dismissed EB-1A Case: Acting

U.S. Department of flomeland Security 
U.S. Citizenship and Immigration Services 
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Wasl~lngton, DC 20529-2090 
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FILE: - Office: TEXAS SERVICE CENTER Date: yy\y 0 4 2069 
SRC 06 239 52578 
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. 4 1153(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. 
tj 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. 
5 103.5(a)(l)(i). 
u 
Shn F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center. The petition 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 1153(b)(l)(A), as an 
alien of extraordinary ability in the arts. The director determined the petitioner had not 
established the sustained national or international acclaim necessary to qualify for classification 
as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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 to the United States will substantially benefit 
prospectively the United States. 
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 has risen to the very top of the field of 
endeavor. 8 C.F.R. 5 204.5(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. 4 204.5(h)(3). The relevant criteria 
will be addressed below. It should be reiterated, however, that the petitioner must show that she 
has sustained national or international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as an 
actress/publicist. The regulation at 8 C.F.R. 5 204.5(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. 
The petitioner did not claim that she meets any particular criterion. However, she submitted 
documentation that presumably is relevant to the following criteria: 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
In his December 28,2006 letter accompanying the petitioner's response to the director's October 
3, 2006 request for evidence, counsel acknowledged that the petitioner had not received any 
internationally recognized awards. The petitioner submitted documentation that she had received 
an award from the Univision Television Network for winning the 2004 "Miss Curvilinea" 
contest for "the best body of women appearing on" the television program "Sabado Gigante." 
The petitioner submitted a copy of a page from the website of CBS News, accessed on December 
28, 2006, which reports that Sabado Gigante (Giant Saturday), in its 44th year "is the longest 
running weekly entertainment program on television, in any country, any language." The article 
reports that "the variety show reaches more than 40 countries and 100 million viewers." 
However, the petitioner submitted no documentation that this award is a nationally recognized 
award for excellence in the field of acting or as a publicist. 
The petitioner also submitted documentation indicating that she had received two awards from 
Montclair State University in 2004 and 2006. The documentation indicates that the first award 
was from the Spanish-Italian Department for visiting the school and answering questions from 
students. The second was for appearing in a play presented by the Hispanic Theater Guild and 
Belen Jesuit Preparatory School. The documentation does not establish that either is a nationally 
recognized award for excellence in the petitioner's field of endeavor. 
In his August 2, 2006 letter forwarding the petition, counsel stated that the petitioner was 
submitting a certificate from the theatrical group "Thalia," recognizing her as the Best Young 
Actress of the Year 2001. However, the record does not contain a copy of this certificate. 
Additionally, in his December 28, 2006 letter, counsel stated that the petitioner had received "an 
award from the NBC/Telemundo network [from] the program 'Nitido' because of her figure." In 
a November 14, 2006 letter, Gabriel Samra, the producer of the Nitido Show, stated that the 
petitioner was picked by the show's audience as one of the "sexiest FIGURAS NITADAS of our 
show." Photographs show the petitioner holding a statue with a plaque reading "Sabado Gigante 
Intemacional 'Miss Curvilinea' 2004." However, the record contains no evidence indicating how 
many potential recipients there were or whether the award is a weekly, monthly or yearly award. 
Additionally, nothing in the record indicates that either the Best Young Actress of the Year 
award or any award from the Nitido Show is nationally or internationally recognized as an award 
of excellence in the petitioner's field of acting or as a publicist. 
The record does not establish that the petitioner meets this criterion. 
Page 4 
Published materials about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the Jield for which classification is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In order to meet this criterion, published materials must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
The petitioner submitted copies of numerous articles from various publications. However, while 
most are accompanied by translations, the translations do not meet the requirements of the 
regulation at 8 C.F.R. $ 103.2(b)(3) in that the translator is not identified, did not certify that the 
translations were complete and accurate, and did not certify that he or she is competent to 
translate from Spanish into English. Additionally, some of the articles appear to be partial 
translations. The regulation requires that documents submitted in a foreign language must be 
accompanied by a full English translation. Because the petitioner failed to submit certified and 
translations of the documents, the AAO cannot determine whether they support the petitioner's 
claims. Accordingly, the documents are not probative and will not be accorded any weight in this 
proceeding. 
The petitioner submitted a copy of an article from the April 27, 2005 edition of The Miami 
Herald about "Moon Over Buffalo," a play in which she appeared. However, the article 
discusses the play and is not primarily about the petitioner or her work. 
On appeal, counsel asserts that the director "failed to adequately review the fact that the 
beneficiary appears in a multitude of national and international magazines," and that "[wlith the 
advent of the Internet she also is found on various websites, including that of NBC Telemundo." 
The petitioner submits several articles reprinted on the Internet that have been translated by using 
the Google translation services. However, these translations do not comply with the provisions of 
the regulation, which require that documents submitted in a foreign language must identify the 
translator, the translator must certify that the translation is complete and accurate, and that he or 
she is competent to translate fiom the foreign language into English. Id. 
The petitioner also submits copies of pages fiom the website YouTube, showing a list of videos 
about the petitioner that appears on the website, a copy of the petitioner's "Myspace" page, and 
copies of pages from the websites of wireimage and rnhpixs. The latter pages contain 
photographs of the petitioner and are not articles about the petitioner or her work. The petitioner 
also submits documentation including copies of website pages, including one from her own site. 
However, none of these documents are accompanied by an English translation as required by the 
regulation at 8 C.F.R. $ 103.2(b)(3). 
Further, the fact that some of the petitioner's videos or other information is available on the 
websites YouTube and Myspace is not persuasive. The Internet in general, and YouTube and 
MySpace in particular, are arenas available for posting by any user with access to a computer 
regardless of notoriety or recognition of the persons portrayed in the online postings. To ignore 
this reality would be to render the "major media" requirement in the regulation at 8 C.F.R. 
5 204.5(h)(3)(iii) meaningless. We are not persuaded that international accessibility on the 
Internet by itself is a realistic indicator of whether a given website constitutes "major media" 
published material. Moreover, the underlying purpose of this criterion is to demonstrate that 
major media distributors consider the alien and his work worthy of coverage. Accessibility on a 
site that allows anyone to upload their own videos, including amateur videos, does not carry the 
evidentiary weight of independent journalistic coverage in the major media. 
The petitioner has not demonstrated that YouTube or MySpace, undeniably popular websites but 
ultimately ones where anyone with a computer can upload their videos,' constitutes major media 
coverage about an individual artist whose work appears on the site. 
The evidence submitted by the petitioner does not establish that the petitioner meets this 
criterion. 
Evidence of the alien's original scientzfic, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in the field. 
Counsel asserts that the petitioner meets this criterion based on her appearances in soap operas 
"aired throughout Latin America." The petitioner submitted no documentation to establish that 
her appearances in these programs constituted a contribution of major significance to the field of 
acting. The evidence does not establish that the petitioner meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
Counsel asserts that the petitioner meets this criterion based on her appearances in the soap 
operas previously mentioned. The plain language of this criterion indicates it is intended for 
those in the visual arts such as sculptors and painters. The petitioner submitted no documentation 
to indicate that her work as an actress was the primary focus of any exhibition or showcased in 
any forum that specifically featured her work. 
The evidence does not establish that the petitioner meets this criterion. 
' YouTube was founded in 2005 as an Internet site where "people can easily upload and share video clips." See 
www.youtube.comitiabout, accessed on March 17, 2009 and incorporated into the record. MySpace is a popular 
social networking site, where members post information about themselves that they wish to share with others. See 
www.myspace.comiModules'?Comon?PaesBTemsCoiditions.aspx, accessed on March 17, 2009, a copy of 
which is incorporated into the record. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that she performed a leading or critical role for 
an organization or establishment and that the organization or establishment has a distinguished 
reputation. 
Counsel asserts that the petitioner's appearances in the aforementioned soap operas, which 
appeared on the Univision and NBCITelemundo networks, also show that she meets this 
criterion. However, the petitioner submitted no documentation to establish that the soap operas in 
which she appeared were organizations or establishments with distinguished reputations or that 
her roles in these soap operas were in leading or critical roles. 
The evidence submitted does not establish that the petitioner meets this criterion. 
Evidence that the alien has commanded a high salary or other signzjcantly high 
remuneration for services, in relation to others in the field. 
The petitioner submitted a copy of an October 27, 2006 letter between herself and Telemundo- 
RTI Productions, LLC, for her appearance in the "telenovela 'Dame Chocolate."' The letter 
indicated that she was to be compensated at the rate of $3,000 per month. The petitioner also 
submitted a copy of a contract between herself and Angel Talent & Entertainment, Inc., 
authorizing the company to act as the petitioner's representative, and copies of three invoices 
billed by the agency on her behalf for appearances. Two of the invoices, dated June 20,2006 and 
September 20, 2006, indicate that the petitioner was to be paid $1,500 for her appearance on the 
show "Desiciones." The third showed that the company billed Fonovideo Productions $2,100 for 
seven appearances ($300 per appearance) on Las Dos Caras de Ana. The petitioner, however, 
submitted no documentation to establish that this compensation was high relative to others in 
acting. 
On appeal, counsel asserts: 
The mere fact that [the petitioner] makes $3000 for one soap opera is not 
indicative of her not demanding a high salary. She is under contract by the NBC 
Telemundo network for this soap opera, but she works on other projects for the 
same network. Evidence of this has been submitted and this evidence establishes 
that the beneficiary can make anywhere from $6000-$10000 per month between 
her work on the soap opera and appearances on a program called "Decisiones" 
("Decision") as well as other appearances. 
Nonetheless, the petitioner failed to submit documentation to establish that her salary is high 
compared to other actors. Further, the mere speculation of how much she can earn is not 
evidence that she actually earns or has earned this compensation in the past. A visa petition may 
not be approved based on speculation of future eligibility or after the petitioner or beneficiary 
Page 7 
becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 I&N Dec. 248 
(Reg. Comm. 1978); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 197 1). 
The evidence does not establish that the petitioner meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts 
or record, cassette, compact disk, or video sales. 
Counsel states on appeal: 
Evidence of commercial success of [the petitioner's] endeavors has previously 
been submitted. Soap operas in which she has appeared have been seen 
throughout the world, this is an indication of the success of the projects which she 
has undertaken. It is important to note, that soap operas in the Latin market 
usually run 6 to 9 months while in the Anglo market they run for 20 to 30 years. 
This is a very important distinction to make. But, as a total review of the evidence 
submitted demonstrates, she has bee in various soap operas which have all run 
between six to nine months on a consistent basis. This is therefore indicative that 
projects which [the] beneficiary under takes are in fact a commercial success. 
Were this not the case she would not be called back for different roles. 
We note first that nothing in the record support counsel's assertions about the length of time that 
the soap operas in which the petitioner appeared ran for six to nine months. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 
(BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Second, the 
petitioner submitted no documentation that she was the primary star on the shows rather than 
appearing in supporting or recurring roles. Third, the petitioner submitted no documentation, 
such as comparative TV ratings or similar evidence, to establish that the shows were commercial 
successes. A statement as to the number of viewers is of no probative value if not accompanied 
by how this viewership rates in the commercial market. 
The evidence does not establish that the petitioner meets this criterion. 
Other comparable evidence. 
The regulation at 8 C.F.R. 5 204.5(h)(4) states: "lfthe above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility." [emphasis added]. The regulatory language precludes the consideration 
of comparable evidence in this case, as there is no indication that eligibility for visa preference in 
the petitioner's occupation cannot be established by the ten criteria specified by the regulation. 
However, we will briefly address other evidence the petitioner submitted that may be considered 
under this provision. 
Page 8 
The petitioner submits letters of recommendation from several individuals who attest to her 
extraordinary ability as an actress. Counsel cites Muni v. INS, 891 F. Supp. 440 (N.D. I11 1995) and 
asserts that the director "failed to give any weight to this factor." The letters submitted by the 
petitioner indicate that she is an "excellent actress" who was "capable of working in many different 
areas." On appeal, the petitioner submitted letters fiom several individuals who attest to the 
petitioner's extraordinary ability. However, those writing letters on the petitioner's behalf provide 
insufficient information to support their opinions of the petitioner's extraordinary ability and the 
evidence of record does not support their conclusions. The Muni court did not state that the 
determination of visa preference rested solely on the opinions of the petitioner's peers. Citizenship 
and Immigration Services (USCIS) must look at the totality of the record to determine if the 
petitioner qualifies for visa preference. 
The record reflects that the petitioner has a previously approved petition as an alien with 
extraordinary ability under section 101 (a)(15)(0)(i) of the Act, 8 U.S.C. fj 1 101 (a)(l5)(0)(i). While 
USCIS has approved an 0-1 nonimrnigrant visa petition filed on behalf of the beneficiary, that prior 
approval does not preclude USCIS fiom denying an immigrant visa petition based on a different, if 
similarly phrased standard. 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. 1999); 
Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1 103 (E.D.N.Y. 1989). Because USCIS spends 
less time reviewing I- 129 nonimmigrant petitions than I- 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 beneficiary'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. Montgomeiy, 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 beneficiary, 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). 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of 
the small percentage who has risen to the very top of her field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished herself as 
an actress to such an extent that she may be said to have achieved sustained national or 
Page 9 
international acclaim or to be within the small percentage at the very top of her field. The 
evidence indicates that the petitioner is a talented performer, but is not persuasive that the 
petitioner's achievements set her significantly above almost all others in her field. The petitioner 
submitted no documentation that she has worked as a publicist and thus no evidence that she has 
achieved sustained acclaim as a publicist. 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 burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 4 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.