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u.s. Citizenship 
and Immigration 
Services 
DATE: JUL 2 3 2012 Office: TEXAS SERVICE CENTER FILE: 
1 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ahility Pursuant to 
Section 203(h )(I)(A) of the Immigration and Nationality Act, H U .S.c. § I IS3(h)( I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Officc in your casc. All of the 
documents related to this matter have heen returned to the office that originally decided your case. Plcase 
he advised that any further inquiry that you might have concerning your case must he made to that office. 
[f you helieve 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 [-290B, Notice of Appea[ or Motion, with a fcc of $630. The 
specific requirements for filing such a motion can he found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please he 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, 
"\>, , 
" .. " 
• Perry Rhew'·~ 
Chief, Administrative Appeals Ollice 
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 "alien of extraordinary ability" in the arts, pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § IlS3(b)(I)(A) as 
an actor. The director determined that the petitioner had not established the requisite extraordinary 
ability and failed to submit extensive documentation of his sustained national or international 
acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the 
Act and 8 C.F.R. § 204.S(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 the regulatory categories of evidence at 
8 C.F.R. §§ 204.5(h)(3)(i), (iii) - (v), (vii), (viii), and (x). For the reasons discussed below, the 
AAO will uphold the director's decision. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagrapb 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 througb extensive documentation, 
(ii) the alien seeks to enter the United States to continue 
work in tbe 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. 723 101" 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. ld.; 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. USC/S, 596 F.3d 1115 (9th Cir. 20lO). Although 
the c.ourt 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. I With respect to the criteria at 
8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while uscrs 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 detern1ination." ld. 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 sufticient evidence, "the proper conclusion is that the applicant has failed to 
satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." ld. 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 tbree criteria, the proper conclusion is that the petitioner has failed to satisfy 
the regulatory requirement of three types of evidence. ld. 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond lhose sel 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 Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence ill the field of endeavor. 
On appeal, counsel asserts that two films and the Flea Theater in which the petItIOner has 
performed have received nationally and internationally recognized awards. Counsel states: "The 
Flea Theater won the nationally recognized Drama Desk Award." The petitioner, however, 
failed to submit documentary evidence of the Drama Desk Award. 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. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg' 1 Comm'r 1972». A petition must be tiled 
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). Regardless, the Special Drama Desk Award was presented to the Flea Theater 
for "Downtown Adventurous Theater" rather than to the petitioner for his excellence in field of . , act1l1g: 
The petitioner submitted documentation indicating that the short film Solidarity received the 
Mayor's Award at the Heart of Gold International Film Festival (HGIFF) in Gympie, Australia. 
The petitioner also submitted photographs of himself at the festival, including one photograph of 
him holding a trophy. In response to the director's request for evidence (RFE), the petitioner 
submitted close-up photographs of the Mayor's Award trophy identifying the film Solidarity as 
the recipient. According to the official list of "Award winners 2006 - 20 I 0" posted on the 
HGIFF's website, the Mayor's Award was received by "Solidarity - Nancy Kiang," not the 
petitioner. 4 The petitioner'S initial evidence included film festival material indicating that Nancy 
Kiang was the director and producer of Solidarity. 
The petitioner submitted a May 7, 2007 article posted at http://archive.gulfnews.com entitled 
"Students roll out the red carpet." The article states: "The tirst student-run international film 
festival was held at the American University of Sharjah last week. The two-day event entitled 
the Pause and Play International Film Festival (PPIFF) showcased 25 of the best films picked 
from 90 entries received from around the world." The article lists Underdogs as the "'Best 
Feature, Narrative Film" winner, but the article does not state that the petitioner received the 
award. 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
,1 See b,lli?~/!\NW"v:.:..L!lc.t1ca.org/show dClaiLphp'!pagc typc-U&shO\v id-4, accessed on July 3, 2012, copy 
incorporated into the record of proceeding . 
..\ See llJ.tP .... :.lill}~:_~Y.Jl~i.Wofg(~ld.c()m.au/archive/a\\~ar~ winnersL, accessed on July 3, 2012, copy incorporated into the 
record of proceeding. 
Page 5 
The plain language of the regulation at tl CF.R. § 204.5(h)(3)(i) specifically requires 
documentation of "the alien's receipt" of nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. The Drama Desk Award, the HGIFF Mayor's 
Award, and the PPIFF Best Feature prize were awarded to the Flea Theater and the films 
Solidarity and Underdogs rather than to the petitioner himself. While the petitioner performed in 
both films and at the Flea Theater, there is no documentary evidence from the organizers of the 
HGIFF, the PPIFF, and the Drama Desk Awards specifically identifying him as the recipient of 
the preceding awards. Moreover, there is no evidence demonstrating that the awards specifically 
recognized the petitioner's excellence in the field of acting. 
Furthermore, regarding the HGIFF Mayor's Award and the PPIFF Best Feature prize, the 
petitioner did not submit evidence demonstrating the national or international recognition of those 
particular awards. The plain language of the regulation at tl CF.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 his burden to establish every element of this criterion. A film festival may be 
open to entries from throughout a particular country or countries, but this factor alone is not 
adequate to establish that a specific award or prize from the festival's numerous competitive 
categories is "nationally or internationally recognized." In this case, there is no documentary 
evidence showing that the HGIFF Mayor's Award and the PPIFF Best Feature prize are 
recognized beyond the context of the film festivals in which they were presented and therefore 
commensurate with nationally or internationally recognized awards for excellence in the field of 
acting. 
In light of the above, the petitioner has not established that he 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 
(lny necessary translation. 
The petitioner suhmitted theatrical reviews of Mrs. __ Cellophane, and Like J Say in 
Time Olll New York, but the submitted articles do not even mention the petitioner. The plain 
language of the regulation at 8 CF.R. § 204.S(h)(3)(iii) requires that the published material be 
"about the alien." See, e.g., Accord Negro-Plumpe v. Okin, 2:07-CY -820-ECR-RJJ at * 1, *7 (D. 
Nev. Sept. 8, 2008) (upholding a finding that articles about a show are not ahout the actor). 
Compare 8 CF.R. § 204.5(i)(3)(i)(C), which requires evidence "about the alien's work." It cannot 
he credibly asserted that the theater reviews of Mrs. Farnsworth, Cellophane, and Like J Say are 
"ahout" the petitioner. Further, the date of the articles were not identified as required by the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). The petitioner also submitted a review 
entitled "Fringe Festival, Just Don'( Touch Me, Amigo" that counsel asserts was published in 
Time Ollt New York, but unlike the preceding three articles, the submitted article bears no indicia 
of its actual publication in that particular magazine. The unsupported assertions of counsel do 
not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
Page 6 
(BIA 1 'ISO). Regardless, the date of publication of the latter article was not identified as required 
by the plain language of this regulatory criterion. 
The petitioner submitted a review of Mrs. Farnsworth in The Village Voice, but the article is not 
about the petitioner as it fails to even mention his name. Further, the date of the article was not 
identified as required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
The petitioner submitted a May 6, 2004 review of Mrs. Farnsworth in Back Stage, but the article 
only briefly mentions the petitioner once stating: "Kate Benson, [the petitioner], and Tarajia 
Morrell nicely fill out the small roles of fellow students seated among the audience." [Emphasis 
added.] The preceding theatrical review is about the play in general, not the petitioner. 
The petitioner submitted numerous additional articles about stage productions in which he 
appeared, but none of the submitted articles meet all of the requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(iii). For example, the remaining articles were deficient in that they did not 
include a date or an author, they were not about the petitioner, they lacked a full English 
language translation, or they lacked evidence that they were published in major trade 
publications or other major media. 
On appeal, counsel states: "USCIS clearly erred in finding that articles from Time Gut New York, 
The Village Voice and Back Stage do not qualify as major trade publications or major media:' 
Counsel's brief lists three website links that provide circulation data for The Village Voice 
(195,000), Time Out New York (127,555), and Back Stage (32,000). Providing only an internet 
link and expecting the AAO to verify the claimed circulation data fails to satisfy the petitioner's 
burden of proof. As previously discussed, 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. Instead of merely providing the internet links, counsel 
should have submitted documentary evidence of screcnshots from the actual websites containing 
the claimed circulation data. Regardless, there is no evidence showing the distribution of Time 
(Jilt New York, The Village Voice and Back Stage relative to other U.S. newspapers and magazines 
to demonstrate that the submitted articles were published in "major" trade publications or other 
"major"' media. Moreover, as previously discussed, the published articles were not about the 
petitioner and their dates of publication were not provided. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence of the alien's participation, either individually or on a pane!, as a judge of 
the work of others in the same or all allied field of" specification j(Jr which 
classification is sought. 
The AAO withdraws the director's finding that the petitioner's evidence meets this regulatory 
criterion. In response to the director's RFE, the petitioner submitted a December 29, 2010 letter 
from Mercedes Ellington, choreographer for the Prince Music Theatre's Dreamgirls production, 
stating: 
Page 7 
This is to certify that [the petitioner] was an assistant casting director during the audition 
and production process of Dreamgirls ... at the Prince Music Theatre in Philadelphia. 
The first meeting started in the Spring of 2007 and were [sic] followed by successive 
designer meetings (for lightning [sic], costumes and sets). 
ok * * 
His work was exceptionally thorough, given the tight budget, the commuting demands, 
and the production's team commitment to reproduce a show that was historically and 
theatrically accurate. 
[The petitioner] was in charge of extensive research and he interviewed many potential 
candidates before the actual audition process took place. 
* * * 
Because of [the petitioner's] impeccable record keeping, this process was painless. 
The AAO notes that the petitioner participated in the production process as an "assistant'· casting 
director and that "he interviewed many potential candidates hefore the actual auditioll process 
took place." [Emphasis added.] The MO cannot conclude that helping to gather a number of 
candidates for various roles in a thcatrical production and keeping records of the process is 
tantamount to participation as a ·judgc·· of the work of others. Whilc a casting dircctor helps to 
narrow the list of potential candidates, the AAO notes that the director, producers, and 
choreographer of the production arc responsible for making the final determinatiolls in the 
audition process. While the petitioner performed research and candidate interviews for 
IJrt'lIlIlgirls, there is no documentary evidence showing that his subordinate role as an ··assistant"· 
casting direl"lor equated to his '·participation, either individually or on a panel, as a judge of the 
work of others." The phrase "a judge" implies a formal designation in a judging capacity, either 
on a panel or individually as specified at 8 C.F.R. § 204.5(h)(3)(iv). The regulation cannot be 
read to include every instance of subordinate participation in the cast selection process for a 
theatrical production. Accordingly, the petitioner has not established that he meets this 
regulatory criterion. 
Evidence orthe alien ·s original scientific. scholarly, artistic. athletic. or business­
related colltrihations of major significance ill the field. 
The petitioner submitted letters of support from renowned performers Sigourney Weaver and 
John Lithgow (who played the leading roles in Mrs. Farnsworth), director and choreographer 
Mercedes Ellington, actress Rebecca Luker, Lisa Marty (Director of the YOUTH Project at the 
Yankee Rep non-profit theatre company), Len Jenkin (director of Like I Say and a professor in 
the Department of Dramatic Writing at New York University), independent film director Manish 
Gupta, part-time film director Nancy Kiang, Celia Bressack (President of Yankee Rep theatre 
company), Silvana Jakich (director of Underdogs), Nicolas Colt (creator and music director of 
Birdy and the Golden Patter), Todd Rosen (producer of performances at the Flea Theater), actor 
Page 8 
and producer Ray Ford, Carol Ostrow (Producing Director of the Flea Theater), Matthew Britt 
(Administrative Coordinator of the HB Playwrights Foundation), Eduardo Dernaestri (founder 
and director of "The Performers" theatrical troupe), Audio Engineer Julian Garcia Reig, Kent 
Drake (Executive Vice-President of the East Coast Chapter of the Society of Singers), Claudia 
Brown (costume designer for the Flea Theater's production of Like I Say), Nella Vera (Director 
of Development for New York Stage & Film Company), Carol Rosenfeld (actress, director, and 
teacher of the petitioner at HB Studio), producer Matias Miller, Bametta Carter (Managing 
Director of the HB Studio), and television and radio show host Dani Natanson. 
The preceding references discuss their artistic collaborations with the petitioner and his skills as 
an actor, but they fail to provide specific examples of how the petitioner's original work has 
substantially impacted the film and theater industries, has significantly influenced the work of other 
actors in the field, or otherwise equates to original contributions of "major significance" in the 
field. Vague, solicited letters from local colleagues that do not specifically identify contributions 
or provide specific examples of how those contributions influenced the field are insufficient. 
Kazarian v. USC/S, 580 F.3d 1030, 1036 (9th CiT. 2009) aiI'd in part 596 F.3d 1115 (9th CiT. 
2(10). In 2010, the Kazarian court reiterated that the AAO's conclusion that "letters from physics 
professors attesting to [the alien's] contributions in the field" were insufficient was "consistent with 
the relevant regulatory language." 596 F.3d at 1122. Furthermore, USCIS may, in its discretion, 
use as advisory opinions statements submitted as expert testimony. See Matter of Caron 
International, 19 r&N Dec. 791, 795 (Comm'r. 1988). However, uscrs is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit 
sought. Id. The submission of reference letters supporting the petition is not presumptive 
evidence of eligibility; uscrs may evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795-796; see also Matter ofV-K-, 24 r&N Dec. 500, n.2 
(BrA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact'} 
Thus, the content of the references' statements and how they became aware of the petitioner's 
reputation are important considerations. Even when written by independent experts, letters 
solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidence that one would expect of an actor who has made original contributions of 
major significance in the field. 
On appeal, counsel asserts that the petitioner's solo show Just Don'( Touch Me. Amigo is an original 
artistic contribution of major significance in the field, but there is no documentary evidence to 
support her claim. As previously discussed, the unsupported assertions of counsel do not 
constitute evidence. Matter ofObaigbena, 19 l&N Dec. at 534 n.2; Matter of Laureano, 191&N 
Dec. at 3 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. The record lacks specific 
evidence demonstrating that the originality of petitioner's show is recognized as a major 
contribution in the field of acting. For instance, the petitioner submitted a New York City Fringe 
Festival review of Just Don't Touch Me, Amigo stating: 
[The petitioner] never quite inhabits his characters convincingly enough to make you forget 
the seams in his play, but he's an engaging-enough performer to keep you from checking 
your watch constantly. His central point, that New Yorkers are particularly dependent on 
the kindness (if not self-delusions) of strangers, is nothing new. 
Page 9 
In the director's decision, she determined that the petitioner failed to demonstrate the "major 
significance" of his artistic contributions. The plain language of the regulation at t; C.F.R. 
~ 204.5(h)(3)(v) requires "[e]vidence of the alien's original scientific, scholarly, artistic, athletic, 
or business-related contributions of major significance in the field." [Emphasis added.] Here, 
the evidence must be reviewed to see whether it rises to the level of original artistic contributions 
"of major significance in the field." The phrase "major significance" is not superfluous and, 
thus, it has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., S1 F. 3d 2t;, 31 
(3fd Cir. 1995) quoted in APWU v. Potter, 343 P.3d 619, 626 (20d Cir. Sep IS, 2003). Without 
additional, specific evidence showing that the petitioner's original work has been unusually 
influential, has substantially impacted the film and theater industries, or has otherwise risen to the 
level of contributions of major significance, the AAO cannot conclude that he meets this 
regulatory criterion. 
Evidence of the display of Ihe alien '.I' work in the field at artistic exhibitions or 
showcases. 
On appeal, counsel asserts that the petitioner's stage performance in Just Don 'I Touch Me, Amigo 
and his acting role in Solidarity meet this regulatory criterion. The plain language of the regulation 
at 8 C.F.R. ~ 204.5(h)(3)(vii) requires "[e]vidence of the display of the alien's work in the field 
at artistic exhibitions or showcases." The petitioner is an actor. When he is performing in films 
or on stage before an audience, he is not displaying his acting in the same sense that a painter or 
sculptor displays his or her work in a gallery or museum. The petitioner is performing his work, 
he is not displaying his work. In addition, to the extent that the petitioner is a performing artist, 
it is inherent to his occupation to perform. The AAO notes that the ten criteria in the regulations 
are designed to cover different areas; not evcry criterion will apply to every occupation. 
The interpretation that t; C.P.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 (0, Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing artist 
do not fall under 8 C.P.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 
t; C.P,R. § 204.5(h)(3)(vii). Therefore, while the petitioner's film and stage performances have 
evidentiary value for other criteria, they cannot serve to meet this criterion. Instead, as the 
petitioner's performances are far more relevant to the "commercial successes in the performing 
arts" criterion at 8 C.F.R. § 204.S(h)(3)(x), they will be discussed separately within the context 
of that criterion. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence that the alien has performed ill a leading or critical role for organizations 
or establishments that have a distinguished reputation 
Page 10 
On appeal, counsel asserts that the petitioner has performed in a critical role for the Duke 
Ellington Center for the Arts. As previously discussed, the petitioner submitted a December 29, 
2010 letter from Mercedes Ellington, who serves as President of the Duke Ellington Center for 
the Arts in addition to her work as a choreographer and director. Ms. Ellington's letter indicated 
that the petitioner served as an "assistant'· casting director for the Prince Music Theatre's 
production of Dreamgirls. The petitioner also submitted a June 5, 2004 letter from Ms. Ellington 
stating: 
I am currently waltmg my 50lC3 status for the establishment of the Duke Ellington 
Center in Harlem (with Columbia University as a partner). I would like to employ [the 
petitioner 1 as a liaison to the Spanish Theatrical community. This would enable him to 
perform in productions and events in that venue. Work on this project will begin in the 
Fall of 2005. This venture is projected to continue until 2007. 
The record lacks documentary evidence showing that the Duke Ellington Center for the Arts has 
earned a distinguish reputation relative to other performing arts institutions. Further, there is no 
evidence demonstrating that petitioner's roles as an "assistant" casting director for Dreamgirls 
and as a liaison to the Spanish Theatrical community were leading or critical to the Duke 
Ellington Center for the Arts. The documentation submitted by the petitioner does not establish 
that he was responsible for the Center's success or standing to a degree consistent with the meaning 
of "leading or critical role." 
Counsel's appellate brief does not specifically identify any other distinguished organizations or 
establishments for which the petitioner has performed in a leading or critical role. Given the 
absence of a specific discussion or directed argument pertaining to any other organizations or 
establishments, the AAO considers the petitioner's earlier claims 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-CY-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2(11) (the court found the 
plaintitTs claims to be abandoned as he failed to raise them on appeal to the AAO). 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence of commercial successes in the performing arts, as shown bv box office 
receipts or record, cassette, compact disk, or video sales. 
This regulatory criterion focuses on the volume of sales and box office receipts as a measure of 
the petitioner's commercial successes in the performing arts. Therefore, the mere fact that the 
petitioner has performed in theatrical or film 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 
rellect the petitioner's commercial success relative to other actors involved in similar pursuits in 
the performing arts. 
On appeal, counsel states: "[The petitioner] has performed in several productions with sold-out 
runs and the demand was so great that they returned for additional seasons." The petitioner, 
however, failed to submit documentary evidence of the "sales" or "box office receipts" for the 
Page 11 
specific theatrical productions, shows, and films in which he performed as required by the plain 
language of the regulation at 8 C.F.R. § 204.S(h)(3)(x). As previously discussed, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter ofSojjici, 22 I&N Dec. at 165. 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). According to Merriam- Webster, a commercial success is defined as 
"viewed with regard to profit" and "designed for a large market.'" In this case, the petitioner has 
not established that the sales and box office receipts from the productions in which he performed 
are indicative of his commercial success relative to other actors in the entertainment industry. 
For instance, the AAO is not persuaded that the petitioner's minor supporting role in Mrs. 
Farnsworth at the Flea Theater (seating capacity of only 74 seats in the main theater) is 
indicative of his commercial success in the performing arts.(' Regardless, the petitioner failed to 
submit evidence of the "sales" or "box offiee receipts" for Mrs. Farnsworth, Jusl Don', I(JUch 
Me, Amilio, Cellophane, Whistleball, and the other productions in which he performed. 
Accordingly, the petitioner has not established that he meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories 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 
dilTerently 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 lield 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-\ 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 
~ See hllp://\vw\v.mg_uiam·\vebs1cr.com/dictiomtt'y,!~cnmJJ:1£[~iaL accessed on July 6, 2012, copy incorporatcu into the 
record of proceeding. 
(, The Flea Theater's "Organizational Profile" states: "Both of our state-of-the-art theaters are fully equipped, with 
our 74-scat main theater on the street level and a 40-seat theater one night down." See hlin://www.thcllca.onLi 
n;!!:U:wp"page typc~ l-"page id-2, accessed on July 6, 2012. copy incorporated into the record of proceeding. 
Page 12 
nonimmigrant classification is not evidence of his eligibility for immigrant classification as an alien 
with extraordinary ability. Further, the AAO does not find that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each 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. 
2(03); IKEA US v. US Dept. of iustice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sav(l, 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 (Comm'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, lO90 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthern10re, 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.C!. 51 
(20()] ). 
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 
"Ievel of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] tleld 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 13 
final merits detennination. 7 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three categories of evidence. ld. 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. 
7 The AAO maintains de novo review of all questions of fact and law. See Soltalle v. DOl, 381 F.3d 143, 145 (3d Cir. 
20(4). 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)(I)(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.I(t)(3)(iii) (2003); Matter of Aurelio. 19 I&N Dec. 45H. 460 (B1A 1987) (holding that legacy INS. now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions).