A Million Followers and Prior O-1 Status: Why This Culinary Creator’s EB-1A Appeal Failed
A large online audience can be commercially valuable without answering the specific evidentiary questions in an EB-1A petition. In In Re: 40776815, a culinary writer and social-media creator claimed more than a million followers on Instagram and TikTok and substantial YouTube reach. The AAO accepted qualifying published material but found that the submitted income comparisons did not establish high remuneration in the relevant field and that the proposed comparable evidence did not satisfy the commercial-success criterion.
The July 27, 2026 nonprecedent decision dismissed the appeal. It also corrected one rationale used below, reserved the leading-or-critical-role criterion and formal final merits analysis, and explained why an earlier O-1 approval did not compel approval of this immigrant petition.
Audience size did not establish the high-pay comparison
The petitioner submitted content-development contracts and evidence describing compensation and influencer tiers. The AAO found that much of the comparison material concerned general creators, writers, or influencers rather than the particular culinary-writing and content-development work. Other information lacked appropriate geographic or compensation-rate context. See pages 3–5.
An earnings calculator supplied guidelines about potential income rather than actual comparative wages. Suggested prices for what influencers could charge likewise did not establish how the petitioner’s compensation compared with others performing relevant work. The AAO did not impose a universal influencer-pay threshold or find that one million followers was inherently insufficient for every criterion.
Claiming several criteria did not itself bar comparable evidence
SCOPS had rejected the comparable-evidence claim in part because the petitioner claimed four regular criteria. The AAO expressly withdrew that rationale. The governing language in 8 C.F.R. § 204.5(h)(4) states: “If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.” See page 5.
The analysis therefore required a supported explanation of why the relevant criterion did not readily apply and how the alternative evidence was comparable. Correcting SCOPS’s rationale did not establish that this particular alternative showing succeeded.
Metrics, books and culinary tours did not supply the required comparison
The petitioner relied on social-media engagement, advertising revenue, book sales and preorders, culinary-event tickets, tours, and endorsements. The AAO found the explanation of comparability insufficient. It distinguished engagement with generally free content, funded through advertising, from direct consumer payments reflected in the performing-arts sales and receipts contemplated by the criterion. See pages 5–6.
It also found inadequate explanation of how the book’s sales were comparable to sales of recorded performances. The descriptions of culinary tours and workshops indicated teaching recipes and techniques without sufficiently establishing the claimed performing-arts comparison. Print endorsement appearances raised a similar gap. The AAO assessed the evidence presented; the decision should not be converted into a categorical exclusion of all online performers, books, advertisements, or educational events.
What the AAO accepted and what it reserved
The AAO agreed that published material satisfied one criterion. After rejecting high pay and the comparable commercial-success showing, a favorable role finding still would not yield three criteria. It therefore reserved that role issue and the formal final merits determination. The opinion also commented on the aggregate record, but those comments should not erase its express reservation of the stated issues. See pages 3 and 7.
O-1 status did not determine the immigrant petition
The AAO addressed the prior O-1 approval and explained that it was not binding in adjudicating the different immigrant petition. The appeal was dismissed and the petition remained denied. Nothing in that disposition itself revoked the O-1 approval. See page 8.
For a creator’s petition, counsel should connect documented compensation to appropriate comparisons and identify what the proposed alternative evidence measures. An audience metric, market-rate estimate, sales total, and proof of recognition answer different questions. Where comparable evidence is appropriate, the relationship to the specific criterion needs a factual explanation. Special circumstances, the complete record, and applicable later law must be reviewed individually; neither follower counts nor a prior nonimmigrant approval provides an automatic result.
Legal Disclaimer. Originally published: 11/01/2026. This article provides general information only and is not legal advice for any particular matter. Laws, policies, procedures, fees and agency practices may change; their application depends on the facts and jurisdiction. Consult a qualified attorney about your circumstances before acting on this information. Reading this article or contacting Blumsack & Canzano does not, by itself, create an attorney-client relationship. Past results do not guarantee future outcomes. This material may be considered attorney advertising in some jurisdictions.
