dismissed EB-1A Case: Acting

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvac} 
PUBLIC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: OFFICE: NEBRASKA SERVICE CENTER FILE: 
JUN 282011 
INRE: 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. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 c.F.R. § 103.5(a)(l)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~
l]WnL 
, erry Rhew 
, hief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, on February 2, 2010, 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)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), as an 
alien of extraordinary ability. The director determined that the petitioner had not established the 
requisite extraordinary ability and failed to submit extensive documentation of his sustained 
national or international acclaim. 
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)(1)(A)(i) of the Act 
and 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, specifically a major, internationally recognized award. Absent the receipt of such 
an award, the regulation outlines ten categories of specific evidence. 8 C.F.R. §§ 204.5(h)(3)(i) 
through (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 claims that the petitioner meets at least three of the regulatory criteria at 8 
C.F.R. § 204.5(h)(3). 
I. 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 
Page 3 
(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 H.R. 723 101 st 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. [d. and 8 c.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her 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, international 
. recognized award) or through the submission of qualifying evidence under at least three of the 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) 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; 
(iii) Published material 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; 
(iv) 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 specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, III 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
Page 4 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (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 evidence submitted to meet a given evidentiary criterion.! 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." Id. 
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)." Id. at 
1122 (citing to 8 c.F.R. § 204.5(h)(3». The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 c.F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. § 1153(b)(1)(A)(i). 
!d. at 1119. 
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 reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
I 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 8 C.F.R. § 204.5(h)(3)(vi). 
Page 5 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on June 4, 2009, seeks to classify the petitioner as an alien with extraordinary 
ability as an actor, voiceover artist, and performer. The petitioner has submitted evidence 
pertaining to the following criteria under 8 C.F.R. § 204.5(h)(3). 2 
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. 
In the director's decision, she found that the petitioner failed to establish eligibility for this 
criterion. A review of the record of proceeding reflects that the petitioner claimed eligibility 
based on membership with the Screen Actors Guild (SAG) and the American Guild of Variety 
Artists (AGV A). 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "[d]ocumentation of 
the alien's membership in associations in the field for which is classification 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. 
Regarding SAG, at the initial filing of the petition, counsel argued that "[b]ecause of [the 
petitioner's] recent appearances/performances under an affiliated performers' union, he was 
offered membership in the [SAG] [emphasis added]." In addition, the petitioner submitted a 
letter, dated February 22, 2008, to the petitioner from who 
stated that "your recent employment under an affiliated performers' union qualifies you for 
membership in [SAG] [emphasis added]," "I strongly encourage you to take this prestigious and 
singular opportunity to become a SAG member [emphasis added]," and "I hope we will soon 
welcome you to [SAG] [emphasis added]." As the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ii) requires "the alien's membership in associations," the petitioner's submission of 
documentary evidence requesting or encouraging the petitioner to become a member of the SAG 
is insufficient to demonstrate that the petitioner is a member of the SAG. 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 6 
The AAO notes that on appeal the petitioner submitted an unsigned letter, dated March 24, 2010, 
from and an undated letter without an original signature from 
the petitioner's application for membership with the 
that will be discussed later in this 
indicated that the petitioner "was recently into the [SAG]." 
regulation at 8 c.F.R. § 103.2(b)(2)(i) provides that the non-existence or unavailability of required 
evidence creates a presumption of ineligibility. According to the same regulation, only where the 
petitioner demonstrates that primary evidence does not exist or cannot be obtained may the 
petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be 
unavailable may the petitioner rely on affidavits. In this case, while the petitioner submitted two 
unsigned letters, the petitioner failed to submit any documentary evidence demonstrating that 
primary evidence and secondary evidence do not exist or cannot be obtained. As such, the 
petitioner failed to comply with the regulation at 8 C.F.R. §103.2(b)(2)(i), and the petitioner 
failed to establish that he is a member of the SAG. Even if the petitioner demonstrated that he is 
a member of the SAG, which he did not, the employment-based petition was filed on June 4, 
2009. Eligibility must be established at the time of filing. The petitioner failed to demonstrate 
that he was a member of the SAG at the time of the original filing of the petition. 8 c.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45,49 (Regl. Commr. 1971). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come 
into being only subsequent to the filing of a petition." Id. at 176. 
Notwithstanding the above, the petitioner submitted screens hots from www.sag.org regarding 
SAG membership requirements. A review of the documentary evidence reflects that in order to 
become eligible for SAG membership, an individual must meet one of the following 
requirements: 
1. Performers may join SAG upon proof of employment. Employment must 
be in a principal or speaking role in a SAG film, videotape, television 
program or commercial. Proof of such employment may be in the form of 
a signed contract, or original pay stubs; 
2. Upon proof of employment as a SAG-covered background player at full 
SAG rates and conditions for a MINIMUM of three work days subsequent 
to March 25, 1990. Employment must be by a company signed to a SAG 
Agreement under which the Producer is required to cover background 
actors. Proof of employment must be in the form of original paystubs or 
payroll printout faxed from the payroll house; or 
3. Performers may join SAG if the applicant is a paid-up member of an 
affiliated performers' union (ACTRA, AEA, AFTRA, AGMA or AGVA) 
for a period of one year and has worked and been paid for at least once as 
a principal performer in that union's jurisdiction. 
Page 7 
The AAO is not persuaded that SAG's membership requirements reflect outstanding 
achievements, as judged by recognized national or international experts in their disciplines or 
fields. In other words, an individual does not obtain SAG membership because recognized 
national or international experts review his past ~d determine that they are 
outstanding achievements. Moreover, based on ~ letter, the petitioner was 
eligible to join the SAG based on his recent employment under an affiliated performers' union 
(item 3). The AAO is also not persuaded that working as a principal performer at least once 
reflects an outstanding achievement. Therefore, the petitioner failed to establish that 
membership with the SAG requires outstanding achievements of its members, as judged by 
recognized national or international experts in their disciplines or fields. 
Regarding AGVA, the petitioner submitted sufficient documentary evidence establishing that he 
has been a member of AGVA since February 2007. The petitioner also submitted screenshots 
from www.agvausa.com reflecting: 
A. If you have been offered an AGV A contract, you will be supplied with an 
AGV A Membership Kit and AGV A Application form which must be 
completed and submitted to AGV A; 
B. If you are working under an AGVA contract in a Right-To-Work State, 
which does not require you to join the union in order to work under 
AGV A contract, you may still be eligible to join; and 
C. If you are not under an AGVA contract and are interested in Jommg 
AGV A, please send a resume of your professional credits and work in the 
variety field to us. 
The documentary evidence submitted by the petitioner fails to reflect that membership with 
AGV A requires outstanding achievements of its members, as judged by recognized national or 
international experts in their disciplines or fields. In fact, regarding items A and B, it appears 
that membership with AGV A is contingent upon working under or having been offered an 
AGV A contract. As AGV A membership is based on contractual employment with AGV A rather 
than outstanding achievements, the record fails to reflect that the petitioner's membership meets 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). Furthermore, the documentary 
evidence submitted by the petitioner fails to demonstrate that membership is judged by 
recognized national or international experts in their disciplines or fields. Regarding item C, the 
screenshot reflects that "[t]he AGVA Membership Committee and AGVA Membership 
Department will be happy to review your professional credits and contact you if you would like 
to be considered for membership." The petitioner failed to demonstrate that "professional 
credits" equate to outstanding achievements. Moreover, the petitioner failed to submit any 
documentary evidence establishing that the AGVA Membership Committee and the AGVA 
Membership Department are comprised of recognized national and international experts in their 
disciplines or fields. Although the petitioner established that he is a member of AGV A, he failed 
Page 8 
to demonstrate that membership with AGV A requires outstanding achievements of its members, 
as judged by recognized national or international experts in their disciplines or fields. 
In addition, for the first time on appeal, counsel claimed that the petitioner "has also been 
sponsored to join the _ [emphasis added]." The petitioner submitted a_ 
Membership Application that was signed and dated by the petitioner on March 24, 2010. 
However, the empl~ased petition was filed on June 4,2009. Clearly, the petitioner was 
not a member of __ at the time of the original filing of the petition. In fact, the 
documentary evidence submitted by the petitioner fails to reflect that the petitioner is currently a 
member of _ as the evidence only reflects a membership application. Again, as the plain 
language of the regulation at 8 c.F.R. § 204.5(h)(3)(ii) requires "the alien's me~ in 
associations," the petitioner's submission of an application for membership within~ is 
insufficient to demonstrate that the petitioner is a member of •••• 
Moreover, the petitioner submitted documentary evidence reflecting that applicants for 
membership within _ must currently work and have at least five years professional 
experience in a creative, technical, executive role directly related to the production of either 
feature films theatrically distributed in the United Kingdom (UK), television programming 
broadcast in the UK, or vides games distributed in the UK. In addition, applicants must be 
deemed to have made a significant contribution to the industry by the relevant Sector Committee 
that considers such factors as: 
1. Credits on productions which are of a recognizably high standard or which 
are considered particularly ground-breaking or innovative; 
11. A large number of significant credits or a long career in the industry; 
111. Nominations for major awards; 
IV. A professional qualification relating to a technical field; and 
v. Membership of a relevant professional guild. 
A significant contribution is not necessarily an outstanding achievement. While items i-iii, 
may reflect outstanding achievements, items iv - v are not. However, the petitioner failed to 
submit any documentary evidence reflecting that the Sector Committee is comprised of 
recognized national or international experts in their disciplines or fields, so as to demonstrate that 
outstanding achievements are judged by recognized national or international experts pursuant to 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). It is the petitioner's burden to 
establish every element of this regulatory criterion. In this case, the petitioner failed to do so. 
Accordingly, the petitioner failed to establish 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 field for which 
Page 9 
classification is sought. Such evidence shall include the title, date, and author of 
the material, and any necessary translation. 
The director found that the petitioner failed to establish eligibility for this criterion. A review of 
the record of proceeding reflects that the petitioner submitted the following documentary 
evidence: 
1. An article entitled, "Mark Takes Opera Lead," unidentified date, 
unidentified author, unidentified source; 
2. An article entitled, "There's Not Much Missing in Misper," unidentified 
date, unidentified source; 
3. An article with a partial title, " ... Made the Transition to _" 
unidentified date, unidentified author, unidentified source; 
4. An article entitled, "Love, Loneliness and Light Opera," March 2000, 
unidentified author, unidentified source; 
5. An article entitled, "Perfect Ten Out of Teen," March 3, 2000, 
unidentified author, The Times; 
6. An article entitled, "The Ideal Clone Exhibition," March 5, 2000, _ 
_ The Observer Review; 
7. An article entitled, "Just a Stage They're Going Through," March 3, 2000, 
The Times; 
8. A screenshot entitled, "A Pleasant, Dutiful Account 
Edwardian Novel," April 10, 2004, 
www.reviewsgate.com; 
9. A television schedule for December 2nd reflecting the showing of Zoe; 
10. An event program for Cinderella; 
11. An event program for Misper; 
12. An event program for Noye's Fludde; 
13. An event program for Zoe; 
14. An event program for The Railway Children; 
Page 10 
15. An event program for Christmas; 
16. A screenshot from www.imdb.com for Zoe; 
17. A screenshot from http://uk.castingcallpro.com reflecting a profile of the 
petitioner; 
18. A screenshot from www.actorsaccess.com reflecting a profile of the 
petitioner; and 
19. A document from 
petitioner. 
reflecting a profile of the 
The plain language of the regulation at 8 c.F.R. § 204.5(h)(3)(iii) requires "[p]ublished material 
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." 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. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers? 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that 
"[s]uch evidence shall include the title, date, and author of the material, and any necessary 
translation." 
Regarding item 1, a review of the article reflects that it is published material about the petitioner 
relating to his work. However, the petitioner failed to include the date and author of the article 
as required pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Moreover, the petitioner 
failed to indicate where the article was published, let alone demonstrate that the article was 
published in a professional or major trade publication or other major media. 
Regarding items 2 - 7, the articles are not about the petitioner; rather they are reviews for shows 
in which he has performed. Although the petitioner is briefly mentioned in the articles as being a 
cast member, the articles are not about the petitioner relating to his work. For example, item 2 
reflects a review for the production of Misper and items 3 - 7 reflect reviews for the production 
of Zoe. Articles that are not about the petitioner do not meet this regulatory criterion. See, e.g., 
Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 7 (D. Nev. Sept. 8,2008) (upholding a finding 
that articles about a show are not about the actor). Furthermore, regarding items 2 - 5, the petitioner 
failed to include the title, date, and/or author of the material, as well as where the articles were 
published for items 2 - 4. In addition, the petitioner failed to submit any documentary evidence 
3 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. 
-Page 11 
establishing that The Observer and The Times are professional or major trade publications or other 
major media. 
Regarding item 8, similar to the above, the screenshot is not about the petitioner relating to his work 
but about a review for the production of The Railway Children. In fact, there is no discussion of the . 
petitioner in the article with the exception as being listed a cast member. Moreover, the petitioner 
failed to submit any documentary evidence demonstrating that www.reviewsgate.comis a 
professional or major trade publication or other major media. The AAO is not persuaded that an 
article posted on the Internet from is automatically considered major media. In today's world, 
many newspapers and media outlets, regardless of size and distribution, post at least some of 
their stories on the Internet. To ignore this reality would be to render the "major media" 
requirement meaningless. However, the AAO is not persuaded that international accessibility by 
itself is a realistic indicator of whether a given website is "major media." 
Regarding item 9, the document simply reflects a television schedule for December 2nd in which 
the production of ·Zoe was aired at 7:20 on _ Clearly, the document is not published 
material about the petitioner relating to his work. Further, the petitioner failed to include the 
title, date, and author, as well as where it was published. 
Regarding items 10 - 15, they reflect event programs for various productions and are not 
reflective of published material about the petitioner relating to his work. In addition, although 
the programs contain short biographies for all of the performers, the petitioner failed to include 
the title, date, and author of the material. Moreover, the petitioner failed to submit any 
documentary evidence establishing that any of the event programs are professional or major 
trade publications or other major media. 
Regarding item 16, the screenshot is regarding the television production of Zoe. There is no 
discussion of the petitioner relating to his work. In fact, the screenshot contains basic production 
information about Zoe including the country, language, and color, as well as the credited cast in 
which the petitioner is listed as playing the character, As the screenshot 
contains no published material about the petitioner relatmg to mcluding the lack of 
title, date, and author, the screenshot fails to meet the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). 
Regarding items 17 - 19, the documentary evidence reflects self-promotional material for the 
petitioner. Clearly, they are not published material about the petitioner relating to his work and 
do not contain the title, date, and author of the material. Merely submitting a curriculum vitae, 
resume, or an autobiography without demonstrating published material about the petitioner 
relating to his work in professional or major trade publications or other major media does not 
meet the plain language of this regulatory criterion. 
The AAO notes here that the director found that "the DVD's submitted, while the Service Center 
is unable to review these records, it does appear they are self made copies." Although counsel 
addresses this issue under the commercial successes criterion pursuant to the regulation at 8 
Page 12 
C.F.R. § 204.5(h)(3)(x), the submission of DVDs reflecting samples of the petitioner's work in 
the field does not meet the plain language of the regulation at 8 c.F.R. § 204.5(h)(3)(iii). Again, 
this regulatory criterion requires "published material" in professional or major trade publications 
or other major media. As DVDs are not published material in professional or major trade 
publications or other major media, they clearly do not meet the plain language of this regulatory 
criterion. 
As discussed above, the petitioner only submitted one article, item 1, that reflected published 
material about him relating to his work. However, the petitioner failed to include the title, date, 
and author of the material, and the petitioner failed to demonstrate that it was published in a 
professional or major trade publication or other major media. Even if the petitioner were to 
submit supporting documentary evidence showing that he meets the elements of this criterion, 
which he has not, section 203 (b)( 1 )(A)(i) of the Act requires the submission of extensive evidence. 
Consistent with that statutory requirement, the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii) requires published material in more than one professional or major trade 
publication or other major media. Significantly, not all of the criteria at 8 c.F.R. § 204.5(h)(3) are 
worded in the plural. Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only 
require service on a single judging panel or a single high salary. When a regulatory criterion wishes 
to include the singular within the plural, it expressly does so as when it states at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." Thus, the AAO 
can infer that the plural in the remaining regulatory criteria has meaning. In a different context, 
federal courts have upheld USCIS' ability to interpret significance from whether the singular or 
plural is used in a regulation.4 
Accordingly, the petitioner failed to establish that he meets this criterion. 
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. 
The director determined that although the petitioner initially submitted documentary evidence 
reflecting that he served as a judge, the petitioner failed to respond to the director's request for 
additional evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8) requesting that the 
petitioner submit "[d]ocumentary evidence to establish how the [petitioner's] participation is 
uncommon or otherwise noteworthy relative to others who participate in similar activities." 
The plain language of the regulation at 8 c.F.R. § 204.5(h)(3)(iv) requires "[e]vidence 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." Pursuant to Kazarian, 596 F.3d at 
4 See Maramjaya v. USc/S, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. 
Chertoff, 2006 WL 3491005 at * 10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory 
requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 c.F.R. § 204.5(1)(2) requires a single 
degree rather than a combination of academic credentials). 
Page 13 
1121-22, the record of proceeding reflects that the petitioner submitted sufficient documentation 
establishing that he meets the plain language of the regulation at 8 c.F.R. § 204.5(h)(3)(iv). 
Therefore, the AAO withdraws the findings of the director for this criterion. 
Accordingly, the petitioner established that he meets the plain language of the regulation for this 
criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
In the director's decision, she found that the petitioner failed to establish eligibility for this 
criterion. On appeal, counsel argues that "[t]he documentation submitted clearly indicate[s] that 
the petitioner's work has been highly acclaimed, and unusually influential." 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." In compliance with Kazarian, the AAO must focus on the plain 
language of the regulatory criteria. 596 F.3d at 1121. Here, the evidence must be reviewed to see 
whether it rises to the level of original artistic-related contributions "of major significance in the 
field." 
A review of the record of proceeding reflects that the petitioner claimed eligibility for this 
criterion based entirely on recommendation letters. While the recommendation letters praise the 
petitioner for his work and indicate his original contributions to the field based on his 
performances in various productions, they fail to indicate that his contributions are of major 
significance in the field. The letters provide only general statements without offering any 
specific information to establish how the petitioner's work has been of major significance. In 
fact, the letters briefly highlight the petitioner's roles and performances without indicating the 
significance of his work in the field, let alone its major significance. For example: 
stated: 
Since arriving in LA, [the petitioner] has become the talented voice over for 
in all their corporate training videos utilizing both his native British 
accent and his perfected American accent. He has starred in the 
webisodes for the horror movie 
performed as a bloodthirsty 
failed to indicate how the petitioner's voiceover work for training 
videos has influenced the field as whole rather than being limited to Moreover, 
failed to explain the significance of the petitioner's work in_ and ••• 
in the field, so as to establish that the petitioner has made original contributions of major 
significance in the field. 
Page 14 
stated: 
[The petitioner] is a 
credits range from 
failed to explain the impact of the petitioner's roles in 
and _ on the field as a whole instead being limited to the 
productions in which he has performed. It is insufficient to meet the plain language of the 
regulation based on recommendation letters that merely highlight the roles and productions of 
the petitioner without demonstrating that the petitioner has made original contributions of major 
significance in the field. 
stated: 
[The petitioner's] credits 
production of "Cabaret" 
UK; to the fatherly figure 
"J -World". 
[The petitioner] also performed as 
orchestrated by the famous 
performed by the 
[The petitioner] took the 
an opera performed at 
performed in the warm up act for 
Birmingham, England. 
"Dido and Aeneas" 
and 
in the production of "Mis per" , 
[The petitioner] also 
ack in the World Tour' in 
Once again, simply highlighted the petitioner's characters in productions 
without establishing how the petitioner's performances are considered original contributions of 
major significance in the field pursuant to the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v). failed to provide any information regarding the petitioner's 
work in Cabaret, J-World, Dido and Aeneas, Misper, and Back in the World Tour beyond that he 
performed in the productions. 
stated: 
Page 15 
HH.JUI",H out his career [the petitioner] has performed in such shows as 'Pravda' 
by in which he stared [sic] in lead role of ; The 
smash musical 'Chess' written by 
~~erformed at the 
_ 'Noye's Fludde' in which he performed 
convinced everyone to get on the Arc before the flood <lrTn,p'" 
I have also had the pleasure to see [the petitioner] perform in the lead role of 
in the play _ originally penned by the world famous Irish 
Although listed the petitioner's roles in Pravda, Chess, Noye's Fludde, and Dracula, 
he failed to point out how the petitioner's performances have significantly impacted or 
influenced the field as whole. Simply submitting recommendation letters that list the petitioner's 
characters and productions does not demonstrate that he has made original contributions of major 
significance in the field consistent with the plain language of this regulatory criterion. 
stated: 
[The petitioner] has performed a wide variety of roles, regarding from the_ 
in the Opera 'Dido and Aeneas' orchestrated by the famous 
to the innocent and humbl_ from 
'Into the Woods' . 
[The petitioner] was easily able to portray the bitter and twisted role of_ 
without a doubt an extremely physically challenging role for any actor, in the 
. He also appeared 
indicated the petitioner's roles in Dido and Aeneas, Into the Woods, The 
Tempest, and Romeo and Juliet, but he did not elaborate on the importance of the petitioner's 
roles in the field, so as to establish that they were of major significance. failed to 
provide any information detailing the effect of the petitioner's work in the field. 
While the authors of the letters described the petitioner as "talented," none of the letters indicated 
how the petitioner's skills or personal traits are original contributions of major significance to the 
field. Merely having a diverse skill set is not a contribution of major significance in and of itself. 
Rather, the record must be supported by evidence that the petitioner has already used those 
unique skills to impact the field at a significant level in an original way. Furthermore, assuming 
the petitioner's skills are unique, the classification sought was not designed merely to alleviate 
skill shortages in a given field. In fact, that issue properly falls under the jurisdiction of the 
Department of Labor through the alien employment labor certification process. See Matter of 
New York State Dep't. of Transp. , 22 I&N Dec. 215, 221 (Comm'r. 1998). 
Page 16 
The authors of the recommendation letters summarized the petitioner's roles in which he has 
performed in various productions without indicating any original contributions of major 
significance in the field. In addition, although the authors described the petitioner as 
"extraordinary," there is insufficient documentary evidence demonstrating that the petitioner's 
work is of major significance. This regulatory criterion not only requires the petitioner to make 
original contributions, the regulatory criterion also requires those contributions to be significant. 
The AAO is not persuaded by vague, solicited letters that simply repeat the regulatory language 
but do not explain how the petitioner's contributions have been of major significance in the field. 
Merely repeating the language of the statute or regulations does not satisfy the petitioner's 
burden of proof. 5 The lack of supporting evidence gives the AAO no basis to gauge the 
significance of the petitioner's present contributions. 
Moreover, USCIS may, in its discretion, use as advisory opinion statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, 
USCIS is ultimately responsible for making the final determination regarding an alien's 
eligibility for the benefit sought. Id. The submission of letters of support from the petitioner's 
personal contacts is not presumptive evidence of eligibility; USCIS may evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795; see also Matter of 
V-K-, 24 I&N Dec. 500, n.2 (BIA 2008). Thus, the content of the writers' statements and how 
they became aware of the petitioner's reputation are important considerations. Even when 
written by independent experts, letters solicited by an alien in support of an immigration petition 
are of less weight than preexisting, independent evidence of original contributions of major 
significance. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of 
major significance in the field [emphasis added]." The AAO must presume that the phrase 
"major significance" is not superfluous and, thus, that it has some meaning. Without additional, 
specific evidence showing that the petitioner's work has been unusually influential, or has 
otherwise risen to the level of contributions of major significance, the AAO cannot conclude that 
he meets this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
In the director's decision, she concluded that the petitioner failed to establish eligibility for this 
criterion. In counsel's brief on appeal, he did not contest the decision of the director or offer 
additional arguments. The AAO, therefore, considers this issue to be abandoned and will not 
5 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1lO3, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
further discuss this criterion on appeal. See Sepulveda v. u.s. Att'y Gen., 401 F.3d 1226, 1228 
n. 2 (llth Cir. 2005). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has peiformed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The director found that the petitioner failed to establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the alien has 
performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." In general, a leading role is evidenced from the role itself, and a 
critical role is one in which the alien was responsible for the success or standing of the 
organization or establishment. 
At the time of the initial filing of the petition, counsel argued that the petitioner "performed in 
leading and critical roles for reputable studios and television networks" and "his work were [sic] 
exhibited in world-renowned theaters and were [sic] shown in movie theaters and national 
television." As the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires that the leading or critical 
role be for "organizations or establishments that have a distinguished reputation," the venues 
where the petitioner's performances took place do not meet the plain language of the regulation. 
Instead, the petitioner must demonstrate that he performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation. Counsel referred to the 
following submitted recommendation letters: 
stated: 
'tioner] moulded [sic] and helped create the original Lead role 0_ 
in the 'Zoe' performed at the internationally acclaimed 
which was founded in 1934 and host to such 
Zoe was later up, UU'"'IJL",U 
UK who kept the original cast including [the petitioner]. 
He has performed in the hit musical 
_ •••••••••• performed 
petitioner] has performed as the loveable character in the 
production the festive Christmas season. He has also 
performed' 
indicated that the petitioner performed in a leading role for _for the 
and The AAO notes that the petitioner submitted sufficient 
supporting documentation demonstrating that the petitioner performed in a leading or critical role 
for both productions of Zoe, However, the petitioner failed to submit any documentary evidence 
Page 18 
establishing that have distinguished reputations. 
Furthermore, while petitioner performed in Guys and 
Dolls, Cinderella, and The Tempest, her letter makes no reference that the petitioner's roles were 
leading or critical. A review of the event program for Cinderella fails to reflect that the 
petitioner was featured on the cover, compared to the other performers in Cinderella, so as to 
reflect a leading or critical role. Although the petitioner is listed as a cast member, there is no 
evidence distinguishing the petitioner from the other performers establishing that his role was 
leading or critical. The AAO also notes that the record of proceeding contains no supporting 
evidence for the petitioner's performances in Guys and Dolls and The Tempest. Finally, the 
petitioner failed to submit any documentary evidence establishing that Guys and Dolls, 
Cinderella, and The Tempest are "organizations or establishments," let alone organizations or 
establishments that have a distinguished reputation. 
stated: 
of directing [the petitioner] in his performance of_ 
in which he played the lead role 
He also starred in 
.~~~ .. " ... role of 
originall y performed by [the petitioner] at the intemationall y renowned 
UK. [The petitioner] has also with the 
[sic] an famous 
ballet 'Romeo and Juliet'. He has played in the 
Shakespearean play 'Loves labours lost' directed by which 
was also performed at the and he has as the 
child role of aSSlC 'The Railway Children' at 
the 
stated that the petitioner had a lead role in his directing of 
to indicate that the petitioner performed in a leading or critical role for 
Romeo and Juliet, Loves Labours Lost, and The Railway Children. The record of proceeding 
contains the event program for The Railway Children. However, the petitioner is simply listed as 
a cast member, and there is no evidence that he performed in a leading or critical role. 
Furthermore, the record of proceeding fails to contain any supporting documentation regarding 
the petitioner's performances in Romeo and Juliet and Loves Labours Lost. Moreover, the 
petitioner failed to establish that the specific productions in which the petitioner performed in 
••••••••• Romeo and Juliet, Loves Labours Lost, and The Railway Children are 
organizations or establishments, let alone organizations or establishments that have a 
distinguished reputation. 
stated: 
[The petitioner's] credits include Acting with the 
their rendition famous 'Swan 
in 
III 
Page 19 
opera 'Noye's Fludde' and 
musical 'Guys and Dolls' as performed at 
in the hit_ 
He has also voice acted for an internet learning programme called 'J-World' in 
which he transformed and dis· his voice to portray several lead characters 
and 
Similar to the above letters, merely indicated that the petitioner performed in Swan 
Lake, Noye's Fludde, and Guys and Dolls without demonstrating that he performed in leading or 
critical roles. While the record of proceeding contains the event program for Noye's Fludde, a 
review of the event program only lists the petitioner as cast member and is not indicative of a 
leading or critical role. The AAO notes that the record of proceeding fails to contain any 
supporting documentation for Swan Lake demonstrating the role of the petitioner, so as to 
establish that his role was leading or critical. In addition, the petitioner failed to submit any 
documentary evidence establishing that the specific productions in which the petitioner 
performed in Swan Lake, Noye's Fludde, and Guys and Dolls are organizations or 
establishments, let alone organizations or establishments that have a distinguished reputation. 
Finally, while it appears that the petitioner performed in a leading role for J-World, the petitioner 
failed to submit any documentary evidence establishing that J-World is an organization or 
establishment, let alone an organization or establishment that has a distinguished reputation. 
stated: 
[The petitioner] has worked continuously as a performer since he moved to LA. 
He has been a cheeky young British man in a comedy spoof of 
"Pride and Prejudice", a nasty American V 's hit Series "Tru 
Blood" and the multitude of character voices training videos. 
only indicated that the petitioner performed in Pride and Prejudice, Tru Blood, 
training videos without demonstrating that he performed in leading or critical 
roles. notes that the record of proceeding fails to contain any supporting 
documentation of the petitioner's performance in Pride and Prejudice. Regardless, the petitioner 
failed to submit any documentary evidence establishing that the specific production in which the 
petitioner performed in Pride and Prejudice is an organization or establishment, let alone an 
organization or establishment that has a distinguished reputation. 
stated: 
[The petitioner] has worked with some of the entertainment industries biggest 
companies including 
This impressive resume alone puts him in the top 5% 
in the U.S. 
only indicated that the petitioner "worked" for 
but failed to state that the petitioner performed in a leading 
or critical role to the organizations or establishments as whole rather than limited productions 
within the organizations. Merely submitting a letter indicating that the petitioner worked for 
major companies without documentary evidence demonstrating that the petitioner performed in a 
leading or critical is insufficient to meet the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii). The lack of detailed information gives the AAO no basis to gauge the roles 
of the petitioner for the organizations. 
_stated: 
I have had the pleasure of working with [the petitioner] on the 
"The Ruins" where he played the 
stones which lead up to the release of the Hit Feature of 
[The petitioner] was such a pleasure to work with and had a 110% professional 
attitude that we ~m back to perform as a . drained for 
his blood in the _ TV show "Tru Blood." 
_ indicated that the petitioner played the lead role in the webisode story version of The 
Ruins. Although the petitioner failed to submit any supporting documentation, the petitioner 
failed to establish that playing a lead role in a webisode story version reflects a leading or critical 
role for as a whole. Moreover, while _ indicated that the 
petitioner performed in Tru Blood fo~ there is no indication that the petitioner's role was 
leading or critical compared to the other performers for the series, as well as for _ 
Although the majority of the petitioner's letter indicate that the petitioner performed in various 
productions, the letters fail to reflect that the petitioner performed in a leading or critical role. 
Moreover, while the record of proceeding reflects that the petitioner has performed in leading or 
critical roles in some productions, the petitioner failed to submit any documentary evidence 
demonstrating that his leading or critical roles were for organizations or establishments that have 
a distinguished reputation. 
In response to the director's request for additional evidence, the petitioner also submitted three 
appreciation letters regarding the petitioner's participation at 
for 
However, the last two letters appear to reflect events occurring 
after the filing of the petition. Eligibility must be established at the time of filing. 8 c.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of facts. Matter of [zummi, 22 
I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 
114, that USCIS cannot "consider facts that come into being only subsequent to the filing of a 
petition." [d. at 176. Regardless, all of the letters thank the petitioner for participating at the 
Page 21 
one-time events on behalf of the organizations. However, there is no indication that the 
or critical role for the 
rather than limited to engagement. 
not 
have a 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence 
that the alien has performed in a leading or critical role for organizations or establishments that 
have a distinguished reputation." It is the petitioner's burden to establish every element of this 
regulatory criterion. In this case, the petitioner failed to do so. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of commercial successes in the peiforming arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
A review of the record of proceeding fails to reflect that the petitioner claimed eligibility for this 
criterion at the time of the original filing of the petition or in response to the director's request 
for additional evidence. However, on appeal, counsel is now claiming the petitioner's eligibility 
for this criterion. As such, the director could not have erred in her decision as the petitioner is 
only claiming eligibility for this criterion for the first time on appeal. 
On appeal, counsel argues that the petitioner's submission of three DVDs reflecting samples of the 
petitioner's work establishes his eligibility for this criterion. Specifically, the petitioner submitted 
samples for Zoe, Shoeperstars, and Busdriver "Me Time." The plain language of the regulation at 8 
c.F.R. § 204.5(h)(3)(x) requires "[e]vidence of commercial successes in the performing arts, as 
shown by box office receipts or record, cassette, compact disk, or video sales [emphasis added]." 
As this regulatory criterion requires evidence of commercial successes in the form of "box office 
receipts" or "sales," the petitioner's submission of DVDs reflecting his performances do not meet 
the plain language of this regulatory criterion. While counsel argued on appeal that "[a]lthough 
the DVDs were only released on TV, MTV and the internet, they were seen by millions," 
counsel failed to submit any documentary evidence supporting his assertions. The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any 
evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). Regardless, the 
record of proceeding fails to reflect any commercial successes in the form of receipts or sales of 
the petitioner's work. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Page 22 
B. Final Merits Determination 
In accordance with the Kazarian OpInlOn, the AAO must next conduct 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[ir] field of endeavor," 8 c.F.R. § 204.5(h)(2); 
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." See section 203(b)(1)(A)(i) of the 
Act, 8 U.S.c. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1115. The petitioner established that he met the plain language of the regulation for one of the 
criteria, in which at least three are required under the regulation at 8 c.F.R. § 204.5(h)(3). In this 
case, many of the deficiencies in the documentation submitted by the petitioner have already 
been addressed in the preceding discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating the final merits determination, the AAO must look at the totality of the evidence to 
conclude the petitioner's eligibility pursuant to section 203(b)(1)(A) of the Act. In this case, the 
petitioner has demonstrated that he has performed in his field as an actor and voiceover artist. 
However, the accomplishments of the petitioner fall far short of establishing that he "is one of that 
small percentage who have risen to the very top of the field of endeavor" and that he "has 
sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise." See 8 c.F.R. § 204.5(h)(2), section 203(b)(1)(A)(i) of the 
Act, 8 U.S.c. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
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." The 
weight given to evidence submitted to fulfill the criteria at 8 c.F.R. § 204.5(h)(3), 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. § 204.5(h)(2). 
Although the AAO found that the petitioner met the judging criterion pursuant to the regulation 
at 8 c.F.R. § 204.5(h)(3)(iv), an evaluation of the significance of the petitioner's judging 
experience is sanctioned under Kazarian, 596 F. 3d at 1121-11 to determine if such evidence is 
indicative of the extraordinary ability required for this highly restrictive classification. The 
petitioner submitted a letter from _ who thanked the petitioner for his participation as a 
judge of "young actors" at the It is noted that the 
petitioner also submitted a letter from for 
who stated that the petitioner "judg[ ed] the potential of prospective actors and 
actresses during our hiring process which resulted in the hiring of the most qualified applicants." 
The documentary evidence reflects that the petitioner's claimed achievements as the judge of the 
work of others involved judging the work of young, inexperienced and prospective actors. The 
Page 23 
petitioner failed to submit evidence demonstrating that he judged acclaimed actors rather than 
students and up-and-coming actors. Cj, Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 
1994); 56 Fed. Reg. at 60899 (USCIS has long held that even athletes performing at the major 
league level do not automatically meet the "extraordinary ability" standard). Without evidence 
pre-dating the filing of the petition that sets the petitioner apart from others in his field, such as 
evidence that he has judged acclaimed actors in the field rather than his minimal participation as a 
judge of young and potential actors, the AAO cannot conclude that the petitioner is among that 
small percentage who has risen to the very top of the field of endeavor. See 8 c.F.R. 
§ 204.5(h)(2). 
Moreover, the AAO cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of his sustained national or international acclaim. See section 203(b)(1)(A) of 
the Act. The commentary for the proposed regulations implementing section 203(b )(1 )(A)(i) of the 
Act 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). Although the AAO found that the petitioner failed to meet the membership criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), the petitioner based his eligibility on 
membership with SAG and BAFT A without submitting documentary evidence establishing that 
he was a member at the time of the initial filing of the petition. Further, while the AAO found 
that the petitioner did not meet the commercial successes criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(x), the petitioner claimed eligibility without offering any evidence of the 
regulatory requirement of box office receipts or sales. Moreover, the petitioner failed to meet the 
regulatory requirement of including the title, date, andlor author of the material, as well as 
demonstrating that the material was published in professional or major trade publications or 
other major media, for the published material criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). The AAO is not persuaded that such evidence that fails to comply with the 
basic regulatory requirements equates to "extensive documentation" and is demonstrative of this 
highly restrictive classification. The truth is to be determined not by the quantity of evidence 
alone but by its quality. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) citing Matter of E­
M- 20 I&N Dec. 77, 80 (Comm'r. 1989). 
In addition, while the AAO found that the petitioner failed to meet the published material 
criterion, the petitioner only submitted one article that was published material about him relating 
to his work but failed to establish that it was published in a professional or major trade 
publication or other major media. It is noted that while the petitioner failed to include the date of 
the article, it indicated that the petitioner was 19 years old. As such, the article was published 
approximately 10 years prior to the filing of the petition. The AAO is not persuaded that a single 
article published 10 years prior to the filing of the petition is reflective of the sustained national 
or international acclaim for this highly restrictive classification. As the petitioner'S field often 
receives media coverage, the petitioner's single article is not consistent with "that small 
percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). It is 
further noted that the last article that was about the productions in which the petitioner performed 
was in 2004, approximately five years prior to the initial filing of the petition. 
Page 24 
Furthermore, while the AAO found that the petitioner failed to meet the original contributions 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v) and the leading or critical role 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii), the petitioner based his claims 
of eligibility almost entirely on recommendation letters. It must be emphasized that the 
favorable opinions of experts in the field, while not without evidentiary weight, are not a solid 
basis for a successful extraordinary ability claim. Again, USCIS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Matter of Caron International, 
19 I&N Dec. at 795. However, USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters 
from individuals, especially when they are colleagues of the petitioner without any prior 
knowledge of the petitioner's work, supporting the petition is not presumptive evidence of 
eligibility; USCIS may evaluate the content of those letters as to whether they support the alien's 
eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N Dec. at 500, n.2. Again, 
regarding the original contributions criterion, none of the letters submitted on behalf of the 
petitioner reflect any original contributions of major significance made by the petitioner. 
Furthermore, regarding the leading or critical role criterion, while the petitioner established that 
he has performed in leading or critical roles in such performances such as Zoe, the petitioner 
failed to establish that he performed for organizations or establishments that have a distinguished 
reputation. 
In this matter, the evidence of record falls short of demonstrating the petitioner's sustained 
national or international acclaim as an actor, voiceover artist, and performer. The regulation at 8 
C.F.R. § 204.5(h)(3) requires "[a] petition for an alien of extraordinary ability must be 
accompanied by evidence that the alien has sustained national or international acclaim and this 
his or her achievements have been recognized in the field of expertise." While the petitioner 
submitted documentation demonstrating that he performed in various productions, mainly at the 
youth level, the petitioner failed to submit any documentation establishing that his performances 
are of such a caliber that they are consistent with or indicative of sustained national or 
international acclaim. For example, the petitioner failed to submit documentation demonstrating 
that his performances garnered any critical acclaim or favorable press reviews or otherwise drew 
a significant level of attendance compared to other performances in a manner consistent with 
sustained national or international acclaim. 
The conclusion the AAO reaches by considering the evidence to meet each category of evidence 
at 8 C.F.R. § 204.5(h)(3) separately is consistent with a review of the evidence in the aggregate. 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of that small 
percentage who has risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The 
petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top at some 
unspecified future time. In this case, the petitioner has not established his achievements at the 
time of filing the petition were commensurate with sustained national or international acclaim, or 
that he was among that small percentage at the very top of the field of endeavor. 
Page 25 
111.0-1 Nonimmigrant Admission 
The AAO notes that at the time of the filing of the petition, the petitioner was last admitted to the 
United States on January 6, 2009, as an 0-1 nonimmigrant visa petition for an alien of 
extraordinary ability in the arts. Although the words "extraordinary ability" are used in the Act for 
classification of artists under both the nonimmigrant 0-1 and the first preference employment-based 
immigrant categories, the statute and regulations define the term differently for each classification. 
Section 101(a)(46) of the Act states that "[t]he term 'extraordinary ability' means, for purposes of 
section 101(a)(15)(O)(i), in the case of the arts, distinction." The 0-1 regulation reiterates that 
"[e]xtraordinary ability in the field of arts means distinction." 8 C.F.R. § 214.2(0)(3)(ii). 
"Distinction" is a lower standard than that required for the immigrant classification, which defines 
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 
evidentiary criteria for these two classifications also differ in several respects, for example, 
nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 8 C.F.R. 
§ 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of nationally or 
internationally recognized awards or prizes. 8 c.F.R. § 204.5(h)(3)(i). Given the clear statutory and 
regulatory distinction between these two classifications, the petitioner's receipt of 0-1 
nonimmigrant classification is not evidence of his eligibility for immigrant classification as an alien 
with extraordinary ability. Further, the AAO does not find that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each case must decided on a case-by-case basis 
upon review of 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); IKE A US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); 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, 191&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 (1988). 
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.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Page 26 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO 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 at 1043, 
aifd, 345 F.3d at 683; see also Soltane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
IV. Conclusion 
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 and 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)(1)(A) of the Act, and the petition may not be approved. 
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.