dismissed EB-1A Case: Acrobatics

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of~dmihstrative  seals MS 2090 
identifying data deleted to 
Washington, DC 20529-2090 
prevent clearly unwarranted 
 U. S. Citizenship 
invasion of personal privacy 
 and Immigration 
Services 
PUBLIC COPY 
FILE: - Office: NEBRASKA SERVICE CENTER Date: JUL 1 6 2009 
LIN 07 23 1 50364 
IN RE: Petitioner: 
Beneficiary: 
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. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
&&~d/i!t$L 
John F. Grissom 
Thcting Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A), as an alien 
of extraordinary ability in athletics and the arts. The director determined that the petitioner had not 
established the sustained national or international acclaim necessary to qualify for classification as an 
alien of extraordinary ability. More specifically, the director found that the petitioner had failed to 
demonstrate receipt of a major, internationally recognized award, or that he meets at least three of 
the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate "sustained national or international acclaim" and present "extensive 
documentation" of his or her achievements. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
3 1 153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). The implementing regulation at 8 C.F.R. 
fj 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 criteria that call for the submission of specific objective 
evidence. 8 C.F.R. $5 204.5(h)(3)(i) through (x). Through the submission of required initial evidence, 
at least three of the ten regulatory criteria must be satisfied for an alien to establish the sustained 
national or international acclaim under the regulation. 
Counsel's appellate brief focuses on the appropriate standard of proof. Counsel argues that the director 
applied "a higher standard of proof than that allowed by law" and that the petitioner "was able to 
demonstrate by at least a preponderance of evidence that he is an alien of extraordinary ability." 
However, the petition must be filed with the initial evidence required by regulation. 8 C.F.R. 
5 103.2(b)(l). Determinations regarding the standard of proof arise only after the petitioner submits the 
required initial evidence. For this reason, the AAO will first address the regulatory criteria and the 
submitted evidence and then turn to the standard of proof. 
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. 
U.S. 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 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means 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. 
 8 C.F.R. $ 204.5(h)(2). 
 The specific requirements for supporting 
documents to establish that an alien has sustained national or international acclaim and recognition 
in his or her field of expertise are set forth in the regulation at 8 C.F.R. $ 204.5(h)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
he has sustained national or international acclaim at the very top level. 
This petition, filed on July 2, 2007, seeks to classify the petitioner as an alien with extraordinar 
abilit as an acrobat. 
 The petitioner submitted a December 10, 2006 letter from 
Y 
 Y 
Head Coach for Cirque du Soleil's "Mystere" production in Las Vegas, stating that the 
petitioner has worked as an acrobat for the show since 2005. 
 letter further states: 
[The petitioner] performs trampoline solo, which is a very important part of the show. His 
solo consists of a combination of the most complex tricks, which he performs one after 
another in a row, without stopping. . . . [The petitioner] performs this combination two times 
daily, five times a week in the show "Mystere" in Las Vegas. 
The regulation at 8 C.F.R. $ 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, internationally 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, 
at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to 
qualify as an alien of extraordinary ability. A petitioner, however, cannot establish eligibility for this 
classification merely by submitting evidence that simply relates to at least three criteria at 8 C.F.R. 
$ 204.5(h)(3). In determining whether the petitioner meets a specific criterion, the evidence itself 
must be evaluated in terms of whether it is indicative of or consistent with sustained national or 
international acclaim. A lower evidentiary standard would not be consistent with the regulatory 
definition of "extraordinary ability" as "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." 8 C.F.R. 
$ 204.5(h)(2). The petitioner has submitted evidence pertaining to the following criteria under 
8 C.F.R. $ 204.5(h)(3).' 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner submitted evidence showing that he won several awards in trampoline competition 
from 1992 to 2001. Many of these awards were received in youth or junior level competition. For 
example, the petitioner submitted a May 1997 Diploma from the Belarus Ministry of Sports and 
Tourism stating that he placed "2"* in individual event at the Championship of Republic of Belarus 
among young men born in 1980 or later." [Emphasis added.] The petitioner also submitted an 
award diploma dated November 1997 stating that he placed "second in synchronized event at the 
XXIV Traditional Youth Competitions commemorating, Hero of the Soviet Union." 
[Emphasis added.] The record also includes a March 1994 Diploma stating that the petitioner placed 
first in an individual event at the "Trampoline Championship of Republic of Belarus among 
children-youth sports schools within candidate for Master of Sports Program." With regard to 
acrobatic awards won by the petitioner in youth or junior level competition, we do not find that such 
awards indicate that he "is one of that small percentage who have risen to the very top of the field of 
endeavor." See 8 C.F.R. 5 204.5(h)(2). USCIS has long held that even athletes performing at the 
major league level do not automatically meet the "extraordinary ability" standard. Matter of Price, 20 
I&N Dec. 953,954 (Assoc. Cornrnr. 1994); 56 Fed. Reg. at 60899.~ Likewise, it does not follow that an 
athlete who has had success in national competition at the youth or junior level should necessarily 
qualify for an extraordinary ability employment-based immigrant visa. To find otherwise would 
contravene the regulatory requirement at 8 C.F.R. 5 204.5(h)(2) that this visa category be reserved for 
"that small percentage of individuals that have risen to the very top of their field of endeavor." 
The petitioner submitted two letters of support from, President of the Belarusian Federation 
of Trampoline and Acrobatics, and a document from the "Vitebsk State Specialized Children-Youth 
School of Olympic Reserve No. 2" listing his various awards. The petitioner also submitted 
photographs of his prizes and awards. Even if the petitioner were to establish that some of his awards 
were not limited to youth or junior-level competition, the plain language of the regulatory criterion at 
8 C.F.R. 5 204.5(h)(3)(i) specifically requires that his awards be nationally or internationally recognized 
in the field of endeavor and it is his burden to establish every element of this criterion. In this case, 
there is no evidence establishing the magnitude of the competitions in which the petitioner received 
awards or evidence demonstrating that they commanded significant recognition beyond the context 
2 
While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of Racine, 1995 
WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[Tlhe plain reading of the statute suggests that the appropriate field of comparison is not a comparison of 
Racine's ability with that of all the hockey players at all levels of play; but rather, Racine's ability as a 
professional hockey player within the NHL. This interpretation is consistent with at least one other court in this 
district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
6 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the court's 
reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 
 204.5(h)(2) is reasonable. 
of the sporting event where they were presented. For instance, there is no evidence showing that the 
awards received by the petitioner were announced in national sports media or in some other manner 
consistent with national or international recognition. With regard to the petitioner's Master of Sport 
Certificate in Trampoline (1995), the petitioner has not submitted evidence of its selection 
requirements or national significance. Further, there is no evidence showing the petitioner's receipt of 
nationally or internationally recognized prizes or awards in the six years preceding the petition's filing 
date. Accordingly, the petitioner has not demonstrated that his national or international acclaim as a 
competitive acrobat has been sustained. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 
5 1 153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). Finally, there is no evidence showing that the 
petitioner has received any nationally or internationally recognized prizes or awards for circus 
acrobatic performance, the area of expertise in which the petitioner seeks to continue to work in the 
United States. See section 203(b)(l)(A)(ii) of the Act, 8 U.S.C. 5 1 153(b)(l)(A)(ii), and 8 C.F.R. 
5 204.5(h)(5). 
In light of the above, the petitioner has not established that he meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classiJication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
In order to demonstrate that membership in an association meets this criterion, a petitioner must 
show that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, minimum 
education or experience, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues, do not satisfy this criterion as such requirements 
do not constitute outstanding achievements. Further, the overall prestige of a given association is 
not determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
The petitioner submitted his Master of Sport Certificate in Trampoline (June 8, 1995) issued by the 
State Committee for Physical Education and Sports. The petitioner has not established that this 
certification equates to membership in an association in the field for which classification is sought. 
Further, there is no evidence indicating that this certification obtained by the petitioner at the age of 
fourteen required outstanding achievements, as judged by national or international experts in his 
field or an allied one. Nevertheless, this document has already been addressed under the awards 
criterion at 8 C.F.R. 5 204.5(h)(3)(i). Here it should be emphasized that the regulatory criteria are 
separate and distinct from one another. Because separate criteria exist for awards and association 
memberships, USCIS clearly does not view the two as being interchangeable. If evidence sufficient 
to meet one criterion mandated a finding that an alien met another criterion, the requirement that an 
alien meet at least three criteria would be meaningless. 
The petitioner also submitted two letters of support from 
 stating that the petitioner was a 
member of the national team of the Republic of Belarus from 1998 to 2001. We acknowledge that 
membership on an Olympic team or a major national team such as a World Cup soccer team may 
serve to meet this criterion as such teams are limited in the number of members and have a rigorous 
selection process. We reiterate, however, that it is the petitioner's burden to demonstrate that he meets 
every element of a given criterion, including that he is a member of a team that requires outstanding 
achievements of its members, as judged by recognized national or international experts. We will not 
presume that every national "team" is sufficiently exclusive. Without evidence showing, for instance, 
the selection requirements for the petitoner's national team, we cannot conclude that the petitioner 
meets the elements of this regulatory criterion. Further, we cannot consider a 1998 - 2001 athletic 
team membership to be evidence of the petitioner's sustained national acclaim, as this membership 
terminated six years before the petition's filing date. As previously noted, the statute and regulations 
require the petitioner to demonstrate that his national or international acclaim has been sustained. See 
section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 5 1153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). Finally, 
the athletic team membership claimed by the petitioner is unrelated to his work as a circus trampoline 
performer, his intended occupation in the United States. See section 203(b)(l)(A)(ii) of the Act, 
8 U.S.C. 5 1153(b)(l)(A)(ii), and 8 C.F.R. 5 204.5(h)(5). Accordingly, the petitioner has not 
established that he meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the$eld for which classiJcation is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner 
and, as stated in the regulations, be printed in professional or major trade publications or other major 
media. To qualify as major media, the publication should have significant national or international 
distribution. An alien would not earn acclaim at the national level from a local publication. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would ualify as 
7 
major media because of significant national distribution, unlike small local community papers. 
The petitioner submitted a four-line entry mentioning him in Who is Who in the Republic of Belarus 
Sport Encyclopedia (1 999). The petitioner's brief biographical entry appears on page 193 along with 
the profiles of 22 other athletes. The petitioner has not established that this comprehensive athletic 
directory, or any significant portion of it, is about him. Further, there is no evidence showing that 
this publication qualifies as a professional or major trade publication or some other form of major 
media. For example, there is no evidence showing that this directory had substantial national or 
international readership, that it had significantly higher sales relative to other national sports 
publications, or that it was otherwise circulated in a manner such that publication in the directory would 
be consistent with sustained national or international acclaim. 
The petitioner submitted a letter from Reporter for the Foundation of Independent 
Radio Broadcasting, stating that she interviewed the petitioner "for the program 'Questions of Vital 
Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
Importance' . . . which was aired in October, 2000. The program was dedicated to the I1 Festival- 
Contest of the Circus Art in Saratov." The record does not include a recording or transcript of the radio 
broadcast. Without such evidence, the petitioner has not established that the program was about him 
rather than about "the I1 Festival- Contest of the Circus Art in Saratov." Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofjci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). A petition must be filed with 
any initial evidence required by the regulation. 8 C.F.R. 5 103.2(b)(l). The nonexistence or other 
unavailability of primary evidence creates a presumption of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). 
Further, the plain language of this regulatory criterion requires "published material about the alien" 
including "the title, date and author of the material." A radio interview of the petitioner does not 
meet these requirements. Aside from the preceding deficiencies, we cannot ignore the lack of evidence 
for this regulatory criterion from 2001 through the petition's filing date. As previously noted, the 
statute and regulations require the petitioner to demonstrate that his national or international acclaim has 
been sustained. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 5 1153(b)(l)(A)(i), and 8 C.F.R. 
5 204.5(h)(3). 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien's participation, either individually or on apanel, as a judge of the 
work of others in the same or an alliedjeld of speciJication for which classiJication is 
sought. 
The regulation at 8 C.F.R. 
 204.5(h)(3) provides that "a petition for an alien of extraordinary ability 
must be accompanied by evidence that the alien has sustained national or international acclaim and 
that his or her achievements have been recognized in the field of expertise." Evidence of the 
petitioner's participation as a judge must be evaluated in terms of these requirements. The weight 
given to evidence submitted to fulfill the criterion at 8 C.F.R. 5 204.5@)(3)(iv), therefore, depends 
on the extent to which such evidence demonstrates, reflects, or is consistent with sustained national 
or international acclaim at the very top of the alien's field of endeavor. A lower evidentiary standard 
would not be consistent with the regulatory definition of "extraordinary ability" as "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." 8 C.F.R. 5 204.5(h)(2). 
The petitioner submitted a July 20,2005 letter fro stating: 
I am an Honored Coach of the Republic of Belarus, Chief Coach of the National Trampoline 
Team, and a Judge of International Category. I am writing this letter to certify that [the 
petitioner] is a Trampoline Judge of the First Category, which allows him to participate on a 
judicial panel at competitions of such rank as: championships and tournaments of junior 
schools, championships and tournaments of a city and a region, as well as national 
competitions. 
[The petitioner] participated as a judge on the following competitions: Championship of 
Republic of Belarus, Championship of City of Vitebsk, Championship and Cup of Belarus. 
The letter from 
 does not s ecif the number of judging categories that exist or their 
official requirements. For example, m states that he is "Judge of the International Category" 
while the petitioner is only a "Judge of the First Category." The petitioner has not established that 
his level of judgeship is an indication that he "is one of that small percentage who have risen to the 
very top of the field of endeavor" rather than an entry-level judging designation. See 8 C.F.R. 
tj 204.5(h)(2). Further, unlike the other initial documents in the record (such as the award di lomas 
which bear the actual stamp of Russian Language Services, the July 20,2005 letter from PI 
does not bear the translator's stamp. 
 Although the record contains a general "Translator 
Certification" from Russian Language Services for the "package of documents attached to 1-140 
Immigrant Petition for Alien Worker," the blanket translation certification does not specify which of 
the initial documentation to which it pertains. The submission of a single translation certification 
that does not specifically identify the document or documents it purportedly accompanies does not 
meet the requirements of the regulation at 8 C.F.R. tj 103.2(b)(3), which requires that any document 
containing foreign language submitted to USCIS shall be accompanied by a full English language 
translation that the translator has certified as complete and accurate, and by the translator's 
certification that he or she is competent to translate from the foreign language into English. 
Accordin 1 , without a proper certified English language translation, we cannot accord any weight 
to July 20, 2005 letter. 
Nevertheless, the plain language of this regulatory criterion requires "[elvidence of the alien's 
participation . . . as a judge of the work of others in the same or an allied field of specification for whch 
classification is sought." Rather than submitting primary evidence of his participation as a judge in 
the aforementioned competitions, the petitioner instead submitted a brief letter from - 
attesting to his involvement. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 
I&N Dec. at 158, 165. A petition must be filed with any initial evidence required by the regulation. 
8 C.F.R. tj 103.2(b)(l). The nonexistence or other unavailability of primary evidence creates a 
presumption of ineligibility. 
 8 C.F.R. $ 103.2(b)(2)(i). 
 In this instance, the petitioner has not 
overcome the absence of primary and secondary evidence of his participation as a judge for the 
preceding competitions. Further, the record lacks evidence such as the level of acclaim associated 
with judging these competitions, the names of the athletes judged by the petitioner, their level of 
expertise, the dates of the competitions, or documentation of his assessments. Aside from the 
preceding deficiencies, there is no evidence showing that the petitioner has judged any competitive 
trampoline events during the five-year period preceding the petition's filing date. As discussed, the 
statute and regulations require the petitioner to demonstrate that his national or international acclaim has 
been sustained. See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. tj 1 153(b)(l)(A)(i), and 8 C.F.R. 
tj 204.5(h)(3). Without evidence showing, for example, that the petitioner's activities involved 
judging top athletes or performers in his field or were otherwise consistent with sustained national or 
international acclaim at the very top level of his field, we cannot conclude that he meets this 
criterion. 
Page 9 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
At issue for this criterion are the position the petitioner was selected to fill and the reputation of the 
entity that selected him. In other words, the position must be of such significance that the alien's 
selection to fill the position, in and of itself, is indicative of or consistent with national or international 
acclaim. 
The petitioner submitted letters of support fro and the petitioner's "personal 
coach," indicating that he competed for Belarus national team, but there is no evidence showing that his 
role for the team was leading or critical, or that his trampoline team had a distinguished reputation. For 
example, there is no evidence showing that the petitioner's competitive achievements differentiated him 
from those of the other national team members (such as a tally of medals earned by each team member). 
The petitioner also submitted evidence of his employment with the "Incredibly Odd Circus" 
Company in Moscow and Cirque du Soleil's "Mystere" at Treasure Island in Las Vegas. The 
director's decision noted that the petitioner did not provide "specific documentary evidence of the 
distinguished reputations" of his employers. On appeal, counsel cites information obtained from 
Wikipedia regarding Cirque du Soleil's annual revenues, awards, and its performance at Superbowl 
XLI. Regarding information from Wikipedia, there are no assurances about the reliability of the 
content from this open, user-edited internet site.4 See Lamilem Badasa v. Michael Mukasey, 540 
F.3d 909 (8th Cir. 2008). Accordingly, we will not assign weight to information for which Wikipedia 
is the only cited source. 
Nevertheless, the content of the letters of support fiom representatives of the "Incredibly Odd 
Circus" Company in Moscow and Cirque du Soleil do not establish that the petitioner's role for them 
was leading or critical. In addressing the petitioner's role in the teeterboard act,- 
Producer, Stage Manager, and Director, "Incredibly Odd Circus" Company, Moscow, states: "During 
[the petitioner's] employment with this company, [the petitioner] revealed his quick-wittedness and 
coordination, speedy memorization and mastering skills. With his performance, a technically difficult 
4 
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WIKIPEDIA MAKES NO GURANTEE OF VALIDITY. Wikipedia is an online open-content collaborative 
encyclopedia, that is, a voluntary association of individuals and groups working to develop a common resource 
of human knowledge. The structure of the project allows anyone with an Internet connection to alter its content. 
Please be advised that nothing found here has necessarily been reviewed by people with the expertise required 
to provide you with complete, accurate or reliable information. . . . Wikipedia cannot guarantee the validity of 
the information found here. The content of any given article may recently have been changed, vandalized or 
altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields. 
See httv://en.wikipedia.ordwiki/Wikipedia:General disclaimer, accessed on June 30, 2009, copy incorporated into the 
record of proceeding. 
flight turns into an act of art and beauty." 
 Artistic Director of Mystere and Luxor, Cirque 
du Soleil (United States), states: "The petitioner's role as a jumper demands a lot of responsibility since 
he is involved in the most difficult part of the act and he consistently performs excellently. As a 
jumper, [the petitioner] performs one of the most important parts of the show." The petitioner's 
evidence fails to specify how his role differentiated him from the other performers in Mystere or his 
circus teeterboard act, let alone the numerous other entertainers employed by Cirque du Soleil and 
the "Incredibly Odd Circus" company. For example, there is no evidence showing that the 
petitioner's name frequently received top billing in his shows or that their popularity increased when 
he was known to be performing. Accordingly, the documentation submitted by the petitioner does not 
establish that he was responsible for the success or standing of his employers to a degree consistent with 
the meaning of "leading or critical role" and indicative of sustained national or international acclaim. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other signijcantly high 
remuneration for services, in relation to others in the field. 
In response to the director's request for evidence, the petitioner submitted a January 3 1, 2008 letter 
from - Immigration Technician, Resident Shows Division, Cirque du Soleil 
(United States), Inc., stating that the petitioner "currently earns a yearly salary of $50,494.08." 
There is no evidence showing the petitioner's yearly earnings as of the petition's filing date. A 
petitioner, however, must establish eligibility at the time of filing. 8 C.F.R. fjfj 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Cornrnr. 1971). Accordingly, the AAO will not 
consider the petitioner's salary for 2008 in this proceeding. Nevertheless, the plain language of this 
regulatory criterion requires the petitioner to submit evidence showing that he has commanded a 
high salary "in relation to others in the field." The petitioner offers no basis for comparison showing 
that his compensation was significantly high in relation to others in his field. Thus, the petitioner has 
not established that he meets this criterion. 
In this case, we concur with the director's determination that the petitioner has failed to demonstrate 
receipt of a major, internationally recognized award, or that he meets at least three of the criteria that 
must be satisfied to establish the national or international acclaim necessary to qualify as an alien of 
extraordinary ability. 8 C.F.R. fj 204.5(h)(3). The conclusion we reach by considering the evidence 
to meet each criterion separately is consistent with a review of the evidence in the aggregate. Even 
in the aggregate, the evidence does not distinguish the petitioner as one of the small percentage who 
has risen to the very top of the field of endeavor. 8 C.F.R. fj 204.5(h)(2). Further, there is no 
evidence showing that the petitioner's national or international acclaim as an acrobat has been 
sustained. 
 See section 203(b)(l)(A)(i) of the Act, 8 U.S.C. tj 1 153(b)(l)(A)(i), and 8 C.F.R. 
fj 204.5(h)(3). Specifically, the record does not include evidence of his nationally or internationally 
acclaimed achievements and recognition in acrobatics subsequent to the conclusion of his 
competitive career in Belarus in 2001. 
The petitioner submitted documentation showing that he is currently in the United States as a P-1 
nonimmigrant, a visa classification that requires him to perform "with an entertainment group that 
has been recognized internationally as being outstanding in the discipline for a sustained and 
substantial period of time." See section 214(c)(4)(B) of the Act, 8 U.S.C. 5 1184(c)(4)(B). While 
USCIS approved at least one P-1 nonimmigrant visa petition filed on behalf of the petitioner, the prior 
approval does not preclude USCIS from denying an immigrant visa petition based on a different, if 
similarly phrased standard. Each case must decided on a case-by-case basis on the evidence of record. 
It must be noted that many 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D. C. 1 999); Fedin Brothers Co. Ltd. v. 
Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 1-129 
nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are simply 
approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals 
do not preclude USCIS from denying an extension of the original visa based on a reassessment of 
the alien's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593,597 (Comm. 1988). It would be absurd to suggest 
that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1 988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of the alien, the AAO would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
On appeal, counsel argues that the director "erred in applying fundamental standards and burdens of 
proof." Counsel asserts that the correct standard is "preponderance of the evidence," which requires 
only that eligibility be "more likely than not" to be true and cites to INS. v. Cardoza-Fonseca, 480 
U.S. 421 (1987). In that case, the court held that an alien's withholding of deportation required "a 
showing that 'it is more likely than not that the alien would be subject to persecution' in the country 
to which he would be returned." Although the instant case involves the adjudication of an 
employment based immigrant visa petition, not withholding of deportation, we do agree with 
counsel that the correct standard of proof is a preponderance of the evidence. Except where a 
different standard is specified by law, a petitioner or applicant in administrative immigration 
proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit 
sought. See e.g., Matter of Martinez, 2 1 I&N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner 
must prove eligibility by a preponderance of evidence in visa petition proceedings). The 
"preponderance of the evidence" standard, however, does not relieve the petitioner from satisfying 
the basic evidentiary requirements required by the statute and regulations. Therefore, if the statute 
and regulations require specific evidence, the applicant is required to submit that evidence. See 
section 203(b)(l)(A)(i) of the Act, 8 U.S.C. fj 1153(b)(l)(A)(i), and 8 C.F.R. $5 204.5(h)(3) and (4). 
In this case, the documentation submitted by the petitioner failed to demonstrate by a preponderance of 
the evidence that the petitioner has achieved sustained national or international acclaim and that he is 
one of the small percentage who has risen to the very top of the field of endeavor. The specific 
deficiencies in the petitioner's evidence was addressed in our discussion of the regulatory criteria at 8 
C.F.R. 5 204.5(h)(3). 
Section 291 of the Act provides: 
Whenever any person makes application for a visa or any other document required for entry, or 
makes application for admission, or otherwise attempts to enter the United States, the burden of 
proof shall be upon such person to establish that he is eligible to receive such visa or such 
document, or is not inadmissible under any provision of this Act, and, if an alien, that he is 
entitled to the nonimmigrant; immigrant, special immigrant, immediate relative, or refugee 
status claimed, as the case may be. 
The law goes on to assert that the evidence must establish eligibility "to the satisfaction" of the 
adjudicating officer. This burden is confirmed in Matter of Soo Hoo, 1 1 I&N Dec. 15 1 (BIA 1965) 
and Matter of Brantigan, 1 1 I&N Dec. 493 (BIA 1966). 
A petitioner cannot establish eligibility for classification as an alien of extraordinary ability merely 
by submitting evidence that simply relates to at least three regulatory criteria at 8 C.F.R. 
5 204.5(h)(3). Rather, in determining whether a petitioner meets a specific regulatory criterion, the 
evidence itself must be evaluated in terms of whether it meets all of the elements required by that 
criterion and whether the evidence is consistent with sustained national or international acclaim. 
Further, in contrast to INS. v. Cardoza-Fonseca, the benefit sought in the present matter is not the 
type for which documentation is typically unavailable and the statute specifically requires "extensive 
documentation" to establish eligibility. See section 203(b)(l)(A)(i) of the Act. 
 The regulations 
governing the present immigrant visa determination have no requirement mandating that USCIS 
specifically accept the credibility of personal testimony, even if not corroborated. The regulations 
provide that eligibility may be established through a one-time achievement or through 
documentation meeting at least three of ten criteria. 8 C.F.R. 5 204.5(h)(3). The commentary for 
the proposed regulations implementing this statute provide that the "intent of Congress that a very 
high standard be set for aliens of extraordinary ability is reflected in this regulation by requiring the 
petitioner to present more extensive documentation than that required" for lesser classifications. 56 
Fed. Reg. 30703,30704 (July 5, 1991). 
Review of the record does not establish that the petitioner has distinguished himself to such an extent 
that he may be said to have achieved sustained national or international acclaim or to be within the 
small percentage at the very top of his field. The evidence is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field at a national or international 
level. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the 
Act and the petition may not be approved. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
Page 13 
in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka 
v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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.