dismissed EB-1A Case: Dance

Identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. CitiL,enship and Immigration Services 
qlJice ofAdminisrralive Appeals MS 2090 
Washington. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
FILE: Office: TEXAS SERVICE CENTER Date: OCT 0 4 2010 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)( I )(A) of the Immigration and Nationality Act; 8 U.S.c. § 1153(b)( I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
infonnation that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion. The fee for a Fonn 1-290B is currently $585, but will increase to $630 on November 23, 20 I O. 
Any appeal or motion filed on or after November 23,2010 must be filed with the $630 fee. Please be 
aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed within 30 days of the decision 
that the motion seeks to reconsider or reopen. 
Thank you, 
.)JfJuiv:cL 
( Perry Rhew 
t Chief, Administrative Appeals Office 
www.uscis.gov 
Page 15 
2. A letter from University of _ and program 
certifying the petitioner's participation in several perfonnances for the 
CORE 101 
3. A program 
4. An admission program 
Dance Recital performed by the 
Perfonning Theatre Students in 2000; 
5. Documentation from Dance Festival reflecting the petitioner's 
perfonnance with in 2004; 
6. A program from the Dance reflecting the 
petitioner's nPlrfnrm"n,ep 
7. A letter from Trustee of the_ Educational Trust 
_, certifying that the petitioner performed and later conducted a 
lecture for SSET; 
8. A letter from Retired n~_ ..... 
9. 
10. 
II. 
certifying that the petitioner perfonned 
Associate Professor at _ 
University, stating that the petitioner performed and 
taught ,,'OCO"""' ,,'UWH dances at a presentation at the university. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the 
alien has perfonned in a leading or critical role for organizations or establishments that have a 
distinguished reputation." At issue for this criterion are the position the petitioner was selected to 
fill and the reputation of the entity that selected her. While the documentation submitted by the 
petitioner demonstrates her perfonnances and instruction at various events, the documentation, 
however, fails to establish that her perfonnances or teaching were leading or critical to 
organizations or establishments with distinguished reputations consistent with the plain language of 
the regulation. For example, regarding item 9 and 10, the documentation merely reflects that the 
petitioner perfonned at the temples. The ~failed to establish that she perfonned in a 
leading or critical role, and_and the_Temple have a distinguished reputation. In 
addition, item 2 states: 
This letter is [to] certify your in several perfonnances for the CORE 
101 class at the the fall of 2003. The program illustrated 
the music described .(see attached description). It is 
my recollection that you chiireo raphed and danced the various moods to 
the beat patterns _ of 4, 5, 5. 7. and while 
played on 
Page 17 
documentation submitted by the petitioner have already been addressed In our preceding 
discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
Although the petitioner failed to establish eligibility for the membership criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(ii), the record of proceeding reflects the petitioner's 
membership with local organizations and are not reflective of national or international acclaim. 
While the petitioner submitted evidence demonstrating her participation as a judge pursuant to 
the regulation at 8 C.F .R. the eligibility was based on her 
participation as a judge for in 2007. Judging local, 
amateur, or student competitions is not indicative small percentage of individuals that 
have risen to the very top of their field of endeavor." 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. Commr. 1994); 56 Fed. Reg. at 
60899. 4 Likewise, it does not follow that a dancer and teacher like the petitioner who, on a 
single occasion, judged a student competition 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." Evaluating 
the performances of accomplishe~ dancers as a member on a national panel of experts, 
for instance, is of far greater probative value than evaluating the work of student dancers. 
Furthermore, the regulation at 8 C.F.R. § 204.5(h)(3) provides that "[aJ 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." The weight given to evidence submitted to fulfill the criterion at 8 C.F.R. 
§ 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 
4 While we acknowledge that a district court's decision is not binding precedent, we note that in Maller of 
Racine, 1995 WL 1533 19 at *4 (N.D. III. Feb. 16, 1995), the court stated: 
[TJhe 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. III. September 9, 1993), and the definition of the term 8 C.F.R. 
§ 204.5(h)(21, 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. § 204.5(h)(2) is 
reasonable. 
-Page 18 
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 are not persuaded that the petitioner's judging a single competition is 
sufficient to establish the sustained national or international acclaim required for this highly 
restrictive classification. 
Moreover, while the petitioner failed to establish eligibility for the "original contributions" 
criterion at the regulation at 8 C.F.R. § 204.5(h)(3)(v), we note again that the petitioner's claim is 
based entirely on recommendation letters. While such letters can provide important details about 
the petitioner's role in various projects, they cannot form the cornerstone of a successful 
extraordinary ability claim. The statutory requirement that an alien have "sustained national or 
international acclaim" necessitates evidence of recognition beyond the alien's immediate 
acquaintances. See section 203(b)(1 )(A)(i) of the Act, 8 U.S.C. § I I 53(b)(l)(A)(i), and 8 C.F.R. 
§ 204.5(h)(J). See also Matter oj Caron international, 19 I&N Dec. at 795. 
In addition, we cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of sustained national or international acclaim. See section 203(b)(l)(A) of the 
Act. The commentary for the proposed regulations implementing section 203(b)( I )(A)(i) of the Act 
provide that the "intent of Congress that a very high standard be set for aliens of extraordinary 
ability is reflected in this regulation by requiring the petitioner to present more extensive 
documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5. 
1991). The petitioner failed to submit evidence demonstrating that she "is one of that small 
percentage who have risen to the very top of the field." In addition, the petitioner has not 
demonstrated a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. 
No. 10 1-723, 59 (Sept. 19, 1990). 
Finally, beyond the decision of the director, the record does not contain sufficient documentation 
to persuade the AAO that the petitioner will continue in her area of expertise. The regulation at 
8 C.F.R. § 204.5(h)(5) states: 
Neither an offer for employment in the United States nor a labor certification is 
required for this classification; however, the petition must be accompanied by 
clear evidence that the alien is coming to the United States to continue work in the 
area of expertise. 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. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(5) requires the petitioner to submit 
"clear evidence that the alien is coming to the United States to continue work in the area of 
expertise." In this case, while the record reflects that the petitioner has participated in various 
events as ~ dancer, teacher, and choreographer, the record reflects that the petitioner 
has not been employed since at least 2002. According to the petitioner's Form G-32SA, 
Biographic Information, the petitioner has been residing since May 2002. 
and has never been employed in the United States. Further, a review of the petitioner's 2005 -
2007 federal income tax returns submitted by the petitioner in support of her adjustment of status 
application reflects that the petitioner listed her occupation as a "homemaker," and fails to reflect 
that the petitioner had any wages for those years. In addition, the record of proceeding reflects 
that the petitioner last entered the United States on an H-4 nonimmigrant visa on July I, 2007. 
The absence of detailed information regarding the petitioner's prospective plans or any of the 
other evidence mandated under 8 C.F.R. § 204.5(h)(5) is of concern given the documentary 
evidence contained in the record demonstrating the lack of any recent work history. For these 
reasons, we do not find that the petitioner has established that she will continue in her area of 
expertise in the United States under section 203(b)(I)(A)(ii) of the Act and the regulation at 8 
C.F.R. § 204.5(h)(5). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
affd, 345 F.3d at 683; see also Soltane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the petitioner as one of the small percentage who has risen to the very top of the field of 
endeavor. 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 the field of endeavor. 
III. Conclusion 
Review of the record 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 and to be 
within the small percentage at the very top of her field. The evidence is not persuasive that the 
petitioner's achievements set her significantly above almost all others in her field at a national or 
international level. 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 petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been mel. 
ORDER: The appeal is dismissed.