dismissed EB-1A Case: Ballet

U.S. Department of flomeland Security 
identifying data deleted to 
?revem c!e~~ly linwananted 
invasion of pcrsoml privacy 
U.S. Citizenship and Immigration Senices 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER 
 Date: SEp 0 2 2003 
LIN 07 094 51952 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
§ 103.5 for the specific requirements. 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 $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
§ 103.5(a)(l)(i). 
~&~~!ul ib 
r John F. Grissom 
V!i\cting Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petition is now before the Administrative Appeals Office (AAO) 
on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A), as an 
alien of extraordinary ability in the arts. The director determined the petitioner had not 
established the sustained national or international acclaim necessary to qualify for classification 
as an alien of extraordinary ability. More specifically, the director found that the petitioner had 
failed to demonstrate receipt of a major, internationally recognized award, or that she meets at 
least three of the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
On appeal, counsel argues that the petitioner meets at least three of the regulatory criteria at 8 
C.F.R. 5 204.5(h)(3). 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. - Visas shall first be made available . . . to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with Extraordinary Ability. - An alien is described in this 
subparagraph if - 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national 
or international acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and the legacy Immigration and 
Naturalization Service (INS) have consistently recognized that Congress intended to set a very 
high standard for individuals seeking immigrant visas as aliens of extraordinary ability. See 56 
Fed. Reg. 60897, 60898-9 (Nov. 29, 1991). As used in this section, the term "extraordinary 
ability" means a level of expertise indicating that the individual is one of that small percentage 
who has risen to the very top of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). The specific 
requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation 
at 8 C.F.R. § 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, 
however, that the petitioner must show that the beneficiary has sustained national or international 
acclaim at the very top level. 
This petition seeks to classify the beneficiary as an alien with extraordinary ability as a ballet 
dancer. We note that the record contains evidence of the beneficiary's prior approval as an 0-1 non- 
immigrant pursuant to section 101(a)(15)(0)(i) of the Act, 8 U.S.C. 8 1101(a)(15)(0)(i). While 
USCIS has approved an 0-1 nonimmigrant visa petition filed on behalf of the beneficiary, the prior 
approval does not preclude USCIS from denying an immigrant visa petition based on a different, 
if similarly phrased, standard. It must be noted that many 1-140 immigrant petitions are denied 
after USCIS approves prior nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 
293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 
1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS 
spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some 
nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d at 29-30; see also Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004) (finding that prior approvals do not preclude USCIS fi-om denying an 
extension of the original visa based on a reassessment of petitioner'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 
of Church Scientology International, 19 I&N Dec. at 597. 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 at 1090. 
Furthermore, the AA07s 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 had approved 
the nonimmigrant petitions on behalf of the beneficiary, 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.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Although the words "extraordinary ability" are used in the Act for both the nonimmigrant 0-1 
classification and the first preference employment-based immigrant classification, the applicable 
regulations define the terms differently for each classification. The 0-1 regulation explicitly states 
that "[elxtraordinary ability in the field of arts means distinction." 8 C.F.R. 8 214.2(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. 8 204.5(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. 
8 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of awards or prizes. 8 
C.F.R. 8 204.5(h)(3)(i). Given the clear regulatory distinction between these two classifications, the 
beneficiary's receipt of 0-1 nonimmigrant classification is not evidence of her eligibility for 
immigrant classification as an alien with extraordinary ability. 
Page 4 
The regulation at 8 C.F.R. tj 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, 
internationally recognized award). Barring the alien's receipt of such an award, the regulation 
outlines ten criteria, at least three of which must be satisfied for an alien to establish the 
sustained acclaim necessary to qualify as an alien of extraordinary ability. A petitioner, however, 
cannot establish eligibility for this classification merely by submitting evidence that simply 
relates to at least three of the criteria outlined in 8 C.F.R. 5 204.5(h)(3). In determining whether 
the beneficiary meets a specific criterion, the evidence itself must be evaluated in terms of 
whether it is indicative of or consistent with sustained national or international acclaim. A lower 
evidentiary standard would not be consistent with the regulatory definition of "extraordinary 
ability" as "a level of expertise indicating that the individual is one of that small percentage who 
have risen to the very top of the field of endeavor." 8 C.F.R. tj 204.5(h)(2). 
The petitioner has submitted evidence that, it claims, meets the following criteria under 8 C.F.R. 
tj 204.5(h)(3).' 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner claims that the beneficiary has won first prize "in numerous highly regarded ballet 
competitions," including the gold prize "at the most difficult and prestigious ballet competition 
in the world, the Varna International Ballet Competition." However, the document submitted to 
support this claim is in a foreign language and is not accompanied by the translation required 
under 8 C.F.R. 5 103.2(b)(3) which states that "[alny document containing foreign language 
submitted to USCIS shall be accompanied by a full English language translation which the 
translator has certified as complete and accurate, and by the translator's certification that he or 
she is competent to translate from the foreign language into English." Without the requisite 
certified translation we are unable to determine whether this document supports the petitioner's 
claims. Accordingly, the evidence is not considered probative and will not be considered in this 
proceeding. 
The documents submitted in support of the petitioner's claims regarding the beneficiary's receipt 
of first prize at the 52"d Japan Ballet Competition in 1995, a Certificate of Merit from the 5oth 
Japan Ballet Competition in 1993, first prize and the Tachibana Akiko Award at the 26'" Saitama 
Ballet Competition in 1993, a Certificate of Merit at the 5 lSt Japan ballet Competition in 1994, a 
Certificate of Merit from the 49'" Japan Ballet Competition in 1992, and a Certificate of Merit 
from the 24th Saitama Ballet Competition in 1991 are similarly lacking. Again, without the 
required certified translation, we are unable to determine that these documents support the 
petitioner's claims and establish her eligibility under this criterion. As such, these documents 
will not be considered in this proceeding. We further note that a certificate of merit, while 
evidence of the petitioner's performance in a particular competition is an implausibly broad 
1 
The petitioner does not submit evidence relating to or claim the beneficiary meets the criteria not 
discussed in this decision. 
Page 5 
interpretation of the word "award." Therefore, even if accompanied by the requisite translation, 
the aforementioned certificates are not sufficient to meet this criterion. 
The remaining document evidences the beneficiary's receipt of third prize and the IBM Award in 
the junior division of the Fifth Asian Pacific Ballet Competition in August 1995. On appeal, 
counsel argues that age is "an inherent characteristic" and that applying the director's "faulty 
logic," USCIS would discount "'juvenile" or "child actor" Oscars that were awarded to - 
, and others because they were relatively young when 
they earned those awards." We are not persuaded by counsel's argument. In this instance, 
contrary to counsel's argument, we are not focusing on the beneficiary's age at the time she 
received the claimed award. Rather, the focus is on the award itself which appears to have been 
won by the beneficiary in competition that was limited by her age. The Oscar examples cited by 
counsel are similar in that they did not compete for their awards with all others in their field. 
and were awarded "special" Oscars because of their ages and 
received an "Honorary" Oscar, also because of her age. Given the limitation in the 
available pool of applicants and the fact that the petitioner does not appear to have been 
competing against competitors throughout her field, we do not find that such an award indicates 
that she "is one of that small percentage who have risen to the very top of the field of endeavor." 
See 8 C.F.R. 5 204.5(h)(2). USCIS has long held that even athletes performing at the major league 
level do not automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 
953, 954 (Assoc. Commr. 1994); 56 Fed. Reg. at 60899.~ Likewise, it does not follow that a 
competitor, like the beneficiary, who has had success in a single age-group competition involving 
limited participants should necessarily qualify for an extraordinary ability employment-based 
immigrant visa. To find otherwise would contravene the regulatory requirement at 8 C.F.R. 
5 204.5(h)(2) that this visa category be reserved for "that small percentage of individuals that have 
risen to the very top of their field of endeavor." 
Further, plain language of the regulatory criterion at 8 C.F.R. 5 204.5(h)(3)(i) specifically 
requires that the petitioner's awards be nationally or internationally recognized in the field of 
endeavor and it is her burden to establish every element of this criterion. In this case, there is no 
2 
 While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of 
Racine, 1995 WL 1533 19 at *4 (N.D. Ill. Feb. 16, 1995)' the court stated: 
[Tlhe plain reading of the statute suggests that the appropriate field of comparison is not a 
comparison of Racine's ability with that of all the hockey players at all levels of play; but rather, 
Racine's ability as a professional hockey player within the NHL. This interpretation is consistent 
with at least one other court in this district, Grimson v. INS7 No. 93 C 3354, (N.D. Ill. September 
9, 1993), and the definition of the term 8 C.F.R. 4 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the 
court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. tj 204.5(h)(2) is 
reasonable. 
Page. 6 
evidence showing that petitioner's awards commanded a significant level of recognition beyond 
the context of the events where they were presented. Accordingly, the petitioner has not 
established that the categories in which she successfully competed resulted in her receipt of 
nationally or internationally recognized prizes or awards. 
The petitioner submitted no documentation with the petition to establish that any of the awards 
that the beneficiary allegedly won were nationally or internationally recognized as awards of 
excellence in the beneficiary's field. In response to the director's February 21, 2008 request for 
evidence (WE), the petitioner's artistic director, 
 stated: 
The criteria for winning these prizes . . . are: 1) winners must demonstrate an 
extraordinary talent for classical and contemporary dance, 2) winners show a 
charisma as a performer that engulfs both the audience and judges alike. 
The prestigious International ballet Competition in Varna would be sufficient to 
establish [the beneficiary's] status in the international ballet world as a ballerina 
of extraordinary ability, an ability recognized by a jury of international ballet 
experts and former dances, who honored [the petitioner] with the highest possible 
prize, the gold medal. 
The petitioner submitted copies of pages from the website of the Varna International Ballet 
Competition that discusses the competition's history and popularity. However, the petitioner 
submitted no independent or objective documentation to establish the significance of the Varna 
competition. 
On appeal, the petitioner submits a June 6, 2008 letter from 
 in which he states 
that he is "perplexed that [the beneficiary's] gold prize at the Varna International Ballet 
Competition is being questioned as to its stature in the realm of dance competitions and 
requirements." He further states: 
Any person who values classical ballet as an art both knows and values the 
importance of the International Ballet Competition of Varna and respects the key 
qualification necessary to win any prize there. But most of all, the coveted gold 
prize that was awarded to [the beneficiary], that very quality required to win this 
top prize is the very one you are seeking to award with [the beneficiary's change 
of status: extraordinaw ability! [Emphasis in the original.] 
Nonetheless, the burden remains on the petitioner to establish by objective and competent 
evidence that the award it claims meets this criterion is nationally or internationally recognized 
as an award of excellence in the beneficiary's field. On appeal, the petitioner submits additional 
documentation from Varna's website and a discussion of "USA International Ballet 
Competition" 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.3 See 
Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 2008). Accordingly, we will not 
assign weight to information which relies on Wikipedia as its cited source. 
The petitioner has not only failed to provide evidence of the renown of these awards, but because 
it did not provide certified translations of documents that purport to show the beneficiary's 
receipt of these awards, it has failed to establish that she actually won any award. 
Furthermore, as noted by the director, the petitioner did not claim and provided no evidence of 
any award won by the beneficiary subsequent to 1998. Section 203(b)(l)(A)(i) of the Act 
provides that the alien's extraordinary ability must be demonstrated by "sustained acclaim" and 
whose achievements have been recognized "through extensive documentation." The lack of any 
awards alleged to have been won by the beneficiary during the nine years preceding the filing of 
this visa petition is not consistent with a claim of sustained acclaim. 
The petitioner has failed to establish that the beneficiary meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classzfication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
To demonstrate that membership in an association meets this criterion, the petitioner must show 
that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, 
minimum education or work experience, standardized test scores, grade point average, 
recommendations by colleagues or current members, or payment of dues do not satisfy this 
criterion as such requirements do not constitute outstanding achievements. The overall prestige 
of a given association is not determinative. The issue is membership requirements rather than the 
association's overall reputation. 
3 
 Online content from Wikipedia is subject 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 http://en.wikipedia.ordwiki/Wikipedia:Genera disclaimer, accessed on June 18, 2009, a copy of 
which is incorporated into the record of proceeding. 
In response to the WE, - 
Ballet Competition of Varna "are the 
stated that the competitions 
closest ballet would come to 
in Japan and the 
an association to 
International 
be judged by 
- - 
national and international experts in the field of ballet." However neither of these competitio& 
is an association which grants membership to individuals. also stated that the 
American Guild of Musical Artists (AGMA) "is the oldest dancer's union that represents opera, 
orchestra and dance in the US." However, the petitioner does not allege and presents no evidence 
that the beneficiary is a member of the AGMA, much less 
 membership criteria 
demonstrating that membership requires outstanding achievement as judged by national or 
international experts in the beneficiary's field. 
The petitioner does not pursue this issue on appeal, and has failed to establish that the 
beneficiary meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classzfication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In order to meet this criterion, published material must be primarily about the beneficiary and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
The petitioner submitted a copy of a document "The way to be a BALLERINA," that it stated 
was in a publication "Japanese Dancers Abroad 2005." The translation accompanying this 
document does not comply with the provisions of 8 C.F.R. 8 103.2(b)(3) in that the translator is 
not identified, and there is no certification that the translation is complete and accurate or that the 
translator is competent to translate from Japanese into English. Furthermore, the article does not 
comply with the provisions of 8 C.F.R. 4 204.5(h)(3)(iii) in that it does not contain a date or an 
author. Accordingly, the document is of no evidentiary value in this proceeding. In response to 
the WE, the petitioner stated that the "'Way to be a Ballerina' is a major Japanese dance 
magazine," which has a nationwide distribution. However, the petitioner submitted no 
documentation to corroborate this statement, to indicate the true name of the publication or to 
establish that the publication is a professional or major trade publication or that it is other major 
media. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
The petitioner also provided what it stated are "programs, brochures, and press clippings" about 
the beneficiary. The documentation includes covers from the petitioner's brochures, some of 
which feature the beneficiary in the promotion of a performance. The brochures and programs 
Page, 9 
include a brief biography of the beneficiary along with others of the ensemble. Brochures and 
programs from the petitioner are not professional or major trade publication and do not constitute 
other major media. 
The petitioner submitted a copy of an October 2006 article from the Oregonian, entitled "In 
defense of ballet." The article briefly mentions the beneficiary as one of two dancers in a dual 
role. The article is not about the beneficiary or her work. This article is similar to the other 
documentation submitted by the petitioner, which either report on the success of the petitioner or 
the shows it staged. The beneficiary is often mentioned briefly as only one of the performers in 
the show. Her work was sometimes critiqued briefly as with all of the performers. The one 
exception is an October 7, 2003 article from The Asian Reporter, which reports on the 
beneficiary's move from Japan to Portland, Oregon. However, the petitioner submitted no 
documentation to establish that The Asian Reporter is a professional or major trade publication 
or that it is other major media. 
The petitioner also submitted "copies of various Japanese performance programs and 
periodicals." However, as the petitioner failed to submit certified translations of the documents, 
the AAO cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. 
4 103.2(b)(3), which requires that documents submitted in a foreign language "shall be 
accompanied by a full English 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." 
In response to the RFE, the petitioner submitted a copy of a March 21, 2007 article from 
PhotoMedia Magazine Online reporting on a photograph by to promote one of the 
petitioner's performances. The photograph features the beneficiary as one of two dancers. 
However, the article is not about the beneficiary or her work. Further, it does not identify an 
author of the article as required by the regulation. Another article aboutappears in the 
March-April 2008 edition of Communication Arts and also includes a photograph taken by Mr. 
of the beneficiary in the petitioner's production of Swan Lake. The article is about - 
and his work and not about the beneficiary. Furthermore, as the article was published after the 
filing date of the petition, it cannot be used to establish the beneficiary's eligibility for this visa 
petition. A petitioner must establish eligibility at the time of filing; a petition cannot be approved 
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
On appeal, counsel's argument focuses primarily on whether The Oregonian, in which most of 
the articles submitted by the petitioner appeared, constitutes major media. Counsel argues that 
The Oregonian is a "statewide daily newspaper," and provides letters including a letter from the 
vice president and wire transfer manager of Wells Fargo Bank to "confirm[] the status of The 
Oregonian as 'major media."' Beyond these letters counsel does counsel does not, however, 
submit any probative evidence regarding, for instance, the circulation of The Oregonian or a 
statistical comparison of its readership versus other papers to demonstrate counsel's claims of 
major media. Without documentary evidence to support the claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. 
 The unsupported assertions of counsel do not 
constitute evidence. 
 Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
Counsel asserts that "[tlhere is no support in the [Act] or its legislative history for discounting 
publications as not 'major media' because they are 'local or regional in nature."' Counsel's 
argument, however, is without merit. The Act requires the petitioner to demonstrate that the alien 
has sustained national or international acclaim. The ten criteria listed in the regulation at 8 C.F.R. 
fj 204.5(h)(3) are designed to aid the petitioner in establishing such acclaim. It would be 
inconsistent with the Act and the regulation if one could establish national or international 
acclaim through the use of documentation that was of only local or regional significance. 
Counsel also questions the director's finding that the articles were "not solely about the 
beneficiary and in most instances only briefly mention her." Quoting the court in Racine v. INS, 
1995 WL 1533 19 (N.D. Ill.), counsel asserts: 
There is no requirement under the Act that the [newspaper or journal] articles 
need to state that [the beneficiary] is one of the best or even that the articles 
describe him at the top of his fields. The articles need to demonstrate his work 
within the field. 
While we concur that the petitioner is not required to submit articles stating the beneficiary is 
"the best," the regulation still requires the article to be about the beneficiary. In this instance, the 
articles in the record, including all of The Oregonian articles, are about the ballet company or 
others. Furthermore, while the reviews presented by the petitioner as evidence under this 
criterion "demonstrates" the beneficiary's work, a mere mention of the beneficiary's name in the 
context of a much larger discussion about the petitioner or its work is not an article "about" the 
beneficiary, as required by 8 C.F.R.5 204.5(h)(3)(iii). 
Finally, counsel asserts: 
Subsection (iii) does not require that published articles or reviews taken 
individually demonstrate "acclaim." Rather, the statutory requirement of 
"sustained national or international acclaim" can be met indirectly by providing 
evidence to satisfy three or more of the categories in subsection (i) through (x). 
Counsel's argument ignores that the regulatory criteria are designed to assist the petitioner in 
demonstrating national or international acclaim, and must be interpreted as a whole with the 
statute. While published articles about the alien need not state specifically that the alien has 
acclaim, the content of the articles must be consistent with sustained acclaim in the field. 
Otherwise, any mention of the alien, even in a negative manner, would be evidence of this 
criterion. 
Page 11 
The petitioner has not established that the beneficiary satisfies this criterion. 
Evidence of the alien's original scientzfic, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in the field. 
As evidence that the beneficiary meets this criterion, the petitioner submitted letters from several 
individuals. However, while all laud the beneficiary's performance, none state that the 
has made a contribution of major significance to ballet. For example, 
Artistic Director of the San Francisco Ballet, stated in a March 11, 2006 letter t 
found the beneficiary "extremely gifted" with "excellent outstanding ability," and that he is 
convinced that "she will continue to impress and inspire ballet audiences in ~merica."=~ 
Artistic Director of Pacific Northwest Ballet (PNB) and Director of the School in 
Seattle, Washington, in a March 6, 2006 letter stated that the beneficiary "is an enormously 
gifted and intelligent artist" who "has enabled "the etitioning organization "to perform much 
more difficult ballets than in its past." din a December 7, 2006 letter stated that he 
chose the beneficiary to perform the leading role in a new ballet that he created. - 
Senior Advisory Editor of Dance Magazine, stated in a February 27, 2008 letter that the 
beneficiary "sets a standard of excellence for younger dancers in the company, acting as a role 
model for them.', Resident Choreographer of the New York City Ballet, 
stated in a March 1, 2008 letter that the petitioning oig&ization is fortunate to have the 
beneficiary "and she has undoubtedly helped them achieve international acclaim and status as 
one of the most rapidly growing and successful companies in the US." 
In denying the petition, the director stated: 
[Tlhe record contains no objective documentary evidence which indicates the 
beneficiary has made any original contributions of major significance to the field. 
The record does not otherwise establish that the beneficiary has developed new 
styles, techniques, methodologies, etc that have been recognized and adopted by 
others and which have significantly impacted the field. 
Counsel asserts that the director's determination is both factually and legally wrong. Counsel 
then refers to the "detailed, objective letters from objective, third-party experts" such as Mr. 
and  onet the less, the passages quoted by counsel from the letters of these 
- - 
individuals merely attest to the beneficiary's abilities as a dancer. None attest that she has made a 
contribution of major significance to her field. 
On appeal, the petitioner submits a June 11, 2008 letter from 
 a writer and dance 
historian, who stated that the beneficiary "as a ballerina, offers contributions of major 
significance in the field of dance by 
 in her extraordinary, professional fashion. 1; is 
not her job as a dancer to create new techniques or styles, rather to display those entrusted to her 
by the masters." Nonetheless, doesn't explain how the beneficiary's dancing, no 
matter how extraordinary, is a contribution of major significance to the field, especially if her 
style and technique are only a display of another's innovation and creativity. 
Furthermore, while the beneficiary may not have created new styles or techniques that influenced 
ballet dancing, the petitioner has also failed to submit documentation that the beneficiary's 
dancing raises the overall consciousness of the ublic to ballet such that ballet as a whole 
benefits &om her performances, such as with or -~ 
Counsel argues that USCIS lacks the expertise to determine whether or not a performer has 
extraordinary ability and that is why the regulations "require an expert opinion from artistic peer 
groups when determining whether a performer has 'extraordinary ability' under 8 C.F.R. 
5 214.2(0)(3)." The regulation cited by counsel refers to the nonimrnigrant 0-1 classification, 
which, as discussed previously, has different criteria. There is no requirement under 8 C.F.R. 
5 204.5(h)(3) to obtain an expert opinion as the burden is on the petitioner to provide extensive 
documentation of the alien's extraordinary ability and for this specific criterion, that the 
beneficiary's work is both original and that she has made contributions of major significance to 
her field, none of which has been demonstrated. 
The petitioner has failed to establish that the petitioner meets this criterion. 
Evidence of the display of the alien's work in theJield at artistic exhibitions or showcases. 
The petitioner claims that the beneficiary meets this criterion through her performances. The 
director determined that "it is inherent" in the beneficiary's field that she perform before an 
audience and that this criterion cannot be met "simply by demonstrating that the beneficiary has 
performed in the field." The director further stated: 
The record [does] not establish that the beneficiary's performances were so 
extraordinary that they place her at the pinnacle of the field. Not every 
performance can be considered an exhibition or showcase such that it is indicative 
or consistent with national or international acclaim. 
On appeal, counsel asserts that the director's statement that "it is inherent" in the beneficiary's 
field that she perform before an audience is "absurd and an irrational application" of the 
regulation, and that the regulation "does not require that each display of performance be so 
extraordinary that they place her at the pinnacle of the field." 
Nevertheless, the plain language of this regulatory criterion indicates that it is intended for visual 
artists (such as sculptors and painters) rather than for a dancer such as the beneficiary. Frequent 
performances are intrinsic to the dance profession. Duties or activities which nominally fall 
under a given regulatory criterion at 8 C.F.R. 5 204.5(h)(3) do not demonstrate national or 
international acclaim if they are inherent or routine in the occupation itself, In the performing 
arts, acclaim is generally not established by the mere act of appearing in public, but rather by 
attracting a substantial audience. For this reason, the regulations establish separate criteria, 
especially for those whose work is in the performing arts. Not every stage performance is an 
artistic exhibition or showcase. Without evidence that the beneficiary's performances were 
comparable to the exclusive artistic showcases that might serve to meet this criterion for a visual 
artist, we cannot conclude that the beneficiary meets this criterion. We find that the beneficiary's 
performances are best considered under the leading or critical role criterion set forth at 8 C.F.R. 
5 204.5(h)(3)(viii) and the "commercial successes in the performing arts" criterion at 8 C.F.R. 
$204.5(h)(3)(x), discussed below. 
The petitioner has failed to establish that the beneficiary meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that she performed a leading or critical role for 
an organization or establishment and that the organization or establishment has a distinguished 
reputation. 
In a January 20, 2006 letter, , artistic director of the Reiko Yamamoto Ballet 
Company, stated that the beneficiar trained at the Reiko Yamamoto Ballet School and joined 
the company in 1996. stated that the beneficiary danced most of the leading roles 
for the company and won several awards, including the Varna International Ballet Competition 
(Junior Division) in 1998. The petitioner submitted no documentation to establish that the Reiko 
Yamamoto Ballet Company enjoys a distinguished reputation or that the beneficiary's 
performances as a lead dancer were in a leading or critical role for the organization. 
The petitioner submitted articles from The Oregonian and the web a e of the Portland Tribune 
about the petitioning organization, its artistic director, & and performances by 
the organization. As previously discussed, the weight given to evidence submitted to fulfill the 
criteria at 8 C.F.R. 8 204.5(h)(3) must depend on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained national or international acclaim at the very 
top of the alien's field of endeavor. Although stated that the petitioner has 
achieved international acclaim and a "status as one of the most rapidly growing and successful 
companies in the US," the petitioner submitted no doc~mentatio~ to corroborate its reputation 
beyond the distribution area of The Oregonian. Thus, the petitioner's reputation on a local or 
regional level is not consistent with establishing that the beneficiary's acclaim at the national or 
international level. 
In its January 24, 2007 letter, the petitioner stated that the beneficiary performed in the title roles 
in its production of Firebird and in principal roles in other of its productions, as well as featured 
artist -on two tours during the petition&-7s 2004-2005 season. In his April 1, 2008 letter 
responding to the director's RFE, 
 the petitioner's artistic director, stated: 
There are very few (possibly a hand full) of ballets in the classical repertoire 
choreographed for one dancer. [The petitioner] does not have any of these ballets 
in its repertoire. The reviews of [the beneficiary] therefore do not mention her 
solely, but include other members of [the petitioning organization] who dance 
with her. Only as a guest artist might she receive solo critical acclaim . . . but as a 
member of [the petitioning organization], others are reviewed with her. That said, 
every time [the beneficiary] dances, she is singled out for her extraordinary talent 
and ability. 
The petitioner submits no evidence showing that the beneficiary performed in a leading or critical 
- - 
role for the petitioning organization. ~lthough the evidence reflects that the beneficiary has 
performed in leading roles in productions by the petitioner, nothing in the record distinguishes her 
from other soloists or principals in the company let alone its artistic management. In addition, 
although stated that the beneficiary enabled the petitioning organization to perform 
more difficult ballets, and 
 and 
 attributed the rising success of the 
petitioning organization in part to the beneficiary, the petitioner submitted no evidence showing 
that the beneficiary is responsible for its success or standing to a degree consistent with the meaning 
of "leading or critical role" and indicative of sustained national or international acclaim at the very 
top of her field. 
Counsel argues on appeal: 
Nothing in 5 204.5(h)(3)(viii) requires that the beneficiary "was or is responsible 
for the success and standing" of an organization. Nor is there any basis in the 
INA, regulations, or case law for the Decision's rationale that even though [the 
beneficiary] has danced dozens of leading roles for [the petitioning organization] 
and Reiko Yamamoto Ballet Company, [the petitioner] also must show how her 
contributions as a prima ballerina were different from those of "all other dancers, 
production personnel and key employees in the overall organization. 
Counsel asserts that the requirement to show how the beneficiary's role differs fiom others in the 
organization "is arbitrary, capricious, and without support in the record." However, in order to 
show that the beneficiary meets this criterion, the petitioner must show that the beneficiary 
performed in a position or at a level beyond that of rank and file members of the organization so 
as to establish that her role within that organization was leading or critical. 
The petitioner has failed to establish that the beneficiary meets this criterion. 
Evidence that the alien has commanded a high salary or other signzficantly high 
remuneration for services, in relation to others in thefield. 
The petitioner provided a copy of the "contract of engagement" between the petitioner and the 
beneficiary for the 2007-2008 ballet season. The contract, although signed by on 
behalf of the petitioner on December 19, 2006, does not contain the beneficiary's signature. 
Without evidence of her signature, it is not clear that the contract was executed or in effect. 
Moreover, the contract indicated that the beneficiary was to be compensated at the rate of $806 
per week, and specified the period of the contract was August 27, 2007 to June 8, 2008. 
Therefore, at the time of filing, six months prior to the period specified in the contract, the 
petitioner had yet to have received any salary. A petitioner must establish eligibility at the time 
of filing; a petition cannot be approved at a future date after the petitioner or beneficiary 
becomes eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971); 8 C.F.R. 5 103.2(b)(l), (12). The petitioner must establish that the beneficiary 
commanded a high salary or other significantly high remuneration prior to the filing date of the 
petition. It is noted that according to its own terms, the contract could be terminated by OBT for 
reasons such as the beneficiary's injury, poor attitude, unacceptable weight gain or loss, or 
unforeseen circumstances requiring the cancellation of rehearsals and performances. The 
contract further indicates that the beneficiary would not receive any contractually mandated 
salary until the week following her first week worked, which had yet to occur at the time of 
filing Given these terms, it is apparent that the contract could be terminated prior to the 
beneficiary receiving any compensation. Such evidence does not establish that the petitioner 
"has commanded" a high salary at the time of filing. Counsel arguments on appeal regarding the 
beneficiary's contracts for the 2008 through 201 1 seasons are lacking for the same reason. 
In response to the RFE, the petitioner submitted a March 28, 2008 letter from its human resource 
manager attesting that the beneficiary, "[dlue to her extraordinary ability and status[,] her 
compensation is top tier in our organization." The petitioner submitted no documentation of the 
beneficiary's actual compensation or how it compared to others in her field. 
On appeal, the petitioner submits information from the Foreign Labor Data Certification Center 
website indicating that dancers at wage level 4 in the Portland-Vancouver-Beaverton area of 
Oregon and Washington earned $16.75 per hour between July 2, 2007 and June 2, 2008. The 
petitioner submitted no documentation of the compensation received by dancers outside of this 
specified area. Therefore, the petitioner's evidence does not reflect the beneficiary's 
compensation relative to all others in her field of endeavor, much less salaries received by other 
dancers in OBT. 
The petitioner has failed to establish that the beneficiary meets this criterion. 
The regulation at 8 C.F.R. 9 204.5(h)(4) states: "lfthe above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility." [Emphasis added]. The regulatory language precludes the consideration 
of comparable evidence in this case, as there is no indication that eligibility for visa preference in 
the petitioner's occupation cannot be established by the ten criteria specified by the regulation. 
However, we will briefly address other evidence the petitioner submitted under this provision. 
Counsel asserts that the letters of recommendation submitted on behalf of the beneficiary are 
evidence of her contributions of major significance to the field of ballet. Counsel also asserts, "If 
the Service insists on its procrustean interpretation of the term "original contributions" that are 
inapplicable to classical ballet, it should consider that evidence under 5 204.5(h)(4) instead." We 
note first that the regulation at 8 C.F.R. 5 204.5(h)(3)(vi) requires the petitioner to establish that 
the beneficiary's original contributions are of major significance to the field. The petitioner 
failed to do this. Furthermore, we do not determine that a classical ballet dancer cannot make 
original contributions or original contributions of major significance to the field. We only hold 
that the petitioner failed to establish that the beneficiary made such contributions. 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of 
the small percentage who has risen to the very top of her field of endeavor. Review of the record, 
however, does not establish that the petitioner has distinguished herself to such an extent that she 
may be said to have achieved sustained national or international acclaim or to be within the small 
percentage at the very top of her field. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
Finally, counsel asserts on appeal that USCIS has approved petitions for others with similar 
achievements and asserts that the regulations have been applied more restrictively for the 
beneficiary. Those cases and the specific facts of those cases, which include, for instance, 
information on awards and publication, are not in the record. Without the records, it cannot be 
determined whether the facts of any other case are similar to those of the present case. The 
director's decision does not indicate whether he reviewed the prior approvals of the other 
nonimmigrant petitions. If the previous immigrant petitions were approved based on the same 
unsupported and contradictory assertions that are contained in the current record, the approval 
would constitute material and gross error on the part of the director. As previously indicated, 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. Matter of 
Church Scientology International, 19 I&N Dec. at 597. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.