dismissed EB-1A Case: Dance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 20, 2024 In Re: 34693726 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner is a dancer and dance instructor who seeks first preference immigrant classification as 
an individual of extraordinary ability. See Immigration and Nationality Act (the Act) section 
203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A) . This first preference classification makes immigrant visas 
available to those who can demonstrate their extraordinary ability through sustained national or 
international acclaim and whose achievements have been recognized in their field through extensive 
documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies as an individual of extraordinary ability either as the recipient of 
a one-time achievement that is a major, internationally recognized award, or as someone who initially 
satisfied at least three of the ten required regulatory criteria listed at 8 C.F.R. § 204.5(h)(3)(i) - (x). 
Namely, the Director determined that the Petitioner did not satisfy any of the six criteria listed at 
8 C.F.R. § 204.5(h)(3)(i), (iii)-(v), (vii), and (viii). The matter is now before us on appeal pursuant to 
8 C.F.R. § 103.3. On appeal, the Petitioner claims that he meets four of the ten criteria. 1 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal because the Petitioner did not establish that he meets the criteria at 8 C.F.R. 
§ 204.5(h)(3)(i) and (iv), which pertain to receipt of lesser nationally or internationally recognized 
awards and participation as a judge of the work of others, respectfully. 
As noted above, the Petitioner also claims that he meets the criteria at 8 C.F.R. § 204.5(h)(3)(iii) and 
(vii), which relate to published material about the Petitioner in major trade journals or major media 
and the display of the Petitioner's work in artistic exhibitions, respectively. However, the Petitioner 
1 The Petitioner did not, either at the time of filing or subsequently, in response to the Director's request for evidence 
(RFE), include the criteria listed at 8 C.F.R. § 204.5(h)(3)(v) and (viii) as part of his eligibility claim. In the denial, 
however, the Director addressed these criteria, along with the four that the Petitioner specifically listed in support of his 
claim as an individual of extraordinary ability. Regardless, because the Petitioner does not address these two criteria on 
appeal, we need not consider them in detennining his eligibility. An issue not raised on appeal is waived. See, e.g., Matter 
ofO-R-E-, 28 I&N Dec. 330,336 n.5 (BIA 2021) (citing Matter ofR-A-M-, 25 l&N Dec. 657,658 n.2 (BIA 2012)). 
would not establish that he met three out of ten criteria even if he established that he met both of these 
criteria. As such, we need not address either criterion, nor do we need to provide the type of final 
merits determination referenced in Kazarian v. USCJS, 596 F.3d 1115 (9th Cir. 2010) (discussing a 
two-part review where the documentation is first counted and then, if fulfilling the required number 
of criteria, considered in the context of a final merits determination). Accordingly, we will reserve 
these issues. See INS v. Bagamasbad , 429 U.S. 24, 25-26 (1976) (stating that agencies are not required 
to make "purely advisory findings" on issues that are unnecessary to the ultimate decision). 
I. LAW 
To qualify as a noncitizen with extraordinary ability, a petitioner must demonstrate that: 
• They have "extraordinary ability in the sciences, arts, education, business, or athletics;" 
• They seek to continue work in their field of expertise in the United States; and 
• Their work would substantially benefit the country. 
Section 203(b )(l)(A)(i)-(iii) of the Act. 
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 implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate recognition 
of their achievements in the field through a one-time achievement (that is, a major, internationally 
recognized award). If that petitioner does not submit this evidence, then they must provide sufficient 
qualifying documentation that meets at least three of the ten criteria listed at 8 C.F.R. 
§ 204.5(h)(3)(i) - (x) (including items such as awards, published material in certain media, and 
scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115; see also Visinscaia v. 
Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 
2011). 
II. ANALYSIS 
The Petitioner is a professional ballroom dancer and instructor who claims to be "highly respected and 
well-known" within the ballroom dance community. He is currently using his skills as a dancer to 
provide professional services as a dance instructor. 2 The Petitioner does not claim or submit evidence 
to show that he received a major, internationally recognized award. He must therefore provide 
evidence showing that he satisfies at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)- (x). On appeal, the Petitioner claims that he meets the elements of four of 
these criteria, which are summarized below: 
2 The Petitioner maintains that he is eligible for this classification based on his extraordinary ability as a dancer and dance 
instructor. See 6 USCIS Policy Manual, F.2(A)(2), https://www.uscis.gov /policy-manual. 
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• (i), Recipient of lesser nationally or internationally recognized prizes or awards; 
• (iii), Published material about the Petitioner; 
• (iv), Participation as a judge of the work of others; and 
• (vii), Display of the Petitioner's work at artistic exhibitions. 
A. Evidentiary Criteria 
1. Evidence of Lesser Nationally or Internationally Recognized Awards 
First, we will address the criterion at 8 C.F.R. § 204.5(h)(3)(i), which requires evidence that the 
Petitioner has received lesser nationally or internationally recognized awards for excellence in his field 
of endeavor. 
In the denial, the Director recognized that the Petitioner was a recipient of awards in the United States 
and Ukraine, noting that some of the awards were related to his employer, _______ 
However, the Director noted that recognition of some of these awards was in the form of local 
newspaper and television coverage, thereby indicating that the Petitioner's awards were regional, 
local, or employer-based and were not nationally or internationally recognized. The Director also 
declined to consider awards the Petitioner earned in the Ukraine in youth or junior competitions, 
explaining that the Petitioner earned these awards as an amateur and not as a professional dancer. 
We disagree with the Director's blanket dismissal of evidence based solely on the limitation that 
certain awards were earned at the youth or junior level. While national or international recognition is 
most often associated with awards given at the highest level in a given field, the Petitioner is not 
required to show that his awards were open to all members of his field to satisfy this element of the 
criterion. See 6 USCIS Policy Manual, F.2(B)(l), https://www.uscis.gov/policy-manual. That said 
however, neither on appeal nor in the RFE response has the Petitioner specifically discussed the awards 
he won at the youth level; nor did the Petitioner provide additional evidence concerning these awards 
in his RFE response. As such, the Petitioner has not established that the foreign awards in question 
have national or international recognition. 
Rather, on appeal, the Petitioner highlights the "national scope" of the following competitions: 
I the I I and the
I 3 We note, however, that a competition's national scope is not 
synonymous with having national ( or international) recognition. Likewise, the fact that a competition 
is "nationwide" and is open to "hundreds of competitors from around the world" is also not evidence 
of its national or international recognition. And although the Petitioner points to support letters 
"confirming [his] participation and first place in the I I merely winning 
the award is not sufficient without a showing of the award's national or international recognition. 
In addition, the Petitioner claims that he is among the "small percentage of individuals who have risen 
to the very top of their field of endeavor." This argument pertains to the broader question of whether 
3 In the appeal brief, the Petitioner refers to this competition as the However, 
the printout submitted as Exhibit D of the RFE response reflects the name as indicated above. 
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the Petitioner has established that he is an individual of extraordinary ability. However, to warrant a 
comprehensive analysis addressing this broader issue, the Petitioner must first establish that he is either 
the recipient of a one-time achievement award or that he meets at least three of the ten criteria listed 
at 8 C.F.R. § 204.5(h)(3)(i) - (x). Here, the Petitioner claims that he satisfied the latter component, 
which is based, in part, on the claim that he received lesser nationally or internationally recognized 
awards in his field of endeavor. As discussed above, the Petitioner has not provided sufficient 
evidence establishing that the awards he received have national or international recognition. 
Therefore, he has not satisfied this criterion. 
2. Evidence of Participation as a Judge of the Work of Others 
The other criterion we will address is listed at 8 C.F.R. § 204.5(h)(3)(iv) and requires evidence that 
the Petitioner participated as a judge of the work of others in his field. 
The only evidence the Petitioner submitted to claim that he satisfied this criterion is a letter from Mr. 
I I who discussed his role as an organizer of the I 2020, a two-
day international dance competition which he stated took place on I Mr. I I 
expressed gratitude for the Petitioner's participation and stated that the Petitioner was invited to judge 
participants in the category of the competition. The Petitioner also provided a 
printout of the competition's homepage, which included basic information about the competition, such 
as dates, time, and location, and listed Mr. I I as one of the six event organizers. We note, 
however, that the printed webpage contains a discrepancy regarding the dates of the competition, 
which leads us to question the reliability of the information contained in the printout. Namely, while 
the dates provided by Mr. I I match those listed on the home page of the competition's 
promotional logo, different dates are contained elsewhere in the same printout. For instance, the 
bottom of the page lists the event date as I I 2020" and not as Mr. I I 
stated in his letter. The "Event Schedule Details," which are listed on the right-hand side of the same 
page, show 2020 07:00 PMI 2020 11:59 PM" as the dates of the 
event. We note that neither Mr. I I nor the dance competition promotional logo mentioned the 
I I dates, thus calling into question the validity of Mr. I I claims. This also calls into 
question the validity of the information provided in the website printout, which contains the names of 
the individuals or organizations that are claimed as the event organizers. See Matter ofHo, 19 I&N 
Dec. 582, 591-92 (BIA 1988) (stating that inconsistencies in the record must be resolved with 
independent, objective evidence). 
In addition, Mr. I I letter does not contain specific, detailed information reflecting probative 
evidence of the Petitioner's judging experience. For example, the letters do not include names of 
individuals or dates ofjudging. In addition, the Petitioner did not offer any evidence, such as candidate 
evaluation records, to corroborate the claims in the letter. The Petitioner's submission of one letter 
making vague claims about his purported judging activity is insufficient to satisfy this criterion. 
On appeal, the Petitioner merely argues that he is not required to provide "extensive documentation" 
to show that he meets a given criterion. While that may be trne, we find that the evidence the Petitioner 
submitted was deficient and does not meet the preponderance of the evidence standard. See Matter of 
Chawathe, 25 I&N Dec. at 375-76. As stated, the letter from Mr. I I lacks critical information 
about the Petitioner's judging experience, and the printout from the competition's website contains 
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inconsistent information about the competition's event dates, which leads us to question the validity 
of the printout and information contained therein. 
For the reasons discussed above, we find that the Petitioner has not satisfied the judging criterion. 
B. Previously Approved 0-1 Nonimmigrant Petition 
Lastly, we acknowledge that evidence in the record shows that the Petitioner was previously granted 
0-1 status, a classification reserved for nonimmigrants of extraordinary ability. Although USCIS has 
approved at least one 0-1 nonimmigrant visa petition filed on behalf of the Petitioner, this approval 
does not preclude denial of an immigrant visa petition which is adjudicated based on a different 
standard - statute, regulations, and case law. USCIS is not precluded from denying a Form I-140 
immigrant petition after approving a nonimmigrant petition. See, e.g., Sun lift Int 'l v. Mayorkas, et al., 
2021 WL 3111627 (N.D. Cal. 2021); 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 Bros. Co., Ltd. v. 
Sava, 724 F. Supp. at 1108, aff'd, 905 F. 2d at 41. We further note that each petition filing is a separate 
proceeding with a separate record. In this instance, the previously filed 0-1 petition approval that the 
Petitioner has referenced is not in the record that is before us. In making a determination of statutory 
eligibility, we are limited to the information contained in that individual record of proceedings. 8 
C.F.R. § 103.2(b)(16)(ii). 
III. CONCLUSION 
As stated earlier, the Petitioner would not establish that he met three out of ten criteria even if he 
established that he met the elements of the two remaining criteria listed at 8 C.F.R. § 204.5(h)(3)(iii) 
and (vii). As such, we need not address the Petitioner's claims regarding these criteria, nor do we need 
to provide the type of final merits determination referenced in Kazarian, 596 F.3d at 1119-20. Because 
these issues are not dispositive of this appeal, we will reserve these issues. See INS v. Bagamasbad, 
429 U.S. at 25-26. 
In sum, the Petitioner has not shown that he met either a one-time award, or three of ten initial criteria. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields. 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. Comm'r 1994). Here, the Petitioner has not shown that the significance of his work is 
indicative of the required sustained national or international acclaim or that it is consistent with a 
"career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 
(Sept. 19, 1990); see also section 203(b )(1 )(A) of the Act. Moreover, the record does not otherwise 
demonstrate that the Petitioner has garnered national or international acclaim in the field, and that he 
is one of the small percentage who have risen to the very top of the field of endeavor. See section 
203(b)(l)(A) of the Act and 8 C.F.R. § 204.5(h)(2). 
ORDER: The appeal is dismissed. 
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