dismissed EB-1A Case: Dance

identifying data deleted to 
prevent clear\y unwarranrcd 
. invasion of personal privacy 
U.S. Department of Ilomeland Security 
U.S. Citizenship and Immigration Services 
Of>ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
% W& U.S. Citizenship 
and Immigration 
p Services 
-J & 
Office: NEBRASKA SERVICE CENTER 
 Date: s~p 0 3 20~ 
LIN 08 005 54548 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
5 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
5 103S(a)(l)(i). 
Jclb~d~ CL, 
f John F. Grissom 
1' Acting Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petition 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. 5 1153(b)(l)(A), as an 
alien of extraordinary ability in the arts. The director determined the petitioner had not 
established the sustained national or international acclaim necessary to qualify for classification 
as an alien of extraordinary ability. More specifically, the director found that the petitioner had 
failed to demonstrate receipt of a major, internationally recognized award, or that she meets at 
least three of the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
On appeal, counsel for the petitioner argues that the petitioner meets the statutory requirements and 
at least three of the regulatory criteria at 8 C.F.R. 9 204.5(h)(3). 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. - Visas shall first be made available . . . to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with Extraordinary Ability. - An alien is described in this 
subparagraph if - 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national 
or 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 to the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and the legacy Immigration and 
Naturalization Service (INS) have consistently recognized that Congress intended to set a very 
high standard for individuals seeking immigrant visas as aliens of extraordinary ability. See 56 
Fed. Reg. 60897, 60898-9 (Nov. 29, 1991). As used in this section, the term "extraordinary 
ability7' means a level of expertise indicating that the individual is one of that small percentage 
who has risen to the very top of the field of endeavor. 8 C.F.R. tj 204.5(h)(2). The specific 
requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation 
at 8 C.F.R. 5 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, 
however, that the petitioner must show that she has sustained national or international acclaim at 
the very top level. 
This petition, filed on August 17, 2007, seeks to classify the petitioner as an alien with 
extraordinary ability as a "performing artist - dancer." The regulation at 8 C.F.R. $ 204.5(h)(3) 
indicates that an alien can establish sustained national or international acclaim through evidence 
of a one-time achievement (that is, a major, internationally recognized award). Barring the 
alien's receipt of such an award, the regulation outlines ten criteria, at least three of which must 
be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of 
extraordinary ability. A petitioner, however, cannot establish eligibility for this classification 
merely by submitting evidence that simply relates to at least three of the criteria outlined in 8 
C.F.R. 5 204.5(h)(3). In determining whether the petitioner meets a specific criterion, the 
evidence itself must be evaluated in terms of whether it is indicative of or consistent with 
sustained national or international acclaim. A lower evidentiary standard would not be consistent 
with the regulatory definition of "extraordinary ability" as "a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of 
endeavor." 8 C.F.R. $ 204.5(h)(2). 
We note that although the record contains evidence of the petitioner's prior approval as an 0-1 non- 
immigrant, the prior approval does not preclude USCIS from denying an immigrant visa petition 
based on a different, if similarly phrased, standard. It must be noted that many 1-140 immigrant 
petitions are denied after USCIS 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); Fedin 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 Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 
Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude 
USCIS from denying an extension of the original visa based on a reassessment of petitioner's 
qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Cornrn. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. 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 
nonirnmigrant petition on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
Page 4 
Although the words "extraordinary ability" are used in the Act for both the nonimmigrant 0-1 
classification and the first preference employment-based immigrant classification, the applicable 
regulations define the terms differently for each classification. The 0-1 regulation explicitly states 
that "[e]xtraordinary ability in the field of arts means distinction." 8 C.F.R. 5 214.2(0)(3)(ii). 
"Distinction" is a lower standard than that required for the immigrant classification, which defines 
extraordinary ability as "a level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the field of endeavor." 8 C.F.R. 5 204.5(h)(2). The 
evidentiary criteria for these two classifications also differ in several respects, for example, 
nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 8 C.F.R. 
5 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of awards or prizes. 8 
C.F.R. 5 204.5(h)(3)(i). Given the clear regulatory distinction between these two classifications, the 
petitioner's receipt of 0-1 nonimmigrant classification is not evidence of her eligibility for 
immigrant classification as an alien with extraordinary ability. 
The petitioner has submitted evidence that, she claims, meets the following criteria under 8 
C.F.R. 5 204.5(h)(3).' 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner provided a list of awards that she stated she had won and submitted 
documentation regarding the following: 
1. Showstopper Awards. The petitioner submitted documentation indicating that she won 
first place and the top solo award at the 1996 Showstopper American Dance 
Championship (Showstopper) finals held in Myrtle Beach, South Carolina and was 
awarded the Top Senior Solo Overall at the 2001 National Championships. In a 
September 13, 2006 letter, , the national director of Showstopper, stated 
that the competition "has for many years been the largest dance competition in the world" 
and "has been nationally televised for over 10 years and was nominated for Emmy 
Awards in 1996 and 1997." The petitioner submitted a copy of a television schedule 
showing when the finals of the 2001 competition was scheduled to air in various cities in 
the United States. However, she submitted no documentation to confinn that the 
Showstopper competition had been nominated for an Emmy award. 
In denying the petition, the director noted that the information about the competition 
indicated that it was for "young dancers" and that the rules for the 2001 competition 
indicated that the competition is divided into age groups. In 1996 at the age of 13, the 
petitioner won in the junior category and in 2001 at the age of 18, she won in the senior 
category of 15 and over. The director determined that the petitioner was "primarily 
I 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
competing among other young dancers within her age group" and that "[alge restricted 
competitions . . . are generally not commensurate with this criterion." 
On appeal, counsel asserts that the director "failed to note that the field of expertise of the 
petitioner is dependent upon age restrictions." [Emphasis excluded.] Counsel also asserts 
that the competition has been televised for the past 19 years throughout the United States 
and Canada, and that the broadcast has been nominated for an Emmy award. Nothing in 
the record, however, supports counsel's assertions, either about the age restrictions of the 
petitioner's field or about the show's nomination for an Emmy award. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 
19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). 
According to the copy of the East Coast 2001 National Finals Rules and Regulations for 
the Showstopper awards, contestants compete in age categories ranging from "4 and 
under" to "70 and over." The document also indicates that there may be multiple awards 
in each age group and category, with a special award in the competitive division. The 
rules provided that "[o]verall recognition and medals will be given in the following four 
age groups: 8 years & under Junior, 9-12 years Junior, 13-14 years Senior and 15 years & 
over Senior." 
With regard to awards won by the petitioner in age-group competitions involving only a 
small number of competitors in her category, we do not find that such awards indicate 
that she "is one of that small percentage who have risen to the very top of the field of 
endeavor." See 8 C.F.R. tj 204.5(h)(2). There is no indication that the petitioner faced 
significant competition from throughout her field, rather than mostly limited to a few 
individuals in age-based competition. USCIS has long held that even athletes performing 
at the major league level do not automatically meet the "extraordinary ability" standard. 
Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Cornrnr. 1994); 56 Fed. Reg. at 60899.~ 
2 
 While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of 
Racine, 1995 WL 1533 19 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[Tlhe plain reading of the statute suggests that the appropriate field of comparison is not a 
comparison of Racine's ability with that of all the hockey players at all levels of play; but rather, 
Racine's ability as a professional hockey player within the NHL. This interpretation is consistent 
with at least one other court in this district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 
9, 1993), and the definition of the term 8 C.F.R. 4 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the 
court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 9 204.5(h)(2) is 
reasonable. 
Likewise, it does not follow that a dancer who has had success in age-group competition 
involving only a small number of participants should necessarily qualify for an 
extraordinary ability employment-based immigrant visa. To find otherwise would 
contravene the regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa category be 
reserved for "that small percentage of individuals that have risen to the very top of their field 
of endeavor." On the other hand, the petitioner's award as the top soloist in the senior 
category was not similarly restricted by age as she competed with all dancers over the age of 
15. 
Nonetheless, the plain language of the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(i) 
specifically requires that the petitioner's awards be nationally or internationally 
recognized in the field of endeavor and it is her burden to establish every element of this 
criterion. In this case, there is no evidence showing that petitioner's awards commanded a 
significant level of recognition beyond the context of the events where they were 
presented. The petitioner submitted an undated article from an unidentified publication 
reporting that she had won first place and the top solo award at the 1996 Showstopper 
finals and a December 4, 2001 press release reporting the petitioner's receipt of the solo 
award. The documentation indicates that the finals were televised in the United States and 
the Virgin Islands, the schedule indicates that the show was aired in only about 75 
markets and over a three-month period. While and counsel stated that the 
competitions are televised internationally and has received two Emmy nominations, there 
is no evidence showing that the petitioner's awards were announced in major media or in 
some other manner consistent with national or international recognition. Accordingly, the 
petitioner has not established that the categories in which she successfully competed 
resulted in her receipt of nationally or internationally recognized prizes or awards in her 
field. 
Miss Dance of Canada. The petitioner submitted documentation from the website of 
Dance Masters of America, Inc. (DMA), accessed by the petitioner on September 5, 
2008, which describes the organization as "an International Organization of dance 
educators who have been certified by test to teach." The history of the organization, also 
obtained from the organization's website, and accessed by the petitioner on February 5, 
2008, indicates that the organization had its roots in two organizations established in 
1884 and 1894 that joined forces in 1926. The documentation indicates that the DMA 
began offering scholarships in 1963 and that "each Chapter Miss Dance winner is eligible 
to compete for the national title." The petitioner provided a copy of the official rules, 
regulations and general information about the DMA scholarship competitions for 2002. 
The document indicates that the competition was limited to members or a student of a 
member in good standing with the DMA. The rules imposed other restrictions on 
competitors, including limiting entrants to those who were unmarried and childless and 
imposed age limits on the competitors. The rules also required that competitions in the 
Miss Dance America competition must represent an affiliated chapter as its title holder. 
Other documentation provided by the petitioner indicates that she was a member of 
"Chapter 43" of the DMA. A document indicating that it is a "History of Pageant Titlists" 
for the chapter shows that the petitioner held the 1995 Petite Miss, the 1998 Teen Miss 
and the 2002 Miss Dance titles. The documentation includes a handwritten note 
apparently from the director of the Miss Dance Pageant, congratulating the petitioner on 
winning the title. The note is not dated and contains no letterhead or other indication of 
its source. Additionally, the other documentation, including the history of the pageant 
titlists, does not reflect the source of the information provided. The petitioner's evidence 
does not establish that any of the DMA scholarships, particularly those won at the local 
chapter level, are nationally or internationally recognized prizes or awards of excellence 
in her field. Additionally, as previously discussed, awards won by the petitioner in age- 
group competitions involving only a small number of competitors in her category do not 
indicate that she "is one of that small percentage who have risen to the very top of the 
field of endeavor." See 8 C.F.R. 5 204.5(h)(2). 
3. American Dance Awards. The petitioner submitted a copy of a certificate indicating that 
she won first place in the American Dance Awards (ADA) National Tour 2000. A page 
from the ADA website, accessed by the petitioner on October 5, 2008, indicates that the 
ADA is "one of the largest International Dance Championships in North America." The 
document also indicates that to compete in the contest, the individual "must qualify in a 
regional event by receiving a Silver Medal standing or higher" and that the individual's 
"school then compete[s) all week against other schools . . . to ultimately get into the 
danceoff." As discussed above, awards won by the petitioner in age-group competitions 
involving only a small number of competitors in her category do not indicate that she "is 
one of that small percentage who have risen to the very top of the field of endeavor." See 
8 C.F.R. 5 204.5(h)(2). The petitioner did not face significant competition from 
throughout her field but rather her competition was limited to a few individuals in a 
school competition. 
4. ProDance Top Scholarship Award. The petitioner stated that she was the recipient of the 
2005 ProDance Top Scholarship Award. A page from the website of 
ProfessionalDancer.net, accessed by the petitioner on April 30, 2008, reflects that 
ProDance was founded in 1999 as a convention or camp for dancers for professional 
sports teams. The document, which announced the 2005 event, indicated that scholarships 
would be provided but did not indicate the purpose of the scholarships, any level of 
award, who would be eligible for the scholarship, or how winners would be selected. The 
petitioner submitted two photographs of herself that she stated were at the ProDance 
Convention; however, she submitted no documentation to corroborate her receipt of any 
scholarship at the event or the significance of winning a scholarship. The petitioner also 
failed to provide any evidence that an award of a ProDance scholarship is nationally or 
internationally recognized as a prize or award of excellence in her field of endeavor. 
5. New York City Dance Alliance (NYCDA). The petitioner submitted a copy of a 
certificate indicating that she had won a "Senior Outstanding Dancer Scholarship" during 
the NYCDA scholarship audition and convention held in Niagara Falls, New York from 
March 27 to March 28, 1999. The guidelines indicated that competition was divided into 
three age groups, with the senior division comprised of those 13 to 15 and 16 to 18. 
Points determined awards of gold, high silver, silver and bronze. The documentation did 
not specify the requirements for winning a scholarship or if the scholarships and various 
"metal" awards were the same. An undated letter from the director of the NYCDA 
indicated that the "ultimate goal of NYCDA is to bring each individual one step closer to 
achieving their dreams of becoming a professional dancer." Accordingly, the competition 
for the scholarships and awards appears to be limited to amateurs. As with awards won in 
age-based competitions, the petitioner has not demonstrated that her amateur recognition 
constitutes nationally or internationally recognized prizes or awards. Awards won by the 
petitioner in competitions that were limited by her amateur status, such awards do not 
indicate that she "is one of that small percentage who have risen to the very top of the 
field of endeavor." See 8 C.F.R. 5 204.5(h)(2). 
As noted, the petitioner indicated that she had been the recipient of other awards. However, she 
provided insufficient evidence to establish that any of the awards that she received are nationally 
or internationally recognized as prizes or awards of excellence in her field of endeavor. 
The petitioner has failed to establish that she meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classzfication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines orfields. 
To demonstrate that membership in an association meets this criterion, the petitioner must show 
that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, 
minimum education or work experience, standardized test scores, grade point average, 
recommendations by colleagues or current members, or payment of dues do not satisfy this 
criterion as such requirements do not constitute outstanding achievements. The overall prestige 
of a given association is not determinative. The issue is membership requirements rather than the 
association's overall reputation. 
In her letter submitted with the petition, counsel stated that the petitioner claimed to meet this 
criterion based on her membership in the Royal Academy of Dance (RAD), Alliance of 
Canadian Cinema, Television and Radio Artists (ACTRA), the Toronto Raptors Basketball Club, 
the American Musicians' Union, and Showstopper. The petitioner submitted an April 17, 2006 
letter from Courtney Niven, dance team director for the Toronto Raptors Basketball Club, 
verifying that the petitioner had been employed by Maple Leaf Sports and Entertainment Ltd. as 
a member of the Toronto Raptors Dance Pak since 2003. The documentation indicates that the 
petitioner's position with the Toronto Raptors Basketball Club was as an employee. The 
petitioner submitted no documentation to establish that the Toronto Raptors Dance Pak requires 
outstanding achievements of its employees as judged by national or international experts in their 
fields. The petitioner also submitted a copy of her membership card in ACTRA and an April 
2001 certificate from the RAD, indicating that she was commended for her successful 
completion of the intermediate examination in classical ballet. The petitioner submitted no other 
documentation with the petition regarding membership requirements in the RAD, ACTRA, 
American Musicians' Union or Showstopper. The petitioner also failed to provide evidence of 
her membership in the American Musicians' Union and Showstopper. 
In response to the WE, the petitioner submitted a May 5, 2008 letter from National 
AdministratorICanada for the RAD, in which she stated that the petitioner had "achieved a high 
level of professional dance training in her years of study in Canada, and since eligible for 
Membership three years ago, she has maintained her membership status consistently." A page 
from the RAD's website identifies five levels of membership: (1) affiliate member for "students 
of dance, who wish to benefit from the support, knowledge and expertise of the Academy," (2) 
full membership for dance professionals, (3) registered teacher for "students [who] have 
graduated from a course at the faculty of Education, endorsed by the [RAD], (4) "teachers 
recognized by mutual agreement . . . between the RAD and IDTA," and (5) fnends of the 
Academy for those who "are passionate about dance and wish to support and share in its future." 
Documentation in the record indicates that the petitioner is a full member of the RAD. Full 
membership can be obtained by graduating with by a bachelor's degree in certain fields, a 
diploma in dance education, or a teaching certificate or diploma. Nothing in the documentation 
indicates that membership in the RAD requires outstanding achievements of its members, as 
judged by recognized national or international experts in their disciplines or fields. 
Documentation provided for ACTRA indicates that it is the collective bargaining union "in 
English-language recorded media in Canada." The petitioner's documentation indicates that she 
is an apprentice member of ACTRA, which is obtained by "[landing] a qualifying role in a 
production under ACTRA's jurisdiction." Qualifying credits includes off-camera voice role or a 
speaking role. Full membership in ACTRA is gained by obtaining five additional qualifying 
credits or a total of six. Nothing in the membership requirements for ACTRA, therefore, reflect 
that the organization requires outstanding achievement of its members. 
The petitioner has failed to establish that she meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classzfication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In order to meet this criterion, published materials must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as The New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
The petitioner submitted several copies of a picture of herself depicted as the "Face of the 
Raptors Dance Pak," allegedly printed in full page advertisements in major Toronto papers, on 
posters, on the Raptors website, on the team's season schedule, on game tickets, in a mural at the 
Air Canada Centre where the Raptors play, on a backdrop for the Raptors televised games, and in 
a basketball annual published by Street & Smith. The picture also appeared with a November 2, 
2005 article in the Toronto Sun about an attempt by the Raptors Game Operations to entertain 
fans. Two other undated articles that the petitioner stated also appeared in the Toronto Sun 
featured a picture of the petitioner and another dancer "as they show off the game cards" in a 
promotion for the Raptors, and a picture of the petitioner accompanying an article about the 
Raptors charity events. The petitioner submitted other photographs that she indicated were from 
Raptor TV, of her signing autographs and interacting with fans, of her on the JumboTron and at 
other events. However, photographs of the petitioner used to promote the Raptors are not 
published materials about the petitioner or her work. As this criterion specifically requires an 
author, title, and translation, the publication of photographs do not qualify the petitioner under this 
criterion. Those specific requirements reference published written work instead of visual work. As 
such, photographs, whether they are published or not, do not qualify the petitioner under this 
criterion. 
The petitioner also stated that she was featured in Ontario Tourism advertisements, including 
television commercials, in print ads in publications such as Vogue, Vanity Fair, Gourmet, and 
Architectural Digest, and in a storefront window mural. As discussed immediately above, these 
photographs of the petitioner do not meet the requirements of "written work" and do not qualify the 
petitioner under this criterion. Photographs are not published material about the petitioner or her 
work. 
The petitioner submitted a copy of an article that appeared in the JulyIAugust 2006 issue of Dance 
Spirit about how to "handle celebrity." The article includes a vignette by the petitioner describing an 
encounter with a fan and a picture of her with another Raptors dancer. The petitioner also submitted 
copies of a September 11, 1996 and a December 24,2001 article about her fi-om The Record. The 
record contains insufficient evidence that either of these publications is either a professional, 
major trade publication, or other major media. On appeal, counsel asserts that the articles in The 
Record were "published in the mainstream media of Petitioner's country of residence at the time of 
publication thus evidence her national recognition. Web articles had an international audience." 
Nonetheless, The Record appears to be a local paper, limited to the "Waterloo Region." Moreover, 
the submitted article appears in the "local" section of the regional newspaper. Furthermore, in 
today's world, many newspapers, regardless of size and distribution, post at least some of their 
stories on the Internet. To ignore this reality would be to render the "major media" requirement 
meaningless. We are not persuaded that international accessibility via the internet by itself is a 
realistic indicator of whether a given publication is "major media." The petitioner must still 
provide evidence such as a widespread distribution, readership, or overall interest in the 
publication in order to demonstrate that the publication is a professional or major trade 
publication or major media in order for us to credit these articles. 
While the petitioner may have been briefly mentioned or her photographs displayed alongside an 
article, the evidence is insufficient to establish that this material is about her or her work. The 
petitioner has failed to establish that she meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the 
work of others in the same or an alliedfield of speczfication for which classzfication is 
sought. 
With the petition, the petitioner submitted a copy of an August 9, 2007 letter from 
, National Director of Showstopper. 
 stated that the petitioner had worked 
"during the past year as both a workshop teacherlchoreographer and as an adjudicator at our 
Regional Dance Competition in Anaheim CA" and that Showstopper lanned "to use her as an 
B 
adjudicator at some of our Competitions/Conventions during our 3ot Anniversary cross-USA 
tour." The petitioner also submitted a copy of an August 8, 2007 letter from- 
director of Jump Shout Boogie, who confirmed that the organization "has contracted [the 
petitioner] as an adjudicator for Dance Competitions in both the Toronto area and Niagara Falls" 
in 2007. The petitioner submitted no further documentary evidence with the petition to 
demonstrate that she had performed "adjudications" with either Showstopper or Jump Shout 
Boogie. Contrary to counsel's argument that the director failed to consider Jump Shout Boogie, 
the director did consider the evidence submitted and found it lacking for the same reason as 
articulated here. 
In response to the RFE, the petitioner submitted copies of her evaluations from her own 
performance during her 1996 Showstopper competition. The petitioner submitted no other 
documentation in the record confirming her participation as a judge in any competition with 
Showstopper. The petitioner also submitted a copy of the "Adjudication Contract" with Jump 
Shout Boogie, a copy of the adjudicator's schedule for April 25-29,2007 and a copy of a check 
indicating that the organization had paid her the amount agreed upon in the contract. 
On appeal, counsel asserts that "the statute does not specify whether the judging event be of 
national or international acclaim" and that: 
[Tlhe Service fails to consider the national acclaim of the events itself is 
immaterial to this issue for the essential element of the competition to be related 
to the field is met and its professional nature is an additional element showing that 
the Petitioner is not merely judging the talents of amateurs but is evaluating the 
skills and talents of professional dancers, teachers and professional 
choreographers. 
Nonetheless, the regulation at 8 C.F.R. 5 204.5(h)(3) provides that "a petition for an alien of 
extraordinary ability must be accompanied by evidence that the alien has sustained national or 
international acclaim and that his or her achievements have been recognized in the field of 
expertise." Evidence of the petitioner's participation as a judge must be evaluated in terms of 
these requirements. The weight given to evidence submitted to fulfill the criterion at 8 C.F.R. 
tj 204.5(h)(3)(iv), therefore, depends on the extent to which such evidence demonstrates, reflects, 
or is consistent with sustained national or international acclaim at the very top of the alien's field 
of endeavor. A lower evidentiary standard would not be consistent with the regulatory definition 
of "extraordinary ability" as "a level of expertise indicating that the individual is one of that 
small percentage who have risen to the very top of the field of endeavor." 8 C.F.R.5 204.5(h)(2). 
For example, judging a national competition or a competition for top artists or performers is of 
far greater probative value than judging, as the petitioner claims she has judged, a local or 
regional competition or a youth, student, or amateur competition. Furthermore, the petitioner 
submitted no documentation to establish that she evaluated the skills of "professional dancers, 
teachers and professional choreographers" as alleged by counsel. 
The petitioner has failed to establish that she meets this criterion. 
Evidence of the alien's original scientzfic, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in the field. 
In her letter submitted with the petition, counsel claimed that the petitioner meets this criterion 
based on her awards, her "preeminence in her field," her "extensive career in large-scale, live 
dance performances," her "extensive record of critically acclaimed and successful professional 
achievement and experience as demonstrated by her numerous appearances in the popular press 
and in trade magazines." In addition, counsel notes the petitioner's expertise in modern dance as 
well as in classical the classical form, and her "yet fin-ther qualifications and achievements as a 
dancer" as demonstrated by the documentation submitted in support of the other criterion. In 
other words, counsel alleged that the petitioner meets this criterion because she meets other 
regulatory criteria. 
It should be emphasized that the regulatory criteria are separate and distinct from one another. 
The ten regulatory criteria are designed to assist the petitioner in establishing eligibility for this 
visa preference classification and are designed to cover different areas; not every criterion will 
apply to every occupation. Because separate criteria exist for prizes, publications, and display of 
one's work at artistic exhibitions or showcases, USCIS clearly does not view these criteria as 
being interchangeable. If evidence sufficient to meet one criterion mandated a finding that an 
alien met another criterion, the requirement that an alien meet at least three criteria would be 
meaningless and would be inconsistent with the requirement at section 203(b)(l)(A)(i) of the Act 
which requires the petitioner to demonstrate sustained national or international acclaim through 
extensive documentation. 
To establish that she meets this criterion, the petitioner also submitted several letters of support 
attesting to her talent and skill as a dancer. For example, stated that the petitioner 
"has extraordinary talents, exceptional technical skills and wonderful stage presence." 
of Faux Riche Entertainment, Inc. stated that the petitioner "dances circles around 
many dancers who have the opportunities that she doesn't" and that in his opinion, the petitioner 
"is one of the greatest dancers of this generation." stated that she was the 
choreographer for Ratatouille at El Capitan Theater, and that the petitioner's "unique style and 
rare abilities make her a definite asset to the future of creative dance." 
 further 
stated that the petitioner was "what they call a 'triple threat' at the top of her field; strong in all 
aspects of the industry." However, none of the petitioner's supporters specifically describe what 
the petitioner's purported contributions are and how such contributions are of major significance 
to her field. 
In response to the WE, the petitioner claimed to meet this criterion based on her choreography 
and teaching at the Kicks Dance Studio, her choreography with the Toronto Raptors and her 
position and work with the Bette Midler show "The Showgirl Must Go On." Counsel stated that 
the petitioner's choreography "has won numerous awards in Canada," and that her choreography 
with the Raptors "has been displayed to hundreds of thousands of people through Raptor home 
games and workshops." However, while arguably original, the petitioner provided no evidence 
of how her choreography was of major significance to her field of endeavor. 
Counsel also stated that the petitioner "is an integral part of the workshop and creative stages" of 
the show "as well as being one of the lead dancers, thus playing a critical role in the 
overall production of the show." The petitioner again submitted no documentation to establish 
that her position with 
 bas a conGbution of major significance to her field. 
However, as counsel alleges that the petitioner's position was in a lead and/or critical role for the 
production, we will consider the petitioner's evidence under the criterion set forth at 8 C.F.R. 
5 204.5(h)(3)(viii). 
On appeal, counsel contests the director's determination and states that "it is not required that 
petitioner be able to show some original work or techniques which has been adopted by others." 
Nonetheless, a plain reading of the regulation at 8 C.F.R. 5 204.5(h)(3)(v) reveals that the 
petitioner must establish that she has impacted her field in a significant manner. Counsel asserts 
that among the petitioner's original contributions of major significance is her choreography 
"which has consistently been established by her exceptional performance in that capacity." 
Counsel alleges that: 
Before [the petitioner], Canadian stars were measured by their popularity rather 
than their professionalism and virtuosity. [The petitioner's] popularity brought 
forth a new paradigm in how the audience saw dancers worldwide. Fans and the 
public started to see her as the sole center of her performances in the 
compositional aspect. One of [the petitioner's] great qualities was that she 
composed unique, stylistic parts for her performance. 
Nothing in the record supports counsel's assertions, however. Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
at 534; Matter of Laureano, 19 I&N Dec. 1; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
The petitioner has provided no evidence that her work has influenced others or advanced the 
field of dance in any manner. While we do not dispute counsel's contentions regarding the 
Page 14 
petitioner's popularity and talent, neither attribute is sufficient to show that the petitioner has 
made a contribution of major significance to her field. 
The petitioner has failed to establish that she meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
As noted by the director, the petitioner did not initially claim to meet this criterion. In response 
to the RFE, the petitioner claimed to meet this criterion based on her performances in various 
venues, including her photographs in the media and on Internet websites and in the various 
competitions. This criterion, however, relates to the visual arts. The petitioner is a performing 
artist. It is inherent to the field of performing arts to perform. Duties or activities which nominally 
fall under a given regulatory criterion at 8 C.F.R. 5 204.5(h)(3) do not demonstrate national or 
international acclaim if they are inherent or routine in the occupation itself. Not every 
performance is an artistic exhibition or showcase. We find that the petitioner's performances are 
best considered under the leading or critical role criterion set forth at 8 C.F.R. $204.5(h)(3)(viii) 
and commercial success under 8 C.F.R. fj 204.5(h)(3)(x), which is specifically for the performing 
artist, both of which are discussed below. Additionally, we have considered the petitioner's 
performances at competitions under 8 C.F.R. fj 204.5(h)(3)(i) and her appearances in media under 
8 C.F.R. 5 204.5(h)(3)(iii). 
The petitioner has failed to establish that she meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that she performed a leading or critical role for 
an organization or establishment and that the organization or establishment has a distinguished 
reputation. 
The petitioner claims to meet this criterion based on her performance as a lead dancer for Disney 
at the El Capitan Theatre, with the Jean Ann Ryan Company, with the Toronto Raptors Dance 
Pak, and a dance part in the movie House Bunny. The petitioner also stated that she has 
performed for organizations such as the U.S. Navy, the Canadian Forces, L'Oreal, Mary Kay, 
Hyundai, Coca Cola, and Microsoft. The petitioner submitted no documentation with the petition 
to establish that her performances with or for any of these organizations were in a leading or 
critical role. 
In res onse to the RFE, the petitioner claimed to meet this criterion based on her performance 
with h 'The Showgirl Must Go On" show in Las Vegas. The petitioner submitted a 
May 8, 2008 letter fiom , who stated that the petition&- "has been a vital part of our 
cast" and that she is "a lead dancer and has a critical role within my show." also 
stated that the show opened in February 2008. As such, the petitioner's role with the show is not 
evidence that she has performed in a leading or critical role under this criterion. A petitioner 
Page 15 
must establish eligibility at the time of filing; a petition cannot be approved at a future date after 
the petitioner or beneficiary becomes eligible under a new set of facts. 8 C.F.R. $5 103,2(b)(l) 
and (1 2); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 197 1). On appeal, counsel asserts that 
this evidence must be considered because the petitioner had been "confinned for her position" 
prior to filing the petition. However, the petitioner had not begun her work at the time of filing 
and therefore could not have performed in a lead or critical role if she had not started work under 
her contract. 
The petitioner also claims to meet to this criterion based on her position as lead dancer and 
choreographer with the Toronto Raptors Dance Pak. In her April 17, 2006 letter, - 
director of the dance team, stated that the petitioner's responsibilities included "performing a 
variety of routines at Raptor home games, choreography, and participating in countless 
promotional events." While stated that the petitioner was "selected to appear in 
numerous television and print advertisements" and the evidence reflects that the petitioner was 
featured as the "face of the Toronto Raptors Dance Pak," nothing in letter indicates 
that the petitioner served as lead dancer or sole choreographer or that her role with the dance 
team was in a lead or critical capacity. In an August 22,2006 letter, Manager of 
Game Operations and Special Events for the Raptors, stated that the petitioner had been an 
"integral part of the game operations team" and "provides leadership to new members of the 
team and coaching to returning members." However, the petitioner submitted no documentation 
to establish that the Toronto Raptors Dance Pak or the Game Operations and Special Events for 
the Raptors enjoyed a distinguished reputation. 
The petitioner claims to also meet this criterion based on her dancing at Macy's Passport 2007, a 
"fashion theatre event." According to documentation from the Macy's website, the venue serves 
as an HIVIAIDS hndraising event. The petitioner was apparently one of two dancers chosen by 
the choreographer to participate in a dance segment. However, the documentation indicates that 
the event occurred in September 2007, after the petitioner filed her petition. Therefore, her 
performance in the event is not evidence that she has performed in a leading or critical role and 
therefore not evidence of her eligibility for this criterion. Id. 
Finally, the petitioner claims to meet this criterion based on her role in a live production of 
Ratatouille at El Capitan Theatre. In a May 7, 2008 letter, , the choreographer, 
stated that she chose the petitioner for the lead because she "was the only girl, out of the 200 
girls auditioning, that possessed the extraordinary talent and incredible stage presence that was 
necessary for the part." The petitioner submitted documentation about El Capitan Theatre from 
its website and a press release retrieved from "Mouse Planet," a Disney website, announcing the 
performance of Ratatouille at the theater from June 29 to August 2, 2007. The petitioner 
submitted no documentation to corroborate the self-promoting information found on El Capitan's 
website or to otherwise establish that El Capitan or the musical version of Ratatouille enjoyed a 
distinguished reputation. 
The petitioner has failed to establish that she meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in thejield. 
The petitioner did not initially claim to meet this criterion; however, in response to the WE, she 
provided documentation from the Occupational Outlook Handbook of the Bureau of Labor 
Statistics, which showed that in May 2006, the top ten percent of dancers earned "more than 
$25.75 per hour. The petitioner submitted a copy of a September 14, 2007 contract with Divine 
Tours to perform with the Bette Midler tour. As previously discussed, as this performance 
occurred after the filing date of the petition, it is not evidence of this criterion. Id. Counsel argues 
that the "Service's erroneous exclusion" of this evidence "is akin to selective consideration of 
evidence provided that Petitioner had been confirmed for her position before filing of this 
Petition." However, the evidence does not support counsel's assertion. In an August 9, 2007 
letter, dance director with Clear Talent Group, the petitioner's talent representative, 
stated - that "wants to consider [the petitioner] for one of the dancers to be cast for the 
new Bette Midler show." This is not a confirmation of employment at a specific rate of 
compensation at the time of filing. If the petitioner's pay was contingent upon her performance 
and the performance had yet to occur at the time of filing, the petitioner cannot establish that she 
"commanded a high salary based on her contract with the Bette Midler tour. 
The petitioner also submitted a June 6, 2007 letter from Volt Services Group confirming the 
petitioner's assignment as a performer with Ratatouille and her compensation at the rate of $2 1 
per hour for rehearsals and $240 per day on performance days. The letter does not specify the 
hours that the petitioner was scheduled to work on performance days. On appeal, counsel asserts 
that on performance days, the petitioner worked five hours or less per day, and therefore her 
earnings were the equivalent of at least $48 per hour. However, nothing in the record supports 
counsel's assertions regarding the petitioner's working hours. Counsel's assertions are not 
evidence. Matter of Obaigbena, 19 I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. 1; 
Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. The petitioner's evidence does not provide an 
hourly rate of pay for this performance such that the record clearly establishes that she earned an 
hourly rate above the top tier of dancers. 
As noted by the director, the petitioner's contract with Jump Shout Boogie was not for her 
performance as a dancer. However, her profession as a dancer was the basis for her selection to 
adjudicate other dancers' performances. Thus an analysis of her payment in this instance is 
appropriate. The contract with Jump Shout Boogie indicates that the petitioner was to be paid 
$3,500 for approximately 93 hours of work, or in excess of $37 per hour. This exceeds the lesser 
amount of $25.75 earned by the top 10% of dancers. 
Nonetheless, the contract was for a two-week period in April and May of 2007, four months 
before the petitioner filed her appeal. As previously discussed, in determining whether the alien 
meets a given criterion, the evidence must be evaluated as to whether it is indicative of or 
consistent with national or international acclaim. Even if we were to consider the petitioner's 
performance in Ratatouille, which was for approximately two months, the evidence does not 
establish a consistent rate of pay that is significantly high relative to others in the field. The 
petitioner's documentation indicated that in 2007, she earned $7,902 in Canada and $1,763 in the 
United States. This is less than $10,000 per year. The petitioner submits no documentation to 
establish how this yearly compensation compares with others in her field. 
The petitioner has failed to establish that she meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
The petitioner claims to meet this criterion based on her performance with Bette Midler, with 
Disney's live show Ratatouille at El Capitan Theatre, and as part of the Toronto Raptors Dance 
Pak. The petitioner submitted no documentation to establish the commercial success of 
Ratatouille. She provided a copy of an article from Wikipedia, the online user-edited 
encyclopedia to establish the success of the Toronto Raptors. With regard to information from 
Wikipedia, there are no assurances about the reliability of the content from this open, user-edited 
internet site.' See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (8"' Cir. 2008). 
Accordingly, we will not assign weight to information for which Wikipedia is the only cited 
source. The regulation at 8 C.F.R. § 204.5(h)(3)(x) requires that proof of this criterion must be 
shown by box office receipts or sales of records, cassettes, compact disks or videos. Further, the 
petitioner provided no documentation to establish that her participation as a member of the 
Toronto Raptors Dance Pak contributed to the success of the basketball team. The petitioner 
submitted no documentation of the commercial success of the dance team. 
As discussed previously, as the Bette Midler show began after the filing of the visa petition, it 
cannot constitute evidence of the beneficiary's eligibility under this criterion. 8 C.F.R. 
$5 103.2(b)(l) and (12); Matter of Katigbak, 14 I&N Dec. at 49. Regardless, the record contains 
insufficient evidence to establish that the success of the shows or the dance troupe is based solely 
or even primarily on the petitioner's performances. 
The petitioner has failed to establish that she meets this criterion. 
3 
 Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone 
with an Internet connection to alter its content. Please be advised that nothing found here has 
necessarily been reviewed by people with the expertise required to provide you with complete, 
accurate or reliable information. . . . Wikipedia cannot guarantee the validity of the 
information found here. The content of any given article may recently have been changed, 
vandalized or altered by someone whose opinion does not correspond with the state of knowledge 
in the relevant fields. [Emphasis in the original.] 
See ht@://en.wikipedia.ore/wiki/Wikipedia:General disclaimer, accessed on September 2, 2009, a copy 
of which is incorporated into the record of proceeding. 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of 
the small percentage who has risen to the very top of her field of endeavor. Review of the record, 
however, does not establish that the petitioner has distinguished herself to such an extent that she 
may be said to have achieved sustained national or international acclaim or to be within the small 
percentage at the very top of her field. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.