dismissed EB-1A Case: Dance And Choreography

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-Q-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY9,2016 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a dancer and choreographer, seeks classification as an individual of extraordinary 
ability in the arts. 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. Texas Service Center, denied the petition. The Director concluded the Petitioner 
submitted documentation that met onlv two of the initial evidence criteria, of which a Petitioner must 
satisfy at least three. 
The matter is nmv before us on appeal. In his appeal, the Petitioner submits additional material and 
a brief. He indicates that he has satisfied at least three initial evidence criteria and has shovm 
extraordinary ability as a dancer and choreographer. 
Upon de novo review. we will dismiss the appeal. 
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. 
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(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. 
The term .. extraordinary ability"" refers only to those individuals in that small percentage \Vho 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 
sustained acclaim and the recognition of his or her achievements in the field through a one-time 
achievement (that is. a major. internationally recognized award). If the petitioner does not submit 
this evidence, then he or she must provide sufficient qualifying documentation that meets at least 
three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i)- (x). 
Satisfaction of at least three criteria, however. does not in and of itself: establish eligibility for this 
classification. See Kazarian v. USCIS, 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); see also: Visinscaia v. Beers, 4 F. Supp. 
3d 126, 131-32 (D.D.C. 2013): R(jal v. USCJS. 772 F. Supp. 2d 1339 (W.O. Wash. 2011 ): Afatter of 
Chcnrathe, 25 I&N Dec. 369. 376 (AAO 201 0) (holding that the .. truth is to be detennined not by the 
quantity of evidence alone but by its quality"" and that users examines .. each piece of evidence for 
relevance. probative value. and credibility. both individually and \Vithin the context of the totality of 
the evidence. to determine whether the fact to be proven is probably true'"). 
II. ANALYSIS 
The Director found the Petitioner provided documentation satisfying only two criteria listed at 
8 C.F.R. § 204.5(h)(3)(i)- (x). when meeting at least three is required. Upon de novo review. we 
find that the Petitioner has satisfied only two of the necessary regulatory criteria as a dancer. 
However. even if he had given sufficient initial evidence and demonstrated extraordinary ability as a 
dancer. the Petitioner has not shown he is coming to the United States to work in his area of 
expertise. as required by section 203(b)(l )(A)(ii) of the Act. 
A. Extraordinary ability 
1. Initial Evidence 
Prior to this appeal, the Petitioner did not articulate which of the criteria listed at 8 C.F.R. 
§ 204.5(h)(3)(i)- (x) he met. The criteria he claims on appeal are addressed below. 
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Documentation of the individual's receipt of lesser nationally or internationally recognized 
prizes or awardsfor excellence in the field o.lendeavor. 
The Director addressed this criterion and noted that, although the Petitioner provided copies of 
certificates and photographs of trophies, he gave no information to show these awards are national or 
international , how these awards were given, or the caliber of individuals competing for the awards. 
On appeaL the Petitioner highlights the following tive awards without discussing their significanc e: 
• 1995 -a certificate indicating the Petitioner received the medal of · 
amateur festival 
at the 
• 2011 -a diploma for taking part in an examination of a children's choreographic ensemble as 
choreographer of the ensemble 
• 2012- a ··deed'' for taking part in a charity concert as choreograph er for the same ensemble: 
• 2013 -a diploma awarding the Petitioner the .. big prize'' for his role as choreograph er of the 
same ensemble ; 
and 
• 2013- a diploma awarding the Petitioner the title of for successfully taking part in 
a folklore festival as choreographer of the same ensemble. 
The Petitioner states that the Director failed to review these awards on their merits. Upon de novo 
review, however. we agree that the documentation submitted by the Petitioner does not satisfy this 
criterion. The plain regulatory language requires that the Petitioner show not only that he has won 
prizes or awards, but that these accolades are nationally or internationally recognized. and are 
awarded for excellence in the field of endeavor. It is the Petitioner ' s burden of proof to demonstr ate 
that the material in the record satisfies the plain language of the regulation. Section 291 of the Act, 8 
U .S.C. § 1361. 
In this case, although the Petitioner provides copies of the above awards. he does not give the 
necessary context to establish either that they are nationally or internationally recognized, or that 
they are for excellence in either dance or choreography. The first award indicates that the Petitioner 
received the medal of at a amateur festival. The Petitioner did not 
explain the meaning of the title how many similar designations were awarded. why they 
were awarded . who made the selection , or what selection criteria were used. Similarly. the record 
does not otherwise contain details regarding the festival or its recognition. either nationally or 
internationally. Without such background information, the Petitioner has not demonstrated that this 
award satisfies the criterion. 
Both the 2011 and 2012 diplomas appear to be recognition of participation in two events as the 
choreographer of a children's dance group. The Petitioner did not provide information about the 
events in which he participated. In addition. the record does not suggest that these events were so 
selective in choosing participants such that a simple acknowledgement of pat1icipation is akin to a 
nationally or internationally recognized award for excellence. As a result these diplomas do not 
satisfy this criterion. 
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It is unclear whether the 2013 awards correspond to a single event. Regardless, the Petitioner again 
provided no information regarding either the events or the awards he received. The "big prize'' title 
alone is not sufficient to establish that the award is nationally or internationally recognized. Without 
a description of the selection process or criteria used to choose the ··big prize .. winner, the Petitioner 
has also not corroborated that it was awarded for excellence in the field of endeavor. Due to the 
absence of background information regarding this and the other named awards. the Petitioner has not 
satisfied his burden of proof in meeting this criterion. 
Documentation of the individual's membership in associations in the field for which 
class[fication is sought. which require outstanding achievements (~!'their members. as judged hy 
recognized national or international experts in their disciplines orfieldr;. 
Although the Petitioner did not specifically address this criterion, the Director found the Petitioner 
satisfied it through evidence that he danced for Upon 
review, we find that the material relating to the Petitioner's time with is better analyzed 
under the criterion related to perfonning in a leading or critical role for organizations or 
establishments that have a distinguished reputation. See 8 C.F.R. § 204.5(h)(3 )(viii). We therefore 
will discuss 
these submissions under that criterion below. 
As related specifically to this criterion, we find that, although dancing tor clearly 
requires talent, the Petitioner's relationship with the troupe was that of an employee. As a result. we 
do not consider his involvement as membership in an association. but rather employment by a 
company. In addition, the Petitioner did not provide evidence regarding the process tor becoming a 
dancer tor or other documentation to demonstrate that members must have outstanding 
achievements, as judged by recognized national or international experts in the field. Accordingly. 
his role with this troupe is not a qualifying membership in an association. 
With respect to his union membership. the Petitioner submitted a letter from the 
of the 
indicated that the Petitioner has been a 
member of the smce 2007. The letter states: "The aim of the 
is to promote by ascertained rule a revival and propaganda of the folk dance, 
esthetic education of the young generation, heritage of folk, classical, ballroom and other 
nations' dances based on the best traditions.'' According to 
membership requirements are as follows: ''The honoured person in art and choreography has the 
right to join in He does not offer further explanation as to what an individual must 
accomplish in order to be considered an "honored person." Furthermore, neither 
letter nor the other material in the record provides information regarding who makes the 
determination regarding admittance to the organization. Without further evidence, the Petitioner has 
1 The Petitioner appears to refer to 
and the 
interchangeably as the 
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the 
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not shown that this membership requires outstanding achievements of its members, as judged by 
recognized national or international experts. As a result the record does not establish that the 
Petitioner's membership in the satisfies this criterion. 
Published material about the individual in prc?lessional or major trade publications or other 
major media. The materials must relate to the individual's lvork in the field fhr ll'hich 
class{fication is sought. Such evidence shall include the title . date. and author l?lthe material. 
and any necessary translation. 
This criterion was not previously claimed by the Petitioner or addressed by the Director. On appeal, 
the Petitioner states that he has satisfied this criterion with .. affidavits which cite to major media 
publications regarding The Petitioner does not identify the specific affidavits 
or publications to which he refers. A review of all affidavits and reference letters in the record 
reveals that an affidavit from the contains the following language: 
Some of the world critics: 
I. When people thought there were no miracles lett. ensamblc [sic] 
came to the states [sic] and shocked us, (American newspaper 
[,] 
2. Ensemble is a great phenomenon, which should be witnessed 
by everyone at least once in life. (French newspaper {,] 
3. [G]reatest dancers in the world. they are flying, creating wind on the stage 
(Australian newspaper '[.and] 
4. •· creates magic and wonders with human bodies.[''] (American 
newspaper · year 2002 )[.] 
No other aflidavits or letters discuss the publication of material about the Petitioner or 
The Petitioner did not provide copies of the articles cited in the affidavit, nor are the citations 
otherwise corroborated in the record. The regulation at 8 C.F.R § 103.2(b)(2) requires primary 
evidence unless the Petitioner shows that such documentation either does not exist or is unavailable. 
In this case, the Petitioner does not maintain that copies of the articles are unavailable. 
2 
See also 
Matter c?f" Soffici. 22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) (citing Maller l?l Treasure Crafi ol 
CalifiJrnia. 14 I&N Dec. 190 (Reg 'I Comm 'r 1972) for the proposition that uncorroborated aftitmations 
are insuflicient). 
Furthermore. we note that this criterion requires material 
about the Petitioner. An article that reports 
on a company or event generally is not suf1iciently about a performer to meet this 
criterion. See. 
e.g.. Negro-Plwnpe v. Okin, 2:07-CV-820-ECR-RJJ at *L *7 (D. Nev. Sept. 8, 2008) (upholding a 
finding that articles about a show are not about the 
actor). The Petitioner does not indicate that any 
of the articles listed refer specifically to him or his performance. 
1 The use of direct quotations in the letter suggests the articles were at least available for the author's examination. 
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Lastly. the Petitioner does not provide information about the publications named in order to 
demonstrate that they are major media. For all of these reasons. the Petitioner has not submitted 
evidence that satisfies this criterion. 
Evidence (?lthe display (~lthe individual's work in thefield at artistic exhibitions or showcases. 
The Director found the Petitioner satisfied this criterion. Upon review of the record. we agree that 
the Petitioner has provided evidence of his work displayed in artistic exhibitions. Specifically. the 
Petitioner submitted posters and brochures confirming that he performed as a dancer and soloist at 
numerous shows. As a result. the Petitioner has satisfied this criterion. 
Evidence that the alien has performed in a leading or critical role for mxanizations or 
establishments that have a distinguished repwation. 
On appeal. the Petitioner states for the first time that he provided evidence .. to show that he was an 
acclaimed solo ballet dancer and led the academy of from 2001 through 2013.'' 
Though we agree that is an organization with a distinguished reputation. the Petitioner 
has not given sufficient documentation to corroborate his leading or critical role. A leading role 
should be apparent by its position in the organizational hierarchy and the role's matching duties. A 
critical role is evident by its overall impact on the organization or establishment. 
The Petitioner submitted a joint letter of recommendation from the two leaders of 
General Director. and Chief Choreographer. Their letter states that 
the Petitioner was a soloist dancer with the troupe until 2013 and that he is very talented and gifted. 
The letter does not otherwise contain specific information about the Petitioner's role in the ballet as 
being leading or critical. Although evidence indicates the Petitioner was a soloist for it 
does not describe how many dancers employs. how many of these are soloists, or 
whether the designation of soloist has meaning beyond signifying that an individual dances a more 
challenging part. 
The Petitioner also provided a letter signed by numerous dancers from The letter 
affirms that he was --a spine'' of the group and that --most part[s] of our complicated program s arc 
built on him.'' Though we acknowledge this opinion , the letter does not give context and reasoning 
to support its conclusions. The opinions of the Petitioner's references are not without weight: 
however, we are ultimately responsible for making the final detem1ination regarding eligibility for 
the benefit sought. See Matter (?I" Caron lnt'l. 19 I&N Dec. 791. 795 (Comm 'r 1988). Thus, the 
content of references' statements and the basis of their opinion regarding the Petitioner's reputation 
are important considerations. Specifically, USCJS need not accept primarily conclusory 
affirmations. 1756. Inc. v. Att 'y Gen. (?(the United States, 745 F. Supp. 9. 15 (D.D.C. 1990). The 
letter also characterizes the Petitioner as •·one of the best dancer[ s] of contemporaneity:· though no 
objective evidence in the record supports singling him out for such a label. The letter also indicates 
the Petitioner is '·personally known'' by the former presidents of Georgia and the United States. 
and in that he met the men after a performance. 
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Given the unsupported conclusions, the letter from the Petitioner's former colleagues does not 
provide sufficient reasoning underlying its statements regarding the Petitioner role for 
Accordingly, the Petitioner has not satisfied this criterion. 
Evidence (~f commercial successes in the performing arts, as shown by box (~ffice receipts or 
record. cassette. compact disk. or video sales. 
On appeaL the Petitioner provides a letter from Director of The letter 
includes a list of a '·few main concerts" between 1998 and 2013. some of which list a number of 
spectators. This criterion requires documentation of the Petitioner's commercial success shown, for 
example, by box oftice receipts. Although the letter refers to the number of viewers for certain 
tours. the record contains no corroboration of the tour dates or ticket sales. Notably. the Petitioner 
does not submit box office receipts, as required by the plain language of the statute. or similar 
evidence of attendance. such as reports in the media. In addition, while the criterion requires that the 
commercial success be related to the Petitioner, the record does not corroborate the Petitioner's 
participation in the specific concerts listed and. if he did perfonn. that his performance can be 
credited with the commercial success. For example, the record does not contain the promotional 
materials for the events to confirm whether he was prominently featured. For these reasons. the 
letter from is not sufficient to establish the Petitioner's commercial success as a 
dancer. 
2. Conclusion 
The documents submitted in support of extraordinary ability must show that the individual has 
achieved sustained national or international acclaim and is one of the small percentage who has risen 
to the very top of his or her field of endeavor. Had the Petitioner satisfied at least three evidentiary 
categories, the next step would be a final merits determination that considers all of the filings in the 
context of whether or not the Petitioner has demonstrated: ( 1) 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," and (2) that the individual ··has sustained national or international acclaim and that his or 
her achievements have been recognized in the field of expertise... 8 C.F.R. § 204.5(h)(2). (3 ): 
see also Kazarian. 596 F.3d at 1119-20 (discussing a two-part review where the evidence is first 
counted and then. if satisfying the required number of criteria, considered in the context of a tina! 
merits dete1mination). Although we need not provide the type of final merits determination 
referenced in Ka:carian, a review of the record in the aggregate supports a finding that the Petitioner 
has not established the level of expertise required for the classification sought. 
B. Continuing Work in the Area of Expertise 
Even if the Petitioner had demonstrated that he possesses extraordinary ability , he has not shown that 
he seeks to enter the United States to continue to work in his area of expe11ise, as required under 
section 203(b )(l )(A)(ii) of the Act. The regulations indicate that, in order to meet this prong of the 
statute, a petitioner must present: 
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[C]lear evidence that he or she is coming to the United States to continue to 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. 
Part 6 of the Form 1-140 is entitled '"Basic Information About the Proposed Employment'" and 
requests details regarding a petitioner's intended work. The Petitioner lett this section of the form 
blank. He did not submit a personal statement regarding his intended future employment, an 
employment contract, or other materials regarding this requirement. The Director's request for 
evidence (RFE) asked for items regarding the Petitioner's intended employment and included 
specific examples of suitable documents. Despite this specific request, the Petitioner does not 
indicate. even on appeal, in what capacity he will work in the United States. 
Based on the totality of the record, it is unclear whether the Petitioner intends to work in the United 
States as a dancer, a choreographer, or an instructor. The Petitioner did not submit sufTicient initial 
evidence of extraordinary ability in any of these roles. The two satisfied criteria relate to the 
Petitioner's experience as a dancer. The Petitioner's filings suggest, however. that he has 
transitioned in his professional career from a dancer to an instructor and choreographer. The 
Petitioner's "'work book" indicates that he stopped dancing for in 2013. On the 
Petitioner's Form G-325. Biographic Information. he specified that his only employment since 2009 
has been as a self-employed choreographer. A letter dated June 7, 2014. from . owner of 
in Pennsylvania, aftirms that the Petitioner is the instructor 
for a children's dance program that takes place at the gym two nights per week. 
In generaL we consider dancing, choreographing. and instructing to be different areas of ability . As 
a result, even if the Petitioner were able to establish his extraordinary ability as a dancer, instructing 
or choreographing would not be considered within the same area of expertise. See Lee v. z;g!ar, 23 7 
F. Supp. 2d 914 (N.D. Ill. 2002). There are limited circumstances. however, in which we allow an 
individual to transition from one role to another and be considered within the same area of expertise . 
See Adjudicator's Field Manual (AFM) ch. 22.2(i)(l )(C) (allowing a transition from athlete to coach 
in the case of recent acclaim as an athlete and evidence of coaching at the national level). In this 
case, however, the Petitioner has not demonstrated an overall pattern of sustained acclaim and 
extraordinary ability that extends to either his work as a choreographer or instructor. such that we 
might consider one of them to be within the same area of his expertise. See id. 
Regarding his abilities as a choreographer, the letter from other dancers suggests that the 
Petitioner helped with choreography for the troupe. The letter does not contain information or 
details regarding the Petitioner's degree of involvement with the choreography process. In addition, 
we note that the troupe employs individuals solely dedicated to choreographing , as indicated by the 
reference letter from The Petitioner provided documentation 
that he is a member of the however. as stated above, he does not give 
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information to show that such membership requires a particular level of skill or ability. Several of 
the diplomas the Petitioner has presented as awards appear to be for his work choreographing 
children's dance performances. Due to the lack of information regarding these certificates and the 
festivals at which they were given, however, these documents do not substantiate any particular level 
of ability attained by the Petitioner as a choreographer. Lastly, the Petitioner has given letters 
showing he has been employed in the United States teaching dance at 
The letter from students' parents expressing gratitude for the Petitioner ' s instruction does not 
confirm a pattern of sustained acclaim extending from the Petitioner's career as a dancer to 
instructing. as contemplated by the AFM. See id. As a result. the evidence does not reflect a 
sufficient nexus between dancing, choreography, and instructing to consider any of the two within 
the same area of expertise. For all of the above reasons, even if the Petitioner had established 
extraordinary ability as a dancer, he has not demonstrated his intent to continue working in his area 
of expertise. 
III. CONCLUSION 
The Petitioner has not provided the requisite initial evidence to establish extraordinary ability. as 
required by regulation. In addition. the Petitioner has not shown that he intends to work in the 
United States in his claimed area of expertise. 
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 ofOtiende. 26 I&N Dec. 127. 128 (BIA 2013). Here. that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Malter (?lE-Q-, ID# 16295 (AAO May 9, 2016) 
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