dismissed EB-1A Case: Artistic Performance

U.S. Citizenship 
and Immigration 
Services 
In Re : 20612235 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 14, 2022 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a performer, seeks classification as an alien of extraordinary ability. See Immigration and 
Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C . § 1153(bXl)(A). This first preference 
classification makes immigrant visas available to those who can demonstrate their extraordinary ability 
through sustained national or international acclaim and whose achievements have been recognized in 
their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that although the 
Petitioner had established that he met the initial evidence requirements for the classification by 
meeting the requisite three evidentiary criteria under 8 C.F.R. § 204.5(h)(3), the record did not 
establish that he had the necessary level of acclaim and expertise to qualify as an individual of 
extraordinary ability. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C . § 1361 . Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203 (b )(1) of the Act makes visas available to immigrants with extraordinary ability 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. 
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." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate 
international recognition of his or her achievements in the field through a one-time achievement (that 
is, a major, internationally recognized award). If that petitioner does not submit this evidence, then 
he or she must provide sufficient qualifying documentation that meets at least three of the ten crite1ia 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as awards, published material in ce1iain 
media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCJS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32(D.D.C. 20l3);Rijalv. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner is currently employed in the United States as a erformer for the 
I I He was a member of the Russian national team for man ears and earned a 
silver team medal in the 2009 I I Championships on the The record 
includes contracts for his continued employment as a performer with 
A. Evidentiary Criteria 
As noted above, the Director concluded that the Petitioner met the requirements of the following 
criteria under 8 C.F.R. § 204.5(h)(3): 
• (i) 
• (iv) 
• (vii) 
Lesser nationally or internationally recognized awards for excellence in the field 
Participation as a judge of the work of others in the same or an allied field 
Display of his work in the field at artistic exhibitions or showcases 
Upon review of the evidence, we agree with the Director that the record establishes that the Petitioner 
meets these three evidentiary criteria, and therefore has met the initial evidence requirement for this 
classification. 
On appeal, the Petitioner challenges the Director's determination that his team silver medal in I I I at the 2009 Championships does not qualify as a one-time achievement (that 
is, a major, internationally-recognized award), as well as his conclusion regarding five of the ten 
evidentiary criteria. However, once a petitioner shows, through either evidence of a one-time 
achievement or meeting at least three of the evidentiary criteria, that they met the initial evidence 
requirement, we move on to consider the totality of the evidence in the second partofthe adjudication, 
the final merits determination. We will therefore not consider the Petitioner's arguments on appeal as 
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they relate to these criteria, but will instead review them m the context of the final merits 
determination. 
B. Final Merits Determination 
In a final merits detennination, we examine and weigh the totality of the evidence to determine 
whether the Petitioner has sustained national or international acclaim and is one of the small 
percentage at the very top of the field of endeavor, and that his achievements have been recognized in 
the field through extensive documentation. Here, the Petitioner has not offered sufficient evidence 
that he meets that standard as an artistic performer. 
We first note that while much of the evidence relates to the Petitioner's career as an athlete, he intends 
to continue to be employed as a performer in the United States. Guidance from the USCJS Policy 
Manualrelates to this point: 
Some of the most problematic cases are those in which the beneficiary's sustained 
national or international acclaim is based on his or her abilities as an athlete, but the 
beneficiary's intent is to come to the United States and be employed as an athletic coach 
or manager. Competitive athletics and coaching rely on different sets of skills and in 
general are not in the same area of expertise. However, many extraordinary athletes 
have gone on to be extraordinary coaches. 
Therefore, in general, if a beneficiary has clearly achieved recent national or 
international acclaim as an athlete and has sustained that acclaim in the field of 
coaching or managing at a national level, officers can consider the totality of the 
evidence as establishing an overall pattern of sustained acclaim and extraordinary 
ability such that USCIS can conclude that coaching is within the beneficiary's area of 
expertise. 1 
Although the above refers only to the situation in which an athlete has transitioned to a coaching 
career, the record indicates that while a perforn1er relies on different sets of skills than a gymnast, 
many extraordinary gymnasts have gone on to careers as performers with I 2 We will 
therefore apply the same analysis in the Petitioner's case. 
The record shows that as an athlete, the Petitioner was a member of the Russian national! I 
team I from 2003 to 2016, although in severalofthoseyearshewasamember 
of the junior team or the reserve team. His membership is confirmed by a letter from the head coach 
of the team, as well as copies of the team rosters for each of those years. This evidence also 
demonstrates that admission to the national I team is highly competitive and is achieved by 
advancing through three rounds of competition and a final selection process, and that the Russian team 
enjoyed success while the Petitioner was a member. 
1 6 USC IS Policy Manual F.2( A)(2) httns·//www uscis.gov/policy-manual/volume-6.-part-f-chapter-2. 
2 Several articles indicate that lperfmmers aref01merathletes, including some who have competed 
in andmedaledatthe Olympics. 
3 
In addition, during his membership on the Russian national team, the evidence shows that the 
Petitioner successfully competed in continental and top-level international competitions, most notably 
between 2008 and 2010. Although he competed in several I events as a member of the team, 
he won medals in international competition only on I which is not included 
in Olympid I competitions. Specifically, he received his most prestigious award at the 2009 
I Championships as a member of the team awarded a silver medal, but also received individual 
and team medals in the I Championships in 2008 and 2010. While he continued to 
successfully compete in national competitions from 2011 to 2013, he did not medal again in a major 
international competition until 2014, when he was a member ofthd lteam that 
took the gold medal at the !championships. The record shows that while he continued to 
successfully compete in national and international competitions from 2014 to 2017, he did not 
participate in major competitions again in his career. 
The evidence summarized above is sufficient to establish that the Petitioner achieved sustained 
national or international acclaim from 2008 through 2014 as an athlete, and was one of the few at the 
top of his field for at least a portion of that period. He then began his career as a performer in 2017, 
approximately three years before filing the instant petition, which shows the recency of this acclaim 
as an athlete per the USCIS Policy Manual. As he now intends to continue working in the U.S. as a 
perfom1er, we must evaluate whether he has sustained his acclaim in that field. Upon review of the 
record, we conclude that he has not done so. 
In support of his acclaim as a erformer with I the Petitioner relies on two sets of 
evidence: his role in the show and his salary. Regarding the former, he submitted a letter 
regarding his role inl I from ____ Senior A1iistic Director atl While 
he describes the role played by the Petitioner as a leadin one, he does not ex lain this statement other 
than to complement his acrobatic skills on the Further while 
stating that the Petitioner's work contributes to the artistic and commercial successo 
I I does not indicate that the Petitioner's addition to the show had a direc impact on that 
success. 
Another letter from I employee was submitted byl Senior Advisor 
in the talent department. He confirms that the Petitioner was recruited to las part of a revamp 
of the show in 2018, specifically for th and also states that his abilities 
as a I allowed for the inclusion of new tricks. als ........ states that the Petitioner 
plays a variety of roles in the show, including the act an UoJ..L. which he states is 
a leading character in the show. However, we note that neither _____ own press release, 
or any of the reviews ofl I included in the record, mention the Petitioner or the I I role. 3 
While all of this evidence shows that the Petitioner is one of many talented performers making up the 
cast of the show, it does not indicate that he is singled out as a star performerforthe show orforl I I I or has otherwise received sustained national or international acclaim based on this role. 
Regarding his salary, the Petitioner submitted evidence that in 2020 and 2021 he was compensated at 
the rate of $154 .00 per show. However, he then presented two different calculations ofhis hourly rate. 
3 One article from the website www.danceinforma.com dated August 8, 2011 includes a photo captioned 
I but this photo shows three characters, and the article makes nofurthermentionot1._ _______ 
4 
He initially stated that from the time he is required to report to work each night through the end of 1he 
second show is five and one-half hours, making his wages $56 per hour. However, on appeal he states 
that since each show lasts 90 minutes, his hourly wage should be considered to be $108.00 per hour. 
Since he initially indicated that his employer requires him to be on duty for two and one-half hours 
before the shows begin, we will consider the lower figure as representative of his actual wages. 
For purposes of comparison, the Petitioner previously submitted evidence showing the mean hourly 
wage for the occupation "Miscellaneous Entertainers and Performers, Sports and Related Workers" 
from the website of the U.S. Bureau of Labor Statistics (BLS), which in the I I area was $49 .84 
per hour. On appeal, he submits additional evidence from the U.S. Department of Labor's ONet 
website which shows that in 2021, the highest 10% of workers in this occupation earned in excess of 
$100.00 per hour. We note that while the Petitioner's hourly age of $56 per hour is above the mean 
wage, it is well below that of top earners, and therefore does not reflect acclaim. 
In addition, even if we were to consider the higher hourly wage that the Petitioner claims on appeal, 
which would place him among the top 10% earners in this occupational grouping, the SOC code 2 7-
2090 assigned to this occupation group is a catch-all which includes a wide variety of occupations not 
included under other, more specific SOC codes such as those for actors, athletes and dancers. This 
can be seen in the BLS's listing of industries which have the highest levels of employment in this 
occupation group, which includes motion picture and video; independent artists, writers and 
performers; drinking places; and performing arts companies. The data presented therefore does not 
provide a sufficient or accurate basis for the comparison of the Petitioner's wages to those of other 
artistic or circus performers. 
Further, the record indicates that the Petitioner's employer "is the number one _______ 
company in the world," employing 1300 performers like him. 4 Butthe record lacks evidence showing 
that his earnings place him amongst the small percentage of I performers at the top of 
the field.I I writes that the Petitioner earns "annual remuneration of$ 72,996," a figure 
based upon the Petitioner's performance in all 4 7 4 scheduled shows ofl I and that this is 
"substantially above the in dust av era e for a trampolinist." Butthe record does not include evidence 
to support this statement and does not indicate how the Petitioner's earnings compare 
to that of othe _____ performers. Also, the record contains a 2016 article posted on the 
CNBC website which includes a quote from a circus industry expert that "An award-winning artist. .. 
might earn in the low six-figures with benefits." After consideration of all of the evidence relating to 
the Petitioner's earnings, we find that it does not show that they place him amongst the very few at 1he 
top of his field, or otherwise indicate that he has enjoyed national or international acclaim as an artistic 
performer. 
The record shows that the Petitioner was a world-class I athlete with sustained international 
acclaim, and competed successfully at the international level relatively recently. However, because 
he intends to continue working in the United States as an artistic performer, he must show that he has 
continued that level of acclaim in this related field. As explained above, although he is a talented 
performer and an impmiant part of I show, the record lacks extensive 
4 From the article from the website www.mentalfloss.com datedc=] 
2019. 
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documentation showing that this work has garnered him acclaim at the national or international level, 
or that he is one of the few artistic performers among the small percentage at the top of that field. 
III. CONCLUSION 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. 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. Comm'r 1994). Here, the Petitioner 
has not shown that the significance of his work is indicative of the required sustained national or 
international acclaim or that it is consistent with a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No.101-723, 59 (Sept. 19, l 990);see also section 203(b)(l )(A) 
of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and that he is one of the small percentage who has risen 
to the very top of the field of endeavor. See section203(b )(l)(A) of the Act and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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