dismissed EB-1A Case: Acting

... .. 
identifYing data deleted to 
prevent clearly unwarranted 
invasion of personal privac}' 
l'UBtlC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship ilild Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave" N.W .. MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: 
JAN 1 1 2011 
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. § 1153(b)( I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in rcaching our decision. or you have additional 
information that you wish to have considered. you may file a motion to reconsider or a motion to reopcn. 
The specific requirements for filing such a request can be found at 8 C.P.R. § 103.5. All motions must bc 
submitted to the office that originally decided your case by filing a Form I~290B. Notice of Appeal or 
Motion. with a fee of $630. Please be aware that 8 C.P.R. § I 03.S(a)(l lei) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you. 
~
'b tffi Ii nde 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on September 17, 2009, 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. § IlS3(b)(l)(A), as an 
alien of extraordinary ability as an actress. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of 
her sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "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.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, 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 lei) 
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 patt, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been 
recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to 
continue work in the area of extraordinary ability, and 
• .. 
Page 3 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States, 
U.S. Citizenship and Immigration Services (USerS) 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 of the 
field of endeavor. Jd. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 c.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her 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 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) 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; 
(iii) 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; 
(iv) 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 specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles m the field, m 
professional or major trade publicatious or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
-Page 4 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the V.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 IllS (9th Cir. 20 I 0). 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 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 determination." /d. 
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)). The COUl1 also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of thelirJ field of endeavor," 
8 c'F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 V.S.c, § 1153(b)(1)(A)(i). 
Id. at 1119. 
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 reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises. Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see a/so So/tane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
I 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.FR. § 204.5(h)(3)(iv) and 8 C.FR. § 204.5(h)(3)(vi). 
, 
Page 5 
II. Translations 
While not addressed by the director in his decision, the record of proceeding reflects that the 
petitioner submitted numerous partial translations and foreign language documents without any 
English language translations. The regulation at 8 C.F.R. § J03.2(b) provides in peltinent patt: 
(3) Translations. Any document containing foreign language submitted to USCIS 
shall be accompanied by a full English language translation which the translator 
has certified as complete and accurate, and by the translator's certification that he 
or she is competent to translate from the foreign language into English. 
Because the petitioner failed to comply with the regulation at 8 C.F.R. §103.2(b)(3), the AAO 
cannot determine whether the evidence supports the petitioner's claims. Accordingly, the 
evidence is not probative and will not be accorded any weight in this proceeding. 
III. Analysis 
A. Evidentiary Criteria 
The petitioner has submitted evidence pertaining to the following criteria under the regulation at 
8 C.F.R. § 204.5(h)(3). 2 
Documentation ()f" the alien's receipt of" lesser nationally or internationally 
recognized prizes or awards/or excellence in the field of endeavor. 
The petitioner claims eligibility for this criterion based on her receipt of two awards: 
1. 
2. 
In the director's decision, he found that the petlttoner failed to establish eligibility for this 
criterion. Regarding item 1, the petitioner submitted the following documentation: 
A. A photograph of a trophy with a translation reflecting that the trophy was 
B. 
awarded to the petitioner from for "her career as an 
Actress"; 
A letter, dated June 2008, 
stated: 
who 
1 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
, 
Page 6 
c. 
[P]er the results of the selection process performed by 
means of a public survey, [the petitioner] lhas] been 
our highest ward [sic I 
award that is granted to 
important companies, men and/or women that due to their 
valuable contribution to culture and entertainment have had 
a positive impact on our country; 
A letter, dated June 2, 2009 who stated: 
was held for the first time last year, m 
2008, and has the goal to promote cultural and artistic 
activities as well as award annually the v~ 
the country. . .. On our first edition of __ 
the a special prize for 
D. of an article entitled, 
E. A screenshot from 
reflecting: 
[T]he objective of this festival is to provide spectators and 
guests with days filled with magic, while at the same time 
supporting the regional craft industry, arts and culture. 
Regarding item 2, the petitioner submitting the following documentation: 
I. A photograph of a trophy with a translation that the trophy was 
11. 
111. 
awarded to the petitioner for for "her 
outstanding participation in representing our country internationally"; 
A letter of 
Guatemala, who stated thc prize "denotes tenacious work of heart and total 
devotion to an artistic career"; and 
A lctter in Atlanta, 
Georgia, who stated: 
lThe petitioner], along with other leading artists and 
entertainers, was given an award by the Vice President in 
recognition of her significant contributions to the arts in 
Latin American [sic] and for her sustained television 
career, as well as leading her name and talents to charitable 
• 
Page 7 
causes in the country. She is one of the most successful 
Guatemalan actresses in soap operas in Latin America and 
has brought great honor to our country. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "r dlocumentation of the 
alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence 
in the field of endeavor." Moreover, it is the petitioner's burden to establish eligibility for every 
element of this criterion. Not only must the petitioner demonstrate her receipt of awards and 
prizes, she must also demonstrate that those prizes and awards are nationally or internationally 
recognized for excellence. In other words, the petitioner must establish that her prizes and 
awards are recognized nationally or internationally beyond the awarding entities. 
Regarding item 1, we are not persuaded that the documentary evidence submitted by the 
petitioner demonstrates a or internationally recognized prize or award for excellence. 
Rather the award from the reflects a locally recognized award from_ 
_ Moreover, the purpose of is to promote tourism and to support the 
financial area. The petitioner . to . docu~e demonstrating 
the national or international recognition of the award outside of~. Moreover, wc 
cannot ignore the fact that the letter indicated that the petitioner won the 
award in the first year that the event was held. Given the fact that this was the first time this 
competition was conducted, the petitioner failed to show that any subsequent awards have been 
well-established in the field so as to demonstrate their national or international recognition for 
excellence. The mere submission of documentary evidence that only demonstrates the 
petitioner's receipt of an award is insufficient to establish eligibility for this criterion without 
documentary evidence reflecting the national or international recognition for excellence. 
Regarding item 2, the petitioner submitted sufficient documentary evidence establishing that the 
award is nationally recognized for excellence. However, the plain language of the regulation at 8 
C.F.R. § 204.5(h)(3)(i) requires the petitioner to demonstrate her receipt of more than one prize 
or award. Therefore, as discussed above, the petitioner only established eligibility for one award. 
As such, the petitioner failed to meet the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3 lei). 
Accordingly, the petitioner failed to establish 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. 
The petitioner claims eligibility for this criterion based on the following two memberships: 
1. Asociacion National de Actoroes (ANDA) (National Association of 
Actors): and 
, 
Page 8 
2. Asociacion National de Interpretes (AND I) (National Association of 
Interpreters ). 
In the director's decision, he found that the petitioner failed to establish eligibility for this 
criterion. Regarding item I, the petitioner submitted the following documentation: 
A. A non-translated document that appears to reflect that the petitioner is a 
member from ANDA; 
B. A letter from ANDA, who stated that the petitioner is 
a member of ANDA, and it "is the official Union that represents actors in 
theater, cinema, television, and advertising fields in Mexico"; and 
C. Screenshots from www.wikipedia.org regarding ANDA. 
Regarding item 2, the petitioner submitted the following documentation: 
I. A non-translated document that appears to reflect that the petitioner is a 
member of ANDI; 
11. A letter 
of ANDI, who stated that the petitioner is a member 
Not every person who gets involved in TV, radio, movie 
industry or theater is considered to be an artist that can join 
our association. Only those who achieve a certain level of 
success in Mexico, have a valid Work Contract with a 
company in their industry, and have material (audio or 
video) of such high value that will be featured again in their 
industry, will qualify to be invited to form part of our 
aSSOCIatIOn. Once a member, our Association will 
guarantee that hislher rights as an artist of high caliber are 
respected; 
Ill. A translation of a screenshot from www.andi.org; and 
IV. Copies of royalty payments from AND!. 
We note, regarding items 1 and i, the pelllloner failed to submit any English language 
translations pursuant to the regulation at 8 C.F.R. § 103.2(b)(3). Moreover, regarding item iii, 
while the petitioner submitted a certified translation, the petitioner only submitted a partial 
screenshot ofthe original document. As such, the petitioner failed to submit the full screenshot( s) to 
which the translation pertains. 
Page 9 
We further note, regarding item C, that there are no assurances about the reliability of the content 
from Wikipedia, which is an open, user-edited Internet site, Therefore, we will not assign weight 
to information from Wikipedia. See Laamilem Badasa v. Michael Mukasey, 540 F.3d 909 (Slh 
Cir. 2008). 1 
Nevertheless, the plain language of the regulation at S C.F.R. § 204.5(h)(3)(ii) requires 
"[ dlocumentation 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 satisfy 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. 
In this case, while the petitioner demonstrated that she is a member of ANDA and AND I, the 
petitioner failed to establish that membership with ANDA or AND! requires outstanding 
achievements of its members, as judged by recognized national or international experts in the 
field. Specifically, regarding AND A. the documentary evidence simply reflects that ANDA is an 
official union that represents actors in Mexico. The petitioner failed to submit any documentary 
evidence reflecting the membership requirements for ANDA, so as to establish that membership 
with ANDA requires outstanding achievements of its members, as judged by recognized national 
or international experts in the field. 
Regarding ANDl, while 
involved in TV, radio, ",,,,,;p 
indicated that "I n lot every person who gets 
tht:au:r is considered to be an artist that can join 
1 See also a copy of the online content from http://cn.\vikipedia.org!wikiI\Vikipcdia: General di~dail11C'r, accessed 
on December 14,2010, and copy incorporated into the record of proceeding noting that the content is subject to the 
following general disclaimer: 
WIKIPEDIA MAKES NO GURANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is. a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone 
with an Internet connection to alter its content. Please be advised that nothing found here has 
necessarily been reviewed by people with the expertise required to provide you with complete, 
accurate or reliable information . ... Wikipedia cannot guarantee the validity of the information 
found here. The content of any given article may recently have been changed, vandalized or 
altered by someone whose opinion docs not correspond with the state of knowledge in the relevant 
fields. 
Page IO 
lAND!]," we are not persuaded that "achievling] a certain level of success in Mexico," "hav[ing] 
a valid Work Contract with a company in their industry," and "hav[ing] material (audio or 
visual) of such high value that will be featured again in their industry" demonstrate outstanding 
achievements of its members. While ANDI's requirements restrict membership to all artists, the 
requirements indicated by Mr far short in reflecting that outstanding 
achievement is an essential condition for membership. Furthermore, the petitioner failed to 
establish that membership with ANDI is judged by recognized national or international experts 
in the field. 
Merely submitting documentary evidence reflecting the petitioner's memberships without 
evidence reflecting that the petitioner's memberships with associations require outstanding 
achievements of their members, as judged by recognized national or international experts, is 
insufficient to meet the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). It is the 
petitioner's burden to establish every element of this regulatory criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Published material about the alien in pr(!iessional or major trade publications or 
other major media, relating to the alien's work in the field for which 
classification is sought. Such evidence shall include the title, date. and author of 
the material, and any necessary translation. 
In the director's decision, he found that the petitioner failed to establish eligibility for this 
criterion. A review of the record of proceeding reflects that the petitioner submitted the 
following documentation: 
I. A partial translation of an 
~' September 19, 2008 
2. An article entitled, 
•••• ' September 8, 
3. A partial translation of an 
_" October 6, 2008, 
4. A partial translation of an article eIllllll'eu, 
." October 8, 2008 
5. A partial translation 
December 17, 
-Page II 
6. 
7. 
8. 
9. 
10. 
11. 
12. 
13. 
article entitled, 
in 2008," January 
~nslation of an article 
_ December 4, 
www.peoplccncspanol.com; 
www.nyuailvnews.com/latino/es panol; 
author, 
translation of an article 
October 5, 2008, 
14. A partial translation of a snippet pntitlp,rI 
_with_" December 
March 7, 2009, 
April 2008, unidentified 
15. November 20, 2008, unidentified 
16. October 23, 
17. An article entitled, 
-
18. October 14, 2008, 
-Page 12 
19. 
20. A partial translation of an article 
21. 
22. 
23. 
24. 
25. 
~ess release entitled, 
.' September 23, 
November 9, 2008, unidentified author, 
unidentified author, September 26, 
June II, 2008, 
26. Various photographs without any translations of the accompanymg 
captions and snippets. 
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 papers4 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that 
"[ s luch evidence shall include the title, date, and author of the material, and any necessary 
4 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 13 
translation," We note here that the petitioner submitted partial translations for the majority of 
her foreign language documents, As the petitioner failed to submit full English language 
translations as required pursuant to the regulation at 8 c'F.R. §§ 103.2(b)(3) and 204.5(h)(3)(iii), 
we will not accord any weight to this evidence in this proceeding, 
We further note that the petitioner submitted several articles that were posted on the Internet. 
However, we are not persuaded that articles posted on the Internet from a printed publication are 
automatically considered major media, The petitioner failed to submit independent, supporting 
evidence establishing that the websites are considered major media, In today's world, many 
newspapers, regardless of size and distribution, post at least some of their stories on the Internet. 
To ignore this reality would be to render the "major media" requirement meaningless. However, 
we are not persuaded that international accessibility by itself is a realistic indicator of whether a 
given website is "major media." 
Regarding item I, the petitioner failed to submit a full English language translation. Moreover, 
regarding El Nuevo Herald, besides the information from Wikipedia, the partial translation from 
www.elnuevoherald.com. the petitIOner suhmitted screens hots from 
www.miamiheraldadvertising.com reflecting that El Nuevo Herald "is the largest Spanish 
language newspaper in South Florida" with daily circulation statistics of 80,576. However, when 
compared to the daily circulation statistics of 261,476 for The Miami Herald, which is the parent 
company of El Nuevo Herald, we are not persuaded the El Nuevo Herald is a professional or 
major trade publication or other major media. 
Regarding item 2, the petitioner failed to submit any documentary evidence establishing that 
Foro Univision is a professional or major trade publication or other major media. 
Regarding item 3, the petitioner failed to submit a full English language translation. In addition, 
the submitted a screenshot from www.abyzncwslinks.com merely reflecting that_ 
documentary evidence, we cannot 
publication or other major media, 
Without the submission of further 
a professional or major trade 
Regarding items 4 and 5, the the same screenshot from 
simply reflecting is one of several Guatemalan 
regarding item failed to submit a full English 
language translation. In addition, the article appears to be an interview in which the petitioner 
responds to the interviewers questions and not published material about the petitioner regarding 
her work. Regarding item 5, the translation also appears to include only a partial translation of 
the article. Moreover, the article appears to be about various Guatemalan artists, not solely about 
the petitioner and her work. 
Regarding items 6 and 7, the pelilioner failed to submit full English language translations. 
Furthermore, the articles appear not to be about the petitioner relating to her work. Instead, the 
articles appear to be interviews conducted with the petitioner in which the petitioner merely 
Page 14 
responds to the questions. 
addition, the submitted a 
as the screenshot 
The articles do not discuss the petitioner lCldUllg 
translation of a screenshot from 
simply reflecting that IS a 
Regarding item 8, similar to items 6 and 7, the article appears to be an interview with the 
petitioner in which the petitioner responds to the interviewer's questions rather than an article 
about the petitioner and her work. Moreover, the failed to I English 
language translation and submitted the screens hot from merely 
reflecting that _, is a newspaper in Guatemala. 
Regarding item 9, the petitioner failed to submit a full W"5'WI';~ translation of the article. 
Further, the screenshots from 
Wikipedia is about 
documentary evidence, we cannot conclude that 
major trade publication or other major media. 
the information from 
Without additional 
is a professional or 
Regarding item 10, the petitioner failed to translation. In 
~ submitted circulation statistics regarding the 
~ While we acknowledge that the New 's a professional 
or major trade publication or other . or media, the petitioner failed to submit any documentary 
evidence regarding 
Regarding item II, the petitioner failed to include the author of the 
petitioner failed to submit any documentary evidence demonstrating that 
professional or major trade publication or other major media. 
the 
IS a 
Regarding item 12, the petitioner failed to submit a full English language translation. 
Furthermore, the petitioner failed to submit any documentary evidence establishing that 
_ is a professional or major trade publication or other major media. 
Regarding item 13, the petitioner failed to submit a full English language translation. In 
addition, the article appears not to be about the petitioner relating to her work. Rather, the article 
appears to be an interview conducted with the petitioner in which the petitioner merely responds 
to the questions. The article does not discuss the petitioner relating to her work. Further, the 
petitioner failed to submit any documentary evidence demonstrating that Genie 21 is a 
professional or major trade publication or other major media. 
Regarding item 14, the petitioner failed to indicate the author of the snippet and submitted only a 
partial translation of the snippet. Moreover, the snippet cites the petitioner's responses to a few 
questions. Finally, the petitioner failed to submit any documentary evidence establishing that_ 
•••• is a professional or major trade publication or other major media. 
-Page 15 
Regarding items 15 - 21, the petitioner failed to include the authors of the Internet articles, as 
well as the date of the article for item 19 and submitted only partial translations for items 19-
20. In addition, the petitioner failed to submit any documentary evidence demonstrating that any 
of the websites are professional or major trade publications or other major media. 
Regarding items 22 - 25, they merely reflect press releases and announcements for the television 
series, Gabriel. In fact, items 23 - 25 are the same announcements but just posted on different 
websites. While these items mention the petitioner in the television series, as well as several 
other artists, the articles are not primarily about the petitioner relating to her work. See generally 
Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 7 (D. Nev. Sept. 8,2008) (upholding a finding 
that articles about a show are not about the actor). Nevertheless, the petitioner failed to submit any 
documentary evidence establishing that www.latinheat.colTI, www.prncwswire.colTI, 
www.mx.f30S.mail.yahoo.com. and www.hispanicad.colTI are professional or major trade 
publications or other major media. 
Finally, regarding item 26, notwithstanding that the petitioner failed to submit any translations 
for the captions and snippets, the submission of photographs do not meet the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requiring "published material," and "the title, date, 
and author of the material," as well as evidence demonstrating that they were published in 
professional or major trade publications or other major media. 
As evidenced above, the majority of the petitioner's documentary evidence failed to comply with 
the regulation at 8 c.F.R. § 103.2(b)(3) requiring full translations and 8 C.F.R. § 204.5(h)(3)(iii) 
also requiring the necessary translation and the date and author of the material. While the 
petitioner submitted a few articles reflecting published material about the petitioner and her 
work, the petitioner failed to establish that the material was published in professional or major 
trade publications or other major media. The burden is on the petitioner to establish every 
element of this criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence {~t the alien's original scientific, scholarly, artistic, athletic, or husiness­
related contributions 01' mqjor sif?nificance in the field. 
In the director's decision, he found that the petitioner failed to establish eligibility for this 
criterion. On appeal, counsel argues: 
lTlhe Applicant has been recognized specifically due to her significant 
contributions to the field. It is argued that the major national award granted the 
Applicant from the government of Guatemala is indeed awarded to her for her 
"contributions of major significance to the field." This is confirmed by the 
Director when he accurately quotes the Consular General of Guatemala's letter 
confirmed . was given an award by the Vice President in 
recognition contributions to the arts in Latin America, and for 
Page 16 
her sustained television career, as well as lending her name and talents to 
charitable causes in the country. She is one of the most successful Guatemalan 
actresses in soap operas in Latin America and has brought great honor to our 
country." 
It is argued that the award granted to her from the , similarly 
recognizes her career achievements and significant contributions to the arts in 
Mexico. As noted, the letter from on behalf of 
_ states the award is given contributions to culture and 
entertainment" that has "had a positive impact on the country" of Mexico. 
Regarding counsel's arguments on appeal regarding the petitioner's awards, they have already 
been considered under the regulation at 8 C.F.R. § 204.5(h)(3)(i). We will not presume that 
evidence relating to or even meeting the awards criterion is presumptive evidence that the petitioner 
also meets this criterion. To hold otherwise would render meaningless the regulatory requirement 
that a petitioner meet at least three separate criteria. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "leJvidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." In compliance with Kazarian, the AAO must focus on the plain 
language of the regulatory criteria. 596 F.3d at 1121. Here, the evidence must be reviewed to see 
whether it rises to the level of original artistic-related "contributions of major significance in the 
field." 
A review of the record of proceeding reflects that the petitioner also claimed eligibility for this 
criterion based on three letters. We cite representative examples here: 
[AI number of actions have been carried out 
solidarity of the Guatemalan people. As a 
has been performed in October 2008. It has counted on the support of national 
and international artists and has collected food for the poorest communities of the 
country. 
During this event, [the petitioner] collaborated as a host, motivating the 
Guatemalan public and the Latin-American people to participate to our efforts. 
failed to indicate how the petitioner's hosting and motivating constitute an original 
contribution "of major . to the field" of acting. We are not persuaded that the 
petitioner's participation at falls within the field of acting. Regardless, 
failed to indicate how the petitioner'S hosting and motivating influenced or 
let alone the field as a whole. 
-Page 17 
An illegible name from stated: 
CEPEDE is an educational center founded in 2000 for the development of special 
needs children. We work with children suffering from down syndrome, cerebral 
palsy, autism, and other learning disorders and conditions .... 
! W]e wish to confirm! the petitioner! has been a visiting theater professor for our 
children over the last few years. She has held class on improvisational 
techniques, collaborated on various special courses for expression and arts, and 
hosted our final presentations in "Festivals" organized to present the children's 
performances. [The petitioner's] contribution to our organization have [sic! been 
invaluable. With her incredible skills as an actress as well as her special abilities 
to deal with children with special needs, !the petitioner! has been able not only to 
teach her acting skills but also help the children improve their lives in general. 
Similar to the letter from the letter from _merely indicates that the 
petitioner held classes, collaborated on special courses, and hosted the final presentation without 
demonstrating that the petitioner has made original contributions of major significance to the 
field. While the petitioner's involvement with_ is admirable, we are not persuaded that 
such involvement falls within her field of acting. Nonetheless, the letter only discusses the 
petitioner's contributions as they related to ~nd not to the field as a whole. 
stated: 
We wish also to highlight that individuals like [the petitioner] make an enormous 
contribution to the Latin American television since their shows and 
exportation. 
were exported to all Latin America, United 
recognition in those countries and 
commercial profit in the countries they were produced. These facts indicate that 
[the petitioner] has reached the top of her field of endeavor and that she has 
become one of the most acclaimed soap opera actresses in the Hispanic 
entertainment businesses. 
While generally claimed that the petitioner'S shows and productions contributed 
to Latin American television based on the exportation to all of Latin America, United States, and 
Europe, the lack of specific information fails to establish eligibility for this criterion. While the 
petitioner's performances in shows and productions may be considered an original contribution, 
the letter fails to establish that her participation reflects original contributions of major 
significance to the field. We are not persuaded that merely performing on a television show or in 
a production demonstrates eligibility without documentary evidence showing that her work has 
been influential to the field as a whole. 
Page 18 
The letters submitted on the petitioner's behalf fail to reflect original contributions of major 
significance in the petitioner's field and contain general statements that lack specific details. 
This regulatory criterion not only requires the petitioner to make original contributions, but also 
requires those contributions to be significant. We are not persuaded by vague, solicited letters 
that simply repeat the regulatory language but do not explain how the petitioner's contributions 
have already influenced the field. Merely repeating the language of the statute or regulations 
does not satisfy the petitioner's burden of proof.s The lack of supporting documentary evidence 
gives the AAO no basis to gauge the significance of the petitioner's present contributions. 
USCIS may, in its discretion, use as advisory opinion statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. [d. The submission of letters of support from the petitioner'S personal contacts is 
not presumptive evidence of eligibility; USC1S may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795. Thus, the content of the writers' 
statements and how they became aware of the petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in 
support of an immigration petition are of less weight than preexisting, independent evidence of 
original contributions of major significance. 
We must presume that the phrase "major significance" is not superfluous and, thus, that it has 
some meaning. Without additional, specific evidence showing that the petitioner's work has 
been original, unusually influential, or has otherwise risen to the level of contributions of major 
significance, we cannot conclude that she meets this criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence of' the display of' the alien's work in the field at artistic exhibitions or 
showcases. 
The director found that the petitioner failed to establish eligibility for this criterion. On appeal, 
counsel argues: 
Almost every article in the media, including many feature articles, magazine 
covers, and other evidence mention her popularity based on her acting successes 
for many years, and her work (acting) being on display at events, showcases, in 
media, and in the press. These articles mention her appearances to promote her 
shows, charitable appearance as a celebrity, interviews, and other events. 
The plain language of the regulation at 8 C.F.R. ~ 204.5(h)(3)( vii) requires "[ e Jvidence of the 
display of the alien's work in the field at artistic exhibitions or showcases." The petitioner is an 
5 Fedin Bros. Co .. Ltd. v. Sava. 724 F. Supp. 1103, IIOX (ED.N.Y. 1989), aff'd. 905 F. 2d 41 (2d. Cir. 1990); MYr 
Associates. Inc. v. Meissner. 1997 WL 188942 at *5 (SD.N.Y.). 
Page 19 
actress. When she acts before a television audience or appears in a magazine, she is not 
displaying her acting in the same sense that a painter or sculptor displays his or her work in a 
gallery or museum. The petitioner is performing her work, she is not displaying her work. She 
is certainly not displaying her work in interviews, promotional shows, or charitable appearances 
as counsel argues. In addition, to the extent that the petitioner is a performing artist, it is inherent 
to her occupation to perform. Not every performance is an artistic exhibition designed to 
showcase the performer's art. If we were to accept that a performance artist like the petitioner 
meets this criterion, it would render the regulatory requirement that the petitioner meet at least 
three criteria meaningless as this criterion would effectively be collapsed into the criterion at the 
regulation at 8 C.F.R. § 204.5(h)(3)(viii). The ten criteria in the regulations are designed to 
cover different areas; not every criterion will apply to every occupation. This interpretation has 
been upheld by at least one district court. See Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 
8-9. (finding that the AAO did not abuse its discretion in finding that a performance artist should 
not be considered under the display criterion). While we acknowledge that a district court's 
decision is not binding, the court's reasoning indicates that the AAO's interpretation of the 
regulation is reasonable. 
Therefore, while the petitioner's 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 aforementioned "leading or critical role" criterion set forth at the regulation at 8 
C.F.R. § 204.5(h)(3)(viii) and the "commercial successes in the performing arts" criterion at the 
regulation at 8 C.F.R. § 204.5(h)(3)(x), they will be discussed separately within the context of 
those criteria. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence that the alien has performed in a leading or critical role jllr organizations 
or establishments that have a distinl{uished reputation. 
In the director's decision, he found 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)(viii) requires 
"[ e ]vidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation." In general, a leading role is evidenced from 
the role itself, and a critical role is one in which the alien was responsible for the success or 
standing of the organization or establishment. A review of the record of proceeding reflects that 
the petitioner submitted numerous recommendation letters claiming that the petitioner performed 
in leading or critical roles for various entertainment and media companies. We cite 
representative examples here: 
I am in the position to confirm the standing of Guatemalan actress [the petitioner] 
in the telenovela industry in Mexico, and because our programs are broadcast and 
Page 20 
popular around the world, her international standing. [The petitioner's1 first 
leading role with Televisa was in the soap opera in 2003. Not 
only was [the petitioner1 a key contributor to the success of this production for 
Televisa, but she personally gained instant fame and notoriety with the public 
beyond the show. 
[The petitioner] has played lead roles in_most popular and best selling 
telenovelas and shows ever since. Most recently, she played the le~r of 
in 2008. Her other lead roles in _ top 
rated programs . in and ••• lii 
_' [The petitioner] has also hosted in 2005 a particularly successful news 
program of and has played special feature roles in 
•••••••••••. " Her talents 
and character contributed greatly to the success of these telenovelas and 
programs. 
While the petitioner submitted sufficient documentary evidence on appeal establishing the 
distinguished reputation of _ the letter from is not persuasive evidence 
demonstrating that the petitioner has performed in a leading or critical role for_ as a 
whole. Although _ indicated that the petitioner has "played lead roles" for several soap 
operas, the petitioner's roles are restricted to the soap operas and fail to demonstrate a leading or 
critical role for _ as a whole. Pursuant to the article submitted the from 
www.businesswcek.com. when compared to the the 
petitioner's role with_ falls far short in establishing that it is leading or 
stated: 
I wish to attest with this letter the artistic qualities and extraordinary talents of 
[the petitioner], who was employed at this company for a period of 4 years as a 
presenter and host for different television 
Guatemala" (Traveling in Guatemala) and (Our People), 
segments which were broadcast for two and a half years in different time clots 
[sic [ and television channels in Guatemala. 
The petitioner failed to submit any documentary evidence establi 
Producciones has a distinguished reputation. Nevertheless, failed to provide 
sufficient information reflecting that the petitioner's roles as a presenter and host equates to a 
leading or critical role. 
stated: 
[The petitioner] has been one of the most recognized and successful actresses and 
hosts we have ever represented. [The petitioner's] classification as a foreigner of 
exceptional and extraordinary recognition in the television industry, and 
Page 21 
especially as an actress and host, is based on her national and international 
reputation among the Spanish-speaking audience for shows such as I •••• 
Guatemala," which she has hosted, and successful Mexican soap 
as 
in all of which she has played a number of prominent characters. 
has been represented by • since her arrival in Mexico 
City, providing advertisement and contributing to the growth of this Agency. 
While _refers to several soap operas in which the petitioner has performed, the lctter 
fails to reflect that _ Corporation was directly involved with the soap operas. As such, 
the petitioner failed to establish that she has performed in a leading or critical role for _ 
Corporation. Moreover, the petitioner submitted screenshots from www.scoutingcorp.es.tl/ 
without any English language translations and a partial translation of a letter from 
Corporation that lists the services provided by it. Notwithstanding that the petitioner failed to 
submit translations pursuant to the regulation at 8 C.F.R. §§ 103.2(b)(3) and 204.5(h)(3)(viii), 
the petitioner failed to submit independent, objective evidence demonstrating the distinguished 
reputation of Scouting Corporation. 
I coordinate the principal advertising events in Guatemala, and have had several 
times the pleasure to coordinate television programs in which [the petitioner] has 
starred and performed. Besides hosting many of my most important company's 
events, [the petitioner] has also starred in different other important productions in 
Guatemala and, in the latest years, Mexico, where she has become one of the stars 
of one of the most important Hispano-American television networks, _ 
Particularly at _ she has starred in a number of very successful 
OUtOl 'IS in South America, such as 
Only an actress with such an immense talent and 
npj iti,nntcr] could have achieved to have worked with the best 
producers, best productions, and the best television networks in multiple 
countries and for an extended period of time. 
Similar to the letter only indicated that she coordinated television 
programs in which the petitIOner starred and The letter fails to reflect that the 
petitioner performed in a leading or critical role let alone the various soap 
operas listed by _ Furthermore, the petitIOner submitted a partial translation of 
screenshots from www.jbproduccioncs.com that merely reflect that it "is a production company 
of special events." without objective, independent evidence, the petitioner failed to 
demonstrate a distinguished reputation. 
stated: 
Page 22 
I met [the petitioner] in 2003, when she starred in the successful soap opera _ 
_ ' playing the lead character role of [The petitioner] 
established herself as an actress not with this soap opera but also with several 
The letter from. j fails to indicate that the petitioner has ever performed 
in a role let alone a leading or critical role. While the letter lists some 
of the soap operas , the record remains absent 
was involved with any of the soap operas. 
While 
stated: 
their ultimate commercial success and recognition. Production compames m 
Latin America now [sic] her name sells. I can confirm that because Ithe 
petitioner] is particularly loved by the Latin American public and is already 
considered by the media a "soap opera" celebrity [she is] able to attract large 
audiences which ultimately follow the programs she participates. 
critical role 
represents the petitioner, he failed 
demonstrate a leading or 
failed to establish that 
the petitioner's roles on soap operas equates to a leading or critical role for 
Corporation. Moreover, the petitioner failed to submit any documentary evidence reflecting that 
•••••• Corporation has a distinguished reputation. 
stated: 
In 2008, I played the lead role of_ in the multi-million television series titled 
_' the first high-definition miniseries ever produced in the United States 
for Spanish-language audiences .... The role of Gabriel was played by no one 
less than award-nominated singer and ALMA award­
nominated actor extremely recognized in South America and internationally .... 
[The petitioner] played the character ~ an extremely relevant role in 
the production. _ in fact, is_ antagonist; she flirts with_ and 
unsuccessfully tries to make him fall in love for her and "steal" him from. I 
wish to highlight that producers insisted from the beginning in choosing 
only the very best actors and actresses available in Latin America to be part of the 
Page 23 
cast. _ gathered an extraordinary group of acclaimed actors, with 
amazing careers in the telenovela's industry in their home countries and abroad. 
The plain language of the regulation at 8 C.F.R. § 204. 
"organizations or establishments." As such, the television as an 
organization or establishment. Nevertheless, based on the letter from 
persuaded that the petitioner performed in a leading or critical role to 
the role of_ Again, while the petitioner submitted screenshots from www.imdb.com 
regarding _ it remains that she is not an organization or an establishment, and therefore 
does not equate as an organization or establishment with a distinguished reputation. 
stated: 
I can confirm the exceptional and unique talent that l the petitioner I has shown 
through the years as both an actress and hostess in different Hispanic American 
productions where we have crossed paths on a number of occasions. We 
participated in many successful productions of the most prestigious and renowned 
company television' to which all aspiring entertainers 
want to belong because of its professional and successful work in broadcast in 
more than 80 countries around the world. [The petitionerj is one of the most 
respected and renowned actresses and hostesses in Guatemala for her 
,fe~a~t~ur~e~s~i~n"n~aiiit.i o.n.w.id.e.t.e.l e.v.ills.io.niIJ,productions, incl uding l1li and soap operas such as 
others. The above productions have been 
and all South America and no one can question this success has been due to the 
exceptional performances of extraordinary actors such as [the petitionerl. 
Similarly, ails to indicate the petitioner's leading or critical role for an 
organization or establishment. We are not persuaded that soap operas meet the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requiring "organizations or establishments." Even if 
we recognized soap operas as organizations or establishments, which we do not, •••••• 
failed to establish that the petitioner performed in a leading or critical role but general! y indicated 
that she was "featured" in television productions. Again, while the petitioner submitted a non­
translated resume of as well as screenshots from www.imdb.cOlll reflecting her 
involvement in approximately five projects, we are not persuaded that the documentary evidence 
demonstrates an organization or establishment with a distinguished reputation. 
An illegible name from_tated: 
[The petitioner I has been the and we have been so 
extremely pleased with her performances; that in 2000, we awarded her with the 
special recognition [The petitioner's J iconic beauty and grace 
has communicated the quality of our products. 
Page 24 
The letter from is insufficient to establish that the petitioner has nprFn"'n'Ml 
or critical role. The mere indication that the petitioner has been the 
without any other documentary evidence, fails to demonstrate the petitioner's role with e 
criticaL Moreover the submitted a non-translated article entitled,_ 
and screenshots from However, 
without independent, objective evidence, the petitioner failed to demonstrate has a 
distinguished reputation. 
While the letters briefly describe the petitioner's work, the documentation, however, does not 
establish that her positions were leading or critical to these organizations as a whole. In fact, the 
letters fail to indicate that any of the petitioner's positions were leading or critical; rather they 
describe routine job duties that one would expect from an actress and generally assert that her 
role was leading or criticaL Moreover, the letters of recommendations are general and broad in 
nature when describing the petitioner's specific roles and responsibilities. Further, with the 
exception of Televisa, the petitioner failed to establish that the organizations or establishments have 
a distinguished reputation. 
In addition, as previously indicated USeIS may, in its discretion, use as advisory OplI110n 
statements submitted as expert testimony, it is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. See Matter of Caron 
International, 19 I&N Dec. at 795. 
Furthermore, the petitioner submitted Individual Employment Contracts reflecting the following 
acting jobs: 
L 
2. 
3. 
4. 
5. 
For a term of one 
on July 18, 2005; 
commenclI1g 
For a term of one week •••••••••••••• commencing on 
December 2, 2003; 
For a term of one program for 
2004; 
For a term of one program for 
on April 10,2002; 
For a term of one program for 
27,2003; and 
commencing on September 14, 
commenclI1g 
commencing on June 
6. For a term of two programs for_commencing in May 2004. 
• 
-Page 25 
Again, the plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(viii) requires "Ielvidence 
that the alien has performed in a leading or critical role for organizations or establishments that 
have a distinguished reputation." The employment contracts do not demonstrate that the 
petitioner has performed in a leading or critical role; rather they reflect that the petitioner was 
contracted to perform as an actress in several productions. We are not persuaded that 
documentary evidence that merely ret1ects that the petitioner was requested to perform the 
routine duties of an actress for a television show equates to a leading or critical role. 
In this case, the documentation submitted by the petitioner does not establish that she was 
responsible for the success or standing to a degree consistent with the meaning of "leading or 
critical role" pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(viii). While the petitioner 
performed her routine duties, the record falls far short in establishing that the roles were leading 
or critical, and the organization or establishments have a distinguished reputation. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
The director found that the petitioner failed to establish eligibility for this criterion. A review of 
the record of proceeding reflects that the petitioner submitted numerous screens hots from 
te lev i s i on series s u c h ~!!!!!!!!!!!!!!!!!!!!!!!!~!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!~ 
On appeal, counsel states: 
It is argued that ratings are no different than box office receipts in measuring 
commercial success. That is the standard by which the industry operates. The 
petition included evidence of each of her major shows, her lead roles, the top 
ratings of each show, and letters of reference that corroborated the link between 
her lead roles and contributions to the success and popularity of those shows for 
the studio. Also, the new evidence attached, the article in Business Week 
attached herein further confirms the importance of these popular shows for the 
production companies like _ when it states "as the world's premier 
producer of top-rated Spanish-language programming, _ can deliver 
Hispanic eyeballs to TV sets at a time when marketers are clamoring for that 
audience's fast-growing economic clout." This article demonstrates it is the 
success and ratings of the top rated shows starring the Applicant that drives the 
entire industry. 
We are not persuaded by the arguments of counsel. The plain language of the regulation at 8 
C.F.R. § 204.S(h)(3)(x) requires "[elvidence of commercial successes in the performing arts, as 
shown by box ()ffice receipts or record, cassette, compact disk, or video sales (emphasis added)." 
Page 26 
The screenshots from www.imdb.com, as well as the article from www.businesswcck.com that 
refers t~ "highly rated soap operas and variety shows, fail to reflect evidence of "box 
office receipts" or "sales." Instead, as argued by counsel, the screenshots contain an overview of 
the productions, including a "User Rating." However, a "User Rating" does not equate to the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) of "box office receipts" or "sales." 
We note that even if the petitioner established that user ratings associated with box office 
receipts or sales, which she did not, we arc not persuaded that the user ratings demonstrate 
commercial successes. For were awaiting five votes to 
gamer a rating. Moreover, had a user rating of 8.2 but only had eight votes. 
We also cannot ignore, as indicated in of the leading or critical role criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii), that the petitioner only performed in a 
few episodes for the entire television series. As such, the petitioner failed to establish that the 
ratings attribute to the episodes in which she actually performed. 
As there is no evidence showing the petitioner's box office receipts or sales, the petitioner failed 
to establish eligibility for 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. Comparable Evidence 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that evidence of sustained national or intemational 
acclaim "shall" include evidence of a one-time achievement or evidence of at least three of the 
following regulation categories. The ten categories in the regulations are designed to cover 
different areas; not every criterion will apply to every occupation. For example, the criterion at 8 
C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual arts, and the criterion at 8 C.F.R. 
§ 204.5(h)(3)(x) expressly applies to the performing arts. We further acknowledge that the 
regulation at 8 C.F.R. § 204.5(h)(4) provides "!ilf the above standards do not readily apply to the 
! petitioner's! occupation, the petitioner may submit comparable evidence to establish the 
!petitioner's! eligibility." It is clear from the use of the word "shall" in 8 C.F.R. § 204.5(h)(3) that 
the rule, not the exception, is that the petitioner must submit evidence to meet at least three of the 
regulatory criteria. Thus, it is the petitioner's burden to explain why the regulatory criteria are not 
readily applicable to her occupation and how the evidence submitted is "comparable" to the 
objective evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
While the petitioner claimed eligibility for comparable evidence pursuant to the regulation at 8 
C.F.R. § 204.5(h)(4) at the time of the filing of the petition, counsel failed to address this issue 
on appeal. Nonetheless, the regulatory language precludes the consideration of comparable 
evidence in this case, as there is no indication that eligibility for visa preference in the 
petitioner's occupation as an actress cannot be established by the ten criteria specified by the 
regulation at 8 C.F.R. § 204.5(h)(3). In fact, as indicated in this decision, counsel mentions 
evidence in his brief that specifically addresses six of the ten criteria at 8 CFR. § 204.5(h)(3). 
An inability to meet a criterion, however, is not necessarily evidence that the criterion does not 
apply to the petitioner's occupation. Moreover, although the petitioner failed to claim these 
• 
Page 27 
additional criteria, we find that an actress could judge the work of others pursuant to the regulation 
at 8 c.F.R. ~ 204.S(h)(3)(iv) and that an actress could command a high salary pursuant to the 
regulation at 8 C.F.R. § 204.S(h)(3)(ix). Counsel provided no documentation as to why these 
provisions of the regulation would not be appropriate to the profession of an actress. 
While counsel previously claimed the petitioner's eligibility based on recommendation and 
reference letters, we have already discussed the letters as they pertained to the original 
contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v) and the leading or 
critical role criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(viii). Where an alien is 
simply unable to meet or submit documentary evidence of three of these criteria, the plain 
language of the regulation at 8 C.F.R. § 204.5(h)( 4) does not allow for the submission of 
comparable evidence. 
C. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct 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 thelirJ field of endeavor," 8 C.F.R. § 204.5(h)(2); 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." See section 203(b)(l)(A)(i) of the Act, 8 U.S.c. 
§ IIS3(b)(l )(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The 
petitioner failed to establish eligibility for any of the criteria, in which at least three are required 
under the regulation at 8 C.F.R. § 204.S(h)(3). In this case, many of the deficiencies in the 
documentation submitted by the petitioner have already been addressed in our preceding 
discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating our final merits determination, we must look at the totality of the evidence to 
conclude the petitioner's eligibility pursuant to section 203(b)( I )(A) of the Act. In this case, the 
petitioner has garnered some attention from her performances as an actress. However, the 
accomplishments of the petitioner fall far short of establishing that she "is one of that small 
percentage who have risen to the very top of the field of endeavor" and that she "has sustained 
national or international acclaim and that his or her achievements have been recognized in the 
field of expertise." See 8 C.F.R. § 204.S(h)(2), section 203(b)(l)(A)(i) of the Act, 8 U.S.c. 
§ 11S3(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.S(h)(3) provides that "lal petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 
Evidence of the petitioner's nationally or internationally recognized prizes or awards must be 
evaluated in terms of these requirements. The weight given to evidence submitted to fulfill the 
criterion at 8 C.F.R. § 204.S(h)(3)(i), therefore, depends on the extent to which such evidence 
demonstrates, ret1ects, or is consistent with sustained national or international acclaim at the very 
top of the alien's field of endeavor. A lower evidentiary standard would not be consistent with 
• 
Page 28 
the regulatory definition of "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). While the petitioner failed to establish that she received 
more than one nationally or internationally recognized award, her receipt of one award 
approximately eight months prior to the filing of the petition is insufficient to establish the 
sustained national or international acclaim required for this highly restrictive classification. 
Moreover, the petitioner failed to establish that 
for 2008" from the IS 
indicative that she "is one of that small percentage who have risen to the very top of the field of 
endeavor." See 8 C.F.R. § 204.5(h)(2). While we acknowledge that the award is nationall 
~ellence based on the fact that it was issued from the 
~, there is no indication that the petitioner faced significant competition from 
throughout her field. USCIS has long held that even athletes performing at the major league 
level do not automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N 
Dec. 953, 954 (Assoc. Commr. 1994); 56 Fed. Reg. at 60899. 6 Likewise, it does not follow that 
an actress like the petitioner who received an award from the government of Guatemala should 
necessarily qualify for an extraordinary ability employment-based immigrant visa without 
documentary evidence reflecting the awards criteria and competition faced. To find otherwise 
would contravene the regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa category be 
reserved for "that small percentage of individuals that have risen to the very top of their field of 
endeavor. " 
We also cannot ignore that the statute requires the petItIoner to submit "extensive 
documentation" of the petitioner's sustained national or international acclaim. See section 
203(b)(1 )(A) of the Act. The commentary for the proposed regulations implementing section 
203(b)(l)(A)(i) of the Act provide that the "intent of Congress that a very high standard be set for 
aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to present 
more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 
"While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of 
Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[TJhe 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, Crimson v. INS, 
No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
§ 204.S(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the 
court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. § 204.5(h)(2) is 
reasonable. 
Page 29 
30704 (July 5, 1991), In this case, the record of proceeding reflects partial translations. 
Furthermore, the petitioner failed to comply with the basic regulatory requirements such as 
providing the date and author of the published material criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3 )(iii). Although the petitioner submitted some published material about the 
petitioner relating to her work, she failed to demonstrate that the material was published in 
professional or major trade publications or other major media. In addition, the petitioner claimed 
eligibility for membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) 
without submitting documentary evidence establishing that ANDA and ANDI require 
outstanding achievements of their members, as judged by recognized national or international 
experts. Moreover, the petitioner claimed eligibility for the commercial success criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(x) without offering any evidence of the 
regulatory requirement of box office receipts or sales. We are not persuaded that such evidence 
with the numerous deficiencies noted equate to "extensive documentation" and is demonstrative 
of an individual with sustained national or international acclaim. The truth is to be determined 
not by the quantity of evidence alone but by its quality. Matter of" Chawathe, 25 I&N Dec. at 
376 citing Matter ofE-M- 20 I&N Dec. 77, 80 (Comm'r. 1989). 
While the petitioner also failed to establish eligibility for the original contributions criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v) and the leading or critical role criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii), it is noted that her claimed eligibility 
for the criteria was based mainly on recommendation and reference letters. However, such 
letters cannot form the cornerstone of a successful extraordinary ability claim. Further, USCIS 
may, in its discretion, use as advisory opinion statements submitted as expert testimony. See 
Maller of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). USCIS is ultimately 
responsible for making the final determination regarding an alien's eligibility for the benefit 
sought. Id. The submission of letters of support from the petitioner's personal contacts is not 
presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795. 
The petitioner failed to submit evidence demonstrating that she "is one of that small percentage who 
have risen to the very top of the field." In addition, the petitioner has not demonstrated her "career 
of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 
1990). In fact, the majority of the evidence submitted by the petitioner reflects events occuning less 
than a year from the filing of the petition. For example, the documentary evidence submitted by the 
petitioner for the published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii) 
occuned in 2008 and 2009. Moreover, the petitioner claimed eligibility for the awards criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i) based on awards received in 200S. 
The conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the petitioner as one of the small percentage who has risen to the very top of the field of 
endeavor. 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. 
Page 30 
IV. 0-1 Nonimmigrant Admission 
We note that the petitioner indicated on her petitioner that she was last admitted to the United 
States on June 16, 2009, as an 0-1 nonimmigrant visa petition for an alien of extraordinary 
ability in the arts. Although the words "extraordinary ability" are used in the Act for classification 
of artists under both the nonimmigrant 0-1 and the first preference employment-based immigrant 
categories, the statute and regulations define the term differently for each classification. Section 
101(a)(46) of the Act states that "Itlhe 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 
"lelxtraordinary ability in the field of arts means distinction." 8 C.F.R. § 214.2(0)(3)(ii). 
"Distinction" is a lower standard than that required for the immigrant classification, which defines 
extraordinary ability as "a level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The 
evidentiary criteria for these two classifications also differ in several respects, for example, 
nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 8 c.F.R. 
* 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of nationally or 
internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear statutory and 
regulatory distinction between these two classifications, the petitioner's receipt of 0-1 
nonimmigrant classification is not evidence of her eligibility for immigrant classification as an alien 
with extraordinary ability. Further, we do not find that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each case must decided on a case-by-case basis 
upon review of the evidence ofrecord. 
It must be noted that many 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Com'ulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. (~f Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 1-
129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are 
simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 
Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (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 petlhons where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g" Matter of 
Church Scientology International, 191&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
, 
-Page 31 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), a/fd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
a/fd, 345 F.3d at 683; see also Soltane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
V. Conclusion 
Review of the record does not establish that the petitioner has distinguished herself to such an 
extent that she may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of her field. The evidence is not persuasive that the 
petitioner's achievements set her significantly above almost all others in her field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(1 )(A) ofthe Act, and the petition may not be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.