dismissed EB-1A Case: Arts

identifying data deleted to 
prevent clearly unw~ted 
invasion of persona1 pnvacy 
PUBLlCCOPY 
FILE: 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
u.s. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
US. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: DEC 2 82D/D 
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 reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~ 
rPerry Rhew 
Chief, Administrative Appeals Office 
www.llscis.gov 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 
Service Center. The Administrative Appeals Office (AAO) dismissed a subsequent appea!. The AAO 
reopened the matter on the petitioner's motion, and affirmed its appellate decision. The matter is 
now before the AAO on a subsequent motion to reopen and reconsider. The motion will be granted, the 
previous decision of the AAO will be affirmed, and the petition will remain denied. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C § 1153(b)(1)(A). The director 
determined that the petitioner had not established the requisite extraordinary ability through extensive 
documentation and sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 CF.R. § 204.5(h)(3). The implementing regulation at 8 CF.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 CF.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
On motion, counsel argues that the petItIoner meets the categories of evidence at 8 CF.R. 
§§ 204.5(h)(3)(i), (iii), and (viii). For the reasons discussed below, we affirm our prior decision. 
In addition to counsel's arguments, the petitioner submits evidence of his 2008 and 2009 Filipino 
community awards, activities, and performances in the United States. This evidence post-dates the 
petition's Octobcr 2, 2006 filing date. A petitioner, however, must establish eligibility at the time of 
filing. 8 C.F.R. §§ 103.2(b )(1), (I2); Matter of Katighak, 14 I&N Dec. 45, 49 (Reg!. Commr. 1971). 
All of the case law on the issue of when eligibility must be established focuses on the policy of 
preventing petitioners from securing a priority date in the hope that they will subsequently be able to 
demonstrate eligibility. Matter of" Wing's Tea House, 16 I&N Dec. 158,160 (Reg'!. Comm'r. 1977); 
Matter (Jf Katighak, 14 I&N Dec. at 49; see a/so Matter of" /zllmmi. 22 I&N Dec. 169, 175-76 
(Comm'r. 1998) (citing Matter of" Bardouille, 18 I&N Dec. 114 (BIA 1981) for the proposition that 
we cannot "consider facts that come into being only subsequent to the filing of a petition.") 
Ultimately, in order to be meritorious in fact, a petition must meet the statutory and regulatory 
requirements for approval as of the date it was filed. Ogllndipe v. Mukasey, 541 F.3d 257, 261 (4
th 
Cir. 2008). Accordingly, the AAO will not consider the petitioner's 2008 and 2009 community 
awards, activities, and performances in this proceeding. 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
Page 3 
(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 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 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. 
Id. and 8 C.F.R. § 204.S(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained acclaim 
and the recognition of his or her achievements in the field. Such acclaim and achievements must be 
established either through evidence of a one-time achievement (that is, a major, international recognized 
award) or through meeting 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; 
Page 4 
(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 in the field, in professional or 
major trade publications 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 peri"ormed in a leading or critical role for organizations 
or establishments that have a distinguished reputation; 
(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. 
[n 20 I 0, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USC/S, 596 F.3d [I [5 (9
th 
Cir. 2010). 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." ld. at [[2[-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit 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)." ld. at 1122 (citing to 
8 C.F.R. § 204.S(h)(3)). The court also explained the "final merits determination" as the corollary to 
this procedure: 
[f 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 thel irl field of endeavor," 
8 C.F.R. § 204.S(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. 
S U.s.c. § I [53(b)(l)(A)(i). 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set ti)t'th in the regulations at 8 c.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. ~ 204.5(h)(3)(vi). 
Page 5 
Id. at 1119-1120. 
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), liffd, 345 F.3d 683 (9
th 
Cir. 2003); see also Soltane v. 
DO}, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts appellate review on a de novo 
basis). 
II. Analysis 
A. Evidentiary Criteria 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a performing 
artist. The petitioner has submitted evidence pertaining to the following categories of evidence at 
8 C.F.R. * 204.5(h)(3)2 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awardsfiJr excellence in thefield of endeavor. 
In finding that the petitioner's evidence did not satisfy this criterion, the AAO's October 29, 2009 
decision stated: 
The petitioner submitted photographs of trophies and award ceremonies featuring a small 
number of individuals sitting on the t100r in a room with a drape and a handful of balloons as 
evidence that he won "Entertainer of the Year" at the 16
th 
and 19th in 2001 
and 2004 and "Best Dressed" at the 13th, 14
th
, 15th, 16
th
, 17th and I m 
1998, 1999, 2000, 2001, 2002, and 2003. While the record contains a photograph of the 
petitioner seeming to receive the "Entertainer of the Year" trophy in 2001, the photograph of 
just the trophy itself appears to be enhanced with regard to the inscription, reducing the 
evidentiary weight of this evidence. Moreover, the July 30, 2004 article in the '''Round the Biz" 
section of submitted by the petitioner, however, indicates that the petitioner 
received recognition as "Entertainer of the Year" during the 17"' and 19th 
in 2002 and 2004. While the discrepancy as to when the first "Entertainer of the Year" award 
was issued was not raised previously, it is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Matter of' Ho, 19 I&N Dec. 
582, 591-92 (B IA 1988). Any attempt to explain or reconcile such inconsistencies will not 
2 On motion, the petitioner docs not claim to meet or .... uhmit evidence relating to the categories of evidence not discussed 
in this decision. 
Page 6 
suffice unless the petitioner submits competent objective evidence pointing to where the truth 
lies. Id. 
On motion, petitioner resubmits the same as evidence that he won "Entertainer of the 
Year" at the 16th and 19th in 2001 and 2004. The petitioner's motion does not 
address the AAO's observation that the July 30, 2004 article in the "'ROWld the Biz" section of the 
indicates that the received recognition as "Entertainer of the Year" during the 
in 2002 and 2004. Accordingly, the petitioner has not resolved the 
discrepancy betwecn the date of the trophy in the photograph (indicating 2001) and the content of the 
article (indicating 2002) as to when his first "Entertainer of the Year" award was issued. 
As previously discussed, it is incumbent upon the petitioner to resolve any inconsistencies in the 
record by independent objective evidence. Matter of Ho, 19 I&N Dec. at 591-92. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Id. 
The AAO's decision further stated: 
In response to the director's request for additional evidence, the petitioner submitted an UW,l!;llCU 
and unpublished document addressed to cOWlsel's attention about the 
The document appears to have been prepared by _ . as 
publicist. The document states that the awards currently recognize performers at 
comedy club, which facilitates them in securing television and movie roles. Significantly, while 
the document states that the awards are a "coveted plum," it also states: "There are about twenty 
two awards that the owner happily gives to everyone every anniversary. Mostly, to uplift the 
credibility of the hosts in their acts the whole year through." 
As stated in our previous decision, in order to qualify under this criterion, the petitioner must 
show that the awards are nationally or intemationally recognized. The AAO concluded that the 
awards were limited to perfOlmers at a single club and, thus, were not national in scope. The 
AAO further concluded that the record lacked supporting evidence, such as news articles or 
letters from sponsoring organizations, documenting the prestige associated with these awards 
that would indicate their national or intemational recognition as awards for excellence in his 
field as required by 8 C.F.R. § 204.5(h)(3)(i). 
On motion, counsel asserts that the AAO "failed to appreciate the fact that these awards were 
covered by national newspapers, which were ori~Counsel also states that the 
petitioner submitted the April 15, 2002 issue of __ listing __ as one 
of the best entettainment places to visit in Manila. 
We acknowledge that_ receives some media attention. At issue, however, is not the 
club's reputation but whether or not the awards it issues are nationally or intemationally 
~The record contains a single atticle in Intrif?ue repotting the issuance of awards by 
_ The record contains no evid~ng thc significance of this publication. 
Moreover, the photographs and text are by _ identified as publicist on 
Page 7 
the abovementioned unsigned document submitted by the petitIOner. Thus, this "article" 
appears to be a promotional press release which carries less weight than independent journalistic 
coverage. 
First, the petitioner has not established that the "Best Dressed" awards represent recognition for 
excellence as a performer. Thus, we will only consider the "Entertainer of the Year" awards. 
We reaffirm our prior finding that an award limited to a pool of performers at a single comedy 
club, even a distinguished comedy club, cannot constitute a lesser nationally or internationally 
recognized award. The record contains evidence of other Filipino comedy clubs that also 
receive media attention, such as and __ whose performers would not be 
eligible to compete for awards from unless they also happened to perform at that 
venue as well. 
On motion, counsel states: is the Philippines' leading incubator and proving ground 
top comedians, singers, ~-along masters. Nominees for the _ 
while culled from among __ performers, are among the country's best 
talents." The unsupported statements of counsel on appeal or in a motion are not evidence and thus 
are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); 
Matter of" Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). The plain language of the regulatory 
criterion at 8 C.F.R. § 204.5(h)(3)(i) specifically requires that petitioner's awards be nationally or 
internationally recognized in the field of endeavor and it is his burden to establish every element of this 
criterion. In this instance, there is no evidence demonstrating that the petitioner's 
"Entertainer of the Year" trophies from the are recognized beyond the 
presenting organization and therefore commensurate with nationally or internationally recognized 
prizes or awards for excellence in the field. 
Counsel further states: 
To further prove Ithe petitioner'sl recogmtron as the Philippines' top comedian, he was 
recently bestowed the following top honors: 
Comedian of the Year 2008 given by ... in Sacramento, California, that 
awards the best professionals in their respectrve 
Outstanding Service to the Community, given during celebration 
on June 13-14,2009 in San Francisco, California. 
The petitioner received the preceding awards subsequent to the petition's filing date. As previously 
discussed, a petitioner must establish eligibility at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); 
Matter of" Katigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not consider the awards 
received by the petitioner in 2008 and 2009 in this proceeding. Nevertheless, there is no evidence 
showing that the preceding community awards equate to nationally or internationally recognized 
prizes or awards for excellence in the field. 
Page 8 
In light of the above, we reaffirm our finding that 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, relatinl{ to the alien's work in the field fllr which classification is soul{ht. 
Such evidence shall include the title, date, and author (If' the material, and any necessary 
trans/atio/l. 
In general, in order for pnblished 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 
) 
papers. 
In finding that the petitioner's evidence did not satisfy this criterion, the AAO's October 29, 2009 
decision stated: 
Counsel ... does not contest the AAO's finding that promotional materials such as posters 
cannot serve to meet this criterion as they do not appear in professional or trade journals or 
other major media. In addition, counsel does not contest the AAO's conclusion that the 
Internet search results for the petitioner's name cannot serve to meet this criterion. Finally, 
the petitioner does not submit certified translations for the foreign language published 
materials, which the AAO noted was mandated under 8 C.F.R. § 204.5(h)(3)(iii) and 8 C.F.R. 
§ 103.2(b)(3) but absent from the record. We reaffirm the AAO's prior conclusions on these 
issues and the analysis in our previous decision, which we incorporate by reference. 
Regarding the Internet search results, we further note that the petitioner searched for his first 
and last name without quotes, allowing for results that do not relate to the petitioner at all. We 
will consider the remaining evidence relating to this criterion below. 
The petitioner submitted copies of press releases, promotional materials and articles appearing 
both on the Internet and in print. The AAO stated that international accessibility via the internet 
is not a realistic indicator of whether a given publication qualifies as a professional or trade 
journal or other major media. As noted in our previous decision, the petitioner presented no 
information regarding the general online readership of the websites on which these articles 
appeared or any other indication that the web sites constitute professional or major trade journals 
or other major media as required by the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Significantly, 
the AAO further noted that most of these articles were not primarily about the petitioner but 
instead mentioned his name in a list of perfmmers at particular events. 
-' 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 9 
The articles that can be said to be "about" the petitioner are: an article in the Midweek Balita 
~ears with counsel in an article with no· an article in FAB by _ 
_ an article in the Manila Bulletin and an aIticie allegedly in the 
Philippine Daily Inquirer as reprinted on The AAO concluded that, 
based on the information submitted about Midweek Balita, it is a regional Filipino-American 
publication available only in Southern California. The AAO further acknowledged the 
submission hy the petitioner of information from Wikipedia (an online encyclopedia) 
regarding the circulation of The Manila Bulletin. 
Regarding information from Wikipedia, there are no assurances about the reliability of the content 
from this open, user-edited internet site.4 See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 
(8th Cir. 2008). Accordingly, we will not assign weight to information for which Wikipedia is the 
source. 
The AAO's decision fUIther stated: 
The AAO acknowledged that counsel asserts that the Manila Bulletin is national in scope, but 
noted that the unsupported assertions of counsel are not evidence. Matter of Obaigbena, 19 
1. & N. Dec. 533, 534 n.2 (BIA 1988); Matter o( Laureano, 191&N Dec. 1, 3 n.2 (EIA 
1983); Matter ()(Ramirez-Sanchez, 17 1. & N. Dec. 503, 506 (EIA 1980). Finally, the AAO 
noted the lack of reliable information supporting counsel's assertions. Thus, the AAO 
concluded that the petitioner had not established that the Manila Bulletin is a professional or 
major trade journal or other major media. 
On motion, counsel erroneously concludes that the AAO determined that the Manila Bulletin 
is not a professional or major trade journal or other major media based on a search at 
www.Qooglc.com. Counsel asserts that a search on this website produces results other than a 
description on Wikipedia and asserts that a search of this newspaper as well as Balita, the 
Philippine Star and the Philippine Daily Inquirer would demonstrate that they are qualifying 
media . 
.. Online content from Wikipedia is subject to the following general disclaimer: 
WIKlPEDIA MAKES NO GUARANTEE 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 does not correspond with the state of knowledge in the relevant fields. 
See http://cn.wikipedia.nrg/v,Jiki/Wikipedia:Gcneral disclaimer, accessed on December 21, 2010, copy incorporated into 
the record of proceeding. 
Page 10 
We reiterate that it was the petitioner who submitted materials from Wikipedia about the 
Manila Bulletin. For the reasons stated in our previous decision and reiterated above, these 
materials, submitted by the petitioner (and not through an Internet search by the AAO) will 
not be considered. On motion, counsel does not provide new evidence or even reference a 
specific website that contains the circulation data or other evidence that might establish that 
the above publications are professional or major trade journals or other major media. Rather, 
counsel appears to suggest that it is the AAO's responsibility at this stage in the proceeding to 
research the publications which have covered the petitioner on the Internet. It is the 
petitioner's burden, however, to submit the evidence to establish every element of a given 
criterion, including that the materials appeared in a professional or major trade publication or 
other major media. 
Without reliable evidence supporting counsel's assertions regarding the media that have 
covered the petitioner, we cannot conclude that they constitute professional or major trade 
journals or other major media. Even if we were to conclude that the Manila Bulletin and the 
Philippine Daily or major trade journals or other major media and 
that the article attributed to the Philippine Daily Inquirer actually 
evidence falls far short of establishing that the petitioner 
meets any other criterion. 
On motion, the petitioner submits circulation information from the Philippine Communication 
Centrum Foundation's Media Museum webpage indicating that the Manila Bulletin and the 
Philippine Daily Inquirer are major newspapers in the Philippines. However, the petitioner has not 
established that the article on website attributed to the Philippine Daily Inquirer 
actuall y appeared in that newspaper 2001. The nonexistence or other unavailability of primary 
evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). Moreover, Section 
203(b)(l )(A)(i) of the Act, requires the submission of "extensive documentation." Consistent with that 
statutory requirement, the regulation at 8 C.F.R. § 204.5(h)(3)(iii) expressly requires qualifying 
published material about the alien in "professional or major trade publications or other major media" in 
the plural. In this case, the petitioner has only documented qualifying material in a single publication, 
the Manila Bulletin. Accordingly, the petitioner's evidence does not meet the plain language 
requirements of the regulation at 8 c.F.R. § 204.5(h)(3)(iii). Additional deficiencies pertaining to the 
petitioner's evidence will be addressed below in our final merits determination regarding whether the 
submitted evidence is commensurate with sustained national or international acclaim. 
The petitioner's motion also includes articles, reviews, press releases, photographs, and promotional 
material from 2008 and 2009 (such as documentation pertaining to his participation in the Pinoy 
Music Festival in May 200S, Fiesta Filipina in June 2008, and One Kapamilya Go in September 
2009). This documentation post-dates the petition's filing date. As previously discussed, a 
petitioner must establish eligibility at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter oj 
KaliRhak, 14 I&N Dec. at 49. Accordingly, the AAO will not consider the articles, reviews, press 
releases, photographs, and promotional material from 2008 and 2009 in this proceeding. 
Nevertheless, there is no evidence showing that any the preceding material meets the plain language 
requirements of the regulation at S C.F.R. § 204.5(h)(3)(iii). 
Page 11 
In light of the above, we reaffinn our finding that the petitioner has not established that he meets this 
criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distillRuished reputation. 
In finding that the petitioner's evidence did not satisfy this criterion, the AAO's October 29, 2009 
decision stated: 
appearance on the 
motI0I1, counsel only addresses the petitioner's 
one-time appearance on findings by 
reference and will address only the petitioner's appearance on 
The AAO acknowledged the submission of an article allegedly from B~uced 
on Encyclopedia.com about The Filipino Channel network on which __ airs. 
This article indicates that "TFC is viewed by more than one million Filipinos around the globe 
every day." In addition, according to the article, the show is one of TFC's most popular 
programs. The AAO concluded that even if the television show and/or station were shown to 
have a distinguished reputation, the petitioner did not establish that his appearances on the 
television show amounted to a leading or critical role. As noted by the AAO, the Business Wire 
m1icle states that television show hosts many different types of artists including 
"notable Pinoy songwriters and lyricists, up-and-coming Fil-Am entertainers and even a karaoke 
jam night featuring renowned karaoke club legends." Counsel asserts that the petitioner served 
as a "featured special guest perfOlmer" on the show. An undated press release indicates that the 
petitioner appeared with two other singers on one episode of the show. As noted by the AAO, 
the record contains no evidence of additional appearances or evidence of how the petitioner's 
appearance as one of three perfonners led to the television show's success or standing to a 
degree consistent with the meaning of "leading or critical role" and indicative of sustained 
national or international acclaim. On motion, counsel reiterates the significance of TFC and 
concludes that an invitation to appear and perfonn on this show "is an 
m one-time appearance on a variety show, however, is not a leading or critical 
role for that variety show. 
Upon review, we find the AAO properly considered the evidence submitted, thoroughly addressed 
the petitioner's arguments, and appropriately addressed the evidence and arguments in its decision. 
On motion, counsel states: 
Page 12 
l The petitioner 1 played a key co-starring role' opposite _ 
_ one of the Philippines' most respected actresses. [The petitionerj plays_ one of 
the few friends the lead character has in the United States where she went to work as an adult 
was included in 18th Anniversary Special Episodes 
is one of the longest-running and top-rating drama 
anthologies in the Philippines. It is produced and broadcast by ABS-CBN, the country's 
largest television and entertainment network, and seen around the world through The Filipino 
Channel. 
Even if the preceding television show was shown to have a distinguished reputation, there is no 
evidence indicating the extent of the petitioner's role in _ or that he was responsible for the 
television drama's success or standing to a degree consistent with the meaning of "leading or critical 
role." Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter o/So/fiei, 22 I&N Dec. 158, 165 (Comm. 
1998) (citing Matter of" Treasure Crafi of"Cali/rJrllia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
Counsel further states: 
We previously submitted on June 22, 2009 [the petitioner' 
guest in another top-rating TV show, hosted by considered the 
Oprah Winfrey of the Philippines. _ is also produced by ABS-CBN and broadcast 
worldwide via TFC. 
The petitioner's evidence included three photographs of a television set showing the petitioner being 
interviewed in San Francisco on June 22, 2008. The petitioner's June 22, 2008 
appearance on post-dates the petition's filing date. As previously discussed, a petitioner 
must establish eligibility at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Matter (If" Katigbak. 14 
I&N Dec. at 49. Accordingly, the AAO will not this evidence in this proceeding. Nevertheless. even 
if _ was shown to have a distinguished reputation. the petitioner has not established that his 
appearance show amounted to a leading or critical role. 
In light of the above. we reaffirm our finding that the petitioner has not established that he meets this 
criterion. 
Summary 
In this case, the petitioner has failed to demonstrate his receipt of a major, internationally recognized 
award, or that he meets at least three of the ten categories of evidence that must be satisfied to 
establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary 
ability. 8 C.F.R. § 204.S(h)(3). A final merits determination that considers all of the evidence follows. 
Page 13 
B. 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: (l) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of thefir] 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." Section 203(b)(1)(A) of the Act; 8 C.F,R. § 204.5(h)(3). See also Kazarian, 596 F,3d at 
11 19-1120. In the present matter, 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)(i), (iii), and (viii) and in our prior decisions dated March 20, 2009 and October 29, 
2009. 
With regard to the regulatory criterion at 8 C.F,R. § 204.5(h)(3)(iii), there is no evidence showing that 
the petitioner has had qualifying material published about him in major media since the July 2004 
article in the Manila Bulletin. The statute and regulations, however, require the petitioner to 
demonstrate that his national or international acclaim as an entertainer has been sustained. See section 
203(b)(l)(A)(i) of the Act, 8 U.S.C. § 1153(b)(l)(A)(i), and 8 C.F,R. § 204.5(h)(3). The 
documentation submitted for 8 C.F,R. § 204.5(h)(3)(iii) is not commensurate with sllstained national 
or international acclaim as of the October 2, 2006 filing date of the petition. 
In this case, the evidence of record falls short of demonstrating the petitioner's sustained national or 
international acclaim as an entertainer in the United States, Philippines, or any other country. 
According to information on the Form 1-140, Immigrant Petition for Alien Worker, the petitioncr 
was last admitted to the United States in January 2005. Aside from the July 21, 2004 article in the 
Manila Bulletin, the record does not include evidence of any qualifying nationally or internationally 
acclaimcd achievements and recognition as an entertainer since that time and subsequent to his entry 
into the United States. Rather, the petitioner's reputation and achievements during the two years 
immediately preceding the petition's filing date have been primarily limited to the Filipino 
community in California. Accordingly, the petitioner has not demonstrated "sustained national or 
international acclaim" as a performing artist as of the filing date of the petition. See section 
203(b)( I )(A)(i) of the Act, 8 U.S.c. § 1 1 53(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). The conclusion 
we reach by considering the evidence to meet each criterion at 8 C.F.R. § 204.5(h)(3) 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. 8 C.F,R. § 204.5(h)(2). 
C. Prior 0-1 Nonimmigrant Visa Status 
The record reflects that the alien was the beneficiary of approved 0-1 nonimmigrant visa petitions 
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- I and the first preference 
employment-based immigrant categorics, the statute and regulations define the term differently for each 
classification. Section 101(a)(46) of the Act states, "The term 'extraordinary ability' means, for 
Page 14 
purposes of section 101(a)(I5)(0)(i), in the case of the arts, distinction." The 0-1 regulation reiterates 
that "[e]xtraordinary 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 beneficiary's receipt of 0-1 nonimmigrant classification is not evidence of his 
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 
petition must be decided on a case-by-case basis upon review of the evidence of record. 
It must be noted that many 1-140 immigrant petitions are denied after uscrs approves pnor 
nonimmigrant petitions. See, e.g., Q Data Consulting, Ine. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. of iustice, 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 uscrs 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 usc IS from denying an extension of the original visa based on a reassessment of 
the alien's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g .. Matter or 
Church Scientology International, 19 I&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 contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), aff'd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.C!. 51 (200 I). 
III. Conclusion 
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 and to be within 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 a national or international 
level. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the 
Act and the petition may not be approved. 
Page 15 
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!J'd, 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). 
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 AAO's October 29. 2009 decision is affinned. The petition will remain denied.