dismissed EB-1A Case: Dance

U.S. Citizenship 
and Immigration 
Services 
MATTER OF A-C-D-M-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 4, 2015 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a dancer, seeks classification as an individual "of extraordinary ability" in athletics. See 
Section 203(b)(l)(A) of the Immigration and Nationality Act; 8 U.S.C. § 1153(b)(l)(A). The 
Director, Nebraska Service Center, denied the petition. The Director reaffirmed that decision on 
motion. The matter is now before us on appeal. The appeal will be dismissed. 
The classification the Petitioner seeks makes visas available to foreign nationals who can demonstrate 
extraordinary ability through sustained national or international acclaim and achievements that have 
been recognized in the area of expertise through extensive documentation. The Director determined 
that the Petitioner did not show that she has sustained acclaim, that she seeks to enter the United States 
to work in her area of extraordinary ability, or that her entry would substantially benefit prospectively 
the United States. 
I. LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. --An alien is described in 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, 
(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. 
(b)(6)
Matter of A-C-D-M-
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. 8 C.F.R. § 204.5(h)(2). The regulation at 8 C.F.R. 
§ 204.5(h)(3) sets forth two different methods by which a petitioner can demonstrate extraordinary 
ability sustained by national or international acclaim and the recognition of achievements in the 
field. First, a petitioner can submit a one-time achievement (that is, a major, internationally 
recognized award). Second, a petitioner can satisfy at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
Satisfying the requirements of 8 C.F.R. § 204.5(h)(3), does not, in and of itself, establish eligibility 
for this classification. If and when a petitioner has provided either a one-time achievement or meets 
at least three of the ten criteria listed, a final merits determination is then necessary to evaluate 
whether the totality of the record demonstrates, by a preponderance of the evidence, sustained 
national or international acclaim and recognition of accomplishments in the field of expertise. See 
Kazarian v. USCIS, 596 F .3d 1115 (9th Cir. 201 0) (discussing a two-part review where the evidence 
is first considered to determine if the required regulatory criteria are met, and then considered in the 
context of a final merits determination). See also Rijal v. USCIS, 772 F.Supp.2d 1339 (W.O. Wash. 
2011) (affirming our proper application of Kazarian), aff'd, 683 F.3d. 1030 (9th Cir. 2012); Visinscaia 
v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) (finding that we appropriately applied the two-step 
review); Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality"). 
II. ANALYSIS 
A. Extraordinary Ability 
1. Evidentiary Criteria 
Throughout the proceedings, the Petitioner has indicated she has extraordinary ability in dance. The 
Director found the Petitioner provided both a one-time achievement (a major internationally 
recognized award), as well as documentation satisfying at least three of the ten criteria listed under 
8 C.F.R. § 204.5(h)(3). Specifically, the Director concluded that the Petitioner had (1) participated, 
either individually or on a panel, as a judge of the work of others in the same or an allied field of 
specialization; (2) displayed her work in the field at artistic exhibitions or showcases; and (3) 
performed in a leading or critical role for organizations or establishments that have a distinguished 
reputation. Upon review, we agree with the Director 's determination that the Petitioner submitted 
the required initial evidence. 1 See 8 C.F.R. § 204.5(h)(3). At issue on appeal is whether the 
Petitioner enjoys sustained acclaim and whether she demonstrated that she intends to continue 
working in her area of expertise. 
1 Although all performing artists' shows are not necessarily artistic exhibitions or showcases , this Petitioner appeared 
twice at the a televised event featuring chosen performers in a variety of art forms and 
genres. These performances constitute a display of the Petitioner 's work in an artistic exhibition or showcase. 
2 
Matter of A-C-D-M-
2. Final Merits Determination 
As the Petitioner satisfied the antecedent evidentiary requirement under the two-part Kazarian 
analysis, the Director conducted a final merits determination, concluding that the record did not 
reflect sustained acclaim. With her initial motion to reopen/motion to reconsider, the Petitioner 
asserted this analysis is not appropriate where a petitioner has a one-time achievement. In support of 
this position, she referred to: "[the] interim Memo of [U.S. Citizenship and Immigration Services 
(USCIS)] August 18, 2010 relating to Kazarian decision." See USCIS Interim Policy Memorandum 
PM-602-0005, Evaluation of Evidentiary Criteria in Certain Form 1-140 Petitions (AFM Update AD 
I 0-41 ), (August 18, 201 0), http://www. uscis.gov/sites/default/files/USCIS/Outreach/Interim%20 
Guidance%20for%20Comment/Kazarian%20Guidance%20AD 1 0-41.pdf. USCIS, however, 
subsequently finalized this memorandum. See USCIS Policy Memorandum PM-602-0005.1, 
Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; Revisions to the Adjudicator's 
Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14, (December 22, 2010), 
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/i-140-evidence-pm-6002-005-
1.pdf. It is this memorandum, therefore, that informs our analysis. 
According to the Petitioner, the second part of the Kazarian analysis is limited to circumstances in 
which a petitioner meets the evidentiary requirements of 8 C.F.R. § 204.5(h)(3) by satisfying three 
of the ten criteria listed in 8 C.F.R. § 204.5(h)(3)(i)-(x), and not when a petitioner provides a one­
time achievement. The Petitioner referred to both the Kazarian opinion and the USCIS interim 
policy memorandum and states that these support her position. Both of these authorities discuss the 
two-step analysis as the appropriate method for analyzing extraordinary ability petitions. See 
Kazarian, 596 F.3d 1115 at 1119-20 (indicating that an evaluation of whether the foreign national's 
abilities are extraordinary occurs after the determination that evidentiary requirements of 8 C.F.R. 
§ 204.5(h)(3) have been met); USCIS Policy Memorandum PM-602-0005.1, supra, at 5 ("USCIS 
officers should use a two-part analysis to consider the documentation submitted with the petition to 
demonstrate eligibility under 203(b)(l)(A) of the INA"). The regulation at 8 C.F.R. § 204.5(h)(3) 
defines the initial evidence for this classification as either a one-time achievement or 
accomplishments falling under "at least three of the following" categories set forth in subparagraphs 
(i)-(x). 
Furthermore, the court's reasoning in Kazarian and our published precedents do not support limiting 
the application of the two-part analysis. In Kazarian, the court held that we should not have 
considered the substantive quality of evidence during the first part of the analysis. Instead, the first 
part of the analysis involves an analysis regarding whether a petitioner submitted documentation that 
falls into categories listed at 8 C.F.R. § 204.5(h)(3). If we determine a petitioner does satisfy this 
initial requirement, we then evaluate the quality of the record in a final merits determination in order 
to decide if it demonstrates sustained national or international acclaim and achievements that have 
been recognized in the field of expertise. Kazarian, 596 F.3d at 1121-22; USCIS Policy 
Memorandum PM-602-0005.1, supra, at 5, 13-14. 
In addition, we examine each item for relevance, probative value, and credibility, both individually 
and within the context of the totality of the record. Chawathe, 25 I&N at 376, citing Matter of E-M-, 
3 
(b)(6)
Matter of A-C-D-M-
20 I&N Dec. 77, 79-80 (Comm'r 1989) (stating that the "[t]ruth is to be determined not by the 
quantity of evidence alone but by its quality"). As a result, a final merits determination is also 
necessary in cases of a one-time achievement. In this analysis, we evaluate whether the Petitioner 
has demonstrated , by a preponderance of the evidence, that she has sustained national or 
international acclaim and that her achievements have been recognized in the field of expertise , 
indicating that she is one of that small percentage who has risen to the very top of the field of 
endeavor. 
The Petitioner has demonstrated a history of impressive achievements as a dancer. She received the 
at the the flagship annual competition 
hosted by the She completed three years of training through 
She then began a career as a performer and appeared in multiple 
productions that ran in including 
She served as dance 
captain for and She also appeared in the 
. . At this event she performed as one of several featured artists in a 
televised showcase of various performing arts. 
The Petitioner submitted numerous letters speaking to her talents from respected individuals in the 
theater and dance industries . These letters include praise from Managing Director 
of the a choreographer and director, 
Artistic Director of Artistic Director of 
Company, , a director and choreographer , a choreographer , and 
a dancer and performer. The evidence demonstrates that the Petitioner has in the 
past enjoyed national and international acclaim. However, in order to qualify for the classification 
sought, the Petitioner must show that such acclaim has been sustained. 8 C.P.R. § 204.5(h)(3). 
Black 's Law Dictionary defines "sustain" as: "To suppm1 or maintain, esp. over a long period of 
time." Black's Law Dictionary 1039 (9th ed. 2009). As stated in the December 22, 2010, USCIS 
Memorandum, there is no definitive time frame that constitutes "sustained. " If an individual has 
been recognized for a particular achievement, we must determine whether she continues to maintain 
a comparable level of acclaim in the field of expertise. An individual may have achieved national or 
international acclaim in the past, but then fail to maintain a comparable level of acclaim thereafter. 
See USCIS Policy Memorandum PM-602-0005.1, supra, at 5, 13-14. 
We must also consider the requirement of sustained acclaim in the context of the visa classification 
sought. As indicated by the statutory requirements of the classification , the purpose of the visa is to 
allow individuals of extraordinary ability to immigrate to the United States in order to benefit the 
United States through work in the field of their extraordinary ability. See section 203(b)(1)(A) of the 
Act. In order for acclaim to be relevant to this overall purpose, it must be sufficiently recent, so that 
the United States would benefit from the individual 's continued work in the field of extraordinary 
ability. 
4 
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(b)(6)
Matter of A-C-D-M-
In the instant case, the Petitioner has not demonstrated activity in the field of dance after The 
most recent examples of her efforts in the area of expertise are her work in the film , and 
both of which ended by The Petitioner 
filed the underlying petition in September of2013, nearly a decade later. 
Although the Petitioner provided numerous letters from respected individuals who work in dance 
and theater, each of the letters based its opinion of the Petitioner 's abilities occurring at least ten 
years ago. The opinions of the Petitioner's references are not without weight and have been 
considered. We may, in our 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, we 
are ultimately responsible for making the final determination regarding eligibility for the benefit 
sought and evaluate the content of letters to determine to what extent they offer support. See id. at 
795-796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion 
testimony does not purport to be evidence as to "fact"). Thus, the content of the references' letters 
and how they became aware of the Petitioner's reputation are important considerations. Even when 
written by independent experts, letters solicited in support of an immigration petition are of less 
weight than preexisting, independent documentation that one would expect of a dancer who enjoys 
sustained national or international acclaim. Visinscaia, 4 F.Supp.3d at 134-35 (concluding that 
USCIS' decision to give little weight to uncorroborated assertions from professionals in the field was 
not arbitrary and capricious). 
Without more accomplishments closer to the date of filing, the recent reference letters describing 
older achievements do not reflect that the Petitioner continues to enjoy sustained national or 
international acclaim in the field of her ability. When the Director specifically requested that the 
Petitioner show more recent acclaim, the Petitioner provided information regarding her work with 
Pilates. The Petitioner does not state that Pilates and dance are the same area of expertise, nor does 
she claim extraordinary ability in Pilates. The Petitioner offered material regarding 
These exhibits included an article 
from entitled 
However, the relevant question is not whether Pilates is a good workout for dancers, but whether the 
Petitioner has continued to enjoy acclaim in the field for which she seeks classification. In this case, 
the Petitioner has not demonstrated by a preponderance of the evidence that she has sustained 
national or international acclaim in her field of dance. As a result, she has not established her 
extraordinary ability as defined in 8 C.P.R.§ 204.5(h)(3) and required by section 203(b)(l)(A) of the 
Act. 
2 A letter from Director of the states that the Petitioner has been providing 
workshops at since 2006 "and. is someone who continues to teach and inspire our undergraduate students. " 
However , the record is otherwise silent regarding the Petitioner 's involvement with the organization, or any 
workshops she gave there . The Director raised this issue, but the Petitioner does not address the concern on appeal. 
Without more detail or corroborating evidence , the letter from is insufficient · to establish that the 
Petitioner 's involvement with involved dance rather than Pilates. 
c 
(b)(6)
Matter of A-C-D-M-
B. Intention to Continue Working in the Area of Extraordinary Ability 
In addition to demonstrating extraordinary ability, the Petitioner must show that she seeks to enter 
the United States in order to work in the field of her extraordinary ability. The regulation at 8 C.F.R. 
§ 204.5(h)(5) requires: "clear evidence that the alien is coming to the United States to continue to 
work in the area of expertise ." The regulation goes on to provide: "Such evidence may include 
letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a 
statement from the beneficiary detailing plans on how he or she intends to continue his or her work 
in the United States." !d. 
On the Form I-140, Immigrant Petition for Alien Worker, the Petitioner listed her proposed 
employment in the United States as a classical ballet dancer. However, this information is 
contradicted by the cover letters in the record, which indicate that the Petitioner initially expressed 
an intent to work as a dance instructor and mentor and has been working as a Pilates instructor. As 
evidence of potential future employment, the Petitioner initially provided a letter from a 
resident voice teacher at the located in California. He stated: 
"The would benefit greatly from having a teacher of caliber, and we 
at the relish the opportunity of having her guest teach for us." While a 
performer and instructor certainly share knowledge of dance, the two rely on very different sets of 
basic skills. Thus, dance and dance instructor are not the same area of expertise. See Lee v. I.N.S., 
237 F. Supp. 2d 914 (N.D. Ill. 2002) 
When asked for additional information to demonstrate performances after 2004, the Petitioner 
provided materials regarding her work in Pilates. She included a copy of the Certificate of 
Incorporation for her company, A 2002 article in 
entitled, discusses her transition from 
dancer to Pilates teacher. Other items mention her work as a Pilates teacher, including a 2006 article 
m and a 2008 article in The Petitioner modeled Pilates poses for a book 
entitled by Other evidence of the Petitioner's work in this 
area includes a schedule showing that she taught a class at the a 
event. She also submitted a note on a business card from a former ballerina who 
attended her Pilates classes. 
From 2008 to 2010, the Petitioner was the 
women over 35. She provided a letter from the company's CEO, 
outs of 27 articles she wrote for the site. Y ouTube videos posted by 
Petitioner providing advice on 
and 
a website for 
, as well as print­
feature the 
The Petitioner 
3 The Petitioner 's RFE response stated that the she appeared in two other books , and 
Upon examination , the Petitioner appeared in one book , which was republished in other languages 
under the translated title, 
(b)(6)
Matter of A-C-D-M-
and also attended the California as the 
guests of insurance company , 
On appeal, the Petitioner also includes a Microsoft Word document with the reproduced contents of 
two emails. The regulations at 8 CFR §§ 103.2(b)(4) and 204.5(g)(l) provide that acceptable forms 
of evidence are originals or photocopies . In this case, the Petitioner states that she previously 
submitted true reproductions of these emails. However, a thorough review of the record indicates 
that true copies of the emails were never provided . Notably, the index provided with the original 
petition contains a heading: "Letter of Interest from prospective employers ," under which is a single 
bullet point: The emails are similarly absent from supplemental 
submissions from the Petitioner. The Word document reproduction does not show the source of the 
email and is not a true copy. As a result , it does not meet the regulatory requirements outlined in 
8 CFR §§ 103.2(b)(4) & 204.5(g)(l) and cannot be considered. 
The record does not contain prearranged commitments, or a statement from the Petitioner detailing 
plans on how she intends to continue her work in dance in the United States. The Petitioner has not 
shown that the other documents provided are in fact letters from prospective employers. As a result , 
she has not submitted the initial evidence required by 8 C.F.R. § 204.5(h)(5) . However , even if we 
were to consider the letter from or the email reproductions as letters from prospective 
employers, the Petitioner has still not demonstrated she seeks to enter the United States to work in 
the field of her extraordinary ability. 
As explained above, the relevance, probative value, and credibilit y of all evidence is part of our 
analysis. Chawathe, 25 I&N at 376, citing Matter of E-M-, 20 I&N Dec. at 79-80. The totality of 
the record indicates that the Petitioner has transitioned away from the world of dance and now 
focuses on Pilates and fitness. This conclusion is corroborated by the 
article that states : 
After much practice [the Petitioner] learnt to slow down. She now works 
mornings as a Pilates teacher and spends her afternoons painting and reading. 
Although she feared her income would drop, she has become favourite 
Pilate s instructor , with clients that will pay any amount of money for a slot. 
She has not provided any personal statement attesting to her desire to return to dance. Instead, she 
included articles explainin g how she purposefully left dance to embark on a new career with Pilates. 
Although the Petitioner 's work in Pilates no doubt benefits from her background in dance , Pilates 
and dance are two different disciplines , 
a determination the Petitioner does not contest. In addition, 
although working in Pilates does not preclude working in dance, the Petitioner has not shown that 
she intends to do both. Given that the Petitioner's recent experience over the past several years has 
been as a Pilates instructor , reference to the possibility of her visiting as a guest teacher 
of an unspecified skill is insufficient. For these reasons , the record does not confirm that it is more 
likely than not that she seeks to enter the United States to work in the field of her extraordinary 
ability. 
Matter of A-C-D-M-
C. Prospective Benefit to the United States 
The third statutory requirement for the extraordinary ability visa classification is that the United 
States would prospectively benefit from the Petitioner's entry into the United States. Section 
203(b)(l)(A)(iii) of the Act. As discussed above, the Petitioner has not demonstrated sustained 
acclaim or her intention to seek work in the United States in the area of her ability. See sections 
203(b)(l)(A)(i) & (ii) of the Act. As a result, she has not shown that her entry would more likely 
than not prospectively benefit the United States. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must demonstrate that the 
Petitioner has achieved sustained national or international acclaim. The record in the aggregate, 
however, does not reflect that the Petitioner continues to enjoy the acclaim she once did. As a result, 
the Petitioner has not established eligibility pursuant to section 203(b)(l)(A) ofthe Act and the petition 
may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. 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 qf 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
Cite as Matter qf A-C-D-M-, ID# 14220 (AAO Nov. 4, 2015)