dismissed EB-1A Case: Circus Performer

U.S. Department of Homeland Security 
20 Mass. Ave., N. W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
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. 5 1 153(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. 
w 
9obert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks. classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or intemational acclaim necessary 
to qualify for classification as an alien of extraordinary ability. 
On appeal, counsel submitted a brief. On July 11, 2007, this office requested additional evidence to 
demonstrate the petitioner's continued sustained acclaim and afforded 12 weeks in which to respond. 
The petitioner failed to respond. On November 15, 2007, this office issued a notice of derogatory 
evidence and intent to dismiss the appeal and afforded 15 days to respond. Once again, counsel did not 
respond. The petitioner's failure to respond to our July 11,2007 notice is sufficient grounds to dismiss 
the appeal. 8 C.F.R. 5 103.2(b)(13). Nevertheless, a discussion of the merits is warranted. 
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 
intemational 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. 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 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 intemational 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 seeks to classify the petitioner as an alien with extraordinary ability as a circus performer. 
As quoted above, section 203(b)(l)(A)(i) of the Act provides that the alien must demonstrate sustained 
national or international acclaim. The petitioner filed a Form 1-485 Application to Register Permanent 
Residence or Adjust Status concurrently with the instant petition. In support of that application, the 
petitioner submitted a Form G-325A Biographic Information. On that form, which the petitioner 
signed under penalty of perjury, the petitioner indicated that he had worked as an acrobat for the 
Chinese Lion Society since December 2001. 
On November 15, 2007, this office advised the petitioner of derogatory evidence regarding his alleged 
employment with the Chinese Lion Society. Specifically, the petitioner entered the United States in 
2001 pursuant to a nonimmigrant visa classifying him as an artist and entertainer in a culturally unique 
program. The petitioner for this visa is the Chinese Lion Society. The only evidence submitted in 
support of the immigrant petition before us relating to 2001 or later is a single article about the 
petitioner in a newspaper of unknown circulation and significance. It does not review a specific 
performance. The record contains no advertisements or reviews of the petitioner's performances 
through the Chinese Lion Society. 
As stated in our November 15, 2007 notice, it can be expected that an alien with sustained national or 
international acclaim in the performing arts would be able to document recent acclaimed performances. 
Given the lack of such evidence in support of the immigrant petition, we obtained the record of the 
most recent nonimmigrant visa petition, EAC 05 255 52121, filed in the petitioner's behalf. The 
- 
petitioner, the Chinese Lion society, listsits address as -1 and its phone number 
as . Included as supporting evidence is a "Show Itinerary - Joint Listing." Among the 
various performances listed on the itinerary, the petitioner's specific group, group 12, is listed as 
performing at the following two venues on the following dates: 
Chicago City Limits in New York on June 27-29, 2004; March 18-22, 2005; 
August 12-1 6, 2005; November 24-26, 2005; April 15-1 8, 2006; May 19-2 1, 
2006; June 17-2 1,2006; July 18-20,2006 and August 30-September 2,2006. 
Ashtabula Arts Center in Cincinnati on April 18-22, 2004 and September 2-4, 
2004. 
Our search of the Internet via "Google" revealed no results for "Chinese Lion Society" or "China Lion 
Society." The phone number listed on the petition, according to Peoplelookup.com, is "available." We 
dialed that phone number during business hours on June 28, 2007 and got no response. Also on the 
Internet, we were unable to confirm that an entertainment agency is located at the address specified on 
the petition, although a Mailboxes, Etc. is located at that general address.' We acknowledged that this 
I 
 The website with that information was provided in our November 15, 2007 notice. 
Page 4 
information does not preclude the existence of the Chinese Lion Society as a legitimate entertainment 
agency as claimed on the nonimmigrant petition. 
We also, however, obtained more explicitly derogatory evidence. Specifically, we have also learned 
that at least some of the performances listed on the itinerary are bogus. Specifically, we contacted both 
Chicago City Limits and the Ashtabula Arts Center and both venues advised us in writing that the 
Chinese Lion Society has not erformed at their venues on the dates specified. As stated in the 
November 15, 2007 notice, 
 the Producer at Chicago City Limits, advised that neither 
the Chinese Lion Society nor the China Lion Society has ever performed for or with Chicago City 
Limits' comedy troupe and that "no acrobatic act that I know of' has ever performed at the comedy 
club. It is noted that several of the dates on which the petitioner's group is alleged to have performed 
were prior to the date the nonimmigrant petition was filed. Thus, had those dates been scheduled and 
fallen through, the petitioner would have known that information when the petition was filed. 
The AAO acknowledged that the questionable itinerary was submitted in support of the petitioner's 
nonimmigrant visa petition by his alleged employer or agent, but noted that it is relevant to the 
petitioner's claims of sustained acclaim. Doubt cast on any aspect of the petitioner's proof may, of 
course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. 
 Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). 
 Given the 
questionable nature of the evidence that supported the nonimmigrant petition, the evidence 
supporting the immigrant petition is suspect. Moreover, it is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independent objective evidence, and attempts to explain 
or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in 
fact, lies, will not suffice. Id. at 586. 
We will now consider the evidence submitted in support of the petitioner's immigrant petition that is 
the subject of this appeal. The regulation at 8 C.F.R. tj 204.5(h)(3) indicates that an alien can establish 
sustained national or intemational acclaim through evidence of a one-time achievement (that is, a 
major, intemational 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. The petitioner has submitted evidence 
that, he claims, meets the following   rite ria.^ 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awardsfor excellence in the field of endeavor. 
The petitioner initially submitted a photocopy of a photograph of a trophy from the Golden Circus. In 
response to the director's request for additional evidence, the petitioner submitted a color photocopy of . 
the same photograph. Counsel asserted that the petitioner and five other performers won this trophy at 
the XI1 Festival Internazionale del Circo di Roma in 2000 for the Lion Dance. The trophy does not 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
name the petitioner. The photograph is also clearly altered, as the trophy has a visible outline, does not 
rest on a surface and covers what appears to be a different trophy. The trophy, which is not labeled 
with the petitioner's name, also reflects what appears to be an outdoor scene while the background 
behind the trophy appears to be indoors. In light of these anomalies and the derogatory evidence 
provided to the petitioner on November 15, 2007 and recounted above, the photograph of this trophy 
has no evidentiary value. 
The petitioner also submitted photocopies of the 1995 Medaille D70r from the Festival Mondial Du 
Cirque De Demain and the "Clowns D70r" from the 1994 Festival International Du Cirque. The 
petitioner also submitted what purports to be the results from the Cirque De Demain competition. The 
results, however, do not bear a seal or other indicia of an official source. In light of the derogatory 
evidence discussed above, these photocopies have little evidentiary value. As noted in our November 
15,2007 notice, we have the discretion to request the originals of any photocopies submitted. 
The petitioner also submitted certificates for awards won in 1997. Two of these certificates are in a 
foreign language and are not accompanied by complete certified translations as required under 8 C.F.R. 
9 103.2(b)(3). In response to the director's request for additional evidence, counsel attested to the 
significance of these awards. 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 ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
One of the 1997 certificates is for the Silver Lion Prize at the China Wuqiao Acrobatic Festival. The 
petitioner submitted materials from this festival from 2001. While these materials demonstrate that 
groups from many countries participated in the festival, the photocopy of the petitioner's award 
certificate has little evidentiary value in light of the derogatory evidence discussed above. 
In response to the director's request for additional evidence, the petitioner submitted several certificates 
of unknown significance and photographs of two gold medals purportedly earned by the petitioner in 
1998. Without the original certificates and evidence of the significance of these honors, we cannot 
conclude that they can serve to meet this criterion. 
Finally, the petitioner submitted a 2005 honor certificate from the China Acrobatic Artists Association, 
2003 honor certificates from shows in Germany and a 2000 certificate from Japan. The record lacks 
evidence of the significance of these certificates. Moreover, the petitioner indicated on his Form 1-485 
Application to Register Permanent Residence or Adjust Status, filed in 2004, that he had last arrived in 
the United States in 2001. The record contains no evidence that the petitioner left the United States 
after that date to perform in Germany in 2003. In light of the discrepancies discussed in this paragraph 
and above, these photocopies have little evidentiary value. 
In light of the above, the petitioner has not submitted credible evidence to meet 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 evidence that he is a member of the China Acrobats Association. The 
constitution of the association reflects that members must demonstrate a record of participation in 
national acrobatic competitions and achieving a ranking in the top five of such competitions. Members 
must also participate in international competitions and show "a great contribution." Chapter 5, 
paragraph 22, however, provides that regional acrobatics associations are "natural group members." 
The translation of the constitution is not certified as required under 8 C.F.R. 5 103.2(b)(3). The 
English-language materials about the association indicate that the association now has 1,800 individual 
members, up from 1,3 18 in 2004. The petitioner is listed as one of 95 members of the Henan Chapter 
under the Kaifeng Acrobatic Company, which has 29 member acrobats on the membership rolls of the 
China Acrobats Association. If the petitioner's membership in the China Acrobats Association is based 
on his employment with a member acrobatic company, such membership would not appear to fall 
within a membership that requires outstanding achievements of their members as judged by recognized 
national or international experts in their disciplines or fields. Rather, such membership is consistent 
with a professional membership open to those who are working in the occupation. 
In light of the above, 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 classification is sought. Such evidence 
shall include the title, date, and author ofthe material, and any necessary translation. 
Initially, the petitioner submitted several articles about troupes with which he has purportedly 
performed. These articles do not even mention the petitioner by name. None of these materials can be 
considered to be "about7' the petitioner as required by the regulation at 8 C.F.R. 5 204.5(h)(3)(iii). 
Moreover, the petitioner did not submit evidence that any of the publications have a national 
distribution or can otherwise be considered "major media." 
In response to the director's request for additional evidence, the petitioner submitted a translation of 
what purports to be a 2005 interview with the petitioner. The same translation, however, is submitted 
in support of two very different foreign language articles. The photograph accompanying the first 
article, depicting two individuals receiving a trophy, is not a photograph of the petitioner.3 Thus, it is 
not clear why this photograph would accompany an interview with the petitioner. The petitioner also 
failed to submit evidence that this article appeared in a nationally circulated publication. Moreover, it 
postdates the filing of the petition and cannot establish the petitioner's eligibility as of that date. See 
8 C.F.R. 55 103.2(b)(I), (1 2); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg. Cornrn. 197 1). 
According to http:/len 
 daily.com.cn/200501/1 1/eng20050111~170248.htm17 the two individuals 
receiving the trophy are 
nlrlnrllnlr 
and - 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence ofthe alien% participation, either individually or on a panel, as a judge of the work of 
others in the same or an alliedjield ofspeclficationfor which classrjication is sought. 
In response to the director's request for additional evidence, the petitioner submitted a July 6, 2002 
certificate from the China Acrobats Association advising that the petitioner and three other individuals 
would serve as a judge at the National Juvenile Circus Artistic Tournament on July 12. We note that 
the petitioner indicated on his Form 1-485 Application to Register Permanent Residence or Adjust 
Status, filed on September 29, 2004, that he had last entered the United States in 2001. The record 
contains no evidence that he returned to China after that date. Thus, we cannot conclude that the 
certificate is credible evidence that the petitioner served as a judge in China in 2002. 
Evidence ofthe display ofthe alienJ$ work in the field at artistic exhibitions or showcases. 
Counsel asserted that the petitioner meets this criterion through his performances as an acrobat. We 
interpret the regulation at 8 C.F.R. tj 204.5(h)(3)(vii) as applying to the visual arts, not the performing 
arts. It is inherent to the performing arts to perform. We are not persuaded that every performance is 
evidence indicative of or consistent with sustained national or international acclaim. Without evidence 
that the petitioner performed in exclusive and nationally significant showcases designed to exhibit his 
art, as opposed to a competition or a circus for entertainment purposes, we cannot conclude that he 
meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
In response to the director's request for additional evidence, the petitioner submitted a chart of 
acrobatic troupes, some of which included the petitioner, and their income. The chart is not imprinted 
with an official seal or other evidence verifying its authenticity. Moreover, the chart does not indicate 
whether the income represents gross or net income. This ambiguous chart, which lacks evidence that it 
is an official document, is not credible evidence that the petitioner meets this criterion. 
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 the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
circus performer 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 serious 
discrepancies discussed above raise doubts as to whether the petitioner is even engaged in the claimed 
occupation. 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. tj 136 1. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.