dismissed EB-1A Case: Dance

(b)(6) U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Offic e of Admini strative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: JUL 2 3 2013 Office: TEXAS SERVICE CENTER FILE: 
INRE: 
PETITION: 
Petitioner: 
Beneficiary: 
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: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
J)btAdn&Ll__/ 
f'Ron Rosenberg 
t Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on August 5, 2009. The Administrative Appeals Office (AAO) dismissed the petitioner's 
appeal of that decision on October 4, 2010. The matter is now before the AAO on a motion to 
reconsider. The motion will be dismissed, the previous decision of the AAO will be affirmed, and 
the petition will remain denied. 
In the decision of the AAO dismissing the petitioner's original appeal, the AAO found that the 
petitioner failed to establish that she met at least three of the regulatory criteria pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(i)-(x). The AAO specifically and thoroughly discussed the 
petitioner's evidence and determined that the petitioner met the judging criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv), but failed to meet the awards criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(i), the membership criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(ii), the published material criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii), the original contributions criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v), the artistic display criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(vii), and the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii). The AAO also conducted a final merits determination pursuant to Kazarian v. 
USCIS, 596 F.3d 1115 (9th Cir. 2010) and determined that the petitioner failed to demonstrate (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," 8 C.F.R. § 204.5(h)(2); and (2) "that the alien 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)(3). Finally, the AAO determined that the petitioner failed to 
establish that she seeks to enter the United States to continue in her area of expertise. 
On Form I-290B, Notice of Appeal or Motion, counsel indicated in Part 2 that he was filing a motion 
to reconsider the decision of the AAO. Moreover, in Part 3, counsel stated that "[t]his is an [sic] 
Motion to Reconsider to the [AAO]." Furthermore, in counsel's brief that was entitled, "Brief and 
Supplemental Evidence in Support of Motion to Reconsider," counsel stated this [t]his Motion to 
Reconsider is filed pursuant to 8 CFR. § 103.5(a)(l)(i)," and the petitioner "requests that the Service 
reconsider her I-140." 
The regulation at 8 C.F.R. § 103.5(a)(3) provides: 
A motion to reconsider must state the reasons for reconsideration and be supported by 
any pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or Service policy. A motion to reconsider a decision on 
an application or petition must, when filed, also establish that the decision was 
incorrect based on the evidence of record at the time of the initial decision. 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
U.S. Citizenship and Immigration (USCIS) policy. 8 C.F.R. § 103.5(a)(3). A motion to reconsider 
contests the correctness of the original decision based on the previous factual record, as opposed to a 
motion to reopen which seeks a new hearing based on new or previously unavailable evidence. See 
Matter of Cerna, 20 I&N Dec. 399,403 (BIA 1991). 
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A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in 
the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the 
"additional legal arguments" that may be raised in a motion to reconsider should flow from new law 
or a de novo legal determination reached in its decision that could not have been addressed by the 
party. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a 
process by which a party may submit, in essence, the same brief presented on appeal and seek 
reconsideration by generally alleging error in the prior decision. Id. Instead, the moving party must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in the 
initial decision or must show how a change in law materially affects the prior decision. !d. at 60. 
In counsel's motion to reconsider, counsel does not contest the findings of the AAO or offer 
additional arguments for the awards 
criterion, the membership criterion, the leading or critical role 
criterion, and the final merits determination. These issues are therefore considered to be abandoned. 
Cf Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 
09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims 
abandoned as he failed to raise them before the AAO). 
Regarding the remaining criteria, when considering the evidence submitted by the petitioner for the 
published material criterion, the AAO noted the submission of the following five articles: 
1. An uncertified English language translation of an unidentified title of an 
article, by an unidentified author, on December 24, 2000, in 
2. An uncertified English language translation of an article entitled, 
by an unidentified author, on December 23 (no year 
indicated), in 
3. A certified English language translation of an article entitled, 
" by m December 23 (no year indicated), in 
an unidentified publication; 
4. An article entitled, by an unidentified author, on 
January 19, 2001, in an unidentified publication; and 
5. A certified English language translation of an article entitled, 
, on 
an unidentified date, in an unidentified publication. 
The AAO determined that the petitioner failed to submit certified English language translations as 
required pursuant to the regulation at 8 C.P.R. § 103.2(b )(3) for two of the articles (items 1 and 3), 
failed to include the title for one of the articles (item 1), failed to include the complete dates for three 
of the articles (items 2, 3, and 5), failed to include the authors for three of the articles (items 1, 2, and 
4), failed to identify the publications for three of the articles (items 3, 4, and 5), failed to 
demonstrate that are professional or major trade publications or other 
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major media, and failed to establish that any of the articles were published material about the 
petitioner relating to her work in the field. 
On motion, counsel claims: 
Articles about lthe petitioner] have appeared in major media. On Friday January 19, 
2001 in in an Article entitled ' was 
written about [the petitioner]. Please find attached copy of the article and a letter 
from the News Editor of confirming that the article was 
published in its paper on January 19, 2001. In this article, the author describes [the 
petitioner's] expressional and gracious foot work during a Kuhipudi dance recital. ... 
In addition, the author of two reviews regarding [the petitioner] has submitted a letter 
attesting to articles written about [the petitioner] that have appeared in major media. 
One of the articles, from ublished on Friday December 
29, 2000 has been included for your review. 
Counsel fails to contest the findings of the AAO or submit any additional arguments or evidence 
regarding items 1 
- 3 and 5 above. The issues are therefore considered to be abandoned. Cf 
Sepulveda v. U.S. Att'y Gen., 401 F.3d at 1228 n. 2; Hristov v. Roark, No. 09-CV-27312011, 2011 
WL 4711885 at *9. Regarding item 4, counsel does not make any claim that the AAO's decision 
was based on an incorrect application of law or policy, and does not support his brief with any 
pertinent precedent decisions. The basis for a motion to reconsider must depend on something new, 
if not necessarily new factual developments, then at least new arguments showing that some 
important issue of fact or law was overlooked. See Rehman v. Gonzales, 441 F.3d 506 (ih Cir. 
2006.) Because counsel has failed to raise such allegations of error, the motion does not meet the 
requirements of the regulation at 8 C.F.R. § 103.5(a)(3). 
Counsel requests that the AAO reconsider the specified regulatory . criteria at 8 C.F.R. 
§ 204.5(h)(3)(iii) based on the additional documentation; letters from individuals who claim that 
articles about the petitioner have appeared in major media. Even if this new information were 
considered under the requirements of a motion to reopen, the evidence reveals no facts that could be 
considered "new" under 8 C.F.R. § 103.5(a)(2).1 The petitioner has been afforded two different 
opportunities to submit this evidence: at the time of the original filing of the petition and at the time 
of the filing of the appeal. 
In addition to the above deficiencies, the letters are insufficient to establish the petitioner's 
eligibility. The first letter is undated and is submitted by an unidentified author who claims to be the 
"News Editor" of . The "News Editor" states that the article, ' 
appeared in the " ' on January 19, 2001. The letter fails to 
identify the author of the article as required pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), 
1 
The word "new" is defined as " 1. Having existed or been made for only a short time . . . 3. Just discovered, found, or 
learned <new evidence> . . WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 753 
(2005)( emphasis in original). 
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and the "News Editor" failed to explain how he has knowledge that the article appeared in the 
publication. More importantly, the petitioner failed to submit primary evidence of the author of the 
purported article. The regulation at 8 C.F.R. § 103.2(b )(2)(i) provides that the non-existence or 
unavailability of required evidence creates a presumption of ineligibility. According to the same 
regulation, only where the petitioner demonstrates that primary evidence does not exist or cannot be 
obtained may the petitioner rely on secondary evidence and only where secondary evidence is 
demonstrated to be unavailable may the petitioner rely on affidavits. In this case, the petitioner 
failed to submit any documentary evidence demonstrating that primary evidence and secondary 
evidence do not exist or cannot be obtained. 
Even if the petitioner had established that primary evidence did not exist or could not be obtained, 
which she has not, the letter from the "News Editor" is not considered an affidavit as it was not 
sworn to or affirmed by the declarant before an officer authorized to administer oaths or affirmations 
who has, having confirmed the declarant's identity, administered the requisite oath or affirmation . 
See Black's Law Dictionary 58 (9th Ed., West 2009). Nor, in lieu of having been signed before an 
officer authorized to administer oaths or affirmations, does it contain the requisite statement, 
permitted by Federal law, that the signers, in signing the statements , certify the truth of the 
statements, under penalty of perjury. 28 U.S.C. § 1746. 
Moreover, as discussed in the AAO's appellate decision, the article is not about the petitioner 
relating to her work in the field; rather the article is about a Kuchipudi dance recital in which the 
petitioner is mentioned along with other individuals as performers at the recital. See, e.g., Negro­
Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (finding that articles about 
a show are not about the actor). Finally, the petitioner failed to submit any documentary evidence 
establishing that is a professional or major trade publication or other major 
media. 
The remaining letter, from states that he performed two reviews for 
in December 2000 and April 2001. However, although counsel submitted an article entitled, '' 
, dated December 29, 2000, in counsel failed to submit 
primary evidence of the purported article from April 2001 as required pursuant to the regulation 8 
C.P.R. § 103.2(b)(2)(i). Further, the 2001 article is not considered published material about the 
petitioner relating to her work in the field; rather the article is about a Kuchipundi recital in which 
the petitioner is mentioned one time as one of many other performers at the recital. See, e.g., Negro­
Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *7. Finally, counsel failed to submit any documentary 
evidence establishing that is a professional or major trade publication or other major 
media. 
For these reasons, counsel failed to overcome the decision of the AAO on motion regarding the 
published material criterion . 
Regarding the original contributions criterion, the AAO's appellate decision indicated that the 
petitioner claimed eligibility for the criterion based entire} y on recommendation letters. The AAO 
thoroughly analyzed and discussed the recommendation letters and determined that they failed to 
establish that the petitioner has made original contributions of major significance in the field 
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consistent with the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(v). On motion, counsel 
claims: 
[The petitioner] has submitted professional recommendation letters that satisfy the 
requirements of 8 CPR 204.5(h)(3)(v). The Court in Kazarian ... , noted that expert 
opinion letters cannot be vague and should specifically identify contributions and 
give examples of how they influenced the field. The letters submitted by [the 
petitioner's] experts in support of her application establish that she has created new 
dances, technique and exposed Kuchipudi dancing to a new generation of dancers, 
thereby influencing the field. 
Counsel then cited to quotations from selected recommendation letters he claimed identified original 
contributions of major significance in the field and submitted additional recommendation letters. 
Regarding the additional recommendation letters, counsel failed to explain why they were not 
previously available and could not have been discovered or presented at the initial filing of the 
petition or on appeal. As such, the additional recommendation letters do not meet the requirements 
of a motion to reopen pursuant to the regulation at 8 C.P.R. § 103.5(a)(2). 
Regarding the recommendation letters discussed in the AAO's appellate decision, counsel failed to 
explain how the AAO erred as a matter of fact or law under Kazarian v. USCIS, 596 P.3d at 1115. 
The AAO determined that although some of the letters indicated the petitioner's contributions, they 
failed to demonstrate that those contributions were original and have been of major significance to 
the field as a whole rather than being limited to her students. Although counsel cited to and 
highlighted some recommendations that he claimed demonstrated the petitioner 's eligibility for this 
criterion, the recommendation letters refer to the petitioner's personal traits, talents, and skills 
without identifying how they are considered as contributions of major significance in the field. 
Merely having a diverse skill set is not a contribution of major significance in and of itself. Rather, 
the record must be supported by evidence that the petitioner has already used those unique skills to 
impact the field at a significant level in an original way. Furthermore , assuming the petitioner's 
skills are unique, the classification sought was not designed merely to alleviate skill shortages in a 
given field. In fact, that issue properly falls under the jurisdiction of the Department of Labor 
through the alien employment labor certification process. See Matter of New York State Dep 't. of 
Transp., 22 I&N Dec. 215, 221 (Comm'r 1998). 
This regulatory criterion not only requires the petitioner to make original contributions, it also 
requires that those contributions be of major significance. The letters contain bare assertions of the 
petitioner's status in the field without providing specific examples of how those contributions rise to 
a level consistent with major significance in the field. Vague, solicited letters that simply repeat the 
regulatory language are not sufficient without an explanation as to how the petitioner's contributions 
have already influenced the field. Kazarian v. USCIS, 580 P.3d 1030, 1036 (9th Cir. 2009) affd in 
part 596 P.3d at 1122. 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, 1108 (E.D.N.Y. 
1989), affd , '905 F. 2d 41 (2d. Cir. 1990); Avyr A ssociates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). 
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users may, in its discretion, use as advisory opinion statements submitted as expert testimony. See 
Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCrS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. !d. The submission of letters of support from the petitioner's personal contacts is 
not presumptive evidence of eligibility; users may evaluate the content of those letters as to 
whether they support the alien's eligibility. See id. at 795; see also Matter of V-K-, 24 r&N Dec. 
500, n.2 (BrA 2008). Thus, the content of the writers' statements and how they became aware of the 
petitioner's reputation are important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than preexisting, 
independent evidence of original contributions of major significance. 
For these reasons, counsel failed to overcome the decision of the AAO on motion regarding the 
original contributions criterion. 
Regarding the artistic display criterion, the AAO determined that the petitioner's occupation as a 
dancer and choreographer did not meet the plain language of the regulation at 8 C.P.R. 
§ 204.5(h)(3)(vii) and therefore evaluated the petitioner's evidence under the leading or critical role 
criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(viii). On motion, counsel states: 
[T]he section simply states "evidence of the display of the alien's work in the field at 
artistic exhibitions or showcases." While this section excludes fields of endeavors 
other than arts, there is nothing in the regulation to suggest that it is limited to specific 
artistic endeavors. As a result, confirmation that the alien's work has been presented 
to an audience of viewers, which would suggest the public's interest in the alien's 
work should be considered. 
The plain language of the regulation at 8 C.P.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 
dancer and choreographer. When she is performing before an audience, she is not displaying her 
dances 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, she is not displaying her work. In addition, to the extent that 
the petitioner is a performing artist, it is inherent to her occupation to perform. Not every 
performance is an artistic exhibition designed to showcase the performer's art. To accept that a 
performance artist like the petitioner meets this criterion would render the regulatory requirement 
that the petitioner meet at least three criteria meaningless as this criterion would effectively be 
collapsed into the criterion at the regulation at 8 C.P.R. § 204.5(h)(3)(viii). The ten criteria in the 
regulations are designed to cover different areas; not every criterion will apply to every occupation. 
The interpretation that 8 C.P.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and has 
been upheld by at least one federal district court. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 
*7 (performances by a performing artist do not fall under 8 C.P.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 
exhibitions or showcases, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements of the regulation at 8 C.P.R. § 204.5(h)(3)(vii). 
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Although the AAO considered the petitioner's performances under the leading or critical role 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii), a criterion which the petitioner 
also failed to meet, counsel did not contest the decision regarding the leading or critical role 
criterion. The issue of the petitioner's eligibility under the leading or critical role criterion is, 
therefore, considered to be abandoned. Cf Sepulveda v. U.S. Att'y Gen., 401 F.3d at 1228 n. 2; 
Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *9. 
For these reasons, counsel failed to overcome the decision of the AAO on motion regarding the 
artistic display criterion. 
On motion, counsel further argues: 
In the alternative, if the [AAO] will not consider [the petitioner's] work in this 
category, her dance performances should be considered to satisfy 8 CFR § 
204.5(h)(4); other comparable evidence. [The petitioner's] performance can be 
considered as other comparable evidence of extraordinary ability. 
Counsel has not previously made any comparable evidence claim pursuant to the regulation at 8 
C.F.R. § 204.5(h)(4); he does so for the first time on motion. Claims that were previously available 
but not previously asserted cannot be proffered as a basis for a motion to reconsider. Martinez­
Lopez v. Holder, 704 F.3d 169 (1
51 
Cir. 2013). 
Notwithstanding the above, the regulation at 8 C.F.R. § 204.5(h)(3) provides that evidence of 
sustained national or international acclaim "shall" include evidence of a one-time achievement or 
evidence of at least three of the ten regulatory categories of evidence to establish the basic eligibility 
requirements. The ten categories in the regulations are designed to cover different areas; not every 
criterion will apply to every occupation. For example, the criterion at 8 C.F.R. § 204.5(h)(3)(x) 
expressly applies to the performing arts. The regulation at 8 C.F.R. § 204.5(h)( 4) provides "[i]f the 
above standards do not readily apply to the [petitioner's] occupation, the petitioner may submit 
comparable evidence to establish the [petitioner's] eligibility." It is clear from the use of the word 
"shall" in 8 C.F.R. § 204.5(h)(3) that the rule, not the exception, is that the petitioner must submit 
evidence to meet at least three of the regulatory criteria. Thus, it is the petitioner's burden to explain 
why the regulatory criteria are not readily applicable to his occupation and how the evidence 
submitted is "comparable" to the objective evidence required at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The regulatory language precludes the consideration of comparable evidence in this case, as there is 
no indication that eligibility for visa preference in the petitioner's occupation as a dancer and 
choreographer cannot be established by the ten criteria specified by the regulation at 8 C.F.R. 
§ 204.5(h)(3). In fact, counsel has claimed the petitioner's eligibility for six of the ten criteria at the 
regulation at 8 C.F.R. § 204.5(h)(3), and the petitioner demonstrated that she met the judging 
criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(iv). An inability to meet a criterion, 
however, is not necessarily evidence that the criterion does not apply to the petitioner's occupation. 
Moreover, although the petitioner failed to claim these additional criteria, a dancer or choreographer 
could command a high salary pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(ix) and could have 
commercial successes pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(x). Counsel provided no 
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documentation as to why these provisions of the regulation would not be appropriate to the 
profession of a dancer or choreographer. Where an alien is simply unable to meet or submit 
documentary evidence of three of these criteria, the plain language of the regulation at 8 C.P.R. 
§ 204.5(h)(4) does not allow for the submission of comparable evidence. 
For these reasons, counsel failed to meet the requirements of a motion to reopen and to demonstrate 
that the petitioner meets the provisions of the regulation at 8 C.P.R.§ 204.5(h)(4). 
The petitioner does not allege any factual or legal error in the AAO's prior decision nor does she 
refer to new legal authority that materially affects her case. As noted above, a motion to reconsider 
must include specific allegations as to how the AAO erred as a matter of fact or law in its prior 
decision, and it must be supported by pertinent legal authority. Because counsel has failed to raise 
such allegations of error in the motion to reconsider, the AAO will dismiss the motion to reconsider. 
In visa petition proceedings , it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reconsider is dismissed, the decision of the AAO dated October 4, 
2010, is affirmed, and the petition remains denied.