dismissed EB-1A Case: Advertising And Directing

invasion djwmma1 pf vacy 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
FILE: -1 Office: TEXAS SERVICE CENTER Date: ,m 7 7007, 
SRC 06 151 51304 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
ert P. Wiemann, Chief 
Appeals Office 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(A), as an alien of extraordinary ability. 
The director determined the petitioner had not established the sustained national or international acclaim 
necessary to qualify for classification as an alien of extraordinary ability. 
On appeal, counsel argues that the petitioner has "met the needed three criteria as required under 8 C.F.R. 
$ 204.5(h)(3)." 
Section 203(b) of the Act states, in pertinent part,, that: 
(1) Pnonty 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 ths subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international acclaim 
and whose achievements have been recognized in the field through extensive 
documentation, ', 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and . 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
Citizenship and ~mmibation Services (CIS) 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 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). As used in this 
section, the term "extraordinary ability" means 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. 9 204,5(h)(2). The 
specific requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F.R. 
8 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, that the 
petitioner must show that he has earned sustained national or international acclaim at the very top level. 
This petition, filed on April 10, 2006, seeks to classify the petitioner as an alien with extraordinary ability in 
advertising and as a director of television programming, films, stage shows, and video productions and 
commercials. On appeal, the petitioner submits a December 4, 2006 letter from the President of the 
Advertising Supplier Association of the Philippines stating: 
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This IS to certify that [the petltloner] IS a freelance TV Commercial Dlrector who provldes h~s 
expertise to member production houses of the Advertising Supplier Association of the Phillpplnes 
(ASAP). Although not an ASP member, I know hlm personally and I attest to his artistic passlon and 
production excellence as exhibited in the many television ads he directed. By doing what he does 
best - Directing - he forged a strong bond with our members in the Association. 
The petitioner's appellate submission includes a similarly vague certification from the Commercial 
Production Houses Group, Philippines. Neither of the preceding letters identifies the specific production 
houses for which the petitioner has worked or the television commercials he has directed. Moreover, there is 
no evidence showing that the petitioner has worked as a director of television commercials or entertainment 
productions since his arrival in the United States in August 2002. This issue will be further addressed below. 
The regulation at 8 C.F.R. 
 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, internationally recognized 
award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of 
which must be satisfied for an alien to establish the sustained acclaim necessary. to qualify as an alien of 
extraordinary ability. A petitiotier, .however, cannot establish eligibiIity for this classification merely by 
submitting evidence that simply relates to at least three criteria at 8 C.F.R. § 204.5(h)(3). In determining 
whether the petitioner meets a specific criterion, the evidence itself must be evaluated in terms of whether it is 
indicative of or consistent with sustained national or international acclaim. A lower evidentiary standard 
would not be consistent with the regulatory definition of ,"extraordinary ability" as "a level of expertise 
indicating that t,he 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 has submitted evidence pertaining to the following 
criteria. 
Documentation of the alien's receipt of lesser nationally or internationally recognizedprizes or 
awards for excellence in thefield of endeavor. 
The petitioner submitted an Award of Recognition "as one of THE TEN BEST COMMERCIAL MODELS 
1990 - 1991" issued by the Creative Guild of the Philippines, an affiliate of the Association of Accredited 
Advertising Agencies - Philippines, for excellence in commercial modeling. The plain language of this 
regulatory criterion, however, requires the petitioner's receipt of "awards for excellence in the field of 
endeavor." According to the documentation submitted by the petitioner (such as his resume), there is no 
evidence that modeling is his "field of endeavor." There is no indication that the petitioner, age 67 at the time 
of filing, seeks to enter the United States to contlnue work as a male model. See section 203(b)(l)(A)(ii) 'of the 
Act, 8 U.S.C. § 1153(b)(l)(A)(ii), and 8 C.F.R. 
 204.5(h)(5). 
The petitioner submitted evidence of his receipt of an award from the Foundation for Adolescent 
Development in appreciation of his "PARTICIPATION IN THE ENTER-EDUCATE VIDEO PROJECT." 
There is no evidence showing that this award is a nationally or internationally recognized award for 
excellence, rather than simply an acknowledgment of the petitioner's participation in the project. 
The petitioner submitted a Certificate of Appreciation from the California-Nevada Lions, District 4, Student 
Speakers Program for 2002 -2003. This award reflects regional recognition for participation in a Lions Club, 
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District 4, Student Speakers Contest rather than a nationally or internationally recognized award for 
excellence in the petitioner's field. 
The petitioner submitted a certificate of "Cpngressional Recognition" from "congresswoman Shelley Berkley 
of Nevada7s'First Congressional District" congratulating the petitioner for being a "participating Artist" in the 
2003 International Artist Group of Nevada Filipino Art Exhibit (May 28, 2003). There is no evidence 
showing that this certificate is a nationally or internationally recognized award for excellence, rather than 
simply an acknowledgment of the petitioner's participation in the exhibit. 
The petitioner submitted a plaque of appreciation for "leadership and creativity that sustained'the Upsilon 
Sigma Phi [Alumni Association] World Reunion" in Houston, Texas (October 2004). This award reflects 
organizational recognition from the alumni association for peti'tioner's fraternity at the University of the 
Philippines rather than a nationally or internationally recognized award for excellence in' the petitioner's field. , 
The plain language of the regulatory criterion at 8 C.F.R. 8 204.5(h)(3)(i) specifically requires that the 
petitioner's awards be nationally or internationally recognized in the field of endeavor and it is his burden to 
establish every element of ths criterion. In this case, the petitioner has not submitted supporting evidence 
showing that his awards commanded a significant level of recognition beyond the presenting organizations. 
In light of the above, the petitioner has not established that he meets this criterion. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classiJication is sought. Such evidence 
shall include the title, date,-and author of the material, and any necessaiy translation. 
We withdraw the director's finding that the petitioner meets this criterion. The petitioner submitted articles 
discussing a bi-monthly lounge show directed by him at the Century Park Hotel in Manila, but the authors of 
these articles were not identified as required by the plain language of this regulatory criterion. These articles, 
dated from 1999 to 2000, appeared in the entertainment sections of publications such as the Manila Bulletin, 
the ~hil&ineStar, and the sin Star. Almost all of the preceding articles promote or announce the featured 
acts for upcoming shows rather than being primarily about the petitioner. Promotional material or paid 
advertisements, which are not the result of independent journalistic reportage, do not satisfy the plain language of 
ths regulatory criterion and are simply not indicative of national or international acclaim. Moreover, there is no 
evidence of material about the petitioner in major publications subsequent to 2900. As such, the petitioner 
has not established that his national or international acclaim has been sustained. ' 
In light of the above,,the petitioner has not established that he meets this criterion. 
I 
Evidence of the display of the alien's work in thefield at artistic exhibitions or showcases. 
We withdraw the director's finding that the petitioner meets. this criterion. As discussed previously, the 
petitioner submitted published ai-ticles indicating that he directed a bi-monthly lounge show at the Century, 
Park Hotel. The plain language of this regulatory criterion indicates that it is most applicable to visual artists 
(such as sculptors and painters), for whom the significance of the exhibition or showcase is indicative of their. 
. % 
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acclaim. ,Because public performance is inherent to worlung as the director of a stage show, not every 
performance is an artistic exhibition or showcase indicative of national or international acclaim. In the 
performing arts, sustained acclaim is generally' not established by the act of directing a stage production, but 
rather by consistently attracting a substantial audience. For this reason, the regulations establish separate 
criteria, especially for those whose work is in the performing arts. The petitioner's work as a director of a 
hotel lounge show production is far more relevant *to the "leading or critical role" criterion at 8 C.F.R. 
9 204.5(h)(3)(viii) and .the. "commercial successes in the performing arts" criterion at 8 C.F.R. 
9 204.5(h)(3)(x) and shall be addressed under those criteiia below. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has pe$ormed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner submitted information about his lounge show stating: 
"The Director presents ..." was a bi-monthly nightclub gig which featured veteran video and film 
director [the petitioner] as Host. [The petitioner] also directed the two hour musical comedy show that 
invited international singing stars, highly popular movie and television celebrities, political figures 
and government officials as guests. Added feature[s] to this piano bar show were singing discoveries 
which the Director recommended to existing television productions. 
***, 
Gifted with a wonderful crooning voice and a strong stage presence, [the petitioner] was asked by 
I, General Manager of I-, a five-star plus hotel, to create a regular 
musical show which would attract customers to the hotel's piano bar at the -. 'me 
Director presents ..." lasted for two good years catering to the hotel's local and foreign guests and 
definitely adding much to the revenue and popularity of the five star plus- 
We find that the articles in publications such as the Manila Bulletin, 'the Philippine Star, and the Sun Star are 
adequate to demonstrate that the petitioner's show had a distinguished reputation and that he served in a 
leading or critical role as the production's director. Nevertheless, the plain language of this regulatory 
criterion requires evidence that the petitioner has performed in a leading or critical role for "organizations or 
establishments." Serving in a leading role for a single distinguished organization does not meet the plain 
language of this regulatory criterion. There is no evidence showing that the other film, 'stage, video, and 
television productions or organizations for which the petitioner has worked,have distinguished reputations or 
that he was responsible for their success or standing to a degree consistent with the meaning of "leading or 
critical role" and indicative of national or international acclaim. Moreover, there is no evidence that the 
. . 
petitioner has performed in a leading or critical role fir organizations or establishments that have a distinguished 
reputation subsequent to 2000. As such, the petitioner has not established that his national or international 
acclaim has been sustained. . . 
In light of the above, the petitioner has not established that he meets this criterion. 
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Evidence of commer'cial successes in the perfarming arts, as shown by box ofice receipts or 
record, cassette, compact disk, or video sales. 
The plain language of this regulatory criterion requires evidence of commercial success in the form of "sales" or 
"receipts"; simply submitting evidence indicating that the petitioner directed various productions cannot meet the 
plain language of this criterion. The record includes no evidence of documented "sales" or "receipts" showing 
that the petitioner achieved commercial successes in the performing arts in a manner consistent with sustained 
national or international acclaim. For example, there is no evidence that the petitioner's productions, such as 
his films, videos, or stage shows, generated significant sales revenue. 
 As such, the petitioner has not 
established that he meets this criterion. 
In this case, the petitioner has failed to demonstrate receipt of a major, internationally recognized award, or 
that he meets at least three .of the criteria at 8 C.F.R. 9 204.5(h)(3). 
 Further, as required by section 
203(b)(l)(A)(i) of the Act and the regulation at 8 C.F.R. §.204.5(h)(3), the petitioner must demonstrate that 
his national or international acclaim has been sustained. According to Part 3 of the Form 1-140 petition and 
other documentation submitted by the petitioner, he has been residing in the United States since August 2002. 
An undated letter from, Charge' d' Affaires, Embassy of the Philippines, washington; D.C. states: 
 an^ of [the works were daily staples on Philippine television during the 80's and 907s, notably 
commercials for Coke, Pepsi Cola,s Baby products, Philippine Airlines and many 
multinational consumer products." The record, however, contains no evidence of achievements or 
recognition (during the five years immediately preceding the filing of the petition) showing that the petitioner 
has sustained national or international acclaim as a director in recent years, nor is there evidence that he has 
continued to work in his area of expertise after comingrto the United States. The regulation at 8 C.F.R. 
5 204.5(h)(5) requires "clear evidence that the alien is coming to the United States to continue work in the 
area of expertise. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged 
commitments such as contracts, or a statement from the beneficiary detailing plans on how he or she intends 
to continue his or her work in the United States." The record includes no such evidence. 
Review of the record does not establish that the petitioner has distinguished himself to such an extent that he may 
be said to have achieved sustained national or international acclaim or to be with the small percentage at the 
very top of his field. The evidence is not persuasive that the petitioner's achievements set him significantly above 
almost all others in his field at the national or international level. Nor is there clear evidence that the petitioner 
will continue worlung.in his area of expertise. Therefore, the petitioner has not established eligbility pursuant 
. . 
 to section 203(b)(l)(A) of the Act and the petition may not be approved. 
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 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003). The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 
557(b) ("On appeal from or r&iew of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."). See also, Janka v. US. 
Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long 
recognized by the federal courts. See, e.g Dor v. INS, 89 1 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
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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. 5 1361. Here, that burden has 
not been met. , 
ORDER: The appeal is dismissed.