dismissed EB-1A Case: Acrobatic Entertainer

(b)(6)
DATE: 
MAR 3'1 Z014 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service s 
Administrative Appeals Office (AAO) 
20 Massachus etts Ave., N.W., MS 2090 
Washington , DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form 1-2908 instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Chief , Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on June 26, 2013. The petitioner, who is also the beneficiary, appealed the decision to the 
Administrative Appeals Office (AAO) on July 25, 2013. The appeal will be dismissed. 
According to parts 2 and 6 of the petition, the petitioner seeks classification as an alien of 
extraordinary ability in the arts, specifically, as an acrobatic entertainer and performer, pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). 
The director determined that the petitioner did not establish the sustained national or international 
acclaim necessary to qualify for classification as an alien of extraordinary ability as an acrobatic 
entertainer and performer. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section § 203(b )(1 )(A)(i) of the 
Act; 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i)-(x). The 
petitioner must submit qualifying evidence under at least three of the ten regulatory categories of 
evidence to establish the basic eligibility requirements. 
On appeal, counsel files a brief and additional supporting documents. Counsel asserts that the 
petitioner meets the nationally or internationally recognized prizes or awards criterion under the 
regulation at 8 C.F.R. § 204.5(h)(3)(i), the membership in associations that require outstanding 
achievements criterion under the regulation at 8 C.F.R. § 204.5(h)(3)(ii), the participation as a judge 
of others criterion under the regulation at 8 C.F.R. § 204.5(h)(3)(iv), the authorship of scholarly 
articles criterion under the regulation at 8 C.F.R. § 204.5(h)(3)(vi), and the display of work at artistic 
exhibitions or showcases criterion under the regulation at 8 C.F.R. § 204.5(h)(3)(vii). On February 
7, 2014, the AAO issued a notice of intent to dismiss and make a formal finding of 
misrepresentation. In that notice, the AAO advised the petitioner of online information that 
appeared to indicate a different author for an article the petitioner claims to have authored. On 
March 10, 2014, counsel responded to the AAO's notice with information undermining the 
reliability of the online information on which the AAO relied. Based on the new evidence, the AAO 
will not enter a finding of material misrepresentation. The AAO will, however, dismiss the appeal 
based on reasons stated in this decision. Specifically, the petitioner has not submitted qualifying 
evidence under at least three of the ten regulatory criteria set forth in the regulations at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). As such, the petitioner has not demonstrated that he is one of the small 
percentage who are at the very top in the field of acrobatic entertainment and performance, or that he 
has sustained national or international acclaim. See 8 C.F.R. §§ 204.5(h) (2), (3). Accordingly, the 
AAO will dismiss the petitioner's appeal. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
I. THE LAW 
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, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
United States Citizenship and Immigration Services (USCIS) and legacy Immigration and 
Naturalization Service (INS) have consistently recognized that Congress intended to set a very high 
standard for individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 
101st Cong., 2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term 
"extraordinary ability" refers only to those individuals in that small percentage who have risen to the 
very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement, that is a major, internationally 
recognized award, or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed under the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed the denial of a petition filed under 
this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court upheld 
the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of the 
evidence submitted to meet a given evidentiary criterion. 1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate 
concerns about the significance of the evidence submitted to meet those two criteria, those concerns 
should have been raised in a subsequent "final merits determination." Kazarian, 596 F.3d at 1121-
22. 
1 
Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and (vi). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the 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) ." Kazarian, 
596 F.3d at 1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this case, the evidence in the record 
supports the director's finding that the petitioner has not satisfied the antecedent regulatory 
requirement of presenting at least three types of evidence under the regulations at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x), and has not demonstrated that he is one of the small percentage who are at the 
very top in the field of acrobatic entertainment and performance, or has achieved sustained national 
or international acclaim. See 8 C.F.R. §§ 204.5(h) (2), (3). 
II. ANALYSIS 
A. Evidentiary Criteria 2 
Under the regulation at 8 C.F.R. § 204.5(h)(3), the petitioner can establish the basic eligibility 
requirements by presenting evidence of a one-time achievement that is a major, internationally 
recognized award. In this case, the petitioner has not asserted or shown through his evidence that he 
is the recipient of a major, internationally recognized award at a level similar to that of the Nobel 
Prize. As such, the petitioner must present at least three of the ten types of evidence under the· 
regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x) to meet the basic eligibility requirements . 
Documentation of the alien 's receipt of lesser nationally or internationally recogniz ed prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
On page 6 of her appellate brief, counsel asserts that the petitioner "won the gold 
in November 1996." Counsel further 
asserts on page 7 of the brief that the petitioner won the 
Festival in 1996. The 144() nl:w Ill tor the testtval mdtcates that the peuuoner was one 01 au 
unspecified number of members, and one of five named troupe members, 
who performed the ' _ _ that won the 
2 The petitioner does not claim that he meets the regulatory categories of evidence not discussed in this decision. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
and a committee member for the 2nd to the 5th 
stated in his April 11, 2013 letter that the 
petitioner starred in the performance "'Table Hoops' [that] was awarded the · 
Award in the .__ __ _ 
The record also includes a 2000 Certificate of Honor, stating that the petitioner won the 
at the festival for his performance of "Springboard." The 2000 playbill for the 
festival indicates that the petitioner was one of an unspecified number of · 
members, and one of three named troupe members, who performed the "Big Springboard" that won 
the ___ _ ____ . asserted that the petitioner, along with other 
performers, performed the acrobatic act that won 
the award. 
Although the petitioner has shown his receipt of the Awards in 1996 and 2000, 
he has not provided sufficient evidence showing that the ::onstitute 
nationally or internationally recognized prizes or awards in the field of acrobatic entertainment and 
performance. According to the festival "is famous throughout the world for its 
difficulty in skill and its authoritative nature ." The petitioner, however, does not support this letter 
with similar opinions outside of the local ' region. 
According to the online printouts that the petitioner submitted, competitors from 
China, the Democratic People's Republic of Korea, Russia, Sweden, Ukraine, Germany, Egypt, 
Hungary, Canada, France, Belgium, Mongolia, USA and Indonesia participated in the 1996 festival , 
and 23 troupes from 12 countries participated in the 2000 festival. The fact that the festival attracted 
performers from different countries does not qualify the festival's prizes or awards as nationally or 
internationally recognized prizes or awards for excellence. At issue is not whether the pool of 
competitors was national or international but whether the field of acrobatic entertainment and 
performance recognizes the awards or prizes at the national or international level. Thus, the 
petitioner must provide evidence, such as, but not limited to, national media coverage of the festival 
and its awards and prizes, showing that the awards or prizes are recognized beyond the entity that 
issued the awards or prizes. These printouts also state that in 1996, the festival awarded three gold, 
six silver, nine bronze and seven excellence awards. The materials do not provide the number of 
awards per category in 2000 or discuss the recognition of the competition in the field. Rather, they 
state generally that the Chinese government sponsors the festival, which "is designed to provide 
equal competition opportunities for outstanding acrobats in the world and opportunities for 
performers to exchange skills and learn from each other so as to boost the development and 
innovation of acrobatics, and to make ' a bridge connecting acrobats from all over the 
world ." 
The petitioner also submitted an article in the a ~ 
as one of the top four acrobatics events. This conclusion in a local newspaper 
does not establish the recognition of the awards at this festival beyond Wuhan. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
Although the petitioner has submitted other online materials that mention the festival, the petitioner 
has not shown that these materials are published in nationally or internationally circulated 
publications. These materials also do not specifically discuss either the 1996 or 2000 festival. 
Rather, they briefly reference the festival when discussing other acrobatic performers' competitive 
history. 
Similarly, although the petitioner has presented an October 2005 Certificate of Honor, showing that 
a performance in which he participated won the 
in 2005, he has not shown that the award constitutes a nationally or 
internationally recognized prize or award for excellence . According to the online printout entitled 
l states that in its lOth festival, " [t]hirty circus acts of thirty groups 
from sixteen countries . .. participated in the competition and performance during the festival. " As 
noted , at issue is not whether the pool of competitors was national or international but whether the 
field of acrobatic entertainment and performance recognizes the awards or prizes at the national or 
international level. Thus, the petitioner must provide evidence showing that the award is recognized 
beyond the entity that issued the award. Although the record includes online materials that mention 
the festival, the petitioner has not shown that these materials are published in nationally or 
internationally circulated publications. These materials also do not specifically discuss the 2005 
festival. Rather, they brietly reference the festival when discussing other acrobatic performers' 
competitive history. 
Counsel asserts on page 10 of her brief that the petitioner's receipt of one of the five Best Performer 
awards at the L _ _____ · - · · ~ ~'" constitutes his 
receipt of a nationally or internationally recognized prize or award for excellence in the field of 
endeavor. The petitioner submitted a letter from 
Association and a judge at the festival, detailing the levels of qualifying events to participate in the 
festival. describes a competitive selection proces s, the evidence does not 
establish the recognition this competition enjoyed in its firstyear of existence . Final! y, as noted by 
the director in the request for evidence (RFE), the plain language of the criterion requires evidence 
of qualifying awards or prizes in the plural, consistent with the statutory requirement for extensive 
documentation. See section 203(b)(1)(A)(i) of the Act. As such, even if the petitioner's Best 
Performer title constitutes one qualifying award or prize, the record lacks evidence showing that the 
petitioner has received a second qualifying award or prize. 
Finally , the record includes evidence of the petitioner's other accomplishments, including a 
Qualification Certificate of Specialty and Technology, which counsel categorized as " 2006 National 
First-Class Award"; and a gold prize at the · - " r Technical Skills 
Competition. On appeal, counsel has not continued to assert that these accomplishments meet the 
criterion. Accordingly, the petitioner has abandoned this issue, as he did not timely raise it on 
appeal. Sepulveda v. United States Att y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the United 
States District Court found the plaintiffs claims to be abandoned as he failed to raise them on appeal 
to the AAO). 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
Accordingly, the petitioner has not submitted documentation of his receipt of lesser nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor. The petitioner 
has not met this criterion . See 8 C.F.R. § 204.5(h)(3)(i). 
Documentation of the alien 's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
In his June 26, 2013 decision, the director concluded that the petitioner did not meet this criterion. 
On appeal, the petitioner files for the first time the bylaws for the provincial acrobatic association of 
which the petitioner is a member. According to the bylaws, members must demonstrate specifically 
defined achievements, including an award at a certain level, and a jury selects the new members. 
The record also includes an April 22, 2013 letter from · ~ · 
and the petitioner's membership card. describes the 
expertise of the jury. Thus, the petitioner has now established that this membership is qualifying. 
The plain language of criterion, however, requires evidence of membership in qualifying 
associations, in the plural, consistent with the statutory requirement for extensive documentation. 
See section 203(b)(l)(A)(i) of the Act. The director noted this requirement in the RFE. Counsel did 
not challenge this statement in response. As the record lacks evidence of the petitioner's 
membership in a second qualifying association, the petitioner has not satisfied the plain language 
requirements of the criterion. 
Accordingly, the petitioner has not submitted documentation of his membership in associations in 
the field for which classification is sought, which require outstanding achievements of their 
members, as judged by recognized national or international experts in their disciplines or fields. The 
petitioner has not met this criterion. See 8 C.F.R. § 204.5(h)(3)(ii). 
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 allied field of specification for which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The director concluded in his June 26, 2013 decision that the petitioner met this criterion. The 
evidence establishes that the petitioner participated as a judge at the 
------ -- o - r . Accordingly , the petitioner has 
presented evidence of his participation, either individually or on a panel, as a judge of the work of 
others in the same or an allied field of specification for which classification is sought. The petitioner 
has met this criterion. See 8 C.F.R. § 204.5(h)(3)(iv). 
(b)(6)
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Page 8 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major 
trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi). 
On appeal, counsel asserts that the petitioner's articles published in the 
~ meet this criterion. Counsel asserts that the two publications constitute 
professional publications because they "are the only media partners of the 
[due to] their professionalism and advantages for culture promotion," and that they 
constitute major media because ~ · · is one of the top 5 papers in circulations in China 
and ranks 85th of the world's 100 largest newspapers. The evidence in the 
record does not support counsel's assertions. Without documentary evidence to support the claim, 
the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions 
of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of 
Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
First, the evidence in the record does not establish that 
constitute professional publications. According to the two publications "were 
[the] only media partners in all previous Because of the 
advantages and professionals in cultural promotion, the professional articles from Acrobatic 
Association were all published on ~ This statement 
does not establish the rofessional nature of the publications. According to a July 4, 2013 document 
"has a film and television 
center, which produces the ~ _ " Although the 
document discusses it does not provide information relating to the nature of the two 
publications or provide sufficient evidence establishing that they are professional publications. As 
their names suggest, the publications appear to be general news publications, and at times publish 
articles relating to acrobatic entertainment and performances. 
The evidence in the record also does not establish that 
constitute major media. Although _ _ was one 
of the top five on circulation," he does not specify the geographic area in which the publication is a 
top five publication. Thus, the letter does not establish whether the publication is a top five 
publication nationally, provincially or locally. Although _ _ 
"was listed on top 80" in the "58th World Press Institute['s list of] top 100 newspaper[s] by 
circulation," the petitioner has not provided sufficient evidence showing that being a top 80 
newspaper constitutes major media. Indeed, according to the World Association of Newspapers' 
online printout entitled "World's l 00 Largest Newspapers," there are at least 15 newspapers from 
that have a higher circulation number than that of .. --· ..... _ . _ ~~ a _ 
does not explain the basis of his 
knowledge relating to circulation information or the status of the publications. 
Second, although the petitioner has presented evidence establishing that -- and 
~ : constitute professional publications, the petitioner has not shown that 
his written work published in these publications constitutes scholarly articles, as required by the 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
plain language of the criterion. See 8 C.F.R. § 204.5(h)(3)(vi). Unlike scholarly articles that are 
published in professional or major trade publications, the petitioner has not shown that his published 
work appeared in a journal that utilizes peer review. Indeed, the petitioner did not include any 
references or citations to sources or other authors' work. Unlike scholarly articles, the petitioner's 
published work does not have footnotes, endnotes, or a bibliography, and rarely includes graphs, 
charts, or pictures as illustrations of the concepts the petitioner expressed. In addition, there is no 
evidence that scholars have taken note of his work. As such, the petitioner has not shown that his 
written work constitutes scholarly articles. 
Accordingly, the petitioner has not submitted evidence of his authorship of scholarly articles in the 
field of acrobatic entertainment and performance, in professional or major trade publications or other 
major media. The petitioner does not meet this criterion. 8 C.F.R. § 204.5(h)(3)(vi). 
Evidence of the display of the alien 's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
In his June 26, 2013 decision, the director found that the petitioner met this criterion. The evidence 
in the record does not support this finding. The AAO conducts appellate review on a de novo basis. 
Soltane v. United States Dep 't of Justice, 381 F.3d 143, 145-46 (3d Cir. 2004). The AAO may deny 
an application or petition that fails to comply with the technical requirements of the law even if the 
service center does not identify all of the grounds for denial in the initial decision. See Spencer 
Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 
(9th Cir. 2003). 
The evidence in the record includes posters and photographs relating to the petitioner's acrobatic 
performances as a member of the • The interpretation that this 
criterion is limited to the visual arts is longstanding and has been upheld by a federal district court. 
Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 7 (D. Nev. Sept. 8, 2008) (upholding an 
interpretation that performances by a performing artist do not fall under 8 C.F.R. § 204.5(h)(3)(vii)). 
As the petitioner is not a visual artist and has not created tangible pieces of art that were on display 
at exhibitions or showcases, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements of the criterion. 
Accordingly, the petitioner has not provided evidence of the display of his work in the field at 
artistic exhibitions or showcases. The petitioner has not met this criterion. See 8 C.F.R. 
§ 204.5(h)(3)(vii). · 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small 
percentage who have risen to the very top of the field of endeavor. 
(b)(6)
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Page 10 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated : (1) 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," and (2) "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)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. The evidence consists of (1) awards 
at competitions with an international pool of competitors but undocumented national or international 
significance, (2) a single qualifying membership, (3) participation as a judge of youth competitions, 
authorship of articles of undocumented significance in the field, and (4) performances, which are 
inherent to the occupation of performing artist. This evidence is not indicative of a level of expertise 
consistent with the small percentage at the very top of the field or sustained national or international 
acclaim. The AAO, however, need not further explain that conclusion in a detailed final merits 
determination. 3 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of presenting three types of evidence. Kazarian, 596 F.3d at 
1122. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner 's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.