dismissed EB-1A Case: Acting

U.S. Citizenship 
and Immigration 
Services 
In Re: 5466540 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV. 21, 2019 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an actor, seeks classification as an alien of extraordinary ability. See Immigration and 
Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This first preference 
classification makes immigrant visas available to those who can demonstrate their extraordinary 
ability through sustained national or international acclaim and whose achievements have been 
recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria, as required. 
The matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes immigrant visas available to aliens with extraordinary ability 
if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. A petitioner can either demonstrate a one-time achievement (that is, a major, 
internationally recognized award), or provide documentation that meets at least three of the ten 
categories listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as qualifying awards, published 
material in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
A. Initial Evidence 
The Petitioner is an actor who has appeared on stage and television and in films. Because the Petitioner 
has not indicated or established that he has received a major, internationally recognized award, he 
must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). The 
Petitioner claimed to have met five of the criteria. In denying the petition, the Director determined 
that the Petitioner met only one of the criteria. We find that the Petitioner met two others, as discussed 
below. As the Petitioner has demonstrated that he satisfies three criteria, we will evaluate the totality 
of the evidence in the context of the final merits determination below. 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i) 
We agree with the Director that the Petitioner did not satisfy this criterion. 
The Petitioner indicated that he satisfied this criterion through prizes and nominations relating to three 
stage productions, two films, and an advertising campaign. Only one of the listed items, however, is a 
prize or award that the Petitioner received ( discussed below). The rest are prizes that went to overall 
productions or campaigns, or nominations for prizes that others actually received (the nominations were 
not in the Petitioner's name). One play was a "New York Times Critic's Pick," but the Petitioner did not 
show that this is a prize or award, rather than a designation granted by that publication. For these various 
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reasons, the majority of the claimed honors do not meet the threshold requirement of "the alien's receipt 
f, . d ,,1 o ... pnzes or awar s. 
The Petitioner contends that he was instrumental in an award-winning promotional campaign for D I I because he featured in its online advertisements, and therefore he is largely responsible for the 
campaign's award from PromaxBDA. The Petitioner is not a named recipient of that award, but even if 
he were, by regulation the prize or award must be "in the [petitioner's] field of endeavor." The Petitioner's 
field of endeavor is acting. The PromaxBDA awards recognize "Promotion, Marketing & Design," not 
acting. For all these reasons, a marketing award presented to third parties cannot establish the Petitioner's 
receipt of prizes or awards in the field of acting. 
There is only one prize or award that the Petitioner personally won. The Petitioner state~ that he "receive<! 
the 2017 Broadway World award for ~------~---- for his role in the ~L _____ ~J 
performance ofl I' A regional managing editor of Broadway World attested to the size 
of Broadway World's readership, and quoted from a press release indicating that voting took place in "56 
cities across the United States" and "a record-breaking 11 countries." The editor did not indicate that the 
Petitioner received votes spanning this international readership or clarify how ballots vary from one 
locality to another. The distinction is critical because the overall international reputation of an award­
granting institution does not convey national or international recognition on awards that are limited to a 
much smaller geographical area. The Petitioner appeared in a non-touring production that could only be 
seen in I l and he has not submitted evidence that the particular award that he received was 
recognized beyond that local area at the national or international level. 
Looking at the documenta[ evidence, the press release from Broadway World indicates that the Petitioner 
won a "BroadwayWorld I Award," as part of "the 2017 BroadwayW orld I I 
Regional Awards." The theaters and resident companies listed in the press release are all in Minnesota 
I I. The named runners-up for 1 t were, likewise, 
nominated for performances in Minnesota. Whatever national or international reputation 
BroadwayWorld may enjoy as a whole, the Petitioner did not establish that the BroadwayWorld 
I I Award, described as "regional" by the awarding entity itself: is nationally or internationally 
recognized. 
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 classtfication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessmy translation. 8 C.F.R. 
§ 204.5(h)(3)(iii) 
We agree with the Director that the Petitioner satisfied this criterion. The Petitioner submitted copies of 
numerous articles from several different sources, mostly reviews of theatrical productions. Not all of the 
1 The Petitioner contended that, much as a sports team relies on the etforts of all its players, "[t]he creation of a film or theater 
production ... relies on all members of the team for success .... Thus, [the Petitioner's] role as a starring actor contributed to 
the success of each film and theater production." In the Petitioner's analogy of a sports team, the entire team shares the 
championship title. The Petitioner has not shown this to be the case with the awards documented in the record. If the Petitioner 
was not a named recipient of a given prize or award, then he cannot vicariously claim that prize or award by virtue of his 
involvement in the production. The regulation requires "[d]ocumentation of the alien's receipt of ... prizes or awards," rather 
than the alien's involvement in award-winning projects. 
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published material is about the Petitioner, and not all of it appeared in major media, but the submission 
includes some qualifying materials. 
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 spectficationfor which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv) 
The Petitioner stated that he "served as a judge in both 2014 and 2013" at "theOGraduate Acting 
panel, where he was responsible for selecting an ensemble of 16 actors, all of whom were sought-after by 
top theatre companies and television programs." 
The Director noted a letter from ~------~--~ School of the Arts referred to "selecting 
the best possible students for the 2018 cohort." The Director found that the Petitioner did not establish 
that the judging took place before the petition's February 2018 filing date. But the letter is from December 
2014; the phrase "the 2018 cohort" refers to the school's class of 2018, selected in 2014 for the four-year 
program of study. 
The sign[ficance of the judging activity is a matter for the final merits determination, further below. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii) 
The Petitioner claimed to have satisfied this criterion through the screening orJ lat three 
film festivals and a performance ofc=Jat thd I Theatre Festival. The Petitioner had supporting 
roles in both of these productions. The Director found that the Petitioner had not satisfied this criterion, 
but we agree with the Petitioner that film and theater festivals qualify as artistic exhibitions for the 
purposes of the criterion. The importance and standing of those festivals is a matter for the final merits 
determination. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
We agree with the Director's finding that the Petitioner has not satisfied this criterion. 
~titioner claimed to have satisfied this criterion b a earin in online advertisements forD 
L__J; playin and playing various 
parts at the~--~ Theater, an off-Broadway venue in New York. The Petitioner cited various 
unpublished appellate decisions indicating that acting roles can satisfy this criterion. Those decisions 
have no weight as precedent under 8 C.F.R. § 103.3(c). All the cited non-precedent decisions predate 
the binding authority of U.S. Citizenship and Immigration Services (USCIS) policy memorandum 
PM-602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; Revisions to 
the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADll-14, IO (Dec. 22, 2010), 
http://www. uscis. gov /legal-resources/policy-memoranda. That memorandum states: 
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If a leading role, the evidence must establish that the alien is ( or was) a leader. A title, 
with appropriate matching duties, can help to establish if a role is ( or was), in fact, 
leading. 
If a critical role, the evidence must establish that the alien has contributed in a way that 
is of significant importance to the outcome of the organization or establishment's 
activities. A supporting role may be considered "critical" if the alien's performance in 
the role is (or was) important in that way. It is not the title of the alien's role, but rather 
the alien's performance in the role that determines whether the role is ( or was) critical. 
The Petitioner appeared, by himself: in a series of short advertisements fo promoting □ 
programming in parts of Europe. The creative director for .__ ___ ____. stated, in a letter, that the 
Petitioner's "four sessions as a spokesperson ... are critical components of our organization's marketing 
strategy ... and have been critical tol I at large." The Petitioner submitted evidence regarding 
the success and stature ofC==:J but the re~oes not objectively demonstrate that the Petitioner has 
held any position of leadership within the l__Jorganization. The Petitioner certainly represented the 
face of this particular four-session marketing campaign, as the only actor appearing in the short 
commercials, but the letter from the creative director does not provide sufficient detail as to how this role 
was critical tol I's overall operations. 
The Petitioner played a title role in~-----------------,.-----._,The theater's 
artistic director stated that the Petitioner "was an integral part in representing .__ ___ _.as a place to 
witness the world's finest theatre" and "helps cultivate a creative environment." The record does not 
show how the Petitioner's performance was critical to thel I As the artistic director noted, the 
Petitioner's rerformance was well-reviewed, and the record shows considerable local coverage in the 
I . area, but the Petitioner did not establish that his portrayal ofl I was of significant 
importance to the outcome of thel Is activities, for example by significantly increasing ticket 
sales or raising the theater's profile. 
The artistic director of thel I Theatre stated that the Petitioner "has played a critical role in 
numerous I I Theatre productions." The adjective "numerous" is vague, but the record 
identifies onl two such productions. Published reviews in the record discuss the Petitioner's role in 
'--~--~....., one of three one-act plays presented together in 2016; reviews of the 2015 production 
.__ __ ......:;.;:te;.=,nd to mention him with others as part of an ensemble cast. As with the above discussion 
r'-'-.........,"L----.--..J the record does not show that the Petitioner played a leading or critical role for the 
~--_.as an organization. 
The Petitioner quotes a dictionary definition of"organization" as "a body (as a corporation or union) that 
has a membership acting or united for a common purpose." The Petitioner maintains that this definition 
applies to "a television show, film or stage production," but it is so broad that it also applies to the audience 
(gathered together for the common purpose of watching the production). 
We need not argue the definition, however, to point out that the organization itself must have a 
distinguished reputation. Therefore, for example, if the Petitioner contends that the cast and crew of the 
I lproduction of1 lwas an organization, then the Petitioner must show that the cast 
and crew collectively have a distinguished reputation in their own right, rather than relying on the 
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reputation of thel I itself The Petitioner has not shown that the productions in which he played 
leading or critical roles have distinguished reputations ( as opposed to transitory local press coverage). 
B. Final Merits Determination 
As the Petitioner submitted the reqms1te initial evidence, we will evaluate whether he has 
demonstrated, by a preponderance of the evidence, sustained national or international acclaim and that 
he is one of the small percentage at the very top of the field of endeavor, and that his achievements 
have been recognized in the field through extensive documentation. In a final merits determination, 
we analyze a petitioner's accomplishments and weigh the totality of the evidence to determine if his 
successes are sufficient to demonstrate that he has extraordinary ability in the field of endeavor. See 
section 203(b)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 
1119-20. 2 In this matter, we determine that the Petitioner has not shown his eligibility. 
As acknowledged above, the Petitioner has been the subject of media coverage relating to his acting work. 
This coverar, however, has been overwhelmingly local and project-specific in nature. For instance, 
I news outlets covered him during his run inl bt thel I but apparently 
not before or after that time. 
The field of acting intrinsically involves some level of public visibility, even at the lowest levels; local 
media will review productions at community theaters or even at schools, and in some areas, the local 
media includes nationally known publications. In this respect, project-specific public attention is not 
inherently demonstrative of sustained acclaim at the very top of the field. There are hierarchies among 
theaters, among film production companies, and among film festivals; an actor's work at lower levels can 
satisfy the letter of the regulatory criteria but not the underlying statute. 
The Petitioner has acted in a film shown at three festivals, and in a play staged at another, but the Petitioner 
has not shown that his work was a focus of attention beyond the local level or otherwise earned national 
or international acclaim. The Petitioner's roles in~------~andl bppear to have been 
comparatively minor supporting parts, judging from the submitted reviews in the record (which, unlike 
the letters in the record, were not written for the specific purpose of supporting the petition). 
The Petitioner's work as a judge, while sufficient to meet the broad wording of 8 C.F.R. § 204.5(h)(3)(iv), 
does not place him at the top of the field. The record shows that the Petitioner participated on an "alumni 
panel to screen those auditioning for acceptance into I I Graduate Acting 
Progr~m," inldicating that judges are chosen not from throughout the field, but from the much more limited 
pool o Program alumni. Furthermore, the Petitioner has not shown that helping to audition students 
for a graduate program is an activity reserved for, or typically performed by, acclaimed actors at the top 
of the field. 
2 See also USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 
Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADI 1-14 4 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (stating that USCIS officers should then evaluate the 
evidence together when considering the petition in its entirety to determine if the petitioner has established, by a 
preponderance of the evidence, the required high level of expertise for the immigrant classification). 
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Letters written to support the petition are oflimited value in this situation. AD School official claims, 
in one such letter, that the Petitioner "was chosen to be part of this select judging panel due [in part] to 
... his multiple awards." As noted above, the record identifies only one award in the Petitioner's name, 
which he won in 2017, several years after he began judging applicants for the program. The other awards, 
which the Petitioner claims to have won vicariously through his involvement, also post-date the beginning 
of his involvement with the selection panel. 
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 (Comm'r 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 a 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 795-796; see also Matter of V-K-, 24 I&N Dec. at 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 a petitioner in support of 
an immigration petition are of less weight than preexisting, independent evidence. 
The Petitioner has undoubtedly had a successful career in a field where it can be difficult even to secure 
steady employment. Nevertheless, success does not equal acclaim. The Petitioner's satisfaction of at 
least three evidentiary criteria owes more to the nature of his occupation than to his own level of acclaim. 
The Petitioner has not established the required acclaim in a field where those at the top are household 
names. The Petitioner's own evidence underscores this point. For instance, he submitted a number of 
articles about a Shakespeare in the Park production of King Lear, many of which emphasized the 
participation of John Lithgow in the title role. The Petitioner has not established a record of acclaim that 
compares favorably to that of Mr. Lithgow. Similarly, discussion of the Petitioner's work on a~ I 
marketin[ campaign invites comparison to the level of acclaim achieved by some of the actors who appear 
id,_ _ __,, programming. 
III. CONCLUSION 
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. USCIS has long held 
that even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994). Here, the Petitioner 
has not shown that the significance and recognition of his acting work are indicative of the required 
sustained national or international acclaim or that they are consistent with a "career of acclaimed work 
in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also 
section 203(b )(1 )(A) of the Act. Moreover, the record does not otherwise demonstrate that the 
Petitioner has garnered national or international acclaim in the field, and he is one of the small 
percentage who has risen to the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act 
and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. Therefore, the appeal will be dismissed. 
ORDER: The appeal is dismissed. 
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