dismissed EB-1A Case: Acting And Performing

(b)(6)
DATE: JUN 2 4 2015 
IN RE: Petitioner: 
Beneficiary: 
FILE# : 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigratio n Services 
Admini strative Appeals Offi ce (AAO) 
20 Massachu setts Ave., N.W ., MS 2090 
Washingt on, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT #: 
PETITION : Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(I)(A) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER : 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 1 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form 1-2908) within 33 days of the date of this 
decision . The Form 1-2908 web page (www .uscis.gov /i-290b) contain s the latest information on fee, filing 
location, and other requirements. Please do not mail any motions directly to the AAO. 
~~~ ..........._ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition. The director granted the petitioner's subsequent motion to reopen and reconsider, and 
affirmed the denial of the petition. The petitioner appealed to the Administrative Appeals Office 
(AAO). The appeal will be dismissed. 
The petitioner
1 
seeks classification as an alien of extraordinary ability as an actor and performer , 
pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(1)(A), which makes visas available to petitioners who can demonstrate their extraordinary 
ability through sustained national or international acclaim and whose achievements have been 
recognized in their field through extensive documentation. Section 203(b)(1)(A)(i) of the Act limits 
this classification to petitioners with extraordinary ability in the sciences, arts, education, business, 
or athletics. In his August 8, 2014 decision, the director determined that the petitioner had not 
satisfied the initial evidence requirements set 
forth at 8 C .F.R § 204.5(h)(3), which requires 
documentation of a one-time achievement or evidence that meets at least three of the ten regulatory 
criteria. In his October 24, 2014 decision, granting the petitioner 's motion to reopen and reconsider , 
the director again determined that the petitioner had not shown his eligibility for the classification. 
On appeal, the petitioner asserts that he meets the criteria under the regulations at 8 C.F.R. 
§ 204.5(h)(3)(i), (iii), (v), (vii) and (viii). For the reasons discussed below, we agree with the 
director that the petitioner has not established his eligibility for the exclusive classification sought. 
Specifically, the petitioner has not submitted qualifying evidence of a one-time achievement 
pursuant to 8 C.F.R. § 204.5(h)(3), or evidence that satisfies at least three of the ten regulatory 
criteria set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). As such, the petitioner has not 
demonstrated that he is one of the small percentage who is at the very top in the field of endeavor , 
and that he has sustained national or international acclaim. See 8 C .F.R. § 204.5(h)(2) , (3). 
Accordingly, we will dismiss the petitioner's appeal. 
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 
subparagraph if 
(i) the alien has extraordinary ability in the sciences, arts, 
education, business, or athletics which has been demonstrated 
1 The evidence in the record indicates that in addition to his legal name , the petitioner also uses the names 
" (' and ' " 
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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. 
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. !d.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can 
demonstrate his sustained acclaim and the recognition of his achievements in the field through 
evidence of a one-time achievement (that is, a major, internationally recognized award). If the 
petitioner does not submit this evidence, then he must submit sufficient qualifying evidence that 
meets at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F .3d 1115 (9th Cir. 201 0) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination); see also Rijal v. 
USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of 
Kazarian), aff'd, 683 F.3d. 1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 
(D.D.C. 2013) (finding that USCIS appropriately applied the two-step review); Matter ofChawathe, 
25 I&N Dec. 369, 376 (AAO 2010) (holding that the "truth is to be determined not by the quantity of 
evidence alone but by its quality" and that users examines "each piece of evidence for relevance, 
probative value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true") . 
II. ANALYSIS 
A. P-3 Nonimmigrant Visa 
As noted by the petitioner, the record shows that USCIS has granted at least one P-3 nonimmigrant 
visa in his behalf. The regulation at 8 C.F.R § 214.2(p)(6) provides: 
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(A) A P-3 classification may be accorded to artists or entertainers, individually or as a · 
group, coming to the United States for the purpose of developing , interpreting , 
representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, 
musical, theatrical, or artistic performance or presentation. 
(B) The artist or entertainer must be coming to the United States to participate in a 
cultural event or events which will further the understanding or development of his 
or her art form. The program may be of a commercial or noncommercial nature. 
A grant of a P-3 nonimmigrant visa indicates that the beneficiary , while in the United States, will be 
involved in a "unique or traditional ... performance or presentation. " To be eligible for the 
immigrant classification sought in the instant petition, however, the regulation 
requires a showing of 
the petitioner's extraordinary ability, which is defined 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 petitioner's extraordinary ability is not a consideration for a grant of a 
P-3 nonimmigrant visa. As such, the petitioner's approval for the nonimmigrant visa is not evidence 
of his eligibility for the immigrant visa under the classification of an alien of extraordinary ability. 
See 203(b)(l)(A) of the Act; 8 C.F.R. § 204.5(h)(2). 
B. Evidentiary Criteria 2 
Under the regulation at 8 C .F.R. § 204.5(h)(3), the petitioner, as initial evidence, may present 
evidence of a one-time achievement that is a major, internationally recognized award. In this case, 
the petitioner has not asserted or shown through his evidence that he is the recipient of a major , 
internationally recognized award at a level similar to that of the Nobel Prize . As such, as initial 
evidence, the petitioner must present at least three of the ten types of evidence under the regulations 
at 8 C.F.R. § 204.5(h)(3)(i)-(x) to meet the basic eligibility requirements. 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
On appeal, the petitioner asserts that he meets this criterion because he received a 
in 2002. The evidence in the record does not support this assertion . 
On appeal, the petitioner asserts that "[t]he Awards are the most prestigious 
in the world of South African theatre, period.;, In support of this statement, the petitioner points to a 
one-page Google search printout, which the petitioner submitted in support of his motion before the 
director, indicating that a search of all of the following words: " " and 
2 We have reviewed all of the evidence the petitioner has submitted and will address those criteria the 
petitioner claim s to meet or for which the petitioner has submitted relevant and probative evidence . 
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"award," without quotes around the complete phrase, has "about 1,230,000 results." The petitioner 
has not demonstrated the recognition of the award either in or outside of South Africa through the 
Google search printout. The petitioner has not shown that the search results, which include all 
results with these words rather than the phrase, all relate to the award that the petitioner received in 
2002. For example, the first search result listed on the printout is entitled ' 
." It appears that this search result relates to a publisher named " 
" and does not relate to the petitioner's award. The second and third listed search results 
appear to relate to craft publications published in 1997 and 2000, respectively. These search results 
do not indicate that they relate to the petitioner's award. The petitioner has submitted no evidence 
demonstrating that any of the Google search results relate to his award or establish that his award is 
recognized nationally or internationally. Going on record that the award is "the most prestigious in 
the world of South African theatre" without supporting documentary evidence is not sufficient for 
the purposes of meeting the burden of proof in these proceedings. Matter of Sojjici, 22 I&N Dec. 
158, 165 (Assoc. Comm 'r 1998) (citing Matter of Treasure Craft of Cal?fornia, 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). 
Moreover, as noted in the director's August 8, 2014 decision, the petitioner's award appears to be 
local or regional in nature. Specifically, the award certificate indicates that the petitioner received a 
_ A ward for best performance by a new actor in the musical 
. On appeal, the petitioner asserts that the award's level of recognition is a different 
concept from the pool of eligible candidates and that the name is not determinative. While we do 
not contest either point, it is the petitioner's burden to demonstrate the national or international 
recognition of the award. The petitioner has not shown that this award, which includes the name of a 
city and the word "regional," is nationally or internationally recognized, such as through a national 
telecast or national media attention . 
Accordingly, the petitioner has not submitted documentation of his receipt of lesser nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor. The petitioner 
has not met this criterion. See 8 C.F.R. § 204.5(h)(3)(i). 
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. 8 C.F .R. 
§ 204.5(h)(3 )(iii). 
On appeal, the petitioner asserts that he meets this criterion. The petitioner has submitted a number 
of published materials. The petitioner, ho'wever, has not shown that he meets this criterion. 
The record includes materials that focus on musical productions, including _ and 
in which the petitioner has been involved. Most of these materials either do not mention 
the petitioner, or they list the petitioner as one of the multiple cast members in the musical 
productions. These materials do not focus on the petitioner. They are therefore not about the 
petitioner , relating to his work as an actor or performer. 
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For example, the petitioner has submitted a 2001 article entitled " posted on 
The article has 1 0 paragraphs and mentions the petitioner 's name three times. 
As its title suggests, the article is about the musical , in which the petitioner portrayed 
one of the characters. This article, similar to other materials in the record, is about the musical 
production in which the petitioner is involved. Similarly, although the 2013 article '" 
_ _ " posted on website, 
mentions the petitioner 's name and notes that the petitioner is from South Africa and has been with 
for 11 years, the focus of the article, as its title suggest, is the musical production 
The article is about the musical production and the technical difficulties in bringing it to 
venues like the not about the petitioner, who is one of many cast 
members in the production. In short, these materials, including those not specifically mentioned, are 
about the musical productions and do not demonstrate that the petitioner meets the plain language 
requirements of this criterion. See generally Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ 2008 
WL 10697512, at *3 (D. Nev. 2008) (upholding a finding that articles about a show are not about the 
actor). 
In addition, the petitioner has not shown that either article is published in a professional or major 
trade publication or other major media. In response to the director 's request for evidence (RFE), the 
petitioner submitted a document entitled " noting that 
with a daily circulation of 174,073 and a Sunday circulation of 232,334, is ranked 58th 
in the United States in 2007. The petitioner did not provide any data suggesting that the newspaper 
has a significant distribution outside of Tennessee. The petitioner also submitted evidence showing 
that has received awards for its news reporting. The petitioner has also not 
submitted evidence showing that a newspaper with a daily circulation that is less than one tenth of 
the daily circulation of the top two newspapers in the United States and that is ranked 58th in the 
United States constitutes major media.3 Also, the petitioner has submitted insufficient evidence 
showing that receipt of awards is indicative of its status as major media. 
Similarly, the petitioner has submitted insufficient evidence showing that . which 
posted " ," is a professional or major trade publication or other major media. While 
the petitioner asserts on appeal that the initial submission included evidence of the web traffic 
statistics for the relevant websites, the record does not contain these statistics for 
Moreover, although the petitioner has submitted materials that are about him, relating to his work as 
an actor and performer, the petitioner has not shown that these materials are published in 
professional or major trade publications or other major media. For example, the petitioner has 
submitted an 2013 article entitled "Q & A with [the Petitioner] of 
' which is posted on blog, 
3 According to the " . ; daily circulation is 2,278,022 and The " ., 
daily circulation is 2,062 ,3 12. 
(b)(6)
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According to . website, it is a performance venue in 
Wisconsin. The petitioner has not shown that this blog is a professional or major trade publication 
or other major media. The petitioner has submitted a one-paragraph piece entitled ' 
," posted on website. The petitioner 
has not shown that materials posted on a school website constitute published materials in a 
professional or major trade publication or other major media. 
Accordingly, the petitioner has not submitted published material about him in professional or major 
trade publications or other major media, relating to his work in the field for which classification is 
sought. The petitioner has not met this criterion. See 8 C.F.R. § 204.5(h)(3)(iii). 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
On appeal, relying primarily on reference letters, the petitioner asserts that he meets this criterion. 
To meet this criterion, the petitioner must demonstrate that his contributions are both original and of 
major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). The term "original " and the phrase 
"major significance" are not superfluous and, thus, they have some meaning. Silverman v. Eastrich 
Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3d Cir. 1995) (quoted in APWU v. Potter, 343 F.3d 
619, 626 (2d Cir. 2003)). The petitioner must show that his contributions are original, such that he is 
the first person or one of the first people to have done the work in the field, and that his contributions 
are of major significance in the field, such that his work fundamentally changed or significantly 
advance the field as a whole. In addition, contributions of major significance connotes that the 
petitioner's work has already significantly impacted the field. See Visinscaia, 4 F. Supp. 3d at 134-
36. The evidence in the record is insufficient to demonstrate that the petitioner meets this criterion. 
First, the . 2013 Citation of Congratulations presented by the , which 
"extends to [the petitioner] a sincere welcome," does not meet this criterion. Although the Citation 
notes that the petitioner is one of the cast members in a concert entitled ' " the citation does 
not indicate that the petitioner has made any original contributions of major significance in the field 
of acting or performance. The petitioner has submitted an undated letter from 
in Oklahoma, which states that the petitioner has made an "outstanding contribution ... to 
the city of and the State of Oklahoma" and has made "an extraordinary impact on [the] 
communities and to [the United States]." The plain language of the criterion requires the petitioner 
to demonstrate his contribution in the field of acting and performance, the field in which he seeks the 
exclusive classification. The letter from does not provide information 
relating to the petitioner's contribution in the field. 
Second, reference letters and articles that praise the petitioner's talent, without providing specific 
evidence on what the petitioner has done in the field that is original and that constitutes original 
contributions of major significance, do not demonstrate that the petitioner meets this criterion. 
According to a . 2014 article entitled' 
' posted on a blog, the petitioner is the first voice one would hear from 
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soundtrack, and that "his smooth yet dynamic vocal style, and his heartfelt lyrics ... is some of the 
best world music [the blogger has] ever heard." To meet this criterion, the petitioner must 
demonstrate the impact his work has had in the field rises to the level of major significance in the 
field. The 20 14 article does not discuss what impact the petitioner's work has had in the 
field of acting and performing. Rather, the article constitutes the opinion of one blogger who has 
worked with the petitioner and who praises the petitioner's musical talent. The article is insufficient 
to demonstrate that the petitioner's impacted the field is consistent with contributions of major 
significance. 
According to a May 26, 2014 letter from . Director of a performing 
arts company, the petitioner performed in two musical productions that the 
company produced and that have received "great reception in Europe and South Africa." Ms. 
states that "[b]ecause of people like [the petitioner, the company] saw [a] rise in ticket sales as well 
as recognition." The letter does not establish that the petitioner has made original contributions of 
major significance in the field of acting and performance. Rather, the letter provides information 
about the petitioner's work in musical productions and praises, in general terms, the petitioner's 
talent and character. Such information is insufficient to demonstrate that the petitioner meets this 
criterion. 
According to a May 8, 2013 letter from Artistic Director of , a performing 
arts company, the petitioner assisted Mr. during casting of a musical production. 
Specifically, Mr. states that the petitioner "did an exceptional job as an adjudicator for the 
musical and that enabled [the company] to hire the strongest cast every director desire for." 
Although Mr. praises the petitioner's talent in performance and ability in casting, Mr. 
does not indicate what the petitioner has done that constitutes original contributions of 
major significance in the field of acting or performance. 
Third, reference letters discussing the petitioner's contributions to the movie and the 
musical production, without providing evidence of the petitioner's original contributions of major 
significance in the field of acting and performance do not meet this criterion. The petitioner has 
submitted a number of reference letters attesting to his contribution to movie and to 
musical production. Specifically, the petitioner has submitted a July 12, 2013 letter 
from , a composer and singer; a July 25, 2013 letter from 
President of and a July 15, 2013 letter from Director of 
musical production The reference letters all praise the petitioner's musical and 
acting talent and indicate that he's vocal performance has contributed to the success of 
_ movie and his vocal and acting performance have contributed to the success of 
musical production. The petitioner, however, has not shown that his contributions in the movie and 
musical production have impacted the field of acting and performing as a whole, as required by the 
plain language ofthe criterion. The petitioner's contributions in the movie and musical production, 
as discussed below, demonstrate that he meets the leading and critical role criterion. See 8 C.F.R. 
§ 204.5(h)(3)(vii). It does not demonstrate that he also meets the original contributions of major 
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significance in the field criterion, without specific evidence and examples of his work's impact in the 
field. See 8 C.F.R. § 204.5(h)(3)(v). 
Fourth, evidence that the petitioner has released recordings of his musical performances , performed 
in benefit concerts and donated to the shows that the petitioner 
has been employed in the field of acting and performance and has been charitable to others. Such 
evidence, however, does not demonstrate that he has made original contributions of major 
significance in the field of acting and performance. 
Vague, solicited letters from colleagues that do not specifically identify c6ntributions or provide 
specific examples of how those contributions influenced the field are insufficient. 4 Kazarian v. 
USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009), aff'd in part, 596 F.3d 1115 (9th Cir. 2010). The 
opinions of experts in the field are not without weight and have been considered above. USCIS 
may, in its discretion, use as advisory opinions statements submitted as expert testimony. See Matter 
ofCaron Int 'l, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is ultimately responsible 
for making the final determination regarding a petitioner's eligibility for the benefit sought. ld. The 
submission of letters from experts supporting the petition is not presumptive evidence of eligibility; 
users may, as this decision has done above, evaluate the content of those letters as to whether they 
support the petitioner's eligibility. See id. at 795; see also Matter of V-K-, 24 r&N Dec. 500, n.2 
(BrA 2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). 
users may even give less weight to an opinion that is not corroborated, in accord with other 
information or is in any way questionable. ld. at 795; see also Matter ofSo.ffici , 22 I&N Dec. at 165 
(citing Matter of Treasure Crafi of California , 14 I&N Dec. 190 (Reg'l Comm'r 1972)); See 
Visinscaia, 4 F. Supp. 3d at 134-35 (upholding our decision to give minimal weight to vague, 
solicited letters from colleagues or associates that do not provide details on contributions of major 
significance in the field). 
Accordingly, the petitioner has not presented evidence of his original scientific, scholarly, artistic, 
athletic, or business-related contributions of major significance in the field. The petitioner has not 
met this criterion. See 8 C.F.R. § 204.5(h)(3)(v). 
Evidence of the display of the alien 's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
The director found that the petitioner met this criterion. The record does not support this conclusion. 
We may deny an application or petition that does not comply with the technical requirements ofthe 
law even if the director does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), aff'd, 345 
4 In 20 I 0, the Kazarian court reiterated that our conclusion that "letters from physics professors attesting to 
[the petitioner's] contributions in the field " were insufficient was "consistent with the relevant regulatory 
language." 596 F .3d at 1122. 
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F.3d 683 (9th Cir. 2003); see also Soltane v. Dep 't of Justice, 381 F.3d 143, 145-46 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). 
The plain language of the criterion suggests that it is limited to evidence relating to the visual arts. 
This interpretation is longstanding and has been upheld by a federal district court. See Negro­
Plumpe, 2008 WL 10697512, at *4 (upholding an interpretation that performances by a performing 
artist do not fall under the regulation at 8 C.F.R. § 204.5(h)(3)(vii)). In this case, the petitioner is not 
a visual artist and has not created tangible pieces of art that were on display at artistic exhibitions or 
showcases. Accordingly, the petitioner has not presented evidence of the display of his work in the 
field at artistic exhibitions or showcases. The petitioner has not met this criterion. See 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. 8 C.F.R. § 204.5(h)(3)(viii). 
The director found that the petitioner met this criterion. The evidence in the record supports this 
finding. For example, according to Ms. the petitioner is "one of [the] few South African cast 
members in l I in the United States, he is proficientin Zulu, Xhosa 
and Sotho, languages that are used in some of the chants in the production. His unique style and 
voice contributes to the authentic rhythms and cultural traditions of South Africa that are prevalent 
in this production ." In addition, the petitioner has submitted evidence showing that the musical 
production team has received a number of awards, including a Grammy Award and Tony Awards. 
Accordingly, the petitioner has presented evidence that he has performed in a critical role for an 
organization or establishment that has a distinguished reputation. The petitioner meets this criterion. 
See 8 C.F.R. § 204.5(h)(3)(viii) . 
Evidence of commercial successes in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x). 
In his August 8, 2014 decision , the director found that the petitioner did not meet this criterion. On 
appeal, the petitioner has not specifically challenged the director 's finding. Accordingly, the 
petitioner has abandoned this issue, as he did not timely raise it on appeal. Sepulveda v. United 
States 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 United States District Court found the 
plaintiffs claims to be abandoned as he failed to raise them on appeal). 
C. Summary 
The evidence demonstrates that the petitioner has been employed as a vocalist, actor and performer 
and has been an ensemble cast member in the musical production Notwithstanding 
evidence showing that the petitioner is a working performer who has been gainfully employed, for 
the reasons discussed above, we agree with the director that the petitioner has not submitted the 
requisite initial evidence, in this case, evidence that satisfies three of the ten regulatory criteria. 
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III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the petitioner has achieved sustained national or international acclaim and is one of the small 
percentage who have risen to the very top of his or her field of endeavor. 
Had the petitioner 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 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. As the petitioner has not done so, the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of 
presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) 
and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final 
merits determination referenced in Kazarian, a review of the evidence on which the petitioner relies 
on appeal in the aggregate supports a finding that the petitioner has not demonstrated, through the 
submission of extensive evidence, the level of expertise required for the classification sought. 5 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
5 We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 381 F.3d 
143, 145 (3d Cir. 2004). In any future proceeding, we maintain 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)(l)(ii) ; see also INA§§ 103(a)(l), 204(b); DHS 
Delegation Number 0150.1 (effective March I, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § I 03.1 (f)(3)(iii) (2003); Matter of 
Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the 
jurisdiction to decide visa petitions).