dismissed EB-1A Case: Dance Instruction

PUBLIC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U. S. Ci tizenshi p 
and Immigration 
Services 
DATE: APR 0 5 2011FFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b )(1 )(A) of the Immigration and Nationality Act; 8 U.S.c. § 1153(b )(1 )(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 
information 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 I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
I 
.. ,~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 3 
We ask the AAO to re-evaluate all the evidence submitted demonstrating that the 
nexus between [the petitioner's] extraordinary acclaim as a Dancer/Performer 
supports her a finding of extraordinary ability as an Instructor/Coach on a totality of 
the evidence including her instruction of students who have competed and won at 
the national level. 
In Part 5 of Form 1-140, Immigrant Petition for Alien Worker, the petitioner listed her occupation as 
a "Latin Dance Instructor/Choreographer." In addition, in Part 6, the petitioner listed her proposed 
job title as a "Latin Dance Instructor/Choreographer" and indicated that the description of her 
proposed employment was to "[l]ead instruction in various forms of Latin dance, planning routines 
with choreographers, representing at national and international 
~titions." Moreover, an employment letter from _ 
_____ who stated that "[s]ince April 2009, [the petitioner] has been employed by 
_ as our resident Latin Dancer/Instructor." Furthermore, according to Form G-325A, 
Biographic Information, which the petitioner signed on January 8, 2010, the petitioner listed her 
current employment as a "Dance Instr[uctor]/Choreographe[r]" at 009 to the 
present, and previous employment as a "Dance Instructor" at 
November 2008 to March 2009, and as a "Dance Instructor" at 
December 2002 to October 2008. 
Thus, the record reflects that the petitioner is seeking classification as an alien of extraordinary 
ability as an instructor and choreographer rather than as a competitive dancer. Even though the 
petitioner submitted documentation regarding her involvement in earlier competitions as a 
competitor, which will be discussed later in this decision, the record reflects the petitioner's intent to 
work in the United States as an instructor and choreographer. 
The statute and regulations require the petitioner's national or international acclaim to be sllstained 
and that she seeks to continue work in her area of expertise in the United States. See sections 
203(b)(I)(A)(i) and (ii) of the Act, 8 U.s.c. §§ 1153(b)(I)(A)(i) and (ii), and 8 C.F.R. 
§§ 204.5(h)(3) and (5). While an instructor/choreographer and dancer share knowledge of the sport, 
the two rely on very different sets of basic skills. Thus, dance instruction!choreography and dance 
competition are not the same area of expertise. This interpretation has been upheld in federal court. 
In Lee v. I.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002), the court stated: 
It is reasonable to interpret continuing to work in one's "area of extraordinary 
ability" as working in the same profession in which one has extraordinary ability, 
not necessarily in any profession in that field. For example, Lee's extraordinary 
ability as a baseball player does not imply that he also has extraordinary ability in all 
positions or professions in the baseball industry such as a manager, umpire or coach. 
Id. at 918. The court noted a consistent history in this area. In the present. matter, there is no 
evidence showing that the petitioner has sustained national or international acclaim through 
achievements as a dance competitor or that she intends to compete here in the United States. While 
the AAO acknowledges the possibility of an alien's extraordinary claim in more than one field, such 
Page 4 
as dance competitIOn and dance instruction/choreography, the petitioner, however, must 
demonstrate "by clear evidence that the alien is coming to the United States to continue work in the 
area of expertise." See the regulation at 8 CF.R. § 204.5(h)(5). 
Based on the petitioner's answers to the questions on Form 1-140 and the submitted documentation, 
the record reflects that the petitioner intends to continue to work in the area of dance 
instruction/choreography rather than the area of dance competition. Ultimately, the petitioner must 
satisfy the regulation at 8 CF.R. § 204.5(h)(3) through her achievements as a dance instructor or 
choreographer. 
II. LAW 
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 into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and 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 H.R. 723 101
st 
Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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. Id.; 8 CF.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.S(h)(3) requires that the petitIOner demonstrate the alien's 
sustained acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
Page 5 
recognized award) or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.
1 
With respect to the criteria 
at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." Id. at 1121-
22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the ,-:ourt stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sutlicient evidence, "the proper conclusion is that the applicant has failed 
to satisfY the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this matter, the AAO will review the 
evidence under the plain language requirements of each criterion claimed. As the petitioner did not 
submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requirement of three types of evidence. Id. 
III. ANALYSIS 
A. Evidentiary Criteria2 
Documentation (~l the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
In the director's decision, she determined that the petitioner established eligibility for this criterion. 
Specifically, the director stated: 
The record contains sufficient evidence to conclude the petitioner's role as an 
instructor and coach has resulted in several first place finishes for her students in 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(iv) and 8 C.P.R. 
§ 204.S(h)(3)(vi). 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not 
discussed in this decision. 
Page 8 
The following publicity has been done in regards of performances of [the petitioner] 
and Nexdoyminoga Yuri. 
The attached article' 
Newspaper "Fashion Industry" on 
been advertised at the newspaper 
, has been printed at the 
The second attached flyer has 
At the outset, the regulation at 8 C.F.R. § 103.2(b) provides in pertinent part: 
(3) Translations. Any document containing foreign language submitted to USCIS 
shall be accompanied by a full English language translation which the translator has 
certified as complete and accurate, and by the translator's certification that he or she 
is competent to translate from the foreign language into English [emphasis added]. 
A" cited above, the regulation at 8 C.F.R. § l03.2(b )(3) specifically requires that any foreign 
language document that is submitted to USCIS must be accompanied by a fllll and certified English 
language translation. The petitioner's uncertified and summary translation does not comply with 
the regulation at 8 C.F.R. § 103.2(b )(3). Regardless, the summary translation appears to refer to the 
petitioner as a dance performer rather than as a dance coach or choreographer. See Lee v. I.N.S., 
237 F. Supp. 2d at 914 (upholding a finding that competitive athletics and coaching are not within 
the same area of expertise). Moreover, the petitioner failed to submit any documentary evidence 
reflecting that Fashion Industry and Results are professional or major trade publications or other 
major media. In addition, the petitioner failed to submit the authors of the documentation as 
required pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Finally, flyers, advertisements, 
posters, and other promotional material do not equate to "published material" consistent with the 
plain language of this regulatory criterion as they are not independent, journalistic coverage of the 
petitioner relating to her work. 
Similarly, the petitioner submitted another summary and uncertified translation, which fails to 
comply with the regulation at 8 C.F.R. § 103.2(b)(3), that appears to reflect summary translations 
for two documents. While the first summary translation appears to mention the petitioner as a 
teacher for ' the second summ~ars to mention the 
petitioner as placmg thud place as a dance competitor in "~' See Lee v. I.N.s., 
237 F. Supp. 2d at 914 (upholding a finding that competitive athletics and coaching are not within 
the same area of expertise). Regardless, the petitioner failed to include the title, date, and author of 
the material as required pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Moreover, the 
petitioner failed to indicate where the material was published, let alone if they were published in 
professional or major trade publications or other major media. 
~lso submitted a new release dated June 4, 2007, 
_ntitled, Awards Featuring the Hottest Stars in Film, 
Music, and Television to Air Tuesday, June 5 on ABC." A review of the news release reflects that 
the petitioner was mentioned one time as being one of several performers in the opening number of 
the event. In general, news and press releases do not constitute published material as it is not 
Page 9 
independent, journalistic coverage of the petitioner relating to her work. Further, the news release is 
not about the petitioner relating to her work. Rather, it is about NCLR's 2007 ALMA Awards. 
Articles that are not about the petitioner do not meet this regulatory criterion. See, e.g., Negro­
Plumpe v. Okin, 2:07-CY-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that 
articles about a show are not about the actor). Moreover, the petitioner failed to include the author 
of the material as required pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), and if the news 
release was published in a professional or major trade publication or other major media. 
Regardless, the news release refers to the petitioner as a performer rather than as an instructor or 
choreographer. See Lee v. I.N.s., 237 F. Supp. 2d at 914 (upholding a finding that competitive 
athletics and coaching are not within the same area of expertise). 
Finally, the 
2007, by •• 
See, e.g., Negro-Plumpe v. Okin, 2:07-CY- at 
(upholding a about a show are not about the actor). Furthermore, the article 
does not relate to the petitioner'S field as a dance coach or choreographer. See Lee v. I.N.s., 237 F. 
Supp. 2d at 914 (upholding a finding that competitive athletics and coaching are not within the same 
area of expertise). In addition, the petitioner failed to submit any documentary evidence 
establishing that The Dancing Feet is a professional or major trade publication or other major 
media. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[p]ublished 
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." In this case, the petitioner's 
documentary evidence fails to reflect any published material about the petitioner as a dance coach or 
choreographer in professional or major trade publications or other major media. 
Accordingly, the petitioner 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 allied field of specification for which 
classification is sought. 
In the director's decision, she determined that the petitioner failed to establish eligibility for this 
criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence 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 [emphasis added]." A 
review of the record of proceeding reflects that the petitioner submitted sufficient documentary 
evidence demonstrating that she participated as a judge for the "Seasons of the Year" tournament 
from 2000 - 2002. As such, the petitioner has minimally met the plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(iv). Therefore, the AAO withdraws the findings of the director for this 
criterion. 
Page 10 
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 that have a distinguished reputation. 
The director determined that the petitioner failed to establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the alien has 
performed in a leading or critical role for organizations or establishments that have a distinguished 
reputation [emphasis added)." In general, a leading role is evidenced from the role itself, and a 
critical role is one in which the alien was responsible for the success or standing of the organization 
or establishment. 
A review of the record of proceeding reflects that the petitioner submitted a letter from Mr. Manh 
who stated that the petitioner "is a valuable dance instru~" and the petitioner "is an 
integral part of the future dancers at .,4 However, _ failed to provide any further 
information to explain why the petitioner is a "valuable dance instructor," so as to demonstrate that 
the petitioner performs in a leading or critical role for _ The lack of specific information 
provides the AAO no basis to gauge the role of the petitioner at _ There is no documentary 
evidence that differentiates the petitioner's role from the roles of other instructors at 
established that the petitioner's role was leading or critical. In fact, it appears that the 
director and owner of ~ performs in a far more leading or critical role than the petitioner. In 
addition, the petitioner failed to submit any documentary evidence to demonstrate that _has a 
distinguished reputation. 
The petitioner also submitted a letter 
_ who stated that the petitioner "is a great asset to our compaSSIOn 
for the dancing is quite unique" and the petitioner "has a great talent working with our young 
dancers and she is well respected in our field." Again, _failed to explain how the 
petitioner is "a great asset" to the studio, so as to reflect that the petitioner performs in a leading or 
critical role. Moreover, while the_acknowledges the petitioner's talent and respect in the 
field, there is no indication that the petitioner's talents and personal qualities equate to a leading or 
critical role. Merely having talent is not reflective of performing in a leading or critical role. 
Rather, the record must be supported by evidence that the petitioner has already her talent to 
perform in a leading or critical role. Assuming that the petitioner has talent as a coach, the 
classification sought was not designed merely to alleviate skill shortages in a given field. In fact, 
that issue properly falls under the jurisdiction of the Department of Labor through the alien 
employment certification process. See Matter of New York State Department of Transportation, 22 
I&N Dec. 215, 221 (Comm'r 1998). Further, the petitioner failed to submit any documentary 
evidence to reflect that IDC has a distinguished reputation. 
4 The AAO notes that according to _ website, hltp://www.justdanceoallroom.cOl11/inslruclors/, accessed on 
March 27, 2012, and incorporated into the record of proceeding, the petitioner is not currently listed as one of the 
instructors. 
-Page 11 
Furthermore, the petitioner submitted documentary evidence reflecting her participation in an 
instructional DVD entitled, ." In addition, the submitted a letter 
~m w~ 
stated that the petitioner's "filming of the video added significantly to the appeal of the tinal product 
and its selling success." . to the' the DVD also reflected 
participation and instruction by 
material features a 
commended for her instruction. Besides the indication of the petitioner's name as a 
participant on the promotional material for the DVD, the record fails to reflect that the petitioner 
performed in a leading or critical role. Further, the AAO is not persuaded that sporadic, occasional, 
or one-time employment is reflective of leading or critical roles for organizations or establishments 
as a whole. In the case here, the record fails to reflect that the petitioner's single participation in an 
instructional video is consistent with a leading or critical role to _as a whole. Moreover, it 
appears that_s role as the director and general m~~is far more leading or 
critical than the petitioner who simply performed in one of~ instructional video productions. 
Also, the petitioner failed to submit any documentary evidence demonstrating that _ has a 
distinguished reputation. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that 
the alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." The burden is on the petitioner to establish that she meets every element 
of this criterion. Without documentary evidence demonstrating that the petitioner has performed in 
a leading or critical role for organizations or establishments that have a distinguished reputation, the 
AAO cannot conclude that the petitioner meets this criterion. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
IV. 0-1 NONIMMIGRANT ADMISSION 
The AAO notes that at the time of the filing of the petition, the petitioner was last admitted to the 
United States as an 0-1 nonimmigrant on January 7, 2010. However, while USeIS has approved at 
least one 0-1 nonimmigrant visa petition filed on behalf of the petitioner, the prior approval does 
not preclude USeIS 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 USeIS spends less time 
reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant 
Page 12 
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, 19I&N Dec. 593, 597 (Comm'r 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 
nonimmigrant petition on behalf of the alien, 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.), affd, 248 F.3d 1139 (5th Cir. 20ot), cert. denied, 122 S.Ct. 51 (20ot). 
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. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO 
conducts appellate review on a de novo basis). 
v. CONCLUSION 
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. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (l) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien 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) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
not explain that conclusion in a final merits determination. 5 Rather, the proper conclusion is that the 
5 The AAO maintains de novo review of all questions of fact and law. See Sollane v. DOl, 381 F.3d at 145. 
In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the 
office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the 
Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 
-Page 13 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. 
at 1122. 
The petitioner has not established eligibility pursuant to section 203(b )(1 )(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 V.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed. 
(2003); 8 C.P.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding 
that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).