the Designer has a high salary compares to others in the field.  

Although AAO agrees with the Designer that he performed in a leading or critical role within his company that has a distinguished reputation. This single criterion is not enough for the petition to be approved.

What we should learn from this case?

First and the most important, is the logical connection among the criteria. When the Designer was trying to prove his critical and leading role within his company, he should make a logical connection that the data about the high salary he earned should match with his job title. The quality of the evidence is much more important than the quantity. The Designer's attorney should carefully review the high salary argument, to make sure that the evidence is not wasted because it is related to a wrong job position.

Besides, the evidence to show the Designer's extraordinary ability should directly relate to the Designer himself, not his company. It usually requires clear and specified evidence to prove the petitioner's contribution when the awards or publications is to the petitioner's organization.

Last but not least, the case shows the importance of hiring an immigration attorney who has rich experience in EB-1 filings. The immigration attorney should fully understand how to apply each specific evidence to the criteria, and how to strategically present the petitioner's supporting evidence to the immigration officer. For the case above, if the attorney can provide third party media reports about the award, and if the attorney file the salary data about the correct job position, the petition may have a chance to be approved.