dismissed EB-1A Case: Choreography And Dance

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
SRC 05 263 50675 
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. fj 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. 
C;"x;/?-- 
bobert P. W~emann, ief 
/ Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 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. $ 1153(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 qualifjr for classification as an alien of extraordinary ability. 
On appeal, counsel argues that the petitioner "has met the burden of section 203(b)(l)(A) of the Immigration 
and Nationality Act and 8 C.F.R. 204.5(h)(3) of the regulations." 
Section 203(b) of the Act states, in pertinent part, that: 
(I) Pr~ority 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 ths 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. 
Citizenship and Immigration Services (CIS) 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. 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. $ 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 she has earned sustained national or international 
acclaim at the very top level. 
This petition, filed on September 28, 2005, seeks to classify the petitioner as an alien with extraordinary 
ability as a choreographer and dancer. 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 
C Page 3 
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. 
$ 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. 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in theJield of endeavor. 
The petitioner submitted photocopies of the following: 
Certificate fiom the "Fourth Zhejiang Province Music and Dance Festival" stating the petitioner 
"won the First Award for her Dance Performance." (November 1993) 
Certificate from the "Fifth Hangzhou City Culture and Arts Competition" stating that the 
petitioner "won the Second Award." (December 1994) 
Cerbficate jointly issued by the "Zhejiang Province Culture Department," "Zhejiang Province 
Television," and the "Zhejiang Province Dancers Association" stating that the petitioner "won the 
Outstanding Award at the 1995 Professional Dance Competition and 'Solo, Duo, and Trio 
Dancers' Selection Contest." (February 1995) 
Certificate stating that the petitioner "won the Second Award" for her "Folk Dance Performance 
at the Fourth National Dance Competition." (November 1998) 
Certificate stating that the petitioner "won the First Class Award at the 2001 Hangzhou City New 
Titles and Programs Category (Specialty)." (December 2001) 
"Certificate of Honor" stating that the petitioner was "elected through evaluation to be one of the 
Ten Best Youth in Hangzhou City's Culture System." (January 25, 1995) 
"Certificate of Honor7' fiom the "Hangzhou City Culture Department Arts Committee" stating 
that the petitioner was "elected a Talented Artist in this Century and Next." (September 1996) 
Certificate bearing the seal of the Chinese Association of Dancers stating that the petitioner won a 
"Golden Lotus Award." (June 1998) 
Certificate bearing the seal of the Ministry of Culture, People's Republic of China stating: "[The 
petitioner] won the Performance Art [sic] at the Ninth Culture Award Program." (December 
2002) 
In addressing the petitioner's awards, the director's decision stated: 
Information regarding the awards received was not provided. 
 It is not clear the relevance and 
magnitude of the events where the [petitioner] participated. . . . The record does not contain any 
objective evidence regarding the significance of the awards, such as national media coverage of the 
announcement of the awardees. 
We concur with the director's observations. Regarding items 1, 2, 3, 5, 6, and 7, there is no supporting 
evidence showing that these awards reflect national or international recognition rather than local or provincial 
recognition. Nor is there evidence showing that items 4, 8, and 9 commanded national or international 
recognition consistent with sustained national or international acclaim. The awards numbered 4, 8, and 9 
were received seven and nearly three years before the petition was filed and are not indicative of sustained 
acclaim. Moreover, the 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 a given criterion. In this case, the petitioner has not shown that her 
awards had a significant level of recognition in her field beyond the presenting organizations. 
In light of the above, the petitioner has not established that she meets this criterion. 
Documentation of the alien's membership in associations in the field for which classification 
is sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 
The petitioner submitted a photocopy of her "First-Class Artist" license issued by "Zhejiang Provincial 
Human Resources" on December 15, 2002. We do not find that receiving a license to practice one's artistry 
from a provincial government is tantamount to membershp in an association requiring outstanding 
achievements. There is no evidence demonstrating that obtaining this license required outstanding 
achievements in the performing arts, as judged by recognized national or international experts in the 
petitioner's field. 
The petitioner also submitted a photocopy of her membership credential issued by the Zhejiang Province 
Dancers Association in 2000, but there is no supporting evidence that membership in this provincial 
association required outstanding achievements of its members, as judged by recognized national or 
international experts in the petitioner's field. 
In light of the above, the petitioner has not established that she 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 classification is sought. Such evidence 
shalZ include the title, date, and author of the material, and any necessa y translation. 
The petitioner submitted several articles printed in Chinese language publications. There is no evidence that 
the preceding publications are professional or major trade publications or other major media. Further, 
pursuant to 8 C.F.R. 5 103.2(b)(3), any document containing foreign language submitted to CIS shall be 
accompanied by a full English language translation that 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. The preceding articles were not accompanied by English language translations as required by both 
the regulation at 8 C.F.R. 9 103.2(b)(3) and the plain language of the regulatory criterion at 8 C.F.R. 
9 204.5(h)(3)(iii). On November 4, 2005, the director issued a notice requesting the petitioner to "[plrovide 
English translation [sic] for the articles submitted." The petitioner's response failed to comply with the 
director's request. 
Page 5 
The petitioner also submitted articles entitled "Chinese dancers get acrobatic: Youthful troupe tells folk 
stories with dance, music" and "First Community Concert Scheduled This Evening." The date and author of 
these articles were not provided as required by the regulatory criterion, nor is there evidence that the articles 
appeared in professional or major trade publications or other major media. Further, the preceding two articles 
(neither of which mentions the petitioner's name) are not primarily about her. 
In addressing the evidence submitted by the petitioner, the director's decision stated: 
The petitioner did not provide an English translation of the articles submitted. To qualify as major 
media, the publication should have significant national circulation or distribution. It is the 
petitioner's burden of proof not only to submit the article itself, but also evidence that establishes that 
it was published in a qualifying publication. 
We concur with the director's observations. The petitioner has not established that she meets this criterion. 
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 alliedfield of speciJication for which classiJication is sought. 
The regulation at 8 C.F.R. tj 204.5(h)(3) provides that "[a] petition for an alien of extraordinary ability must 
be accompanied by evidence that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." Evidence of the petitioner's participation as a 
judge must be evaluated in terms of these requirements. The weight given to evidence submitted to fulfill the 
criterion at 8 C.F.R. tj 204.5(h)(3)(iv), therefore, depends 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. 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). For example, judging a 
national competition for professional dancers is of far greater probative value than judging a local competition for 
students. 
The petitioner did not initially claim to meet this criterion. In response to the director's request for evidence, the 
petitioner submitted a photocopy of a March 2003 credential issued by the "Committee of National Art Society 
for Testing Administration Group" identifying her as a "Second-Class Artist" and "Senior Examiner." We note 
that the preceding March 2003 credential identifies the petitioner's "Professional Title" as "Second-Class Artist." 
This contradicts information contained in the license issued to the petitioner by Zhejiang Provincial Human 
Resources less than four months earlier on December 15, 2002, which identifies her "Professional Title" as 
"First-Class Artist." It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice 
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582,591-92 (BIA 1988). 
In a January 24, 2006 letter responding to the director's request for evidence, counsel argues that the above 
credentials identieing the petitioner as a "Senior Examiner" and "First-Class Artist" "entitle her to judge the 
Page 6 
performance and qualifications of other artists." The record, however, includes no evidence of the petitioner's 
participation, either individually or on a panel, as a judge of the work of other artists. For example, there is no 
evidence of the names of the individuals evaluated by the petitioner, their level of expertise, the specific 
performances judged, or any other documentation of the petitioner's assessments (such as judging slips, event 
programs identifying her as a judge, or correspondence confirming her participation). The record also lacks 
evidence establishing the significance of the events at which the petitioner allegedly served as a judge. 
Without evidence of the petitioner's actual participation as a judge of the work of others in her or an allied 
field that is consistent with sustained national or international acclaim, we cannot conclude she meets this 
criterion. 
Evidence of the alien's original scientzfic, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
In the January 24, 2006 letter responding to the director's request for evidence, counsel argues that the 
petitioner's performances and awards meet this criterion. Counsel states: 
[The petitioner's] two major performances, "White Snake" and "Maiden Cutting Paper Flowers" have 
previously been documented in newspaper articles submitted in Exhibit 3. In addition, please see her 
award certificates for the performances, 1993 for "White Snake" and 1998 for "Maiden." [The 
petitioner] also won national awards for her performances in 1998, "Lotus Award" and 2002, 
"Performance Art ." 
As discussed previously, the articles printed in Chinese language publications were unaccompanied by 
complete, certified English language translations as required by the regulation 8 C.F.R. $ 103.2(b)(3). This 
"published material" has already been addressed under the criterion at 8 C.F.R. $204.5(h)(3)(iii). Further, we 
do not find that the petitioner's awards and dance performances are relevant to the present criterion. The 
petitioner's award certificates have previously been addressed under the "prizes or awards" criterion at 
8 C.F.R. $ 204.5(h)(3)(i) and her dance performances are more relevant to the "commercial successes in the 
performing arts" criterion at 8 C.F.R. $ 204.5(h)(3)(x) and will be addressed there. Here it should be 
emphasized that the regulatory criteria are separate and distinct from one another. Because separate criteria 
exist for awards, commercial successes, and original artistic contributions of major significance, CIS clearly 
does not view these criteria as being interchangeable. If evidence sufficient to meet one criterion mandated a 
finding that an alien met another criterion, the requirement that an alien meet at least three criteria would be 
meaningless. 
The petitioner also submitted two letters of support 
 Producer, Director, and Founder of 
Dance Salad, Houston, Texas, states: 
As senior dance director in HongZhou Song & Dance Performing Group for the past 10 years, [the 
petitioner] not only appeared as principal dancer in many performances, she also was responsible for 
coordinating and organizing dance operas to be presented in national events. With her abundant 
experiences in the dance field, she will bring so much new ideas and grace to the performing arts in 
Houston and United States. 
letter does not identify the petitioner's specific performances or dance operas, nor does she 
explain how the petitioner's work rises to the level of an original artistic contribution of major significance in 
the field of dance. 
Dance Coordinator, Northern Arizona University Preparatory School of Performing 
Arts, states: 
Notably, [the petitioner] has established herself as one of the prominent performing artists in the field 
of Chinese folkloric and contemporary dance. Critics acclaimed her performance as unique and 
exquisite, embodying charm, grace, and spirit of the Chinese folkloric dance. 
What I think equally distinguishes [the petitioner] is her choreographic originality and her academic 
contributions both evidenced by the lists in the resume. 
The record, however, includes no copy of the petitioner's resume. Nevertheless, we do not find that reliance 
upon the self-serving information contained in the petitioner's resume is sufficient to demonstrate the 
purportedly major significance of her artistic or scholarly contnbutions. 
In general, the opinions of experts in the field, while not without weight, cannot form the cornerstone of a 
successful extraordinary ability claim. CIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comrn. 1988). 
However, CIS is ultimately responsible for mahng the final determination regarding an alien's eligibility for 
the benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; CIS may evaluate the content of those letters as to whether they support the alien's 
eligibility. See id. at 795-796. Thus, the content of the experts' statements and how they became aware of the 
petitioner's reputation are important considerations. For example, vague statements attesting to an alien's 
standing and slull are less persuasive than specific examples of achievements. Similarly, experts who were 
previously aware of the alien's accomplishments through her reputation are more persuasive than experts who 
were previously unaware of the alien and are providing an opinion based on a review of the alien's resume as 
provided by the alien. 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 choreographer or dancer who has sustained national or 
international acclaim. 
In this case, the petitioner has not established that she has made original artistic contributions of major 
significance to her field in a manner consistent with sustained national or international acclaim. For example, 
the record does not indicate the extent of the petitioner's influence on other dancers nationally or 
internationally, nor does it show that the field has somehow changed as a result of her work. Thus, the 
petitioner has not established that she meets this criterion. 
Evidence of the display of the alien S work in the field at artistic exhibitions or showcases. 
The petitioner submitted a digital video disc (DVD) entitled "Moon Light" showing her performance at a 
New Year gala hosted by China's Ministry of Culture. According to the accompanying English language 
translation, the petitioner was one of more than a dozen dancers who appeared in the video recording. This 
DVD is far more relevant to the "commercial successes in the performing arts" criterion at 8 C.F.R. 
tj 204.5(h)(3)(x) and will be further addressed there. Even if we were to consider the petitioner's DVD for the 
present criterion, we note that the plain language of this criterion requires participation in "exhibitions and 
showcases." One such qualifying performance does not meet this requirement. 
Evidence that the alien has pe$ormed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner submitted evidence showing that as part of the opening and closing ceremonies for the "Liqun 
Cup International Traditional Wushu and Unique Feasts Tournament" in 1999, she served as director and 
choreographer for acts entitled "Flying to the New Century" and "Happy Song." According to the event 
program submitted by the petitioner, multiple acts performed at the Liqun Cup ceremonies. There is no 
evidence showing the relative importance of the petitioner's role in relation to that of the directors of the other 
acts or that the Liqun Cup had a distinguished reputation. Further, we are not persuaded that the opening and 
closing ceremonies for an event constitute "organizations or establishments" for purposes of this criterion. 
In order to establish that she performed a leading or critical role for an organization or establishment with a 
distinguished reputation, the petitioner must establish the nature of her role within the entire organization or 
establishment and the reputation of the organization or establishment. The petitioner, however, has submitted 
no evidence showing that the dance companies for which she has worked have distinguished reputations or 
that she was responsible for their success or standing to a degree consistent with the meaning of "leading or 
critical role." 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence that the alien has commanded a high salary or other signiJ;cantly high remuneration 
for services, in relation to others in thefield. 
The petitioner submitted a September 26, 2005 letter from Houston, Texas stating that 
she "will be compensated at an annual salary of $24,000." 
 In the January 24, 2006 response to the 
director's request for evidence, counsel states: "Although a salary of $24,000 is not significant in the US 
economy, it is a significant amount in China." In support of counsel's claim that $24,000 is a "significant 
amount in China," the petitioner submitted a June 1, 2001 article printed from the internet site of 
AS1AWEEK.com stating that dancers of the Chinese National Ballet have incomes which range "from $3,400 
to $9,600." This income information from 2001 for Chinese ballet dancers does not represent an appropriate 
basis for comparison. The salary information submitted by the petitioner from 2001 is not timely and there is 
no evidence that she has performed or choreographed "ballet." Moreover, if the petitioner seeks to 
distinguish her remuneration from that of other Chinese dancers, then she must submit evidence of the salary 
she commanded while in China. The record, however, includes no such evidence. We find that evidence 
submitted in support this criterion must relate to acclaim in the country where the alien is said to have 
gained acclaim. For example, an alien who does not work in her country of origin must compare her salary 
with her colleagues in the country where she works, not her country of origin. In this instance, the 
petitioner submitted evidence of her $24,000 salary in the United States. The petitioner, however, failed to 
submit official wage statistics or other salary information as a basis for comparison showing that her 
compensation was significantly high in relation to other U.S. dancers or choreographers. There is no evidence 
that the petitioner has earned a level of compensation that places her among the highest paid dancers or 
choreographers in Cha or the United States consistent with sustained national or international acclaim. Thus, 
the petitioner has not established that she meets ths criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales. 
The petitioner submitted local newspaper articles showing that in 1987 she performed at the Hult Center in 
Eugene, Oregon and at the Elko Civic Auditorium in Elko, Nevada. The petitioner also submitted event 
programs fiom her various performances and the aforementioned "Moonlight" DVD. This criterion calls for 
commercial success in the form of "sales" or "receipts;" simply submitting evidence indicating that the petitioner 
participated in various stage performances cannot meet the plain language of ths criterion. The record includes 
no evidence of documented "sales" or "receipts" showing that the petitioner achieved commercial success in 
the performing arts in a manner consistent with sustained national or international acclaim. For example, 
there is no indication that the petitioner's performances drew record crowds, were regular sell-out 
performances, or resulted in greater audiences than other similar performances that did not feature the 
petitioner. Thus, the petitioner has not established that she meets this criterion. 
In this case, the petitioner has failed to demonstrate receipt of a major internationally recognized award, or 
that she meets at least three of the criteria at 8 C.F.R. tj 204.5(h)(3). Further, there is no objective evidence of 
achievements or recognition showing that the petitioner has sustained national or international acclaim as a 
dancer or choreographer subsequent to 2002. 
Documentation in the record indicates that the alien was the beneficiary of an approved 0-1 nonimrnigrant 
visa petition filed in her behalf in 2005. On appeal, counsel states: "[The petitioner] has been granted status 
as an 0-1 non-immigrant alien of extraordinary ability. The same evidence submitted for her 0-1 visa status 
should also meet the burden of proof in establishmg her eligibility as an alien of extraordinary ability for an 
employment based immigrant." Counsel is mistaken. Although the words "extraordinary ability" are used in 
the Act for classification of artists under both the nonimmigrant 0-1 and the fxst preference employment-based 
immigrant categories, the statute and regulations define the term differently for each classification. Section 
10 1 (a)(46) of the Act states, "The term 'extraordinary ability' means, for purposes of section 10 1 (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. 5 214.2(3)(ii). "Distinction" is a lower standard than that required for the immigrant 
classification, which defmes 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 
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. 5 214.2(3)(iv)(A), but the immigrant 
classification requires actual receipt of nationally or internationally recognized awards or prizes. 8 C.F.R. 
5 204.5(h)(3)(i). Given the clear statutory and regulatory distinction between these two classifications, the 
petitioner's prior receipt of 0-1 nonimmigrant classification is not evidence of her eligibility for immigrant 
classification as an alien with extraordinary ability. 
Review of the record 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. The evidence is not persuasive that the petitioner's achievements set her 
significantly above almost all others in her 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 burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.