dismissed EB-1A Case: Circus Performer

(b)(6)
-- . ~. U.S. Department or Uomcland Sccuriiy 
U.S . Citizenship and Immigration Scr vic<: 
Administrative Appeals Ollie.: tA/\0 .1 
20 Massachusetts ,\ve .. N.W .. MS ~( ll) fl 
WashirHWlll. DC ~0529 -:~0l){l 
U.S. Citizenship 
and Immigration 
Services 
DATE : JAN 1 1 2013 Office: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case . All of the 
documents related to this matter have been returned to the office that originally decided your case . Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
·in accordance with the instructions on Form 1-2908 , Notice of Appeal or Motion, with a fee of $630 . The 
specific requirements for filing such a motion can be found at 8 C.F .R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § I 03.5(a)(l )(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
\vww.usci s.gov 
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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 . § 1153(b)(l)(A), as an 
alien of extraordinary ability as a circus performer. The director determined that the petitioner had 
not established the requisite extraordinary ability and failed to submit extensive documentation of 
her sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section 203(b)(l )(A)(i) of the 
Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, the . petitioner submits a brief from counsel and additional evidence. At the outset, 
counsel states that the director's decision does not take into account the findings of a recent circuit 
court decision. The AAO will rely significantly on that decision in its analysis. Counsel also asserts 
that the 
petitioner meets the categories of evidence at 8 C.F.R. § 204.5(h)(3)(iii), (v), and (vii) -
(ix). For the reasons discussed below, the AAO finds that the 
petitioner has submitted qualifying 
evidence under only one of the regulatory categories of evidence, 8 C.F.R. § 204.5(h)(3 )(ix) relating 
to high salary, of which a petitioner must satisfy at least three to meet the basic eligibility 
requirements . 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(I) Priority workers . --Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized 
in-the field through extensive documentation, 
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(ii) the alien seeks to enter the United States to continue 
work i'n 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 H.R. 723 10 I 
51 
Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. /d.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the pet1t1oner demonstrate the alien's 
sustained acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at le~st three of the ten 
categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). · 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 580 F.3d 1030 (9
1
h Cir. 2009) aff'd in 
part 596 F.3d 1115 (9th Cir. 2010). Although the court upheld the AAO's decision to deny the 
petition, the court took issue with the AAO's evaluation of evidence submitted to meet a given 
evidentiary criterion. 1 With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court 
concluded that while USCIS may have raised legitimate concerns about the significance of the 
evidence submitted to meet those two criteria, those concerns should have been raised 111 a 
subsequent "final merits determination." /d. at 1121-22. 
On appeal, counsel asserts that the Kazarian court held that USCIS must "apply- not interpret- the 
regulations." The AAO is not persuaded by counsel's argument. An administrative agency is 
afforded deference in its interpretation of the statute and regulations it administers. Chevron U.S.A. 
v. Natural Resources Defense Council, 467 U.S. 837, 842-45 (1984). The Kazarian court did not 
eliminate USCIS' authority to interpret its own regulations, previously confirmed in I.N.S. v. 
Aguirre-Aguirre, 526 U.S. 415, 425 (1999). Rather, it concluded that USCIS may not "unilaterally 
impose novel substantive or evidentiary requirements beyond those set forth" in the regul~tions. 
Kazarian, 596 F.3d at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
1 Specifically, the court stated that the AAO had unilater~lly imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations ill 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
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to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." /d. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
In addition, counsel as·serts in a footnote that the court's two-part analysis itself violates the 
regulation, which states that a petitioner establishes acclaim through submission of evidence in three 
categories. As recognized by the Kazarian court, however, there is evidence that can satisfy the 
plain language of a regulatory criterion that may, in the context of the alien's occupation, not be 
indicative of or consistent with national or international acclaim and USCIS is not precluded from 
taking the nature of the evidence into consideration. /d. at 1121-22. For example, the court 
expressly acknowledged that while the regulation at 8 C.F.R. § 204.5(h)(3)(iv) does not require 
anything other than judging the work of others, USC IS is not precluded from taking into account the 
significance of the judging experience in a final merits determination, such,as noting that the review 
duties were internal and in the course of normal employment duties. /d. Under counsel's view, 
USCIS would be precluded from evaluating the quality of the evidence ~t any stage. Such a view is 
untenable and undermines congressional intent in making section 203(b)(l)(A) of the Act an 
exclusive classification limited to those who can demonstrate either a one-time achievement such as 
a Nobel Prize or a career of acclaimed work. See H.R. Rep. No. 101-723, 59 (Sept. 19, 1990) as 
well as the regulatory definition at 8 C.F.R. § 204.5(h)(2). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this matter, the AAO will review the 
evidence under the plain language requirements of each criterion claimed. As the petitioner in this 
matter did not submit qualifying evidence under at least three criteria, the proper conclusion is that 
she has failed to satisfy the regulatory requirement of three types of evidence. /d. 
II. ANALYSIS 
The petitioner is a performer with the Las Vegas based 
Human Resources for the 
show 
asserts that 
is "an international renowned circus entertainment production company based out 
of with a Las Vegas." funher 
asserts that hires 100 to 150 of the 8,000 auditioners arinually. The supplementary 
information at 56 Fed. Reg. 60899 (Nov. 29, 1991) states: 
The Service disagrees that all athletes performing at the major league level should 
automatically meet the "extraordinary ability" standard .... A blanket rule for all 
major league athletes would contravene Congress' intent to reserve this category to 
"that small percentage of individuals who have risen to the very top of their field of 
endeavor." 
Similarly, a blanket rule for all performers with a prestigious entertainment company would be 
equally problematic. The AAO will consider the specific evidence as it relates to the regulatory 
criteria at 8 C.F.R. § 204.5(h)(3) below. 
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A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted a certificate confirming that she and her sister won second place in the 
. floor category at the in 2001. The petitioner also submitted material about 
the festival reflecting that was the first year the festival was held. Since the first year, the 
festival "underwent deep transformations" to achieve its goals of increasing and forming new circus 
audiences and growing Brazilian circus production. The petitioner submits what purports to be 
information about the competitors in but the original foreign language document indicates 
that the source is a document saved on someone's computer under a "Green Card" subfolder within 
a "My documents" folder rather than from a reliable Internet site or official festival program. The 
petitioner also submitted a 2005 Canadian Report on the Performing Arts Market in Brazil listing 
the · as the . most important circus festival in Brazil designed to exchange 
experiences, discuss cultural policies and present the main Brazilian circus groups. The evidence 
submitted by the petitioner, however, does notdemonstrate the festival's significance in 
On appeal, counsel does not challenge the director's conclusion that the petitioner's 
award from is not qualifying evidence under 8 C.F.R. § 204.5(h)(3)(i). As the 
petitioner does not contest the director's findings for this criterion or offer additional arguments, 
the AAO considers this issue to be abandoned. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 
1228 n. 2 (llth Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *L 
*9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be abandoned as he failed 
to raise .them on appeal to the AAO). 
Regardless, the AAO notes that the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) 
requires qualifying "prizes or awards" in the plural. The use of the plural is consistent with the 
statutory requirement for extensive evidence. Section 203(b)(l)(A)(i) of. the Act. Significantly, 
not all of the criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Specifically, the 
regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel 
or a single high salary. When a regulatory criterion wishes to include the singular within the 
plural, it expressly does so as when it states at 8 C.F.R. § 204;5(k)(3)(ii)(B) that evidence of 
experience must be in the form of"letter(s)." Thus, the AAO must conclude that the plural in the 
remaining regulatory criteria has meaning. In a different context, federal courts have upheld 
USCIS' ability to interpret significance from whether the singular or plural is used in a 
regulation. See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at *1, *12 (D.C. Cir. March 
26, 2008); Slwpnames.com Inc. v. Chertoff, 2006 WL 3491005 at *1, *10 (D. Or. Nov. 30, 2006) 
(upholding an interpretation that the regulatory requirement for "a" bachelor's degree or "a" 
foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) requires . a single degree rather than a 
combination of academic credentials). Therefore, even if the petitioner were to establish that her 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
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award meets the elements of this criterion, which she has not, a ·single 
qualifying award does not meet the plain language requirements of this criterion. 
In light of the above, the petitioner has not established that she meets this regulatory criterion . 
. Published material about ·the alien in professional or major trade publications or 
other major medici relating to the alien's work in the field for which class{fication is 
sought. Such evidence shall include the title, date, and author of the material , and 
any necessary 
translation. 
The director concluded that the materials submitted were either not primarily about the petitioner 
or did not appear in professional or major trade publications or other major media. In his 
analysis the director rejected articles about the petitioner and her sister and certain Internet 
material. On appeal, counsel asserts that the published material need not be "solely" about the 
petitioner and that the·director erred in rejecting online media. 
The plain language of the regulation at 8 C.F.R. ·§ 204.5(h)(3)(iii) requires that the published 
material be "about the alien . .. relating to the alien's work in the field." Thus, an article that 
mentions the petitioner but is "about" someone or something else cannot qualify under the plain 
language of this regulation. See Norpozi v. Napolitano, 11-CV-8333, 2012 WL 5510934 *1, *9 
(S.D.N.Y. Nov: 14, 2012); also see Negro-Plumpe v. Okin, :07-CV-820-ECR-RJJ at *l, *7 (D. 
Nev. Sept. 8, 2008) (upholding a finding that articles about a show or a character within a show are 
not about the performer). That said, the AAO accepts in this matter that articles about the petitioner 
" and her sister who performs with her would qualify as being about the petitioner. 
The director did not reject Internet coverage as a whole; rather, the director concluqed that it is the 
petitioner's burden to establish the significance of the website covering the petitionet;. The AAO 
acknowledges that there are many websites that could qualify as major n:tedia, especially the sites of 
major print publications or national television cable networks. To ignore the reality that the 
Internet is accessible to anyone with a computer, however, would be to render the "major media" 
requirement in the regulation at 8 C.F.R. § 204.5(h)(3)(iii) meaningless. The AAO is not 
persuaded that international accessibil .ity on the Internet by itself is a realistic indicator of 
whether a given website constitutes "major media" published material. For example, reliance on 
Wikipedia is not favored by federal courts. See Badasa v. Mukasey, 540 F. 3d 909 (8th Cir. 2008). 
The petitioner 
submitted promotional materials for the Las Vegas show 
petitioner and her sister perform as well as the following reviews : 
in which the 
I. A review by in the July 1, 2007 issue of The 
petitioner suqmitted promotional material from the magazine's own website 
indicating that _ _ 'provides advertisers with the opportunity to 
. reach an audience of more than 3 million visitors each month in America's premiere 
tourist destination- Las Vegas." USCIS need not rely on self-promotional materiaL 
See Braga v. Poulos, No. CV 06 5105 SJO, affd 317 Fed. Appx. 680 (C.A.9) 
(concluding that the AAO did not have to rely on self-serving assertions on the cover 
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of a magazine as to the magazine's status as major media). The review, while 
mentioning the petitioner and her sister as the "amusing appetizers" to the show, is 
about the show generally rather than focusing on the petitioner and her sister. 
2. A review by posted on -· an Internet weekly entertainmenl guide 
for Las Vegas. While the article itself is undated, it was printed from the Internet in 
2005. Once again, the review is about the show.in general and does not focus on the 
petitioner and her sister. 
3. A 2005 review by that purportedly was posted on vegas.com but is 
actually primed from a personal computer's "documents" folder on the computer's 
"C" drive. The review does not focus primarily on the petitioner and her sister. 
4. A Friday, September 23, 2005 review by in the entitled 
appealing-- but not to everyone." While the review praises the 
expansion of the roles for the petitioner and her sister in the article is not 
about the petitioner and her sister . . Instead, the review is about the show in general 
and its The petitioner 
submitted information from stating that that the ~·~· 
_ and the have a daily joint readership of 
461,400 Clark County, Nevada adults. Rather than submitting readership data 
specific to the - - the petitioner submitted combined readership data for 
both of the preceding local newspapers. There is no evidence showing the 
distribution of the alone relative to other U.S. newspapers to 
demonstrate that the submitted review was published in a form of "major" media. 
5. 2003 and 2004 reviews by m entitled 
_ and The reviews briefly mention the petitioner and 
her sister but are not primarily about th~m. Instead, the reviews are about the 
show in general. The petitioner submitted promotional material from the 
magazine's own website reflecting that is a guide for visitors to and 
residents of Las Vegas. As previously discussed, USCIS need not rely on self­
promotional material. See Braga v. Poulos, at 680. Regardless, there is no evidence 
showing that ! qualifies as a form of major media. ' 
6. An August 2003 review in the entitled The 
review does not mention the petitioner and the author of the material was not 
identified as required by the 1 plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii} . . As previously discussed, the petitioner submitted infOimation 
from www.la svegasnewspapers.com stating that the Las Vegas Sun and the Las 
Vegas Review~Journal have a daily joint readership of 461,400 Clark County, 
Nevada adults. Rather than submitting readership data specific to the 
the petitioner submitted combined readership data for both of the 
preceding local newspapers. There is no evidence · showing the distribution of the 
alone relative to other U.S. newspapers to demonstrate 
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that the submitted review was published in a form of "major" media. 
· 7. A Fridav. August 8. 2003 article in the entitled 
by While the petitioner and her sister are pictured in 
~rlrlition to another act, the article is not about them. Instead, the article is about the 
show in general and change in formula to 
As oreviouslv discussed there is no evidence 
showing the distnbution ot the alone relative to other 
U.S. newspapers to demonstrate that the submitted article was published in a form of 
"major" media. · . 
8. A 2006 review by in ISTOE. The review is not primarily about the 
petitioner and the petitioner did not submit evidence of the circulation or distribution 
of ISTOE. 
The above reviews are not "about" the petitioner or the petitioner and her sister. Moreover, the 
petitioner has not established that the preceding local entertairunent guides and newspapers qualify 
as professional or major trade publications or other major media. 
In addition to the above promotional materials and reviews, the petitioner submitted the following: 
1. A photograph of the petitioner and her sister as part of a series of photographs of 
in a November 2006 issue of The plain lang1,1age 
of this regulatory criterion requires the submission of "[p]ublished material about the 
alien in professio_nal or major trade publications or other major media" including "the 
title, date, and author of the material, and any necessary translation." A photograph 
in a series of photographs is not publish~d material about the petitioner and does not 
meet the preceding regulatory requirements. Moreover, the record lacks evidence 
such as the distribution and circulation of in comparison to other 
publications so as to demonstrate that it constitutes a professional or niajor trade 
publication Qr some other form of major media. · 
2. An undated article in about a visit from a circus school in which the 
petitioner and her sister are mentioned in one sentence. This article is not about the 
petitioner and the etitioner failed to submit any evidence such as the circulation or 
distribution of in comparison to other publications so as to ~emonstrate that 
it constitutes a professional or major trade publication or some other form of major 
media. 
3. A 2003 article by an unidentified author in about the petitioner and her sister 
joining The petitioner did riot submit any · information such as the 
circulation or .distribution of in comparison to other publications so as to 
demonstrate that it constitutes a professional or major trade publication or some other 
form of major media. 
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4. A purported extract fro!'l an unidentified magazine interview of the petitioner and 
her sister that is actually printed from a "Green Card" subfolder of a "My 
Documents" folder on a personal computer. 
5. An article entitled posted at dated 
September 28, 2008. The author is listed as The ·article is about the 
petitioner and her .sister. On appeal, counsel acknowledges that no infonnation 
about this publication is available. Thus, the petitioner is unable to demonstrate that 
it constitutes a professional or major trade publication or some other form of major 
media. . ..... 
6. A interview with the petitioner and her sister in 
This article is about the petitioner and her sister. As noted by counsel on 
appeal, the petitioner submitted evidence that the magazine has a profile on 
Facebook and a Twitter account. Counsel does not explain how purchasing the 
profile and account, which are available to anyone, demonstrates that the magazine 
has a significant distribution to qualify as a major trade publication or some other 
form of major media. The magazine's Facebook page, submitted by the petitioner, 
shows a total of 2,059 fans. The petitioner, however, did not submit any means of 
comparison, for example, the total number of Facebook fans for other major 
magazines. The record contains no evidence addressing the magazine's print 
circulation or distribution in comparison to other publications so as to demonstrate 
that it constitutes a professional or major trade publication or some other form of 
major media. 
7. An article by in entitled 
The date of the article was not provided as required by the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii). The article discusses the 
show in general and comments on 
Two of the commented on in the article 
are the petitioner and her sister. The AAO is not persuded that this article could be 
considered to ht>. "::thout" the petitioner. The petitioner submitted promotional 
material from O\Yn website stating that the magazine has 
in the United States 
Once again, USCIS need not rely on self-promotional material. See Braga v. 
Poulos, at 680. The AAO notes that a national publication is not precluded from 
consideration as major media simply because it is aimed at a specific demographic. 
The record, however,. contains no evidence comparing the claimed circulation of 
with other nationally circulated magazines in the United States. 
8. A Sundav. October 19, 2003 article about the petitioner and her sister entitled 
by . . in the 
The petitioner submitted mfonnation from www.la<~vegasnewspapers.com 
stating that that the Sl.mday versions of the Las Vegas Sun and the Las Vegas 
Review-Journal have a Sunday joint readership of 568,700 Clark County, Nevada · 
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adults. Rather than submitting readership data specific to the 
the petitioner submitted combined readership data for both of the preceding 
local newspapers. There is no evidence showing the distribution of the Sunday 
alone relative to other U.S. newspapers to demonstrate that 
the submitted review was published in a form of "major" media. 
On appeal, counsel asserts that local publications in Las Vegas are widely distributed to tourists, 
with the "potential to reach more individuals than some national publications." The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(BlA 1988); Matter of Laureano, 19 I&N Dec. I, 3 n.2 (BIA 1983); MatterofRamirez-Sanchez. 17 
I&N Dec. 503, 506 (BIA 1980). There is no evidence of qualifying materials about the petitioner 
and her sister in media that have been documented to be professional or major trade publications or 
other major rriedia. Moreover, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) 
requires published material about the alien "in professional or major trade publications or other 
major media" in the plural. As previously discussed, the use of the plural is consistent with the 
statutory requirement for extensive evidence. Section 203(b )( 1 )(A)(i) of the Act. Thus, the use 
of the words "publications" and "media" reveal once again that the regulation requires more than 
one qualifying article. In the absence of such evidence, the petitioner has not established that she 
meets this regulatory criterion. 
Evidence. of the alien's original scientific, scholarly, artistic, athletic. or business­
related contributions of major significance in the field. 
Counsel initially asserted that the act performed by the petitioner and her sister has made a major 
impact internationally because it is unexpected for large women to play sexy and provocative 
roles and because it aims to "break down stereotypes about beauty and sex." Counsel relied on 
the published material and reference letters as demonstrating the petitioner's contributions. 
On appeal, counsel asserts that the director erred in dismissing the reference letters. The AAO 
·will consider those letters below. Counsel also asserts 
that the director should not have 
dismissed the fan mail as representing the opinions of too few. In addition, counsel asserts that 
the director should not have dismissed the published material merely because it.did not appear in 
entertainment magazines. Finally, counsel asserts that the director's analysis of whether the 
petitioner's contributions were of "major" significance was too subjective. Counsel concludes 
that the record demonstrates that the petitioner 
' noting that a journalist wrote about auditioning for a 
show after learning of the petitioner and sister. 
The plain language of the regulation at 8 C.ER. § 204.5(h)(3)(v) requires "[e]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." [Emphasis added.] Here, the evidence must be reviewed to see 
whether ·it rises to the level of original artistic contributions "of major significance in the field." 
The phrase "major significance" is not superfluous arid, thus, it has some meaning. Silverman v. 
East rich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 
343 F.3d619, 626 (2)1d Cir. Sep 15, 2003). Moreover, the contributions must be to the entire 
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Page II 
field. To be considered an original contribution of major significance in the performing atts, the 
·contribution must be both novel and demonstrably influential on the field as a whole rather than a 
single journalist. Significantly, the regulations include separate criteria for published material and 
performing a leading or critical role .for an establishment with a distinguished reputation. 8 C.F.R. 
§§ 204.5(h)(3)(iii) and (viii). If the regulations are to be interpreted with any logic, it must be 
presumed that the regulation views evidence of such coverage and roles as separate evidentiary 
requirements from contributions. To hold otherwise would render meaningless the statutory 
requirement for extensive evidence and the regulatory requirement that a petitioner submit evidence 
under three separate categories of evidence. Thus, the fact that the petitioner has been covered in 
media of undocumented significance is not determinative evidence under 8 C.F.R. § 204.5(h)(3)(v). 
asserts that the petitioner and her sister developed the in 1997, 
whose characters were incorporated into While asserts that it is very rare 
for a ihow to incorporate existing characters into their shows, 
review in the quotes a representative of as stating that all the 
characters in the show were all honed by the actors and actresses before joining the show. 
a . I performer who directed the petitioner and her sister in two 
acts, asserts that the producers increased the petitioner's role in the show due to audience 
response. While concludes generally that the petitioner and her sister have made "a 
valuable contribution to the entertainment industry in America," he does not explain 
their influence 
other than to assert that they are recognized by audience members, critics, peers and high ranking 
performers. Merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, I 108 (E.D.N.Y. 
1989), affd, 905 F.! 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, No. 95 civ 10729, 
1997 WL 188942 at *1, *5 (S.D.N.Y.). ·Similarly, USCIS need not accept primarily conclusory 
assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp . 9, 15 (D.C. 
Dist. 1990). 
sister in 
While 
the field. 
an actor, writer and producer, asserts that he met the petitioner and her 
1995 when they were participating as actresses and circus instructors in 
praises the petitioner's ability, he does not explain how she has impacted 
The petitioner also submitted fan mail. Counsel challenges the director's consideration- of the 
amount of the petitioner's fan mail. Fan mail, however, derives from audience members and not 
members of the field. As such, fan mail, regardless of the amount, is not a useful tool for measuring 
the petitioner's impact in her field. 
The opinions of the petitioner's references are not without weight and have been considered 
above . USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm' r 1988). . ' 
However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. /d. The submission ofreference letters supporting the 
petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those 
(b)(6)Page 12 
letters as to whether they support the alien's eligibility. See id. at 795-796; see also Matter of V­
K-, 24 I&N Dec. 500, n:2 (BIA 2008) (noting that expert opinion testiinoriy does not purport to 
be evidence as to "fact"). Thus, the content of the references' 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 that one would expect of a circus performer who 
has made original contributions of major significance in the field. The letters considered above 
primarily contain bare assertions of widespread recognition and vague claims of contributions 
without specifically identifying contributions and providing specific examples of how those 
contributions have influenced the field at large. Vague, solicited letters from local colleagues 
that do not specifically identify contributions or provide specific examples of how those 
contributio·ns influenced the field are insufficient. Kazarian, 580 F.3d at 1036. In 2010, the 
Kazarian court reiterated that the AAO's conclusion that "letters from physics professors attesting 
to [the alien's] contributions in the field" were insufficient was "consistent with the relevant 
regulatory language." 596 F.3d at 1122. Without additional, specific evidence showing that the 
petitioner's original work has been unusually influential or has otherwise risen to the level of 
artistic contributions of major significance, the AAO cannot conclude that she meets this 
regulatory criterion. 
Evidence of the display of the alien's work in the field at anistic exhibitions or 
showcases. 
Throughout the proceeding, counsel has asserted that the petitioner's performances are qualifying 
evidence pursuant to 8 C.F.R. § 204:5(h)(3)(vii). On appeal, counsel asserts that the director erred 
in concluding that this regulation applies only to the visual arts. Specifically, counsel asserts that 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii) does not restrict it to the visual 
arts and concludes that shows fall under the dictionary definition of "exhibition.'' 
While counsel focuses on the definition of "exhibition," the AAO finds that the word "display" 
reveals that this criterion was designed for the visual arts·. Specifically, Webster's New College 
Dictionary 334 (3rd ed. 2008) defines "display" as follows: "To put forth for viewing." (Emphasis 
added.) The first noun definition incorporates the verb definition as follows: "The act of 
displaying." /d. Consistent with these definitions, a display of work involves the presentation for 
viewing of a completed, tangible piece of art that exists independently of the artist whereas a 
performance is an ongoing activity of the perform~r. 
Counsel points to the petitioner's performance for but counsel fails to 
specifically explain how the petitioner's preshow audience interactions and song and dance numbers 
in . equate to "the display" of the petitioner's work atartistic exhibitions or showcases. 
The plain.'language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires "[e]vidence of the 
display of the alien's work in the field at artistic exhibitions or showcases." The petitioner is a 
circus performer. Wh~n she is engaged in the role of a circus clown or entertaining the audience 
in she is not displaying her work in the same sense that a painter or sculptor displays 
his or her work in a gallery or museum. The petitioner is performing her work as part of a large 
circus ensemble, she is not displaying her work. In addition, to the extent that the petitioner is a 
(b)(6)
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Page 13 
performing artist, it is inherent to her occupation to perform. The AAO notes that the ten criteria 
in the regulations are designed to cover different areas; not every criterion will apply to every 
occupation. The petitioner's performing role in will be addressed under the leading or 
critical role criterion at 8 C.F.R. § 204.5(h)(3)(viii). 
The interpretation that 8 C.F.R . § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and 
has been upheld by a federal district court, including a case involving a performer with another 
show. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 
8, 2008) (upholding an interpretation that performances by a performing artist do not fall under 
8 C.F.R. § 204.5(h)(3)(vii)) . As the petitioner is not a visual artist and has not created tangible 
pieces of art that were on display at exll.ibitions or showcases, the petitioner has. not submitted 
qualifying evidence that mec:ts the plain language requirements of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(vii). Acco~dingly, the petitioner has not established that she meets this regulatory 
criterion . 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
On appeal, counsel asserts· that the petitioner performs in a leading or critical role for _ The 
petitioner's appellate submission includes a program that identifies numerou s members of 
the cast. The program specifically identifies the petitioner as simply a "character" while other 
performers are referred to as "principal character." For instance, both and 
have the title of "principal character." That said, the petitioner is featured prominently on the 
promotional materials for in the reviews of the show and frequently participates in 
promotions of the show. As noted by counsel, the petitioner also receives individual fan mail. 
Given that evidence in the aggregate, the AAO is satisfied that the petitioner perform s in a critical 
role for the show. The next issue, then, is whether constitutes an organization or 
establishment with a distinguished reputation. The petitioner, however, failed to demonstrate how 
a circus show such as equates to an "organization" or "establishment." The AAO does 
not question that the entertainment production company, which has attracted 100 
million spectators since 1984 according to documentation in the· record, is an organization that 
enjoys a distinguished reputation as a whole. The petitioner , however, does not perform in a leading 
or critical role . for the ----.- _ -~ - ~ .1 company as a whole, which employs 5,000 individuals 
according to materials in the record. Even if the petitioner were to demonstrate that an individual 
· show such as is an organization or establishment for urposes of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii), the AAO will not presume that every show is necessarily 
distingui shed. Rather, it is the petitioner's burden to demonstrate that the organization or 
establishment for which she performs a leading or critical role has a distinguished reputation. While 
the petitioner submitted predominantly favorable reviews, indicates in his review that the 
initial reviews were "mixed" although he acknowledges that the reviews have improved after the 
show's "wobbly beginning." While states that the show provides its peers "with some 
stiff 
competition," he characterizes the show as the that is still 
"young and growing." He concludes that when the show is "fully grown, it will be hard to beat." 
The petitioner did not submit any evidence as · to how _ ranks against other 
shows. Without such evidence, the AAO cannot determine the show's individual reputation. 
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Page 14 
Even if the AAO accepted that . qualifies as an organization or establishment with a 
distinguished reputation, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) 
requires evidence that the petitioner has performed in a leading or critical role for distinguished 
"organizations or establishments" in the plural. As previously discussed, the use of the plural is 
consistent with the statutory requirement for extensive evidence. Section 203(b)( I )(A)(i) of the 
Act. Therefore, the AAO would have to consider whether the petitioner has performed in a leading 
or critical role for any other organization or establishment. 
The petitioner submitted an April 19, 1998 statement from • nf thP 
:onfirming that the petitioner and her o;:io;:tpr wer in~:tnwtnro;: ::lt thf" 
~chool and that they taught classes twice a week. _ 
submitted by the petitioner, mentions the as one of eight 
circus groups in Brazi,l but does not single it out as enjoying a distingui~hed reputation. Even if the 
AAO accepted that the school enjoyed a distinguished reputation in 1998 when the petitioner taught 
there, the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires more than mere employment at an entity 
with a distinguished reputation; rather, the petitioner's role must be leading or critical. In examining 
whether a role .is leading or critical, the AAO looks at the role itself rather than how the petitioner 
performed in the role. The petitioner did not submit an organizational chart to demonstrate how an 
instructor 
position fits within the overall hierarchy of the school. While the AAO does not question 
the school's need to employ competent teachers, the AAO is not persuaded that teaching classes two 
days a week is a leading or critical role for the school. · 
further confirms that the petitioner had worked for the 
since August 2001. The petitioner also submitted a 2002 download of a page from the 
advising that the petitioner and her sister were instructors at the 
academy and participated in the company's productions. The translation indicates that the petitioner 
and her sister taught daily classes in tumbling, contortion, springboard .and other circus modalities 
although that portion of the foreign language document appears to be on a second page that was not 
submitted into the record. While counsel asserts that the petitioner participated in televised events 
for this academy, the unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez­
Sanchez, 17 I&N Dec. at 506. The ·record contains no evidence that the petitioner's role with the 
academy was leading or critical or that the academy enjoys a distinguished reputation. 
In light of the above, the petitioner has not established that she meets this regulatory criterion. 
Evidence that the alien has commanded a- high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The petitioner submitted her Form W-2 Wage and Tax Statements for 2008 and 2009 reflecting 
wages of $145,293.20 and $146,321.19 respectively. The petitioner also submitted evidence from 
careerinfonet.org reflecting that the 90th percentile hourly wage for entertainers and performers, 
sports and related workers in 2008 was $31.31 in . the United States and $48.98 in Nevada. 
Assuming a full-time yearlong position, the 90th percentile hourly wage in Nevada annualizes to 
(b)(6)
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Page 15 
$101,878.40 . . Given that the petitioner is earning significantly more than the 90th percentile in her 
field, the petitioner has submitted qualifying evidence that meets the plain language requirements of 
the regulation at 8 C.F.R. § 204.5(h)(3)(ix). Ac~ordingly, the petitioner has established that she 
meets this regulatory criterion. · 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence in accordance with the regulation at 8 C.F.R. § 204.5(h)(3). 
C. Prior P-1 Nonimmigrant Visa Status 
The AAO notes that the petitioner has been in the United States as a P-1 nonimmigrant, a visa 
classification that requires her to perform "with an entertainment group that has been recognized 
internationally as being outstanding in the discipline for a sustained and substantial period of 
time." See section 214(c)(4)(8) of the Act, 8 U.S.C. § 1184(c)(4)(B). While USCIS has 
approved prior P-1 nonimmigrant visa petitions filed on behalf of the petitioner, these prior 
approvals do not preclude USCIS from denying an immigrant visa petition ba~ed on a different, if 
similarly phrased standard. Each case musr-be decided on a case-by-case basis upon review of the 
evidence of record. It must be noted that many 1-140 immigrant petitions are denied after USC IS 
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); FediJI. 
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 Da{a Consulting, Inc. v. INS, 293 F. Supp . 2d at 29-30; 
see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556 (5th Cir. 2004) (finding that prior 
approval s 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 pet1t1ons where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g .. Maller of' 
Church Scientolog y International , 19 I&N Dec. 593, 597 (Comrn'r 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors ·as binding precedent. Sussex 
Eng'g 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, No. 98-2855, 
2000 WL 282785, *1, *3 (E.D. La.) , aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied , 122 S.Ct. 51 
(2001). 
(b)(6)
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Page 16 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that t,he 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. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir] field of endeavor" and (2) "that the aiien has sustained 
national or international acclaim and that his or her achievements have been.recognized in the field 
of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is. not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
not explain that conclusion in a final merits determination. 3 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence . 
/d. at 1122. · 
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~ B U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
3 The AAO m·aintains de novo revi~w of "II questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir . 
2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § I 03.5(a)(l )(ii). See also section I 03(a)(l) of the Act: section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March I, 2003); 8 c.F:R. § 2.1 (2003): 8 C.F.R. 
§ 103.1(t)(3)(iii) (2003); Maffer of Aurelio, 19 l&N Dec . 458, 460 (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions) .