dismissed EB-1A Case: Ballroom Dance

U.S. Department of Homeland Security 
U S Citizenship and Immigration Services 
Office ofAdmrn~stratrve Appeals MS 2090 
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Office: NEBRASKA SERVICE CENTER Date: OCT 2 6 2009 
LIN 07 121 51830 
IN RE: 
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. 3 1 1 53(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Ofice 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. 5 103.5 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. 3 103.5(a)(l)(i). 
Al l'dh li k :, 
- Perry Rhew 
. ("chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien 
of extraordinary ability. The director determined that 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 he 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. 
fj 204.5(h)(3) and that he submitted comparable evidence his extraordinary ability pursuant to the 
regulation at 8 C.F.R. 5 204.5(h)(4). 
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 whch 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 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means a level of 
expertise indicating that the individual is one of that small percentage who have risen to the very top 
of the field of endeavor. 
 8 C.F.R. 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. 5 204.5(h)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
he has sustained national or international acclaim at the very top level. 
This petition, filed on March 19, 2007, seeks to classify the petitioner as an alien with extraordinary 
ability as a competitive ballroom dancer and a dance instructor. The regulation at 8 C.F.R. 
5 204.5(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 criteria at 8 C.F.R. 5 204.5(h)(3). In 
determining whether the petitioner meets a specific criterion, the evidence itself must be evaluated in 
terms of whether it is indicative of or consistent with sustained national or international acclaim. A 
lower evidentiary standard would not be consistent with the regulatory definition of "extraordinary 
ability" as "a level of expertise indicating that 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 petitioner has 
submitted evidence pertaining to the following criteria under 8 C.F.R. 5 204.5(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 initially submitted the following: 
1. 
 Online results list for the Constitution State Challenge Dancesport Championships 
(Connecticut, 2006) indicating that the petitioner and his partner placed fifth in "Pro 
heat 1" of the "Professional American Smooth Open" category; 
2. 
 Online results for the New Jersey State Open Championships (2006) indicating that 
the petitioner and his partner placed fifth in the "Pro 5" heat of the "Professional 
Open Smooth" category; 
3. 
 Excerpt from an online event list of the National Dance Council of America (NDCA) 
providing contact information for the Kings Ball Dancesport Championships (Newark 
Sheraton Airport Hotel, 2006). A handwritten notation added to the page states: 
"FINALE 1. PLACE;" 
4. 
 Excerpt from an online event list of the NDCA providing contact information for the 
Commonwealth Classic (Massachusetts, 2006). A handwritten notation added to the 
page states: "RISING STARS FINALE 2. PLACE, OPEN FINALE 4. PLACE;" 
5. 
 Excerpt from an online event list of the NDCA providing contact information for the 
Northeastern Open Dancesport Invitational (Sheraton Hotel, Stamford, Connecticut, 
2007). A handwritten notation added to the page states: "FINALE 4. PLACE;" 
6. 
 Excerpt from an online event list of the NDCA providing contact information for the 
New York Dance Festival (2007). A handwritten notation added to the page states: 
"FINALE 5. PLACE;" 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
7. 
 Excerpt from an online event list of the NDCA providing contact information for the 
Stardust Ball (Marriot Hotel, Islandia, New York, 2006). A handwritten notation 
added to the page states: "FINALE 6. PLACE;" 
8. 
 Excerpt from an online event list of the NDCA providing contact information for the 
American Star Ball Championships (Hilton Hotel, Hasbrouck Heights, New Jersey, 
2006). A handwritten notation added to the page states: "FINALE 5. PLACE;" 
9. Online results list for the Northeastern Open Invitational (Connecticut, 2007) 
indicating that the petitioner and his partner placed fourth in "Pro heat 3" of the 
"Professional American Smooth" category; 
10. Certificate stating that the petitioner and his partner "won the 3rd prize in the Lnter. 
Category Standard" at the "Bentheim - Berg - Cup" Dancing Sport Tournament 
(1989); 
11. Certificate stating that the petitioner and his partner "won the 3rd prize in the Inter. 
Category" at the "Latin Cup of Obergrafschaft County" Dancing Sport Tournament 
(1989); 
12. Certificate stating that the petitioner and his partner "won the 2nd prize in the Inter. 
Category" at the "Latin Cup of Norden" Dancing Sport Tournament (1989); 
13. Certificate stating that the petitioner and his partner "won the 3rd prize in the Inter. 
Category" at the "Rheiderland Cup" Dancing Sport Tournament (1989); 
14. Certificate of Honor stating that the petitioner and his partner "won the first prize in 
the B - La Category at the Dancing Tournament in Salzwedel" (1991); and 
15. Certificate from Dancing Club VSZ stating that the petitioner won "3rd place in the 
contest of social dancing" in the Amateur Latin category (1 991). 
With regard to items 1, 2, and 4 - 9, the plain language of this regulatory criterion requires evidence 
of the petitioner's receipt of "nationally or internationally recognized prizes or awards." In these 
instances, there is no evidence from the competitions' organizers showing that the petitioner 
received a prize or an award for placing fourth, fifth, or sixth. Further, regarding items 1 - 15, there 
is no evidence showing that these honors are nationally or internationally recognized prizes or 
awards for excellence rather than forms of local, regional, or institutional recognition. 
In regard to items 3 - 8, the record does not include evidence of official results or awards from the 
competitions' organizers corroborating the information stated in the petitioner's handwritten 
notations. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 
(Comm. 1998) (citing Matter of Treasure Craft of Calfornia, 14 I&N Dec. 190 (Reg. Comm. 
1972)). A petition must be filed with any initial evidence required by the regulation. 8 C.F.R. 
8 103.2(b)(l). The nonexistence or other unavailability of primary evidence creates a presumption 
of ineligibility. 8 C.F.R. 5 103.2(b)(2)(i). 
With regard to items 10 - 15, we note that the petitioner submitted a recommendation letter from 
of the Poprocky Dancing School, Slovakia stating: 
 "[Iln the year 1998, [the 
petitioner and his partner] went over from amateur dancing to professional circles." We cannot 
ignore that items 10 - 15 were won by the petitioner in 1989 and 1991, several years before the 
Page 5 
petitioner switched from amateur to professional competition as indicated in letter. 
With regard to items 4 and 10 - 15, we cannot conclude that awards won by the petitioner in youth, 
amateur, or "Rising Star" professional dance competition are an indication that he "is one of that 
small percentage who have risen to the very top of the field of endeavor." 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 dancer who has had success in regional competitions at the youth, 
amateur, or "Rising Star" level should necessarily qualify for an extraordinary ability employment- 
based immigrant visa. To find otherwise would contravene the regulatory requirement at 8 C.F.R. 
6 204.5(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." The petitioner seeks a highly restrictive visa classification, 
intended for individuals already at the top of their respective fields, rather than for amateurs or 
"Rising Star" competitors progressing toward the top at some unspecified future time. 
Finally, regarding items 1 - 15, the plain language of the regulatory criterion at 8 C.F.R. 
6 204.5(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 case, 
there is no evidence establishing that the petitioner's awards had a significant level of recognition 
beyond the context of the events where they were presented and commensurate with nationally or 
internationally recognized prizes or awards for excellence in the field. 
In response to the director's request for evidence, the petitioner submitted results for the All New 
North American Dancesport Championships in Cherry Hill, New Jersey (July 2008), the American 
Star Ball Championships in East Rutherford, New Jersey (May 2008), the Northeastern Open 
Dancesport Invitational in Stamford, Connecticut (January 2008), the Manhattan Amateur Classic 
(January 2008), the Constitution State Challenge Championships (October 2007), the 
Commonwealth Classic (November 2007), the Philadelphia Festival (April 2007), the Empire State 
Dance Sport Championships (August 2008), and the Tri-State Challenge (March 2008). The 
petitioner also submitted results from the Philadelphia Festival (April 2008) and a certificate from its 
organizers honoring the petitioner as a top teacher at the festival. The preceding competitive results 
and top teacher certificate post-date the filing of this petition. A petitioner, however, must establish 
eligibility at the time of filing. 8 C.F.R. $6 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 
2 
 While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of Racine, 1995 
WL 153319 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. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
3 204.5(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. 4 204.5(h)(2) is reasonable. 
49 (Regl. Commr. 1971). Accordingly, the AAO will not consider the preceding results and top 
teacher certificate in this proceeding. The petitioner's response also included results for the Summer 
Sizzler '06 and the Clover Star Classic (2007), but there is no evidence showing that the petitioner 
received a nationally or internationally recognized prize or award at any of the preceding 
competitions (including those that post-date the filing of this petition). 
Nationally or internationally recognized prizes or awards won by dancers coached primarily by the 
vetitioner mav also be considered for this criterion. The vetitioner submitted a letter of support from 
A A 
who identifies herself as Miss Sport ilovakia 2002 and Miss Sport Europe 2003. 
"I asked [the petitioner] to help me out with my dance routine that I was 
preparing for upcoming Miss Sport of Europe. 
 We had had a great time and the routine was 
successfully made and presented." does not specify the dates she received assistance 
from the petitioner and she does not identify the petitioner as her primary coach. Further, the record 
does not include evidence of the awards she won after receiving his help. As discussed, the 
petitioner also submitted dance results for various competitions, but there is no evidence showing 
that the petitioner's students participated in top level (rather than amateur level) competition and 
received nationally or internationally recognized prizes or awards as of the petition's filing date. In 
this case, there is no evidence demonstrating that competitors coached primarily by the petitioner 
have won nationally or internationally recognized prizes or awards in professional dancing. 
In light of the above, the petitioner has not established that he 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. 
In order to demonstrate that membership in an association meets this criterion, a 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 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. Further, the overall prestige of a given association is 
not determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
The petitioner submitted a certificate indicating that he is "registered" with the National Dance 
Council of America, Inc. (NDCA) as a "Competing Professional" and a "ProIAm Teacher." There is 
no evidence indicating that this registration equates to membership in the organization. Further, the 
record does not include evidence (such as membership bylaws) showing the admission requirements 
for the NDCA. There is no evidence demonstrating that the NDCA requires outstanding 
achievements of its members, as judged by recognized national or international experts in the 
petitioner's field or an allied one. Accordingly, the petitioner has not established that he meets this 
criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classiJication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In general, in order for published 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. An alien would not earn acclaim at the national level from a local publication. 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.3 
In response to the director's request for evidence, the petitioner submitted a photograph of him and 
more than a dozen other dance instructors who were named top teachers at the Philadelphia Festival 
Championships on page 20 of an unidentified publication. The petitioner also submitted an article 
entitled "The 2006 Northeastern Open Invitational" on page 56 of an unidentified publication. The 
article lists the petitioner and his partner, who placed 4'" out of 5 couples in the Professional American 
Smooth category, among the results for numerous events at the competition. The plain language of this 
regulatory criterion requires "[plublished material about the alien in professional or major trade 
publications or other major media" including "the title, date, and author of the material." The 
documentation submitted by the petitioner does not meet the preceding requirements. Accordingly, the 
petitioner has not established that he meets this criterion. 
Evidence of the alien's original scientzfic, scholarly, artistic, athletic, or business- 
related contributions of major signzficance in the field. 
The petitioner submitted several reference letters in support of the petition. We cite representative 
examples here. 
talent and abilities as competitive Ballroom dancers. . . . I believe they are becoming a force in the 
United States Dance world . . . ." 
Since 1990 [the petitioner and his partner] participated in training and teaching junior and 
youth dance couples, leading fornation B-team and also teaching senior couples . . . . They 
did their job dutifully, well-arranged and to my pleasure, couples were advancing and 
gaining success on competitions in their level and age category. 
3 
 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. 
I would like to speak on behalf of [the petitioner and his partner]. Both very accomplished 
dancers in their country of Slovakia. This very talented couple was willing to come to 
America to train and compete professionally for the U.S. Teachers and Competitors of this 
caliber are difficult to find and are a necessity for Dancesport to grow and develop in our 
country. 
We acknowledge the petitioner's submission of reference letters from various individuals praising 
his talent as a dancer and teacher. Talent in one's field, however, is not necessarily indicative of 
original contributions of major significance. With regard to the petitioner's dancing and teaching 
achievements, the reference letters do not specify exactly what his original contributions in dancing 
have been, nor is there an explanation indicating how any such contributions were of major 
significance in his field. According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's 
contributions must be not only original but of major significance. We must presume that the phrase 
"major significance" is not superfluous and, thus, that it has some meaning. While the petitioner 
may have helped various youth and amateur dancers improve their dancing skills, the documentation 
submitted by him does not establish that he has made original contributions of major significance in 
the field. For example, the record does not indicate the extent of the petitioner's influence on other 
dancers or instructors nationally or internationally, nor does it show that the field has somehow 
changed as a result of his work so as to demonstrate the petitioner's significant contribution to his 
field. 
In this case, the reference letters submitted by the petitioner are not sufficient to meet this criterion. 
These letters, while not without weight, cannot form the cornerstone of a successful extraordinary 
ability claim. USCIS may, in its discretion, use as advisory opinion statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, 
USCIS is ultimately responsible for making the final determination regarding an alien's eligibility 
for the benefit sought. Id. The submission of letters of support from individuals selected by the 
petitioner is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters 
as to whether they support the alien's eligibility. See id. at 795. Thus, the content of the writers' 
statements and how they became aware of the petitioner's reputation are important considerations. 
Even when written by independent experts, letters solicited by an alien in support of an immigration 
petition are of less weight than preexisting, independent evidence of original contributions of major 
significance that one would expect of a dancer or an instructor who has sustained national or 
international acclaim. Without extensive documentation showing that the petitioner's work has been 
unusually influential, highly acclaimed throughout his field, or has otherwise risen to the level of 
original contributions of major significance, we cannot conclude that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The petitioner submitted photographs and video footage of him performing with his students and 
professional partner. The plain language of this regulatory criterion indicates that it applies to visual 
artists (such as sculptors and painters) rather than to dancers such as the petitioner. The ten criteria 
in the regulations are designed to cover different areas; not every criterion will apply to every 
occupation. The petitioner and his students' participation in dancing competitions has previously 
been addressed under the awards criterion at 8 C.F.R. 5 204.5(h)(3)(i). Virtually every dancer 
"displays" his or her work in the sense of performing in front of an audience. Nevertheless, there is 
no evidence establishing that videotaped and photographed performances of the petitioner were 
consistent with sustained national or international acclaim at the very top of the field or that hs 
performances equate to the exclusive showcases of an artist's work that are contemplated by this 
regulation for visual artists. For example, there no evidence showing that the petitioner's name received 
top billing at the events or that his performances were singled out from those of the other event 
participants. Accordingly, the petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other signiJicantIy high 
remuneration for services, in relation to others in thefield. 
The petitioner initially submitted a March 12, 2007 letter from fi 
1- Somerville, New Jersey, stating: "[The petitioner and his partner] are 
currently employed in my studio as Ballroom Dancers/Instructors at annual salaries of $32,000 and 
$28,000 respectively. They are paid $30.00 per hour which is 40% higher than an average dance 
instructor's salary." The petitioner also submitted his Form W-2, Wage and Tax Statement, from the 
for 2006 reflecting earnings of $1 1,297.50. The petitioner's initial 
submission also included his Form 1099-MISC, Miscellaneous Income, from the - 
for 2006 reflecting non-employee compensation of $20,928.00. Thus, the petitioner's 
total compensation from the in 2006 was $32,225.50.  he petitioner 
also submitted Occupation Employment Statistics (OES) wage results from the U.S. Department of 
Labor for "Dancers" in the "Middlesex-Somerset-Hunterdon" New Jersey region for 2006. The 
OES wage results for dancers in New Jersey reflect a Level 1 wage (entry) of $25,501 per year, a 
Level 2 wage (qualified) of $3 1,429 per year, a Level 3 wage (experienced) of $37,336 per year, and 
a Level 4 wage (fully competent) of $43,264 per year. 
We note that the petitioner's $32,225.50 income for 2006 falls significantly below the median yearly 
earnings of experienced and hlly competent dancers in the New Jersey region. Accordingly, the 
petitioner has not established that his 2006 income was significantly high in relation to others in his 
field. Further, with regard to the median regional wage statistics submitted by the petitioner, the 
petitioner must submit evidence showing that his earnings place him in that small percentage at the 
very top of his field, rather than simply in the top half of qualified dancers at the regional level. See 
8 C.F.R. 5 204.5(h)(2). Median regional wage statistics for dancers in New Jersey do not meet this 
requirement. 
 Moreover, the petitioner provided wage results for "dancers" rather than "dance 
instructors." ~ccordin~l~,comrnent that the petitioner and his partner "are paid $30.00 
per hour which is 40% higher than an average dance instructor's salary" is not corroborated by the 
documentation submitted. 
 Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SofJici, 22 
I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg. Comm. 1972)). The documentation initially submitted by the petitioner is not sufficient to 
demonstrate that he has commanded a high salary or significantly high remuneration in relation to 
others in his field. 
In response to the director's request for evidence, the petitioner submitted a September 24, 2008 
that the petitioner and his partner have worked part time for the = 
September 2005 and that their current rate of pay is $30 per hour. The 
petitioner also submitted a 2007 U.S. Individual Income Tax Return for him and his partner (spouse) 
reflecting that they earned combined "total income" of $54,772.4 The petitioner's response also 
included a "Profit & Loss" statement from January 1 - September 15,2008 reflecting that he and his 
partner had a combined net income of $52,692 for that period. The petitioner also submitted Foreign 
Labor Certification (FLC) Wage Results from the U.S. Department of Labor's FLC Data Center for 
"Dancers" in the "Newark-Union" New Jersey and Pennsylvania region for 2008-09. The FLC Data 
Center wage results for dancers in this region reflect a Level 1 wage (entry) of $17,285 per year, a 
Level 2 wage (qualified) of $27,435 per year, a Level 3 wage (experienced) of $37,586 per year, and 
a Level 4 wage (fully competent) of $47,736 per year. 
With regard to income earned by the petitioner subsequent to March 19, 2007, this remuneration 
post-dates the filing of the petition. As discussed previously, a petitioner must establish eligibility at 
the time of filing. 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at. 49. 
Accordingly, the AAO will not consider the petitioner's income from 2008 or the second, third, and 
fourth quarters of 2007 in this proceeding. Further, we cannot ignore that the evidence relating to 
the petitioner's income for 2007 and 2008 includes his spouse's earnings rather than his income 
alone. The amount of income specifically attributable to the petitioner in 2007 and 2008 has not 
been demonstrated. Moreover, regarding the untimely 2008-09 median regional wage results from 
the FLC Data Center, the petitioner must submit evidence showing that his earnings place him in 
that small percentage at the very top of his field, rather than simply in the top half at the regional 
level. Median regional wage statistics do not meet this requirement. Finally, the 2008-09 wage 
results submitted by the petitioner did not include information for dance instructors. 
In light of the above, the petitioner has not established that he meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate his 
receipt of a major, internationally recognized award, or that he meets at least three of the criteria that 
must be satisfied to establish the national or international acclaim necessary to qualify as an alien of 
extraordinary ability. 8 C.F.R. $ 204.5(h)(3). The conclusion we reach by considering the evidence 
to meet each criterion 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. fj 204.5(h)(2). 
4 
The petitioner's state and federal income tax returns for 2007 were not accompanied by hls Form W-2 or Form 1099- 
MISC showing the specific earnings attributable to him versus those attributable to his spouse. 
Page 11 
On appeal, counsel argues that the reference letters submitted by the petitioner should be considered 
as comparable evidence of his extraordinary ability. The regulation at 8 C.F.R. tj 204.5(h)(4) allows 
for the submission of "comparable evidence" only if the ten criteria "do not readily apply to the 
beneficiary's occupation." The regulatory language precludes the consideration of comparable 
evidence in this case, as there is no evidence that eligibility for visa preference in the petitioner's 
occupation cannot be established by the ten criteria specified by the regulation at 8 C.F.R. 
tj 204.5(h)(3). Where an alien is simply unable to meet three of the regulatory criteria, the plain 
language of the regulation at 8 C.F.R. tj 204.5(h)(4) does not allow for the submission of comparable 
evidence. 
Nevertheless, there is no evidence showing that the documentation the petitioner requests evaluation 
of as comparable evidence constitutes achievements and recognition consistent with sustained 
national or international acclaim at the very top of his field. We note that the petitioner's reference 
letters have already been addressed under the regulatory criterion at 8 C.F.R. tj 204.5(h)(3)(v). 
While reference letters can provide usehl information about an alien's qualifications or help in 
assigning weight to certain evidence, such letters are not comparable to extensive evidence of the alien's 
achievements and recognition as required by the statute and regulations. The nonexistence of required 
evidence creates a presumption of ineligibility. 8 C.F.R. tj 103.2(b)(2)(i). The classification sought 
requires "extensive documentation" of sustained national or international acclaim. 
 See section 
203(b)(l)(A)(i) of the Act, 8 U.S.C. tj 1153(b)(l)(A)(i), and 8 C.F.R. tj 204.5(h)(3). The 
commentary for the proposed regulations implementing the statute provide that the "intent of Congress 
that a very high standard be set for aliens of extraordinary ability is reflected in this regulation by 
requiring the petitioner to present more extensive documentation than that required" for lesser 
classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991). Primary evidence of achievements and 
recognition is of far greater probative value than opinion statements from individuals selected by the 
petitioner. 
Documentation in the record indicates that the alien was the beneficiarv of two amroved 0-1 
A L 
nonimmigrant visa petitions filed by the . On appeal, counsel states: 
"[The petitioner] has already been determined to be an alien of extraordinary ability by the Service. 
This prior determination by the Service, which must be considered a persuasive factor, together with 
other proofs presented, has clearly been ignored in the formulation of the denial." Although the 
words "extraordinary ability" are used in the Act for classification of artists under both the 
nonimmigrant 0-1 and the first preference employment-based immigrant categories, 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 purposes of section 101(a)(15)(0)(i), in the case of the arts, 
distinction." The 0-1 regulation reiterates that "[elxtraordinary ability in the field of arts means 
distinction." 8 C.F.R. tj 214.2(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. tj 214.2(3)(iv)(A), but the immigrant classification requires actual receipt of nationally or 
internationally recognized awards or prizes. 8 C.F.R. tj 204.5(h)(3)(i). Given the clear statutory and 
regulatory distinction between these two classifications, the petitioner'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 case must decided on a case-by-case basis on the evidence of record. 
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 A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals 
do not preclude USCIS 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 of 
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.), afd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Review of the record does not establish that the petitioner has distinguished himself to such an extent 
that he may be said to have achieved sustained national or international acclaim or to be 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. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 9 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also Janka 
v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AA07s de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.