dismissed EB-1A Case: Acting

DATE: DEC 1 8 2012 OFFICE: TEXAS SERVICE CENTER 
INRE: 
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 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act; 8 U.S.C. § I 1 53(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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting 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)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(I)(A), as an 
alien of extraordinary ability as an actress. The director detennined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of 
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: 
(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 intemational 
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 hnmigration 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 ofthe 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.l 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 concems 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). 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards jiJr excellence in the jield of endeavor. 
The director determined 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)(i) requires "[dJocumentation of the alien's 
receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field 
of endeavor." Based on a review of the record of proceeding, the petitioner submitted sufficient 
documentary evidence demonstrating that she received two lesser nationally recognized prizes for 
excellence. Thus, the petitioner minimally met the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i). 
Accordingly, the petitioner established that she meets this criterion. 
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 determined 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)(ii) requires 
"[dJocumentation 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 satisty 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. 
On appeal, counsel claims the petitioner's eligibility for this criterion based on her membership with 
the Film Artistes Association of Nepal (F AAN). At the outset, section 203(b)(I )(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)(ii) requires membership in more than one 
association. 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 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
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.S(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 
users' ability to interpret significance from whether the singular or plural is used in a regulation. 
See Maramjaya v. USCIS, Civ. Act. No. 06-21S8 (RCL) at 12 (D.C. Cir. March 26, 2008); 
Snapnames.com Inc. v. Chertoff, 2006 WL 349100S 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). Even if the petitioner were to submit supporting documentary evidence showing that 
her membership with F AAN meets the elements of this criterion, which she did not and will be 
discussed further below, on appeal counsel only claimed the petitioner's eligibility for this criterion 
based on her membership with one association. It is noted that the petitioner previously submitted a 
letter indicating her membership with the Non-Resident Nepali Association (NRNA); however, the 
petitioner failed to submit any documentary evidence demonstrating that her membership with 
NRNA meets all of the elements of the plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(ii), 
nor did counsel claim the petitioner's eligibility for this criterion on appeal. See Sepulveda v. Us. 
Auy Gen.. 401 F.3d 1226, 1228 n. 2 (11th Cir. 200S); Hristov v. Roark, No. 09-CV-273 1201 I, 2011 
WL 471188S at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be 
abandoned as he failed to raise them on appeal to the AAO). 
Notwithstanding the above, the petitioner submitted a letter, dated December 8, 2010, from _ 
_ , who stated: 
This is to confirm that [the petitioner] is the Life time member of [FAAN]. 
only representative organization of professional film artists 
bestows general membership to any artist professionally 'nvr"''''<1 
Industry. However, Life Membership is granted to those 
outstanding achievements in the Film industry. Life members must have played 
main role in more than five films. In addition to this, outstanding performances, 
popularity, contribution in the respective field are other criteria of Life Membership 
which is not necessary to renew unlike general membership. 
In support of the petitioner's motion to reopen and reconsider the director's initial decision, the 
petitioner submitted another letter, dated May 13, 2011, from who stated that 
there are different levels of membership including general membership, provisional mem~ 
honorary membership, associate membership, and life membership. Moreover, _ 
_ claimed that eligibility for life membership is reserved for [a]ny popular professional 
film artist, who has played in more than five movies" and "[t]he artist should have made outstanding 
achievements, and the artist' [sic] contribution to the film industry and F AAN should be recognized 
by the nationally recognized experts [emphasis added]." Finally, claimed that 
"a panel, consisting of senior and highly accomplished artists, reviews and makes the decision." 
Page 6 
The petitioner also submitted a screenshot from www.nepaltilmartists.com. which stated that "[a]ny 
artist professionally involved in the Nepalese Film Industry is entitled to be a member of this 
association." In addition, the screenshot briefly mentioned criteria for provisional membership, 
honorary membership, and full membership; however there is no mention of life membership. 
The petitioner failed to submit the bylaws or similar documentation for F AAN to support the claims 
Merely repeating the language 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); Aryr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). Moreover, letters may generally be divided into two types of testimonial evidence: 
expert opinion evidence and written testimonial evidence. Opinion testimony is based on one's 
well-qualified belief or idea, rather than direct knowledge of the facts at issue. Black's Law 
Dictionary 1515 (8th Ed. 2007) (defining "opinion testimony"). Written testimonial evidence, on 
the other hand, is testimony about facts, such as whether something occurred or did not occur, based 
on the witness' direct knowledge. Id. (defining "written testimony"); see also id at 1514 (defining 
"affirmative testimony"). Furthermore, depending on the specificity, detail, and credibility of a 
letter, USCIS may give the document more or less persuasive weight in a proceeding. The Board of 
Immigration Appeals (the Board) has held that testimony should not be disregarded simply because 
it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing cases). 
The Board also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BlA 1998). It is noted that in the 
director's notice of intent to deny the petition on November 23,2010, and in the director's decision 
denying the petition on April 19, 2011, the petitioner was informed that she failed to submit 
FAAN's bylaws or similar documentation to support Ramesh Budhathoki's claims; yet the 
petitioner still did not submit such documentation on appeal. 
Although is the chairman of FAAN, the assertions in the letters are not 
supported Without supporting evidence, such as the bylaws, the petitioner 
failed to establish that she is a life member of FA AN and that life membership with FAAN requires 
outstanding achievements as judged by recognized national or international experts in their 
disciplines or fields consistent with the' of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
In addition, as indicated above, stated that an artist should have made 
outstanding achievements, and those have been recognized by national experts 
thereby indicating that outstanding achievements are not required for life membership with F AAN 
and are not required to be judged by recognized national experts in the field. For these reasons, the 
petitioner failed to demonstrate that her purported life membership with F AAN meets the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
Accordingly, the petitioner failed to establish that she 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 thefieldfor which classification is 
Page 7 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The director detennined 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)(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.3 Furthermore, the plain 
language ofthe 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." 
Although counsel submitted numerous documents at the initial filing of the petition, in response to 
the director's notice of intent to deny the petition, and in the petitioner's motion to reopen and 
motion to reconsider on counsel . addressed only two articles. Regarding the 
the translation claims that the article was published in 
<"",w«vu fails to includes the author of the article as required Kamana' 1996. However, 
pursuant to the regulation at 
petitioner submitted a letter from 
Moreover the 
who stated that 
(with the country and abroad) and highly cine [sic] magazine published by the 
[KNPPL]." In addition, the petitioner submitted a promotional brochure from KNPPL claiming 
circulation statistics of 42,000. However, the petitioner failed to submit any independent, objective 
evidence demonstrating that Kamana is a professional or major trade publication or other major 
medium. See Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 6,2007) aff'd 317 Fed. Appx. 
680 (C.A.9) (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)." Further, the AAO is not 
persuaded that such purported circulation statistics are reflective of a major medium. 
Regarding the on appeal counsel claims that the article 
was published However, the translation is unclear as to whether ~ is an 
actual publication or a within a publication. The documentary evidence submitted does not 
establish that the article was actually published in the magazine "Kollywood" as claimed by 
counsel. 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). 
The AAO must look to the plain language of the documents executed by the petitioner and not to 
subsequent statements of counsel. Matter of Izummi, 22 I&N Dec. 169, 185 (Comm'r 1998). 
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 
Regardless, the petitioner failed to submit any documentary evidence establishing that "Kollywood" 
is a professional or major trade publication or other major medium. Moreover, the translation fails 
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). 
Again, counsel specifically addressed only two articles on appeal but made broad references to the 
previously submitted documentation such as "[the petitioner] submitted numerous published 
materials that primarily covered her work as a popular film actress of Nepal" and "various news 
articles submitted originally with the petition, attached in response to our response to the service 
center's Notice of Intent to Deny and the new ones annexed thereto with motion to reopen and 
reconsider, meets the regulatory requirement for this requirement." An appellant who presents only 
a generalized statement without explaining the specific aspects of the decision that the alien 
considers to be incorrect, has failed to meaningfully identifY the reasons for the appeal. In order to 
review the appeal, it would therefore be necessary to search through the record and speculate on 
what possible errors the alien claims. Without a specific statement, the AAO is forced to guess at 
how the alien disagrees with the decision. It is insufficient to merely assert an improper conclusion 
on the director's part. Cf Matter of Valencia, 19 I&N Dec. 354 (BIA 1986) (citing Reyes-Mendoza 
v. INS, 774 F.2d 1364 (9th Cir. 1985)). See also Sano v. Holder, 331 F. App'x 799, 800 (2d Cir. 
2009) (finding that an alien who merely asserts that: "[t]he Immigration Judge erred on the facts and 
the law in denying relief pursuant to Immigration and Naturalization Section 208 and 243(h)," falls 
far short of the standard for specificity on appeal.) 
As the documentation claimed on appeal fails to meet all of the elements of the regulation at 8 
C.F.R. § 204.5(h)(3)(iii), the petitioner failed to demonstrate that she meets the plain language of 
this regulatory criterion. 
Accordingly, the petitioner failed to establish that she 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. 
In the director's decision, she determined that the petitioner established eligibility for this criterion. 
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." A review of the record of proceeding 
reflects that the petitioner submitted sufficient documentary evidence to minimally meet the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). As such, the AAO concurs with the 
decision of the director for this criterion. 
Accordingly, the petitioner established that she meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic. athletic, or business­
related contributions of major significance in the field. 
Page 9 
The director detennined that the petitioner failed to establish eligibility for this criterion. On appeal, 
counsel states: 
We reaffinn and present our preceding argument from the "Motion to Reopen and 
Reconsider" that as we do not have any additional evidence, therefore, we leave it to 
"AAA" [sic] for your review on this criterion. 
In reviewing counsel's brief in support of the motion to reopen and motion to reconsider, counsel 
claimed: 
We disagree with USCIS' s detennination. Petitioner is the best actress and most 
popular actress of Nepal her work product has been published widely. See above 
paragraphs and exhibits for details. 
The reason for filing an appeal is found at 8 C.F.R. § 103.3(a)(I)(v) - that the previous decision 
contains an erroneous conclusion of law or statement of fact. Without such an error specifically 
identified within the appeal, the affected party has failed to identifY the basis for the appeal. If the 
petitioner does not explain the specific aspects of the decision that he/she considers to be incorrect, 
he/she has failed to meaningfully identifY the reasons for taking an appeal. In order to review the 
appeal, it would therefore be necessary to search through the record and speculate on what possible 
errors the petitioner claims. Matter ol Valencia, 19 I&N Dec. at 355. 
It is insufficient to merely assert that the preceding authority made an improper determination. 
Within an appeal, it should be clear whether the alleged impropriety in the decision lies with the 
interpretation of the facts or the application of legal standards. Where a question of law is 
presented, supporting authority should be included, and where the dispute is on the facts, there 
should be a discussion of the particular details contested. Id. This is contrary to the reason the 
regulation at 8 C.F.R. § 103.3(a)(I)(v) was promulgated; to allow the AAO to promptly deal with 
appeals where the reasons given for the appeal are inadequate to infonn the AAO of the particular 
basis for the claim that the director's decision before us is wrong. Cl Matter of Valencia, 19 I&N 
Dec. at 355. The petitioner must identifY all of the errors made by the director as it relates to each 
of the claimed criteria. Otherwise, the AAO must speculate on what error the petitioner alleges. 
Failure to identifY the error in law or error in fact for each criterion contested on appeal, equates to 
an insufficient claim of eligibility within the appellate proceeding. Such a failure essentially 
amounts to the petitioner's abandonment of the eligibility claim regarding this criterion. Cj 
Desravines v. Us. Atty. Gen., 343 Fed.Appx. 433, 435 (11th Cir. 2009) (a passing reference in the 
arguments section of a brief without substantive arguments is insufficient to raise that ground on 
appeal). Counsel provides essentially the same assertion of eligibility on appeal that was presented 
previously; this is insufficient as there is no error identified that can be attributed to the director's 
decision. 
On motion, counsel simply disagreed with the director's decision and claimed that the petitioner 
was the best actress and most popular in Nepal and referred to his assertions made under the 
Page 10 
published material criterion. Counsel failed to identify any of the petitioner's original contributions 
of major significance in the field consistent with the plain language of the regulation at 8 C.F .R. § 
204.5(h)(3)(v). 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services. in relation to others in thefield. 
The director determined that the petitioner established eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires "[eJvidence that the alien has 
commanded a high salary or other significantly high remuneration for services, in relation to others 
in the field." Based on a review of the record of proceeding, the AAO must withdraw the findings 
of the director for this criterion. 
At the initial filing ofthe petition, the petitioner submitted the following documentation: 
1. 
2. 
A contract, dated August 21,2009, between __ and the 
petitioner reflecting that the petitioner woul~ount of 
Nepalese Rupees 175,000 for her role in the film, Pratibimba; 
An undated contract between and 
the petitioner reflecting that the petitioner would be paid in the amount of 
Nepalese Rupees 151,000 for an unidentified film; 
3. An "Employment Certificate," dated October 5, 2007, 
_reflecting that the petitioner has been employed since 
2005, and earning a monthly salary of Japanese Yen 450,000 as a managing 
director and instructor; 
4. An agreement, dated March 17, 1999, between •••••••••• 
and the petitioner reflecting in the amount of Nepalese Rupees 500,000 for 
the film, Mukundo; and 
5. An agreement, dated February 9,1994, between and 
the petitioner reflecting in the amount of Nepalese Rupees 451,000 for her 
role in Swarg. 
In response to the director's notice of intent to deny, the petitioner submitted a letter, dated 
December 6, 2010, from Chairman of the Nepal Film Producer's Association, who 
claimed: 
[The petitioner] is a highly established name in 
in few Movies due to her selective character. Average 
She acts only 
Actress earns up to 
Page 11 
3,00,000.00 [300,000.00] ($1=72.42 NRs) however [the petitioner] is a selective 
renowned actress who only plays quality movies and charges 4,00,000.00 
[400,000.00] to 5,00,000.00 [500,000.00] Rs. per film. 
Moreover, the petitioner submitted an affidavit and claimed that she signed a contract to playa role 
in Pratibimba for Nepalese Rupees 175,000 and a role in Pinda for Nepalese Rupees 151,000. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires "[e]vidence that 
the alien has commanded a high salary or other significantly high remuneration for services, in 
relation to others in the field [emphasis added]." In other words, the petitioner must not only 
submit evidence of her salary but also submit evidence that her salary is high when compared to 
others in the field. 
The only evidence submitted that compared her claimed earnings to others in the 
field was the letter from The 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 sarne 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 a letter, the petitioner failed to submit any documentary 
evidence demonstrating that primary evidence and secondary evidence do not exist or cannot be 
obtained. Regardless, the letter that has been provided is not an affidavit as it was not sworn to or 
affirmed by the declarant before an officer authorized to administer oaths or affirmations who has, 
having confirmed the declarant's identity, administered the requisite oath or affirmation. See Black's 
Law Dictionary 58 (9th Ed., West 2009). Nor, in lieu of having been signed before an officer 
authorized to administer oaths or affirmations, does it contain the requisite statement, permitted by 
Federal law, that the signers, in signing the statements, certity the truth of the statements, under 
penalty of peIjury. 28 U.S.C. § 1746. See also INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 
(1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980) (finding that unsworn statements 
made in support of a motion are not affidavits and thus are not entitled to any evidentiary weight). 
Moreover, the plain language of the regulation at 8 C.F.R. § 103.2(b)(2)(i) requires more than one 
affidavit in which the petitioner submitted only one letter. 
In this case, failed to indicate the source of his assertions or to submit any 
documentary supporting his claim of the earnings of the average Nepali actress. 
Depending on the specificity, detail, and credibility of a letter, USCIS may give the document more 
or less persuasive weight in a proceeding. The BlA has held that testimony should not be 
disregarded simply because it is "self-serving." See, e.g., Matter of S-A-, 22 I&N Dec. at 1332. The 
Board also held, however: "We not only encourage, but require the introduction of corroborative 
testimonial and documentary evidence, where available." Id. If testimonial evidence lacks 
specificity, detail, or credibility, there is a greater need for the petitioner to submit corroborative 
evidence. Matter ofY-B-, 21 I&N Dec. at 1136. Regardless, as the plain language of the regulation 
requires the petitioner to establish that her salary is high when compared to others in the field, the 
average Nepalese actress' salaries do not meet this requirement. Simply submitting a letter and 
Page 12 
claiming that the petitioner earns more than the average Nepalese actress is insufficient without 
supporting documentation. There is no evidence reflecting the top salaries in the field, so as to 
compare the petitioner's salary to the highest earners. 
The evidence submitted by the petitioner does not establish that she has commanded a high salary in 
relation to experienced professionals in her occupation. See Matter ojPrice, 20 I&N Dec. 953, 954 
(Assoc. Comm'r 1994) (considering a 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 ofNHL defensive player to salary of other NHL defensemen). The AAO 
notes that in Matter l?f Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is 
not a comparison of Racine's ability with that of all the hockey players at all levels 
of play; but rather, Racine's ability as a professional hockey player within the NHL. 
This interpretation is consistent with at least one other court in this district, Grimson 
v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition ofthe term 
8 C.F.R. § 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 
60898-99. 
For the reasons discussed above, the petitioner failed to submit sufficient documentary evidence 
comparing her salary to others in the field, so as to establish that she commands a relatively high 
salary. As such, the AAO withdraws the decision of the director for this criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence of commercial successes in the perjorming arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
The director determined that "[ n]o evidence has been provided for this criterion." On appeal, 
counsel claims: 
As we discussed in [the] Motion to Reopen and Reconsider that the Service Center 
clearly has not reviewed the file properly. The Nom response clearly included 
documentary evidence that showed that [the petitioner] has been part of movies that 
have attained commercial success .... 
Again, [the petitioner] is a very popular female actor in Nepal. She has played in 
more than 80 movies and several tele [sic] films. Many of her movies are super hits 
and she is a great commercial success. Her movie "Kanyadan" played for more than 
100 days. Similarly, several other movies did extremely well. The fact that she is 
compensated at much higher rates compared to her competitors is also the indicator 
of her commercial success. 
Page 13 
Although the director indicated that the petitioner failed to submit any evidence for this criterion, a 
review of the record of proceeding reflects that the petitioner did submit documentary evidence at 
the initial filing of the petition and in response to the director's notice of intent to deny. 
Specifically, the petitioner submitted the following: 
I. A photograph of a trophy indicating the 100th day of the movie, Basanti; 
2. Screenshots from Bookworm's Library indicating that Basanti is listed as the 
2nd top seller on the website; 
3. Screenshots from the NHK Asian Film Festival regarding the background 
for the movie, Mukundo; 
4. A letter from Shambhu Pradhan, Director of Ishwari Arts International, who 
stated that the petitioner's movies, Saraswati and Swara, were 
"blockbusters. " 
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 ~ffice receipts or record, cassette, 
compact disk, or video sales [emphasis added]." In other words, this regulatory criterion requires 
evidence of commercial successes in the form of "box office receipts" or "sales." The record of 
proceeding fails to reflect that the petitioner submitted any documentary evidence regarding the box 
office receipts of her performances or the sales of her DVDs. For example, there is no evidence 
showing that the petitioner's performances consistently drew record crowds or resulted in greater 
sales than other actors or actresses. Regarding item 1, the submission of a trophy acknowledging 
the IOOth day for a film is not persuasive evidence of commercial successes, let alone evidence of 
box office receipts or sales. It is noted that while counsel claimed that the petitioner received a 
trophy for Kanyadan, the translation submitted by the petitioner indicates that it was for Basanti. 
Moreover, regarding item 2, the submission of a screenshot reflecting that Basanti is the 2nd top 
selling movie on a single website is not indicative of commercial successes without the actual sales 
of the movie as a whole. Further, regarding item 3, the screenshot provides no evidence of box 
office receipts or sales for the movie Mukundo. Finally, regarding 4, merely submitting a letter 
stating that the movies were "blockbusters" is insufficient to demonstrate commercial successes 
without evidence of box office receipts or sales. 
Without documentary evidence reflecting the commercial successes of the petitioner, the AAO 
cannot conclude that the petitioner meets the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(x). 
Accordingly, the petitioner failed to establish that she meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
.' 
Page 14 
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: (I) 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 intemational 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 ofthe field or sustained national or international acclaim, the AAO need 
not explain that conclusion in a final merits determination 4 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. 
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. 
4 The AAO maintains de novo review of all questions offact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a fmal merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii). See also section 103(a)(I) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March I, 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 (B1A 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions).