dismissed EB-1A Case: Dance And Choreography

MATTER OF E-G-
Non-Precedent Decision of the 
Administrative Appeals Office 
DA TE: OCT. 25, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, 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 of the Nebraska Service Center denied the Form 1-140, Immigrant Petition for Alien 
Worker, concluding that the Petitioner had not satisfied any of the ten initial evidentiary criteria, of 
which she must meet at least three. 
On appeal, the Petitioner offers additional documentation, as well as previously submitted 
documentation, and a brief, contending that she meets at least three of the ten criteria. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes visas available to immigrants with-extraordinary ability if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
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 
Matter 4 E-G-
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is, a major, 
internationally recognized award). If that petitioner does not submit this evidence, then he or she 
must provide documentation that meets at least three of the ten categories 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). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit comparable 
material if he or she is able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not 
readily apply to the individual's occupation. 
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. 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); see als~ 
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 ). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Petitioner is a dancer and choreographer who has performed in television shows, in movies, and 
videos. Because she has not indicated or established that she has received a major, internationally 
recognized award, she must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). In denying the petition, the Director found that the Petitioner did not meet any 
of the initial evidentiary criteria. · 
On appeal, the Petitioner maintains that she fulfills six criteria. We have reviewed all of the 
evidence in the record and conclude that it does not support a finding that the Petitioner satisfies the 
requirements of at least tlµ-ee criteria. 
A. Evidentiary Criteria 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
The Petitioner contends that she satisfies this criterion based on comparable evidence under the 
regulation at 8 C.F.R. 204.5(h)(4). Specifically, she asserts that "[q]ualifying for acceptance on a 
dance team for a top TV show is virtually identical to the membership on an Olympic team because 
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Matter of E-G-
of the high threshold that each dancer has to go through in order to be accepted." The record 
includes letters confirming her participation as a dancer on and 
In addition, the Petitioner claims that "there are no associations in the dance 
industry tl)at specifically require outstanding achievements of the dancers to become members of 
such organizations." 
The regulation at 8 C.F.R. § 204.5(h)(4) allows for comparable evidence if the listed criteria do not 
readily apply to her occupation. 1 A petitioner should explain why she · has not submitted evidence 
that would satisfy at least three of the criteria set forth in 8 C.F.R. § 204.5(h)(3) as well as why the 
evidence she has included is "comparable" to that required under 8 C.F.R. § 204.5(h)(3). 2 Here, the 
Petitioner has not shown why she cannot offer evidence that meets at least three of the criteria. 
Although she contends that associations requiring outstanding achievements of their members, as 
judged by recognized national or international experts, do not exist, she did not provide evidence 
supporting her claims. General assertions that any of the ten objective criteria do not readily apply 
to an occupation are not probative and should be discounted. 3 The fact that the Petitioner did not 
submit documentation that fulfills at least three is not evidence that a dancer or choreographer could 
not do so. As discussed above, the Petitioner maintains to meet five other criteria. Moreover, the 
Petitioner did not show that dancers or choreographers cannot present evidence relating to the other 
criteria. 
Furthermore, the Petitioner did not demonstrate how' auditioning and earning roles on television 
shows are "truly comparable" to being a member of associations that require outstanding 
achievements of their members, as judged by recognized national or international experts. As 
indicated in the letters, the Petitioner auditioned against other dancers competing for roles on the 
television programs rather than being selected based on her past outstanding achievements by 
recognized national or international experts.4 
For the reasons discussed above, the Petitioner did not establish that she is eligible to meet the 
membership criterion through the submission of comparable evidence. 
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 classification is sought. Such evidence 
shall include the title. date, and author of the material, and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3 )(iii). 
1 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form l-140 
Petitions; Revisions to the A4iudicator·s Field Manual (AFM) Chapter 22.2, AFM Update ADI 1-14 12 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManua1.htm1. 
i Id. 
Jy • 
4 See USClS Policy Memorandum PM 602-0005.1, supra, at 6 (providing an example of admiss,ion to membership in the 
National Academy of Sciences as a Foreign Associate that requires individuals to be nominated by an academy member, 
and membership is ultimately granted based upon recognition of the individual's distinguished achievements in original 
research). 
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Mauer of E-G-
The Petitioner maintains that she meets this criterion based on video interviews posted on 11 
websites. Although the Petitioner submitted certified transcriptions, the Petitioner did not 
demonstrate that the interviews were posted on major websites and contained the required author of 
the material. 5 
In the transcriptions for the interviews posted on antenastars.ro, al .ro, lamaruta.protv .ro, and 
apropotv.ro, the names of the authors, hosts, or interviewers are not included. Instead, the 
transcriptions list the names of the websites, publications, or television shows as the author of the 
material. For instance, the transcription for the interview posted on apropotv.ro states that the author 
is "APROPO TV MAGAZINE." Here, the Petitioner did not identify the "author of the material" as 
required by this regulatory criterion. 
In addition, the Petitioner provided transcriptions of the same interview posted on seven different 
websites. However, each transcription contains a different author for the same interview. For 
instance, the transcriptions from okmagazine.ro, huff.ro, vip24.ro, teotrandafir.com, and ziarulring.ro 
indicate the authors as 
and respectively. 6 The Petitioner 
must resolve inconsistencies in the record with independent, objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Here, the Petitioner has not 
explained or rectified the inconsistency of five authors for the same interview. Moreover, she did 
not establish the actual author of the material. 
Further, as evidence of major media, the Petitioner offered screenshots from Similar Web regarding 
rankings and "traffic overview" for each of the websites. For example, Similar Web reflects that the 
websites range from a global ranking of 6,132 to 303,672, a country ranking of 32 to 5,902, and total 
visits of 223,900 to 18,220,000. The Petitioner, however, did not demonstrate the significance of the 
Internet rankings and viewing statistics or explain how such information reflects status as major 
media. Specifically, she did not establish that the global rankings indicate major international 
media. Moreover, even if we considered the two highest country ranked websites, libertatea.ro 
(32nd ranked) and al.ro (85th ranked), as national major media, the Petitioner did not identify the 
authors of the material as discussed above. 7 
Accordingly, the Petitioner did not show that she fulfills 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 allied field of specification for which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
5 See USCIS Policy Memorandum PM 602-0005.1, supra, at 7. 
6 We note that the transcriptions for the interviews posted on libertatea.ro and evzmonden.ro list the websites or 
rublications as the author. 
The transcriptions indicate the website and program name as the authors. 
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Matter of E-G-
The record contains evidence showing that the Petitioner participated as a judge of dancers on a 
television show. Therefore, the Petitioner demonstrated that she satisfies this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
As discussed above, the Petitioner displayed her work as a dancer at artistic exhibitions and 
showcases. Accordingly, the Petitioner established that she meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments 1ha1 have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
The Petitioner contends that she satisfies this criterion based on her role as a lead dancer for the 
television shows: , and 
In addition, she maintains that she meets this criterion as a dancer for the 
and choreographer for As it relates to a leading 
role, then evidence must establish that a petitioner is or was a leader. A title, with appropriate 
matching duties, can help to establish if a role is or was, in fact, leading. 8 Regarding a critical role, 
the evidence must demonstrate that a petitioner has contributed in a way that is of significant 
importance to the outcome of the organization or establishment's activities. It is not the title of a 
petitioner's role, but rather the performance in the role that determines whether the role is or was 
critical.9 
The record contains contracts between and the Petitioner for her 
performances on the above-mentioned television shows. The Petitioner's roles range from 
choreographic performance for ======= and lead ballet 
dancer for and and occasional guest for 
In addition, the Petitioner provided a recommendation letter from _ producer and 
director, who stated that "[a]s a choreographer and as a lead dancer, [the Petitioner] played a vital 
role in these productions 
Further, she presented letters from and who commented that the Petitioner 
"has great dancing and acting skills," "{her} presence [on is noticeable," 
and "[she] immediately stands out as one of the most unique and talented dancers and 
choreographers." 
The Petitioner did not demonstrate how her performances on television shows constitute her roles for 
"organizations or establishments." On appeal, the Petitioner argues that "by performing in the 
production process of the show, [she] has performed in a leading or critical role for the 
organization." However, the Petitioner did not show how her role as a choreograph performer, lead 
8 See USCIS Policy Memorandum PM-602-0005.1, supra, at 10. 
9 Id. 
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Matter of E-G-
ballet dancer, or occasional guest on television programs reflects her leading or critical role for the 
overall production companies or television stations. She did not, for example, provide evidence 
establishing how her roles on 
are leading to the television stations that aired the shows. Moreover, the 
Petitioner did not demonstrate how her roles contributed in a way that is of significant importance to 
the outcome of the organizations or establishments' activities. 10 
Even if we considered that television shows qualify as "organizations and establishments," which we 
do not, the Petitioner did not establish that she performed in a leading or critical role. While she 
performed as the lead ballet dancer, she did not demonstrate how her role was leading compared to 
the other roles on the television shows. Moreover, although her recommendation letters praised her 
talents, they did not contain detailed and probative information that specifically addressed how her 
roles for the shows were leading or critical. 11 The letters, for instance, do not show that she was 
responsible for high ratings or was credited for the successes of the shows. 
In addition, the Petitioner argues that her receipt of a "Diploma of Honor" from as part of the 
ballet team on · "provides independent , unsolicited evidence of (her] 
importance and critical position." The Petitioner, however, did not establish that the diploma 
represents her leading or critical role for · or the ballet team. She 
did not show, for instance, that the diploma recognized her leadership position or the critical nature 
of her role. Further, while the Petitioner presented screenshots from operaisi.ro regarding the history 
and background of she did not demonstrate that it enjoys a distinguished reputation. The 
relative size or longevity of an organization or establishment is not in and of itself a determining 
factor. 12 
Regarding , the Petitioner offered a letter from managing 
partner, who stated that that "her special skills made us chose (sic] her to be the lead choreographer 
for most of our major events" and "[h]er skills and professionalism were a major asset for the 
success of our best productions." Similar to her other recommendation discussed above, 
letter does not contain specific information detailing how her role for the advertising 
company was leading or critical. did not explain how her role compared to the other 
employees at to show that her position was leading. Moreover, did not 
demonstrate that the Petitioner contributed to the significant importance of 
activities. Although the Petitioner submitted screenshots from website 
displaying samples of projects, she did not establish that the company has a distinguished reputation. 
Accordingly, the Petitioner did not show that she fulfills this criterion. 
10 See USCIS Policy Memorandum PM-602-0005.1, supra, at 10. 
11 See USCIS Policy Memorandum PM-602-0005.1, supra, at 10. 
12 See USCIS Policy Memorandum PM-602-0005 .1, supra, at IO (defining Merrian-Webster 's Dictionary definition of 
"distinguished" as marked by eminence, distinction , or excellence). 
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Malter of E-G-
Evidence that the alien has commanded a high salary or other significantly high remuneration 
for services, in relatfon to others in the field 8 C.F.R. § 204.5(h)(3)(ix). 
The record contains a contract with paying her ''$4,000 per day for not 
less than four days time" regarding choreography services for the movie, . 13 In addition, 
she submitted copies of the front of four checks from to the Petitioner 
for $4,000 each.14 The Petitioner argues that "[a]ccording to Foreign Labor Certification Data 
Center Online Wage Library (FLC wage) wage a Level 4 wage Choreographer will have earned for 
an 8-hour day: $25.11 X 8 hours X 4 days= $803.52." Moreover, she contends that "[i]f a Level 4 
wage Choreographer has worked for 24 hours continuously for 4 days: $25.11 X 24 hours X 4 days 
= $2,410.56." 
In order to satisfy this criterion, the Petitioner must demonstrate that she commands a high salary or 
other significantly high remuneration for services in relation to others in her field. 15 Although the 
Petitioner makes projections based on hourly median salaries for choreographers, she was not paid at 
an hourly rate. 16 Rather, the contract indicates that she earned a limited, one-time project salary. 
Specifically, her wages covered a set amount of $4,000 per day for four days totaling $16,000. 
Accordingly, calculating hourly wages from the FLC is not the proper comparison of the Petitioner's 
salary as she was not paid an hourly rate. In this case, the Petitioner provides a contract showing her 
remuneration for services. However, she did offer evidence comparing her project wages to others. 
For instance, the Petitioner did not establish that her $4,000 per day project earnings for a movie 
production is significantly high in relation to others who performed the same duties. 
Furthermore, even if we considered the yearly wages of choreographers, the median range of salaries 
in the California area from the FLC reflects $26,416 for a Level 1 Wage to $52,229 for 
a Level 4 Wage. 11 Here, the Petitioner has not shown that she earned any additional wages to her 
$16,000 for the year. Moreover, the Petitioner's earnings are lower than the yearly wages for entry 
level employees and are far below the yearly earnings for fully competent employees. See Maller of 
Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering a professional golfer's earnings 
versus other PGA Tour golfers); see also Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) 
(considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 
13 We note that IMDb credits the Petitioner for perfonning as an actress in but makes no reference to her 
providing choreography services. See https://www.imdb.com , accessed on 
October 24, 2018, and incorporated into the record of proceedings. Inconsistencies in the record must be resolved with 
independent, objective evidence pointing to where the truth lies. Matter of Ho, I 9 l&N Dec. 582, 591-92 (BIA 1988). 
The Petitioner must address this inconsistency in any future filing. 
14 The record shows that the fourth check indicates "final for choreography." 
15 See USCIS Policy Memorandum PM-602-0005 .1, supra, at 11. 
16 While the Petitioner also makes hourly projections for dancers, the Petitioner did not submit evidence of her earnings 
as a dancer. 
17 The Level I wage relates to entry level employees, while the Level 4 wage relates to fully competent employees. See 
Prevai I ing Wage Determination Policy Guidance, http://flcdatacenter.com/down load/N PWHC _Guidance_ Revised_ 11 
_2009.pdfat page 7, accessed on July 13, 2018, and incorporated into record of proceedings. 
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Matter of E-G-
444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NI-JL 
defensemen). 
For these reasons, the Petitioner did not establish that she has commanded a high salary or 
significantly high remuneration for services in relation to others in her field. 
8. 0-1 Nonimmigrant Status. 
We note that the record reflects that the Petitioner received 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, the prior approval does not preclude 
USCIS from denying an immigrant visa petition which is adjudicated based on a different standard -
statute, regulations, and case law. Many Form 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 Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990). 
Furthermore, our authority over the USCIS service centers, the office adjudicating the nonimmigrant 
visa petition, is comparable to the relationship between a court of appeals and a district court. Even 
if a service center director has approved a nonimmigrant petition on behalf of an individual, we are 
not bound to follow that finding in the .adjudication of another immigration petition. Louisiana 
Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 2000). 
Ill. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either· a ·one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of 
final merits determination referenced in Kazarian, 596 F .3d at 1119-20. Nevertheless, we advise 
that we have reviewed the record in the aggregate, concluding that it does not support a finding that 
the Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. 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 l&N Dec. 953, 954 (Assoc. Comm'r. 1994). 
Here, the Petitioner has not shown that the significance of her artistic accomplishments 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)(l)(A) of the Act. Moreover, the record does not otherwise 
demonstrate that the Petitioner has garnered national or international acclaim in the field, and she is 
one of the small percentage who has 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). 
8 
Maller of E-G-
For the foregoing reasons, the Petitioner has not shown that she qualifies for classification as an 
individual of extraordinary ability. 
ORDER: The appeal is dismissed. 
Cite as Matter qf E-G-, ID# 1668798 (AAO Oct. 25, 2018) 
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