dismissed EB-1A Case: Acting

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusefts Ave .. N.W., MS 20<)0 
Washington. DC 20529-2090 
" U.S. Citizenship 
and Immigration 
Services 
DATE: MAR 1 2 2012 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(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 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew' 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), as an 
alien of extraordinary ability in the arts. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of her 
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 the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section 203(b )(1 )(A)(i) of the 
Act 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 of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) 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 asserts that the petitioner meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. § 204.5(h)(3). For the reasons discussed below, the AAO will uphold the 
director's decision. 
1. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue 
work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
Page 3 
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 101st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. Id; 8 c.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) 
or through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
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.1 With respect to the criteria at 
8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate 
concerns about the significance of the evidence submitted to meet those two criteria, those concerns 
should have been raised in a subsequent "final merits determination." Id. at 1121-22. 
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)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy 
the regulatory requirement of three types of evidence. Id. 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria 
This petition, filed on March 25, 2010, seeks to classify the petItIoner as an alien with 
extraordinary ability as an actress. The petitioner has submitted documentation pertaining to the 
following categories of evidence under 8 c.F.R. § 204.5(h)(3)? 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted documentation indicating that the television show 
_ won "Best Factual" at the •••••••••••••••••••• 
petitioner "'I-'",'"" ... ""u.u 
petitioner also submitted a list of credits and a letter from producer 
petitioner served as narrator for the television program. The precedmg 
listings submitted by the 
the recipient. The 
indicating that the 
••• awardwas 
~ted to the ' production company for its show 
~ather than to the petitioner for her excellence in the field of acting. The plain language of 
the regulation at 8 c.P.R. § 204.5(h)(3)(i) specifically requires documentation of "the alien's 
receipt" of nationally or internationally recognized prizes or awards, not her employer's receipt 
of the award. 
The petitioner submitted a letter from 
stating: first to come across to 
Canada in the lead role of_in the production of the same name .... The play received 
•••••••. .. in Philadelphia, PA at the The 
petitioner also submitted a printout from the website of the 
Each year, at the 
awards an 
excellence in their ability to interact sponsors in a prompt, efficient and compatible 
manner, and who demonstrate a positive attitude toward their art. 
Past recipients are: 
Year: Performance/Company: Country: 
* * * 
2001 
-
Scotland 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
I 
which is an annual performing arts festival that showcases the finest international work 
for young people. 
* * * 
It is for artists to perform, exhibit, and develop their work for an audience of presenters 
who book shows specifically for young people and their families. 
* * * 
The established in the late 1990s as a way of 
recogmzmg m arts for young people. In the early years, the award 
was voted on by Showcase technicians and was a sort of "congeniality prize." For the 
last four years, the award has been a "people's choice" of favorite performances from the 
* * * 
I can gladly confirm that [the beneficiary] was the lead actress in the solo show,_ 
when it was awarded in 2002, and she performed in 
Philadelphia. 
Although the printout from the website of the specifically indicates 
that received a 'n 2001, the letter from states that the show 
received the award in 2002. It is incumbent upon the petitioner to resolve any inconsistencies in 
the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Further, 
according to the letter from did not become a "people's choice" 
award until 2006. states that "[i]n the early years, the award was voted on by 
Showcase technicians and was a sort of 'congeniality prize. '" Moreover, the printout from the 
website of the states that the award was presented "to children's 
theatre companies who show excellence in their ability to interact with sponsors in a prompt, 
efficient and compatible manner, and who demonstrate a positive attitude toward their art." The 
AAO cannot conclude that an award presented to a theatre company or performance in general 
for excellence in its "ability to interact with sponsors in a prompt, efficient and compatible 
manner" and for demonstrating "a positive attitude toward their art" constitutes "the alien's 
receipt" of a nationally or internationally recognized award for excellence in acting. In addition 
to the preceding deficiencies, the petitioner failed to demonstrate the national or international 
recognition of the received by her show. The plain language of the regulation at 
Page 6 
8 c.F.R. § 204.5(h)(3)(i) specifically requires that the petitioner's awards be nationally or 
internationally recognized in the field of endeavor and it is her burden to establish every element of 
this criterion. In this case, the petitioner has not established that the received by 
_was recognized beyond the presenting organization and therefore commensurate with a 
nationally or internationally recognized award for excellence in the field. 
The petitioner submitted a December 15, 2009 letter from the 
that was commended in the In 
2007 letter from_ 
statin~ 
petitioner] for many years, emplo as a presenter on various projects, including the 
Rough Guide to Glasgow University in 1992 .... Indeed, the programme won several Royal 
Television Society Awards for its excellence and innovative style .... " The petitioner's 
evidence also included three RTS Scottish Centre certificates stating that "University of Glasgow 
"won the 
was 
"Commended" in the As previously discussed, the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(i) requires documentation of "the alien's receipt" of 
nationally or internationally recognized prizes or awards in the field of endeavor. There is no 
evidence showing that the petitioner herself received an award from the RTS for excellence in 
the field of acting. 
"won the 
This award was presented to 
and the plain language of this regulatory criterion requires documentation of "the alien's receipt" 
of nationally or internationally recognized prizes or awards, not her theatre company's receipt of 
the award. Further, there is no documentary evidence showing that the preceding award is a 
"nationally or internationally recognized" award for excellence in the field of acting. 
The petitioner submitted a letter from 
_stating: 
The is the body with responsiiiiiib'lit for su ortin and developing 
the arts i~ and receives funding from the and the _ 
~st other responsibilities I am responsl e or e a ocation of grants 
to individual theatre artists. I am well aware of the work of [the petitioner] and have 
twice supported her applications for professional development and have seen her 
perform. 
* * * 
[The petitioner] has secured two grants awards from the. which are under huge 
competition due to a healthy and vibrant arts scene. 
Page 7 
Regarding the two."professional development" grants for which the petitioner applied and 
received funding, there is no documentary evidence showing that they equate to nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor. Such grants 
are principally designed to fund future art projects, and not to honor or recognize excellence in 
the field of endeavor. 
The petitioner submitted documentation indicating that she performed in various roles in 
and that the production garnered 
UVJ.UU<ULlons" for "Best Male Performance," 
"Best New Play," "Best Technical Performance," and "Best Production." There is no evidence 
showing that the production ultimately received any of the preceding CATS awards. The plain 
language of the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(i) specifically requires evidence of 
"the alien's receipt" of nationally or internationally recognized "prizes or awards" for excellence 
in the field of endeavor. Earning a nomination does not equate to receipt of a prize or an award. 
Further, there is no evidence showing that the petitioner herself received an award or nomination 
from CATS for her excellence in the field of acting. 
In light of the above, the petitioner has not established that she meets this regulatory 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 classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
In general, in order for published material to meet this criterion, it must be primarily about the 
petitioner and, as stated in the regulations, be printed in professional or major trade publications or 
other major media. To qualify as major media, the publication should have significant national or 
international distribution. 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? 
~itted a December 17, 2009 article in 
~ but the author of the material were as 
language of this regulatory criterion. The petitioner also submitted information printed from The 
Stage's website indicating that the newspaper has "18,611 Total Average Net Circulation Per 
Issue." In response to the director's request for evidence, the petitioner submitted information 
from The Stage's media kit indicating that the magazine had "21,362 Average Net Circulation" 
from July 2007 to June 2008. The petitioner failed to submit documentary evidence showing the 
distribution of The Stage relative to other media to demonstrate that the newspaper equates to a 
"major" trade publication or some other form of "major" media. 
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 8 
The petitioner su~ the Fall/Winter 2009 issue of 
_entitled _ [The petitioner]," but the author of the material was not 
identified as required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
Further, there is no circulation evidence showing that Cross Platform Arts Quarterly qualifies as a 
"major" trade publication or some other form of "major" media. 
the articles are not about the petitioner. Instead, the articles are about productions 
petitioner appeared and the material fails to identify her or only briefly mentions her in passing. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the published 
material be "about the alien." See, e.g., Accord Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 
*1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a show are not about the 
actor). 
The petitioner submitted an article written by her in the June 2006 issue of 
entitled' This article constitutes material written by the petitioner about 
her own work rather than published material about herself. Thus, the article does not meet the 
plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, there is no 
circulation evidence showing that Writernet Bulletin qualifies as a "major" trade publication or 
some other form of "major" media. 
In response to the director's request for evidence, counsel asserts that the "entertainment 
magazine, Time Out, published an article about [the petitioner] entitled for 
_' The record, however, does not include a copy of the article about the petitioner 
uv" .. -, •. ,~d in Time Out magazine. Counsel also asserts that an interview of the _ 
webcast on~ebsite as part of 
senes. submitted a typed transcnpt of the interview, but there is no 
evidence demonstrating that the interview was webcasted on internet site or evidence 
showing the number of downloads of the petitioner's intervIew. also claims that the 
petitioner appeared on the reality television show but the 
petitioner failed to submit video footage of her appearance on the show or other evidence 
indicating that the show was about her. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Soffici, 22 1&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). A petition must be filed with any initial 
evidence required by the regulation. 8 C.F.R. § 103.2(b)(1). The nonexistence or other 
unavailability of primary evidence creates a presumption of ineligibility. 8 C.F.R. 
§ 103.2(b )(2)(i). 
~ner submitted a June 10, 2010 e-mail from of 
_ England stating: "I can confirm that Spirit fm county-wide (throughout 
West-Sussex). Our total Survey Area comprises 209,000 people, with current figures suggesting 
Page 9 
time. Your interview was conducted by Spirit's the 
Programme Controller, [Emphasis added.] The record does not include a 
transcript of the radio interview, evidence showing the date of the broadcast, or documentation 
showing that program in which the petitioner aired "county-wide" qualified as a form of major 
media. 
stating: 
_IJIclad(:ast Sunday 21 November 2004' Begmners' King 
Lear in 
partial 
The petitioner also submitted what she identifies as a 
of a half page) of her for a television uV'~U'.U\."H'U 
petitioner's evidence also included a 
vlewmg summary indicating that BBC 2 (BBC Artworks) had an 
"Average Daily Reach" of over 13 million viewers. There is no evidence showing that the televised 
documentary or DVD was about the petitioner. Instead, it appears that the documentary was about 
the Tag Theater C~speare for Beginners" King Lear production with elementary 
school students in ~ 
The petitioner submitted a letter from 94.4 FM, 
stating that he broadcast an interview 
a listenership of around "300,000 people 
petitioner also submitted a transcript of the 
program to "the new CBBC series 
The petitioner's evidence material printed from 
internet site stati~on has "a potential audience of 300,000 
people." "~'J.-".~.. nature of....- assertion regarding his radio station's 
listenership and the promotional material printed from the station's website are not sufficient to 
demonstrate that his radio program is a form of major media in England. USCIS need not rely on 
self-promotional material. See Braga v. Poulos, No. CV 06 5105 SJO (c. D. CA July 6, 2007) 
aff'd 317 Fed. Appx. 680 (9th Cir. 2009) (concluding that the AAO did not have to rely on self­
serving assertions on the cover of a magazine as to the magazine's status as major media). There is 
no documentary evidence showing the listenership of ____ radio show relative to other 
broadcast media to demonstrate that his regional radio s~s a form of "major" media. 
Finally, regarding the preceding television and radio programs that included the petitioner, the plain 
language of this regulatory criterion requires "published material about the alien" including "the 
title, date and author of the material." A radio or television interview featuring the petitioner 
does not meet these requirements. 
In light of the above, the petitioner has not established that she meets this regulatory 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. 
In counsel's brief, she did not contest the findings of the director for this regulatory criterion or 
offer additional arguments. The AAO, therefore, considers this issue to be abandoned. See 
Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 
09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the 
plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). 
Accordingly, the petitioner has not established that she meets this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
In counsel's brief, she did not contest the findings of the director for this regulatory criterion or 
offer additional arguments. The AAO, therefore, considers this issue to be abandoned. 
Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885 at *9. Accordingly, the petitioner 
has not established that she meets this regulatory criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The AAO withdraws the director's finding that the petitioner meets this regulatory criterion. The 
petitioner asserted that her theater, television, and film performances meet this criterion. The 
interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and has 
been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 
(D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing artist do 
not fall under 8 C.F.R. § 204.5(h)(3)(vii». As the petitioner is not a visual artist and has not 
created tangible pieces of art that were on display at exhibitions or showcases, the petitioner has 
not submitted qualifying evidence that meets the plain language requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(vii). 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The AAO withdraws the director's finding that the petitioner meets this regulatory criterion. The 
I-I"'LH<V'U"'< submitted evidence of her theatrical performances in 
The petitioner also submitted 
documentation indicating that she narrated the television documentary My Childhood, and that 
she performed in supporting roles in the television drama and in 
the feature film However, the plain language re n at 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." [Emphasis added.] 
The petitioner failed to demonstrate how a theatrical performance, television show, or feature 
film equates to an "organization" or "establishment." there is no evidence 
demonstrating that the petitioner's roles in 
and 
Page 11 
and earned a distinguished 
reputation relative to other theatrical productions. 
letter from 
Los Angeles, stating: 
[The petitioner] auditioned for the post of trainee radio announcer in November 2008, 
and we were impressed by her talent and took her on. 
Since that time she has made extraordinary leaps in the institution of American Radio 
Network and now hosts the show weekly for KCLA FM, which has a 
listenership of 587,000,000 and is broadcast in 99.3FM. She is a popular talk show and 
features presenter and her show has a cult following in LA at least, judging from the 
correspondence we receive. 
The record lacks documentary evidence to support _ self-serving assertion that KCLA 
FM has a listenership of 587,000,000. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. at 165. Further, USCIS need not rely on self-promotional material. See 
Braga v. Poulos, No. CV 06 5105 SJO (c. D. CA July 6, 2007) aff'd 317 Fed. Appx. 680 (9th Cir. 
2009) (concluding that the AAO did not have to rely on self-serving assertions on the cover of a 
magazine as to the magazine's status as major media). There is no documentary evidence showing 
that the American Radio Network has a distinguished reputation in the broadcast industry. Further, 
there is no evidence demonstrating that petitioner's role was leading or critical to the company as 
a whole. The petitioner's evidence fails to demonstrate how her role differentiated her from the 
other radio hosts and announcers who work for the network, let alone its prime time radio hosts and 
senior management. The documentation submitted by the petitioner does not establish that she was 
responsible for the American Radio Network's success or standing to a degree consistent with the 
meaning of "leading or critical role." 
In light of the above, the petitioner has not established that she meets this regulatory criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The petitioner submitted a transaction statement from reflecting 
nineteen payments to her from April 6, 2009 to January 19, 2010 totaling $19,790 for her 
narration and voice over services for_ The transaction statement does not specify the 
number of hours worked for each remittance. In response to the director's request for evidence, 
the petitioner submitted evidence of a £2,500 payment to her from ICS for a voice over for a 60 
second television commercial (2006). The petitioner also submitted four June 14, 2004 
remittances from the reflecting payment of £12,000 for five days of work 
on ' " payment of £21,000 for one day of work on ' 
Campaign," payment of £4,52~ work on _and a payment of £5,500 for one 
day of work on "There is no _' The petitioner'S response also included a 2006 
Page 12 
remittance from in the amount of £2,300, two 
paystubs from 2001 reflecting one hour's pay at a rate of £680, a 2006 paystub from the 
"'H'~"'LJ·'HJ<. one hour's pay at a rate of £393, and bank statements from 
dated 2001 through 2004. 
As evidence that the petitioner earns "a high salary or other significantly high remuneration for 
services, in relation to others in the field," the petitioner submitted information from the 
Department of Labor's Occupational Outlook Handbook (OOH), 2010-11 Edition, stating: 
Many of the most successful actors, producers, and directors have extraordinarily high 
earnings, but many more of these professionals, faced with erratic earnings, supplement 
their income by holding jobs in other fields. 
Median hourly wages of actors were $16.59 in May 2008. The middle 50 percent earned 
between $9.81 and $29.57. Median hourly wages were $14.48 in performing arts 
companies and $28.72 in the motion picture and video industry. Annual wage data for 
actors were not available because of the wide variation in the number of hours worked by 
actors and the short-term nature of many jobs, which may last for 1 day or 1 week; it is 
extremely rare for actors to have guaranteed employment that exceeds 3 to 6 months. 
* * * 
Minimum salaries, hours of work, and other conditions of employment are often covered 
in collective bargaining agreements between the producers and the unions representing 
workers. While these unions generally determine minimum salaries, any actor or director 
may negotiate for a salary higher than the minimum. 
the 
guarantees unionized motion picture and 
television actors with speaking parts a minimum daily rate of $782 or $2,713 for a 5-day 
week as of June 2009. Actors also receive contributions to their health and pension plans 
and additional compensation for reruns and foreign telecasts of the productions in which 
they appear. 
Some well-known actors earn well above the minimum; their salaries are many times the 
figures cited here, creating the false impression that all actors are highly paid. For 
example, of the nearly 100,000 SAG members, only about 50 might fall into this 
category. The average income that SAG members earn from acting is low because 
employment is sporadic and most actors must supplement their incomes by holding jobs 
in other occupations. 
Actors Equity Association (AEA), which represents stage actors, has negotiated 
minimum weekly salary requirements for their members. Salaries vary depending on the 
theater or venue the actor is employed in. 
Page 13 
The petitioner's response also included contractual mInImUm compensation guidelines for 
British Equity and the SAG, but such minimum earnings standards do not establish that the 
petitioner earned "significantly high remuneration" for her acting or voice over services. The 
petitioner's reliance on minimum or median hourly wages is not an appropriate basis for 
comparison in demonstrating that her earnings constitute a "significantly high remuneration for 
services, in relation to others in the field." [Emphasis added.] The record is void of reliable 
earnings evidence showing that the petitioner has received a "high salary" or "significantly high 
remuneration" in comparison with those performing similar theatrical or voice over work. See 
Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 1994) (considering professional golfer's 
earnings versus other PGA Tour golfers); see also Grimson v. INS, 934 F. SUpp. 965, 968 (N.D. 
Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. 
SUpp. 440, 444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player to salary of other 
NHL defensemen). In the present matter, the documentary evidence submitted by the petitioner 
does not establish that she has received significantly high remuneration for services in relation to 
others in the field. 
In light of the above, the petitioner has not established that she meets this regulatory criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
This regulatory criterion focuses on volume of sales and box office receipts as a measure of the 
petitioner's commercial success in the performing arts. Therefore, the mere fact that a petitioner 
has performed in theatrical, motion picture, or television productions would be insufficient, in 
and of itself, to meet this criterion. The evidence must show that the volume of sales and box 
office receipts reflect the petitioner's commercial success relative to other actresses involved in 
similar pursuits in the performing arts. 
In response to the director's request for evidence, counsel asserts that the petitioner's voice over 
work for eHarmony's advertising campaign meets this regulatory criterion. The petitioner 
submitted eHarmony television ratings and "Radio Impacts & Ratings" for 2009 and 2010 showing 
the reach of the company's advertising. The petitioner also submitted material from the company's 
media kit. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) requires "evidence of 
commercial successes in the performing arts, as shown by box office receipts or record, cassette, 
compact disk, or video sales." Counsel does not explain how an advertising campaign for 
eHarmony equates to "the performing arts." Moreover, eHarmony's ability to reach a mass 
audience through purchasing radio and television airtime for its commercials does not translate to 
the petitioner's commercial success as an actress. Thus, the petitioner's participation in 
eHarmony's advertising campaign does not meet the plain language requirements of this 
regulatory criterion. 
The petitioner asserts that she appeared on the reality television show 
_ but she failed to submit documentary evidence of her appearance on the show. 
Regardless, there is no evidence demonstrating that the commercial success of 
Page 14 
is attributable to the petitioner, as opposed to and the show's 
producers. 
The petitioner submitted a 
indicating that from October 3, 2001 to June 8, 2002 the grossed a total of $63,400 
in Canadian revenue and a total of $193,200 in United States revenue in performances at more 
than thirty different venues. There is no evidence demonstrating that these total gross revenue 
amounts for such a large number of venues are indicative of commercial success when compared 
to the gross revenues generated by other traveling theatrical productions. 
The ~itted a letter from 
that ~ consistently attracted audiences of 60% capacity across the tour. 
stating 
letter also lists three venues where the show performed, but there is no documentary evidence of 
sales or box office receipts demonstrating that the show was commercially successful. 
The petitioner submitted a letter 
stating that the petitioner performed with his group "for a 6 month tour of playing ... 
the in Autumn 2003 - Spring 2004." further states: "Overall on [the 
petitioner's] tour, filled 75% of available seats which is very unusual, and one of the 
many reasons why it has been sold on to other theatre companies and still tours today." There is no 
documentary evidence of sales or box office receipts demonstrating that the show was commercially 
successful. Further, there is no indication any such success was primarily attributable to the 
petitioner's role in the show. 
The petitioner submitted a June 8, 2010 letter from stating that the 
petitioner wrote and performed the stage adaptation as a solo show in 2000, 
but there is no documentary evidence of sales or box office receipts demonstrating that the show 
was commercially successful. 
The petitioner submitted a letter from 
••• ;stating: 
The petitioner played the title role in 
the show was a great commercial success. 
* * * 
and 
The to standing room only houses throughout its mn at _ 
_ our permanent theatre in _(over 15,000 attendees), and similarly on our 
neighbor island touring production (an additional 7000). 
<",,,,,"n-(' that the petitioner's show was "a great commercial success," but merely 
repeatmg of the statute or regulations does not satisfy the petitioner's burden of 
proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 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.). The 
Page 15 
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.] According to Merriam- Webster, a commercial success 
is defined as "viewed with regard to profit" and "des~ a large market.,,4 Although the 
petitioner submitted documentation indicating that __ grossed a total of $63,400 in 
Canadian revenue and a total of $193,200 in United States that~~ ••••• 
consistently attracted audiences of 60% capacity across the tour, that 
available seats, and that yed to standing room only houses at 
with over 15,000 attendees during the 2007 - 2008 season, the documentary evidence fails to 
demonstrate evidence of the petitioner's commercial successes consistent with the meaning of 
the regulation at 8 c.P.R. § 204.5(h)(3)(x). In this case, the petitioner has not established that the 
size and attendance of the venues where she performed in 
indicative of commercial success relative to other productions 
in the theatrical and entertainment industry. Por instance, the AAO is not persuaded that 
attracting a "standing room only" audience at the (attendance capacity of only 
315 seats) equates to commercial success in the petitioner's field. 
In light of the above, the petitioner has not established that she meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
C. Prior 0-1 Nonimmigrant Visa Status 
The record reflects that the petitioner was the beneficiary of an approved 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, "The term 'extraordinary 
ability' means, for purposes of section 101(a)(15)(0)(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 
4 See http:Uwww.merriam-webster.com/dictionary/commercial. accessed on March 6, 2012, copy inco'rporated into 
the record of proceeding. 
Page 16 
mandates the approval of a similar immigrant visa. Each petition must be 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); IKEA 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 (5th Cir. 2004) (finding that prior approvals do 
not preclude USCIS from denying an extension of the original visa based on a reassessment of 
the alien' s qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comrn'r 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, No. 98-2855, 
2000 WL 282785, *1, *3 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(2001). 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small 
percentage who has risen to the very top of the field of endeavor. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories, 
in accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
Page 17 
final merits determination.5 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. [d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(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. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
5 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d at 145. In any 
future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office that made the 
last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 204(b) of the Act; 
DRS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); 
Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USeIS, is the sole authority 
with the jurisdiction to decide visa petitions).