dismissed EB-1A Case: Arts

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
DATE: 
oel 1 8 2011 
Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
L.S. lJepartmt'nt of Homeland St'clII'it~ 
L .S. Citii'.ctl>,hip <llld Irnl1ll~rall( lI1 SL'I \ I('l'~ 
Adrnilli~lrativc Appcab Ott\(."l" (,\.-\()) 
20 Massachmetb Ave,_ .\',W,. \lS .:'()()() 
Washingln!l. DC 2052!j-2()lj() 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursualll tn 
Section 203(b)(l )(A) of the Immigration and Nationality Act, 8 U.s.c. § IIS3(b)( IHA) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of thc doculllcnh 
related to this matter have been returned to the office that originally decided your case. Please be advi,e" 
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 I-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 musl he 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
I~~g~e~du 
i Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeaL The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)( I )(A) of the Immigration and Nationality Act (the Act), 8 U .S.c. § 1153(b)( 1 )(A). The director 
determincd the petitioner had not established the sustained national or intemational acclaim necessary 
to qualify for classification as an alien of extraordinary ability. 
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 prescnt 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 
8 C.F.R. § 204.5(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 of a 
major, intcrnationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence under at least three of the ten regulatory categories of evidcncc to 
establish the basic eligibility requirements. 
On appeal, the petitioner submits a brief with supporting documentation. For the reasons discussed 
below, the AAO upholds the director's ultimatc determination that the petitioner has not estahlished his 
eligibility for the classification sought. 
L Law 
Section 203(b) of the Act states, in pertinent pmt, that: 
(I) 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 individuah 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d Sess. SlJ 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29,1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. !d.; 
8 CF.R. § 204.5(h)(2). 
The regulation at 8 CF.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's 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 categorics of 
evidence. 
(i) Documentation of the alien's receipt of lesser nationally or intemationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for whieh 
classification is sought, which require outstanding achievements of their members, a.s 
judged by recognized national or international ex pelts 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 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 mtistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for organizations 
or establ ishments that have a distinguished repntation; 
(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 mts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. COUlt 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 1115 (9th Cir. 2010). Although the 
COUlt 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. I With respect to the criteria at 8 C.F.R. 
* 204.5(h)(3)(iv) and (vi), the eourt concluded that while USCIS 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." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as pm of the initial inquiry, the COUlt 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 satisr y the 
regulatory requirement of three types of evidence (as the AAO conduded)." Id. at 1122 (citing to 8 
C.F.R. * 204.5(h)(3». The court 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 thel ir] 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 expeltise." 
8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
national or intemational acclaim" are eligible for an "extraordinary ability" visa. 
8 U.s.c. § 1153(b)(I)(A)(i). 
Id. at 1119-20. 
Thus, Kazarian sets forth a two-pmt 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 8 C.F.R. 103.3(a)(I)(iv); Soitalle I'. DOl. 381 
F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 
(E.D. Cal. 2001), a/rd, 345 F.3d 683 (9th Cir. 20(3) (recognizing the AAO's de novo authority). 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidenliary 
requirements beyond those set forth in the regulations at 8 C.F.R. ~ 204.5(h)(3 )(iv) and 8 CFR. 
* 204.5(h)(3)(vi). 
II. Analysis 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes (lr 
awardsFJr excellence ill the field ()fendeavoy. 
The director determined the petitioner met the requirements of this criterion. The AAO departs from 
the director's eligibility determination related to this criterion. The submits articles from a 
local paper and a local web site as evidence he received a in the Best World 
Program Short Film category li'om the Jackson Hole Film Festival. This is a biennial conference in 
its fourth year. However. the petitioner provides no evidence of award's scope indicating if this 
award enjoys national or international recognition. The petitioner also provides no evidence of the 
award's selection criteria he received at the conference. which would indicate if the Jackson Hole 
Film Festival bases their award selection on excellence in the field of endeavor. According to the 
organization's web site, the Best Program Short award contains the following description, "A warded 
to the program, between 3 and 20 minutes in length, that best advances an appreciation or 
understanding of the natural world. (Entry Fee in U.S. Dollars: $90).,,1 The conditions or standards 
to receive this award are not based on excellence in the field of endeavor. Additionally, the fec is not 
an entry fee; rather it was required in order to be considered for the award. This substantially 
diminishes the prospects that the award is based on excellence. This award will not servc to 
contribute to the petitioner meeting this criterion. 
The petitioner also asserts that the 2007 Newport Beach Film Festival awarded him the Outstanding 
Achievement in Filmmaking Short Film award for •. The evidence provided is a photocopy of 
what appears to be a postcard indicating the award. The petitioner provides no other documents or 
media articles that might serve as evidence that he actually won the award. Additionally, the 
petitioner provides no evidence of the scope of the award indicating if this award enjoys national or 
international recognition. The regulation at 8 C.F.R. § 103.2(b)(2) provides: 
Suhmitting secondary evidence and affidavits. (i) Genera/. The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. If a required 
document, such as a birth or man'iage certificate, does not exist or cannot be obtained. 
an applicant or petitioner must demonstrate this and submit secondary evidence, such as 
church or school records, pertinent to the facts at issue. If secondary evidence also does 
not exist or cannot be obtained, the applicant or petitioner must demonstrate the 
unavailability of both the required document and relevant secondary evidence, and 
submit two or more affidavits, sworn to or affirmed by persons who are not panies to 
, The petitioner does not claim to meet or submit evidence relating to the regulatory categorics of nidcllcc 
not discussed ill this decision. 
~~!!~!~~!!~~!!~~ •• I accessed on October 17, 20 I I, a copy of which is r;: mlo 
the petItIOn who have direct personal knowledge of the event and circumstances. 
Secondary evidence must overcome the unavailability of primary evidence, and 
affidavits must overcome the unavailability of both primary and secondary evidence. 
Where the regulations require specific, objective evidence of achievements, such as awards, the primary 
evidence of such awards would be copies of the awards themselves. Secondary evidence might he 
newspaper reports of the competition results. Affidavits attesting to awards, therefore, would nced to 
"overcome the unavailability of both primary and secondary evidence." The petitioner has not 
demonstrated that the required evidence is unavailahle or cannot be obtained, and therefore the 
evidence is presumed ineligible for consideration pursuant to 8 c.F.R. § 103.2(b)(2). Consequcntly. 
the AAO cannot consider the petitioner to have met his burden of proof for this alleged award 10 be 
considered under this criterion. 
The petitioner submits evidence of an award fo~ from the 2007 Dam Short Film Festival 
in Boulder, Colorado. The record contains no evidence to indicate the scope of the award indicating 
if this award enjoys national or international recognition. The petitioner has not established how a 
festival in its third year of existence issues nationally or internationally recognized prizes with any 
media coverage outside of the local area. In an attempt to bolster the festival's importance the 
petitioner suhmits the printout of a web page related to the festival from Wikipedia. With regard to 
information from Wikipedia, there are no assurances about the reliability of the content from this 
open, user-edited internet site 4 See Lamilem Bl1dl1S(l v. Michael Mukl1sey, 540 F.3d 909 (8'h Cir. 
2008). The petitioner also provides no evidence of the selection criteria for the award he received at 
the festival, which would indicate if the Dam Short Film Festival bases their award selection on 
excellence in the field of endeavor. The organization's web site indicates award winners are selected 
through a vote from the audience. s This award will not serve to contribute to the petitioner mceting 
this criterion. 
The final award the petitioner submits for this criterion consists of an 
the 2007 Palm Springs International Festival of Short Films. This award meets the plain language 
requirements of the criterion that the award be nationally or internationally recognized and awarded 
for excellence ill the field of endeavor. 
" Online content from Wikipcdia is subjcct to the following general disclaimer: "WIKIPEDIA 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 IHl[lj,l\,lUl!.~iI2cdji!J)rg!wiki!:W!.~im:!lijEQC[J,:nlUJi",·laimcr, faccessed on October 17, 2011, a copy of 
which is . into the record of ~~~:!&. 
accessed 011 
October 17,2011, a copy of which is incorporated into the record of proceeding.l 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires evidence of "awards" or 
"prizes" in the plural, which is consistent with the statutory requirement for extensive evidence. 
Section 203(b)( I)(A)(i) of the Act. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) arc 
worded in the plural. Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only require 
service on a single judging panel or a single high salary. When a regulatory criterion wishes to include 
the singular within the plural, it expressly does so as when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that 
evidence of experience must be in the fOlm of "Ietter(s)." Thus, the AAO can infer that the plural in the 
remaining regulatory criteria has meaning. In a different context, federal courts have upheld USC IS . 
ability to interpret significance from whether the singular or plural is used in a regulation. See 
Maramjllya v. US CIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26. 2008); 
Snapnames.com Inc. v. ChertotJ: 2006 WL 3491005 at 10 (D. Or. Nov. 30, 2006) (upholding an 
interpretation that the regulatory requirement for "a" bachelor's degree or "a" foreign equivalent 
degree at 8 C.F.R. § 204.5(1)(2) requires a single degree rather than a combination of academic 
credentials). Under this criterion the petitioner only presents one qualifying award. Accordingly. the 
AAO will withdraw the director's determination related to this regulatory criterion as the petitioner 
has not submitted qualifying evidence that meets the plain language requirements of 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 FJr which classification is sought. Such el'idmce 
shall include the title. date, and author of the trIaleriai. and any necessary translation. 
The petitioner submits four Japanese-language articles from the following: an online 
an online newspaper,_ an online magazine; and a portion of an 
article a daily newspaper. The director dctermined the petitioner did not meet the 
requirements of this criterion. Each ~ce is accompanied by a certified translation into 
the English language performed by~. None of the translation certifications are an 
original document with the translator's original signature; all submitted certifications are a 
photocopy of the original certification document. It appears the translator only filled out and signed 
one certification form. The title of the published material on each accompanying certification form 
appears to have been altered after the translator signed the form. These discrepancies, in addition to 
other deficiencies in the translations, negatively affect their reliability. The AAO therefore. will 
assign less weight to this evidence. 
The plain language of the regulation requires evidence submitted under this criterion to include, not 
only the title of the published material, but also the date and the author. As the evidence submitted is 
in the Japanese-language, the translation of the evidence also must contain the date and the author. 
The regulation at 8 C.F.R. § 103.2(b)(3) requires that, "Any document containing foreign language 
submitted to USCIS shall be accompanied by a/iill 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" (emphasis added). As a result. summary 
translations are not considered sufficient to meet the requirements of the regulation. The petitioner 
submits translations of the evidence under this criterion that lacks both the date of the published 
Page 8 
material and the author's name. Consequently, this evidence may not be considered as qualirying 
evidence under this criterion. 
Additionally, there appear to be translation errors. The petitioner submitted the article from _ 
_ with his initial filing which the translator indicates is from However. in 
response to the director's request for evidence (RFE) the petitioner submitted the same Jap;lIlcse­
'ISUU5~ document that he provided with the initial filing, which the translator indicates is from 
a Japanese-language ncwspaper. This calls into question the reliability or 
translating the article from _ states the evidence is rrom <lll 
interview with [sic]. This, coupled with the previously noted errors calls into question 
the accuracy of each translated document. As this determination by itself is sufficient to find the 
petitioner does not meet the plain language of the regulation, the AAO will not further discuss the 
issue of whether the materials were published in major media. The petitioner has failed to est<lblish 
that he meets this criterion. 
Evidence of the alien's original scientific. scholarly. artistic, athletic, or businc.ls-re!"ted 
contriblllions o( major significance in the field. 
The director determined the petitioner did not meet the requirements of this criterion. In counsel" s 
brief. she did not contest the director's determination of this issue or offer additional arguments. 
Therefore, the AAO will, consider this issue to be abandoned. See Sepulveda v. u.s. All)' Cell .. 401 
F.3d 1226, 1228 n. 2 (lith Cir.2005). Accordingly, the petitioner failed to establish he meets the 
requirements of this criterion. 
Evidence of the di.lplay ()f the alien's work in thefield at artistic exhibitions or showcases. 
The petitioner submits evidence of the short film. _ being shown at six film festivals. The 
petitioner wrote, produced, and directed _ The director determined the petitioner meets the 
requirements of this criterion. We concur that the petitioner meets the plain language oC this 
criterion. 
Evidence that the alien has per(ormed in a leading or critical role fiJr orgol/i:lIfiol/s or 
establishments that have a distinguished replttatioll. 
The petitioner relies on his role in creating the short film, _ In the initial filing brief counsel 
claims that withont the petitioner, this short film would not exist. Counsel also contends that based 
on_being "short-listed" for an Academy Award (top 10 finisher for the year), the movie itself 
has a distinguished reputation and the fact that the petitioner wrote, produced, and directed the film. 
is evidence of the petitioner's leading or critical role under this criterion. In response to an RFE, the 
petitioner submits several letters from members of the film and entertainment industry. The director 
determined the petitioner did not meet the requirements of this criterion. 
Page 9 
The petitioner submits a letter from a film production and 
distribution company that employed the petitioner as a Literary Editor. It is in this role as Literary 
Editor that_claims the petitioner played a critical role for his company. les 
the petitio~s as a Literary Editor and subsequently claims the petitioner was critical to the 
success of several projects, but falls short of providing probative information that specifically 
addresses how the petitioner's role was critical for each of the named projects. 
Counsel asserts the letter represents The letter is not 
~Ietterhead, is a photocopy of the original, and bears no company web site .• 
_I aims to be a television producer and identifies a film he and the petitioner recently 
worked on together (_), but fails to specifically discuss how the petitioner played a lcadin~ 
critical role for his company. Counsel asserts that due to the petitioner's work with -
Yokai won a grant from the Japanese government. The record does not contain 
grant or that the grant issuance was related to the petitioner's work. The 
unsupported assertions of counsel do not constitute evidence. Matter (if Obaigbena, 19 I&N Dec. 533. 
534 n.2 (BIA 1988); Matter of'Laureallo. 19 I&N Dec. I, 3 n.2 (BIA 1983); Matter of' R({lIIire~­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The petitioner also provides a letter from identifies himself as a movie 
producer for 
filmmaker in his 
for his organization. 
praises the petitioner's abilities as a 
not state how the petitioner played a leading or critical role 
The petitioner provides a letter from This letter 
states this company and the petitioner are in negotiations to make the petitioner's short film_ 
into a feature length film. The petitioner's eligibility may not be established by a possible future 
achievement. A petitioner must establish the clements for the approval of the petition at thc time of 
filing. 8 C.F.R. §§ 103.2(b)(1), (12). A petition may not be approved if the petitioner was not 
qnalified at the priority date, but expects to become eligible at a subsequent time. See Maller of' 
Kalighak. 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
The petitioner provides no evidence of playing a leading or critical role for any organizations or 
establishments as required by the regulation. His claim to have played a critical and leading role in the 
creation of a short film does not meet the plain language of the regulation iliat this leading or critical 
role be performed for specific organizations or establishments. Additionally, none of the letters the 
petitioner provides establish he has played a leading or critical role for the organizations namcd in the 
letters. The petitioner provides insufficient evidence to establish any of the above named organziations 
enjoy a distinguished reputation. As a result, the petitioner failed to establish that he meets this 
criterion. 
-Page 10 
Evidence that the alien has commanded a high salary or other significantly high remullcratio/l for 
services, in relation to others in the/ield. 
Initially, counsel presented statistics from the Bureau of Labor Statistics related to producers and 
directors. Counsel subsequently presents assertions of future for future work. On 
appeal, the petitioner also submits a document This 
document is in reference to the petitioner working 
start on or about April 2010 and end on or about April 2011." The priority date on the petition is 
September 25, 2009, and the petitioner must establish eligibility for the classification by this date. 
As this evidence is for ruture, unperformed work, the petitioner may not rely upon this evidence to 
meet this regulatory criterion. 
One letter of intent to compensate the petitioner is from IS 
letter states, will be paid 15% of the hudget, which is $150,000." The letter also states 
there is a future project in which the company expects to compensate the petitioner as well. The 
plain language of the regulation requires that thc alien "has commanded" a high salary, in the past 
teme. This requirement is consistent with the regulatiom at 8 C.F.R. §§ 1 03.2(b)( 1), (12) which 
state that a petitioner must establish eligibility at the time of filing. A petition may not he approvcd 
hased on speculation of future el igihility or after the petitioner hecomes eligible under a new set or 
facts. See Matter of Katigbak, 14 I&N Dec. at 49. 
The petitioner suhmits no evidence that he commanded a high salary for his scrvices prior to fi ling 
the present petition. The pctitioner failed to establish that he meets the plain language of this criterion. 
Evidence ()f commercial successes in the peTjorming arts, as shown by box office receipts or record. 
cassette, compact disk, or video sales. 
of short movie entertainment company, states her company 
distributes the petitioner's short film, •. through media entities such as and 
numerous cable and satellite television channels. This criterion anticipates a petitioner will estahlish 
eligihility through volume of sales or box office receipts as a measure of the petitioner's commercial 
success in the performing arts. These sales and box office receipts are a reflection of the petitioner's 
commercial success relative to others involved with similar pursuits in the petitioner's field of the 
performing arts. As a result of the petitioner providing no evidence of sales or box office receipts, 
the petitioner has not suhmitted qualifying evidencc that meets the plain language requirements or this 
criterion. The petitioner failed to cstahlish that he meets the plain language of this criterion. 
S lIlII 11/(/ ry 
In light of the above, thc petitioner has not submitted the requisite evidence under at least three of the 
evidentiary categories for which evidence must be submitted to meet the minimum eligibility 
requiremcnts necessary to qualify as an alien of extraordinary ability. Nevertheless, the AAO will 
review the evidence in the aggregate as part of our final merits determination. 
-Page I I 
B. Final Merits Determination 
In accordance with the Kaz,arian opinion, the next step is a final merits detennination that cOlbiders 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 Tisen to the very top of 
thelirl 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." 
8 C.F.R. ~ 204.5(h)(3). See Kazarian, 596 F.3d at 1119-20. 
While the petitioner's Audience Favorite Award from the 2007 Palm Springs International Festival of 
Short Films distinguishes his work from other short film producers and directors, it is limited to the 
nan'ower field of short films as opposed to films in general. The petitioner may not show sustained 
national or international acclaim or status as one of that small percentage who have risen to the very top 
of their field of endeavor by narrowing his field to only short film producers. The remaining awards 
submitted lack evidence to indicate if the awards are nationally or internationally recognized, or the 
criteria used to detennine if the awards are issued for excellence as opposed to being awarded for 
advancing an appreciation or understanding of the natural world as indicated on the Jackson Hole 
Film Festival's web site in reference to the petitioner's As a result, the petitioner 
submits only one award that might contribute to mecting the regulatory requirements. This award does 
not rise to the level of a one-time achievement, namely a major internationally recognized award, and is 
not indicative of or consistent with sustained national or international acclaim or status as one of that 
small percentagc who have risen to the very top of their field of endeavor. 
As stated above, the record contains no evidence that published material about the petitioner exists ill 
professional or major trade publications or other major media, relating to the alien's work in the field. 
The translations of thc Japanese-language documents fail to meet the requirements of 8 C.F.R. 
~ 103.2(b )(3) in reference to translated evidencc. The translations also lack the date and the author 
required by 8 C.F.R. ~ 204.S(h)(3)(iii). This evidence is not indicative of or consistent with sllstained 
national or intcmational acclaim or status as onc of that small percentage who have risen to the very top 
of their field of endeavor. 
The petitioner's claimcd original artistic contributions of major significance consist of his uniqlle style, 
as counsel asserts, and being "short-listed" by the Academy of Motion Picture Arts and Sciences for his 
short film, According to the regulation at 8 C.F.R. § 204.5(h)(3)(v), an alien's contributions 
must be not only original but of major significance. The AAO must presume that the phrase "lIIajor 
significance" is not superfluous and, thus, that it has some meaning. Silverman v. Eastrich MulTiple 
InvesTor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 
(2
nd 
Cir. Sep 15,2003). To be considered a contribution of major significance, it can be expected 
that the petitioner might be able to show how his work has influenced others in his field. Otherwise, 
6 htlJ':llwww"lhfestival.org/festival/catcg()rics.htm. [accessed on October 17,2011. a copy of which is 
incorporated into the record of proceeding. [ 
Page 12 
it is difficult to gauge the impact of the petitioner's work, The petitioner also provides several lellers 
from those working in the entertainment industry who provide praises of the petitioner's ability as a 
film-maker. However, these letters lack the specificity to indicate how the petitioner's work has 
affected his field. While being short-listed is a noteworthy accomplishment, not every noteworthy 
accomplishment will serve to establish the petitioner's sustained national or international acclaim or 
that he has attained the status as one of that small percentage who have risen to the very top of their 
field of endeavor. 
Display of the petitioner's work in the field at artistic exhibitions or showcases consists of viewings of 
his sh0\1 film,_ at six film festivals over a two year period, 2006 and 2007. The most notahle 
showing was at the 12'11 iteration of the Palm Springs International Festival of Short Films. The 
petitioner submits evidence indicating numerous media and accredited industry members attended 
the conference and the petitioner's work was one of 333 films on display at the festival. The 
evidence submitted relating to the remaining festivals does not indicate any of the festivab were 
attended by influential industry members and the media coverage consists of only the local media. 
The petitioner submitted several descriptions of the festivals, however this evidence originates from 
Wikipedia. As stated above with regard to information from Wikipedia, there are no aSSllnll1CeS 
about the reliability of the content from this open, user-edited internet site. See Lamilem Bad{l.l({ \". 
Michael MlIkasey. 540 F.3d at 909. This evidence falls short of representing the petitioner as one 
who has established sustained acclaim or that he has attained the status as one of that small percentage 
who have risen to the very top of their field of endeavor. 
The petitioner failed to provide any qualifying evidence of his leading or critical role for 
organizations or establishments. The claim of the petitioner's lead or critical role in creating one 
short film that is distinguished among other short films is not consistent with the regulatory 
requirement that the leading or critical role be served in behalf of organizations or estahlishmcnh. 
While he also claims roles for other organizations, the petitioner failed to establish the distinguished 
reputation of these organizations. As such, the evidence is not indicative of sustained national or 
intemational acclaim or that the petitioner has attained the status as one of that small percentage who 
have risen to the very top of their field. 
The record lacks evidence to establish that prior to filing the present petition, the petitioner received 
compensation for his services and that such compensation was high relative to that of others working 
in his field. The evidence on record is all related to future possible compensation for activities that 
occurred after the petitioner filed the petition. As previously stated, the petition must havc been 
approvable on the date the petitioner filed. See 8 C.F.R. *~ 103.2(b)(I), (12); Mattero(K{I(iglwk. 14 
I&N Dec. at 49. None of the qualifying evidence when considered as a whole represents that the 
petitioner has achieved sustained national or intemational acclaim or that he has attained the status as 
one of that small percentage who have risen to the very top of his field of endeavor. 
The evidence on record related to commercial successes in the performing arts consists of a ieller 
from a short movie distributor indicating the different venues to which the company distributes the 
petitioner's short film, _ The petitioner submits no evidence of box office receipts or sales for 
Page 13 
any of his work as a producer and director. The evidence fails to reflect the petitioner has achieved 
sustained national or international acclaim or that he has attained the status as one of that small 
percentage who have risen to the very top of his field of endeavor. 
Ultimately, the evidence in the aggregate does not distinguish the petItIOner as one of the small 
percentage who have risen to the very top of the field of endeavor. The petitioner, a producer and 
director relies on awards for his work on short films, being short-listed for an Academy Award for one 
short film, and screenings of his short film at film festivals. The AAO will not narrow the petitioner's 
field to only producers and directors of short films rather than fhe more general field of producers and 
directors. While the petitioner has had some success as a producer it appears that the highest level of 
the petitioner's field is far above the level he has attained. 
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 abovc 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. 
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, ({{t'd, 345 
F.3d at 683; see also So/talle v. DO), 381 F.3d at 145 (noting that the AAO conducts appellate 
review on a de 110VO 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 fhe petitioner. Section 291 of the Act, 8 U.s.c. § 1361. Here, that hurdcn 
has not been met. 
ORDER: The appeal is dismissed.