dismissed EB-1A Case: Circus Arts

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
~LIC COBY U. S. Citizenship 
0 
 and Immigration 
ILlibLs--m\ 
FILE: WAC 03 100 52504 Office: CALIFORNIA SERVICE CENTER Date: 7 #)OB 
IN RE: Petitioner: 
Beneficiary: 
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 ~dministrative 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. 
w 
%Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 03 100 52504 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
Center, and is now before the Administrative Appeals Office 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 that the petitioner had not established the sustained national or international 
acclaim requisite to classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(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 thls subparagraph if -- 
(i) 
 the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
The applicable regulation defines the statutory term "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). Specific supporting evidence must accompany the petition to document the "sustained 
national or international acclaim" that the statute requires. 8 C.F.R. § 204.5(h)(3). An alien can establish 
sustained national or international acclaim through evidence of a "one-time achievement (that is, a major, 
international recognized award)." Id. Absent such an award, an alien can establish the necessary sustained 
acclaim by meeting at least three of ten other regulatory criteria. Id. 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the arts as a circus 
acrobatic performer. The petitioner originally submitted recommendation letters and evidence relating to her 
awards and performances. The director found the evidence insufficient to establish the petitioner's eligibility 
under any of the regulatory criteria. On appeal, present counsel claims that the petitioner meets five criteria and 
submits additional evidence. Counsel's assertions and the additional evidence fail to overcome the substantive 
reasons for denial and we affirm the director's decision. The evidence submitted, counsel's contentions and the 
director's decision are addressed in the following discussion of the regulatory criteria relevant to the petitioner's 
case. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
,for excellence in the field of endeavor. 
WAC 03 100 52504 
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The director correctly determined that the evidence was insufficient to establish the petitioner's eligibility under 
this criterion. The petitioner submitted evidence of nine awards that she received for various gymnastics 
competitions in Moldova between 1990 and 1993. In addition, a letter from the President of the Republic of 
Moldova Artistic Gymnastics Federation attests that the petitioner won a bronze medal at the 1989 World Cup 
in Moscow and gold medals for parallel bars and springboard exercises at international championships in Italy 
and Romania. While they appear to be nationally or internationally recognized, these awards were all granted at 
least ten years prior to the filing of the petition. In addition, the awards were given to the petitioner for her 
excellence in gymnastics, not her current field of circus acrobatic performance. While there is an obvious link 
between gymnastics and acrobatics, the athletic field of gymnastics is not equivalent to the performing art of 
circus acrobatics. Without further evidence, we cannot assume that prizes won in one field are necessarily 
equivalent to honors earned in the other. The petitioner's gymnastic awards thus do not reflect sustained 
national or international acclaim in her current field and do not meet this criterion. 
The petitioner also submitted evidence of three awards for circus acrobatic performance. In 2000, the petitioner 
received an award as the "Most Talented Female" by the "Ringling Brothers and Barnum & Bailey 130' Edition 
Blue Show." An accompanying certificate states that the award was granted by vote of "the cast and crew of the 
130'~ Edition of the Greatest Show on Earth" and was presented at the "End of the Tour Party." The record 
contains a printout from the Ringling Brothers' website that explains the history of the circus, but does not 
establish its current renown or explain the significance of the "most talented" awards. Present counsel attempts 
to make up for this deficiency by asserting that this circus selects "only the best international circus acts" and 
that the petitioner's award thus shows the requisite acclaim and recognition in her field of expertise. The record 
does not support this claim. Without documentary evidence to support a claim, the assertions of counsel will 
not satisfy the petitioner's burden of proof. Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The evidence shows only that the award is an internal honor limited to members of the circus itself. 
The eviden 
 r in 
 h petitioner's two other circus awards is also insufficient to satisfy this criterion. A 
letter fro 
 tates that the petitioner was a member of his acrobatic trou e and that the troupe won 
first plac amh!lH onal Circus Festival in Sarasota, Florida in 1995. &affirms that the 
petitioner "was the leading performer in my troupe, and without her, our success and victory would not be 
possible." Yet the record contains no copy or other primary evidence of this award. On appeal, the petitioner 
also submits evidence that her current troupe, The Flying Tabares, won two awards at the 2gth International 
Circus Festival of Monte-Carlo in 2004. These awards were granted a year after the petition was filed and 
consequently cannot be considered. The petitioner must establish her eligibility at the time of filing. See 8 
C.F.R. !j 103.2(b)(12), Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
(ii) Documentation of the alien's membership in associations in the,field for which classification is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines orjields. 
The director found that the petitioner did not address or submit evidence for this criterion. On appeal, counsel 
claims the petitioner meets this criterion by virtue of her membership in the Moldova National Artistic 
Gymnastic Team. As discussed above under the first criterion, the petitioner's prior athletic accomplishments as 
a gymnast are not transferable to her current occupation as a circus acrobatic performer. In addition, the 
petitioner's gymnastic team membership apparently ceased in approximately 1994 when she began working 
with the Sandou circus acrobatic troupe, nine years prior to the filing of her petition and thus does not reflect 
WAC 03 100 52504 
Page 4 
sustained national or international acclaim in her current field. Accordingly, the petitioner does not meet this 
criterion. 
(iii) Published material about the alien in professional or major trade publications or other major media, 
relating to the alien's work in the field for which class$cation is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
The director found that the petitioner did not address or submit evidence for this criterion. However, the record 
contains one article purportedly from the Idaho State Journal that discusses and features photographs of the 
petitioner's performance with the Sandou troupe. The article is not dated as required by the regulation. In 
addition, the Idaho State Journal is not major media, but apparently a local or regional newspaper with limited 
circulation. In his brief on appeal, counsel stated that additional evidence relating to this category would be 
submitted, but to date our office has received no further correspondence from the petitioner or her counsel. 
Consequently, the petitioner does not meet this criterion. 
(v) Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related contributions 
of major significance in the.field. 
The director correctly determined that the petitioner did not meet this criterion. On appeal, counsel claims that 
the petitioner satisfies ths category by virtue of her ability to perform a triple somersault as verified by two 
recommendation letters. The first letter is the aforementioned testimonial ot who previously 
employed the petitioner in his circus acrobatic troupe. tates that the petitioner "was the only 
woman (and probably still is) who performed the triple somersault in a beam balancing act. Nobody in the 
gymnastics/acrobatic community in the United States performs this type of a trick." The second letter is written 
of Entertainment for Circus Circus Hotel Casino in Reno, Nevada. - 
troupe to perform at his 
 states that the petitioner "performed 
as the lead acrobat in a skill known as the Russian Bar. 
 is one of the top female acrobats to 
perform such an act, as evidenced by her 
 Few women are capable of 
accomplishing the triple somersault-on the Russian Bar, and only the very best perfect the slull in live 
performance. Bperformed the triple somersault and all of her other skills flawlessly during each 
and every performance of her five week contract at Circus Circus." 
These letters as well as twelve others submitted with the petition were written by the petitioner's former 
employers, people who contracted her troupes for circus performances or other individuals who have worked 
with her directly. Ten of the 14 letters are dated 1996 or early 1997, at least seven years before the present 
petition was filed and appear to be copies of letters originally written to 
 of the petitioner's 
P-1 nonimrnigrant status. For example, a February 15, 1997 letter from 
 is titled, "Petition for 
ant Worker - P-1 Extension, Petitioner: Entertainment c., Beneficiary 
Although some of the letters provide relevant information about the petitioner's experience and 
accomplishments, they cannot independently establish her eligibility under this criterion because they do not 
demonstrate that her work has made an impact in her field beyond those with whom she has worked directly. 
Moreover, recommendation letters solicited by an alien for her immigration case carry less weight than 
preexisting, independent evidence of major contributions that one would expect of a performing artist who has 
garnered sustained national or international acclaim. Accordingly, the petitioner does not meet this criterion. 
WAC 03 100 52504 
Page 5 
(vii) Evidence of the display of the alien 's work in theJield at artistic exhibitions or showcases. 
The director correctly determined that the petitioner did not meet this criterion and counsel does not contest that 
determination on appeal. The petitioner submitted documents, photographs and a videotape of her performances 
at various venues. While thls evidence demonstrates that the petitioner has been active in her field, it does not 
satis@ this criterion. Frequent performances are requisite to successful employment as a circus acrobat. The 
regulation requires that evidence submitted to meet this criterion be consistent with sustained national or 
international acclaim and not simply document an alien's continued employment in his or her field. We note 
that the petitioner once toured with the Ringling Brothers and Barnum and Bailey Circus, purportedly the 
"greatest show on earth" and won an award for her performance. However, the record contains no independent 
evidence of the significance of that performance. In addition, no evidence was submitted to establish that any of 
the petitioner's other performances reflect the requisite sustained national or international acclaim. 
(viii) Evidence that the alien has per$ormed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
The director correctly determined that the petitioner did not meet this criterion. On appeal, counsel maintains 
that the petitioner meets this criterion by virtue of her role as a leading performer with the Sandou Troupe and 
the Flying Tabares. The previously mentioned letter of tests to the 
acrobatic troupe, but no independent evidence of the troupe's reputation was 
 states that 
his troupe won a first place award at the International Circus Festival in 
primary evidence of that award. The record is similarly insufficient regarding the petitioner's role in the Flying 
Tabares. Although the troupe's brochure identifies the petitioner as a member, it does not herald her individual 
contributions. We also cannot consider the troupe's receipt of awards at the 28' International Circus Festival of 
Monte-Carlo in 2004 because the awards were granted a year after the petition was filed. The petitioner must 
establish her eligibility at the time of filing. See 8 C.F.R. 9 103.2(b)(12), Matter of Katigbak, 14 I&N Dec. at 
49. Finally, the petitioner was voted "Most Talented Female" by the "Ringling Brothers and Barnum & Bailey 
130th Edition Blue Show," but the record is insufficient to establish her role in that circus or that the circus 
continues to enjoy a distinguished reputation. Accordingly, the petitioner does not meet this criterion. 
(x) Evidence of commercial successes in the per$orming arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales 
The director correctly found the evidence insufficient to establish the petitioner's eligibility under this criterion 
and present counsel does not contest that conclusion on appeal. The petitioner's prior counsel claimed the 
petitioner met this criterion through evidence of her Ringling Brothers and Bainum and Bailey award and eight 
letters praising the petitioner's performances. Although this evidence documents the petitioner's successful 
employment in her field, it does not demonstrate commercial success. The record contains no documentation of 
box office receipts or other evidence that would show that the petitioner's performances led to siguficant 
commercial success. 
On appeal, counsel requests that we apply the comparable evidence provision at 8 C.F.R. 5 204.5(h)(4) because 
"the Circus World does not have absolute championships, Olympics, Oscars or Gramrnies." However, the 
regulation clearly states that comparable evidence will be accepted only when the other regulatory criteria do not 
readily apply to the petitioner's field. As the record in this case shows, at least seven of the criteria readily 
WAC 03 100 52504 
Page 6 
apply to the petitioner's field. The record also contains evidence of at least two major, international circus 
performance competitions. Accordingly, there is no need to invoke the comparable evidence provision. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act only if the alien can 
establish extraordinary ability through extensive documentation of sustained national or international acclaim 
demonstrating that the alien has risen to the very top of his or her field. The petitioner bears this substantial 
burden of proof. Section 291 of the Act, 8 U.S.C. Ej 1361. The petitioner in this case has not sustained that 
burden. The evidence indicates that the petitioner is a talented and valued circus acrobatic performer, but the 
record does not establish that she was an alien of extraordinary ability at the time of filing. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.