dismissed EB-1A Case: Dancesport

(b)(6)
., 
DATE: JAN 2 5 20p Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner : 
Beneficiary : 
U.S. Department ofHomclaod Security 
U.S. Citi zenship and Immigr ation Services 
·• Adm fnistrativ e Appeals' Office (AAO) 
· 20 M;tssachusetts Ave .,N.W., MS 2090 
Washington, DC .20529-2090 
U.S. Citizenship · 
and Immigration 
Services · 
FILE: 
PETITION: Immigrant Petition for Alien Work er as an Alien of Extraordinary Ability Pursuant to Secti on 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § ll53(b)(l)(A) 
. J . 
ON· BEHALF OF PETIT~ONER: 
INSTRUCTIONS: 
I . ' . 
Enclosed please find ;the decision of the Administr _ative Appeals Office in your case. All of the documents 
r e i~ ted to this matter ~av e been returned to the offic e that originally decided your case. Please be advised that 
any further inq~iry that yo u might have concerning your case must be made to that office. 
I 
If you believe the AAO inappropriately applied the l aw in reaching its decision , or you have additi onal 
infqrmation that you Wish to have considered , you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1~290B , No~ ice of Appeal or Motion, with a · fee of $630 . The 
specific requjrement s; for filing such a motion cart be found at 8 C.F .R. § 103 .5. Do not file any motion 
directly with the AAO. · Please be aware that. 8 C.F .R .. § 103.5(a)(l)(i) require s any motion to be filed within 
30 days cif the decision that the motion seeks to reconsider or reopen. . 
Thank you, 
V(7f 
~ ·rz-
Ron. Rosenbeig _ 
Acting Chief, Administrative Appeals Office 
ww\v.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
· petition on July 9, 20lz. The petitioner subsequently filed a moti'on to reopen and ~econsiderrequesting 
that the director cqnsider 'additional evidence pertaining ' to . additional criteria as an alien of 
. extraordinary ability 'under the regulation~: The director accepted the motion but concluded that the 
petitioner failed to overcome the grounds for denial and issued a deCision on the merits of the motion on 
September 28, 2012 . . The matter is now before the Administratiye Appeals Office (AAO) as an appeal 
of the director's .decision 'on the m9tion. The appeal will be dismissed. · 
The petitioner seeks Classification as an "alien of extraordinary ability" in the athletics, as a DanceSport 
dancer, pursuant to ~ection 203(b)(1)(A) of the Immigration arid· Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(1 )(A). The director determined the petitioner had not established the sustained national or 
international accla4n inecessary to qualify for classification as an alien of.extraqrd,inary ability. . 
· Congress set a very high bench~ark for aliens Of extraordinary ~bility by requiring through _the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" .and present 
"extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3,). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or internation~l acclaim through evidenc~ of a one-time achievement of a 
major, internationally recognized award. ·Absent the receipt of;such an award, the regulation outlines 
ten categories of spetific objective evidence. 8 C.P.R.§ 204.5(h)(3)(i) through (x). The petitioner must 
submit qu:alifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility r¢quirements. 
On appeal, counsel ·asserts that the petitioner submitted sufficiei,lt evidence to establish that he met the 
regulatory requirements 'tor the criterion regarding awards and prizes and for the criterion regarding a 
.·leading or critical ro1e.1 Counsel maintains that the two additiqnal criteria, along with the two criteria 
that the director fou~·d that the petitioner satisfied in the July 9, 2012 pecision, is· sufficient to establish 
the petitioner's eligi)Jility for the classification he seeks. Considering the evidence in the aggregate, 
including the supplemental evidence the petitioner submits along with the appeal and submitted with the 
motion, the petitioner has. not established eligibility for the l;>enefit sought by a preponderance of the 
evidence. 
1 Counsel observes that there ~ust have been a mistak .e in adjudica~ing the motion ~ ince the decision on the 
motion refers to the p
etitioner as "she" rather than as "he" throughout. This decision reflects an aggregate 
consideration of all submitted evidence and previously issued decisions, which includes a review of whe~her a 
misuse of the referencing pronoun for the petitioner reflects an inadvertent mistake or is indicative of an 
improper revie~ of th'e evidence of record. ·, · 
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I. LAW 
Section· 203(b) of the; Act states, 'in pertinent part, that: · 
(1) Pri6rity workers .. -- Visas shall first be niade available ... to qualified .immigrants who are 
aliens de,scribed in any of the following subparagraphs (A) thr~ugh (C): 
(A) Aliens ~lth extraordinary ability.-- An ·alien is described in this subparagraph if--. 
· (i) t~e ali~n has extraordinary ability in the· sciences, arts, education, 
busin~ss, or athletics which has been demonstrated by sustained national or 
international acclaim and. whose achievements ~ave been recognized in the 
field through extensive documentation, 
. . ~ 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordina~y ability, and · 
· (iii) the alien's entry into the United States· will substantially bendit 
prosp,ectively the United States. 
i 
U.S. Citizenship and.Iinmigration.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 individua.ls in that small percentage who have risen to the very top of the field of endeavor. /d.; 
8 C.F.R. § 204.5(h)(2). . . . 
The regulation· at 8 C.F.R. § '204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recbgnition 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 recognized award) or 
through the submission of qualifying evidence under at least (hree of the ten categories of evidence 
. listed at 8 C.F.R. § 2Q4.5(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 co~rt took issue with the AAO's evaluation of 
evidence . submitted 'to ·meet a given evidentiary criterion?· 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 
2 SpeCifically, the cqurt stated that the AAO had uniiaterally imposed novel substantive or evidentiary 
requirements beyond' those set forth m the regulations :at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). · 
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about the significance·of the evidence submitted to meet those t't'o criteria, those concerns should have 
been raised in a subs~quent "final merits determination." !d. at 1121-22. · 
I 
The court stated th<1;t the AAO's evaluation rested on an imprpper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence,, "the proper conclusion is that the applicant has:failed to satisfy the 
regulatory requirem~nt of three types .of evidence (as the AAO concluded)." !d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). . 
. Thus, Kazarian sets :forth a two-part approach where the evide11ce is first counted and then considered 
in the co~text of a fi'nal merits determination. In this matter, the AAO will review the evidence under 
the .plain language r~quirements of each criterion claimed. As t,he petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirem~nt of three types of evidence. !d. 
IL ANALYSIS 
A. Evidentiary Criteria3 · 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). · 
In the July 19, 201~ denial decision, the director concluded that the petitioner failed to satisfy this 
criterion. Specifical~y, the director noted that many of the competitions the petitioner won appeared to 
be local or regional ih nature. And while the petitioner submitte'd documentation indicating that he won 
the . on multiple occasions, the director found that the inclusion of "national" 
or "international" ih a competition title does not necessarily suggest national or international 
recognition. 'In the: motion before the director, the petitioner included additional evidence for this 
criterion including: 
1 
1. a webpage printout of i 
51 
place m 
-
2. a weoage orin tout of: 
3. a webpage printout of 
4. the peti ti~n~r' s DanceS port Classification Book; 
·s. · background information on the _-.____, 
6. ~printout showing participation in the '----------, 
' ' 3 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
(b)(6)
Pages 
7. a printout showing participation in the 
8. a printout showing participation in the 
9. a printout showina n:utirimtinn .in the 
10. 'a letter from a former dance champion and teacher of ballroom 
dance; arid 
11. a letter from a former dance champion, teacher of ballroom 
dance, and a governing judge oL 
With two exceptions, the. appeal brief largely makes references to documents that were previously 
submitted, with the I-:140 petition or with the .motion to reopen and reconsider. The additional evidence 
· in the ·above list that the petitioner 
submitted alorig with the motipn is not persuasive eviqence that helps 
tci meet the plain meaning requirements of the regulation· and does not aid the petitioner in overcoming 
the directbr' s grounds for denial. For instance, items (8) and (9) relate to competitions that took phice 
following the petitioper's filing date. Similarly, the petitioner also submits on appeal evidence of two 
competitions that he won in2012. However, a petitioner must establish eligibility at the time of filing; a 
petition cannot be approved at a future date after the petitioner becomes eligible ·under a new set of 
facts. Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'I Comm'r 197~); 8 C.F.R. § 103.2(b)(1), (12). 
Items (1)- (3) and items (6)- (9), like many of the ~wards the petitioner submitted along with the initial 
petition,· appear to b,e regional or local conioetitions. Whi,le 'item (5), which provides information 
regarding the competit~on at the loes establish that the competition is a nationally 
recognized competition, the petitioner was a finalist .and not the winner of that competition. The plain 
language of the regulation contemplates solely ·the. winning prize or award. Other categories of 
distinction, such as '!- "finalist," are insufficient to satisfy tqe criterion. See 8 C.F.R. § 204.5(h)(3)(i). 
Itein (10) provides a :rationale for the age restrictions in dance c0mpetitions and item (11) explains that 
the term "national" or other words ~f similar impo_rt may. not be used to identify a title of a partiGular 
event without the express written consent of the governing body of USA Dance or the National Dance 
Council of America. However, as the director noted in the July 9, 2012 decision, the designation of a 
competition as "nati~mal" or "international," even if subject to an internal approval process by the 
organi~ing body, does not demonstrate the nat\onal or international recognition of ari award or prize. 
The petitioner does not include independent evidence showing· that the competitions he describes are 
nationally recognized in the field as a whole. Simply going on record without supporting documentary 
evidence is not suffi~ient for purposes of meeting th~ burden of proof in these proceedings. See Matter 
of Treasure Craft of California, 14 I&N bee. 190 (Reg'l Comm'r 1972), clarified in Matter of Soffici, 
• 1 ·' 
· 22 I&N Dec. 158, 165 (Assoc." Comm'r 1998) and Matter of Ho, 22 I&N Dec. 206, 211 (Assoc. 
Comm'r 1998). . · · . 
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I 
Documentation of the alien's membership ·in associati;ns in the field for which classification is 
· sought, which require outstanding achievements of their members, as judged by recognized national 
or international e~perts in their discipli!1es or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
I • 
In his initial application packet; the petitioner submitted evidence of membership in associations in the 
field. The director denied the petitioner's claim regarding this criterion and the petitioner does not 
identify any factual or legal error in this conclusion on appeal. Consequently, the AAO concludes that 
the petitiqner abandoned this cl_aim. See Sepulveda v. US· Att 'y Gen., 401 F:3d 1226, 1228 n. 2 (11th 
CiL 2005), citing United States v. Cunningham, 161 F.3d 1343, )344 (11th Cir. 1998); Hristov v. 
Roark, No. 09-CV---,;27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs 
claims were aba11doned as he failed to raise them on appeal to the AAO). 
~ . ' i 
Published materiql about the alien in pr.ofessional 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.P.R. 
§ 204.5(h)(3)(iii). 
The director determ~ned in the July 19, 2012 decision that the petitioner met this regulatory criterion 
and, while not all of.. the materials are "about" the petitioner or appeared in professional or major trade 
publications or other major media, th~ AAO affirms the director's conclusions with regard to this 
. . I 
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.P.R. 
§ 204.5(h)(3)(iv). · 
In his initial application packet, the petitioner submitted evidence of partiCipation as a judge of the work 
of others in his fie~d. The director .denied the petitioner's Claim regarding this criterion and the 
petitioner does not identify any factual or legal error in this conclusion on appeal. Consequently, the 
AAO concludes that the petitioner abandoned this claim. ·See Sepulveda, 401 P.3d at 1228 n. 2; 
Hristov, 2011 WL 4711885 at *9. · 
I 
. . 
Evidence of the display of the alien 'swork in the field at artistic exhibitions: or showcases . . 8 'C.P.R. 
§ 204.5(h)(3)(vii).. · 
The petitioner 
never ~laimed to meetthis criterion. Nevertheless, the director determined in the July 19, 
2012 ~ecision that the' petition.er met this regulatory criterion. The interpretation that 8 C.P.R. 
§ 204.5(h)(3)(vii) is limited to the visual arts is longstanding anp has been upheld by a federctl district 
court. See Negro-Plumpe, 2:07-CV-820-ECR-RJJ at *7 (upholding an interpretation that performances 
.by a performing artist do not ·fall under 8 ·c.F.R. § 204.5(h)(3)(vii)). The alien's work also must have 
been displayed at an. ~rtistic exhibitions or showcases '{in the plural). 
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Page 7 
characterizes DanceSport . 
participants as ". athl~tes," not performing artists. Internet materials for indicate that 
the: organization's mission is to· "gain national and global acceptance for DanceSport as an official · 
medaL sport in theOlympic Gaines. " Even considering his experience as a performer, the petitioner is 
not a visual artist £mq has not created tangible pieces of art that "Yere on display at artistic exhibitions or 
· showcases. Moreov,er, he· is primarily an .athlete. Thus, the petitioner has not submitted qualifying 
· evidence that meets· ;the plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
Accordingly, .theAAO withdraws the director's finding with regard to this criterion and detem1ines that 
the petitioner failed tb establish his eligibility for this ~riterion. 
Evidence thclt the alien has performed in a ·leading or critical role for organizations or 
establishments tho) have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
This criterion anticipates that a leading role . should be apparent by its position in the overall 
organizational hieratchy and that it be accompanied by the r\)le' s matching duties. A critical role 
should be apparent from the petitioner's impact on the organiz~tion or the establishment's activities. 
The petitioner's pe~formance in this role should . establish whether the role was critical for the 
organizations or est~blishments as a whole. The· petitioner must demonstrate that the organizations 
or establishments (in the plural) have a distinguished reputation. While neither the regulation nor 
precedent speak to ~hat :constitutes a distinguished reputation, : Merriam- Webster's online dictionary 
defines di.stinguishec;l as, "marked by eminence, distinction , or. excellence ."4 Dictionaries are riot of 
the~selves evidenc t, but they may_· be referred to as (}ids to ~he memory ai'ld understanding of the 
court. ·Nix v. Hedd e,n, 149 U.S. at 306. Therefore, it is the p~titioner ' s burden to demonstrate that 
the organizations . or :establishments daimed under t~is criterioQ are marked by eminence, distinction, 
excellence, or a si~ilar reputation. The petitioner must submit evidence satisfying all of .these 
el.ements· to meet the: plain language requirements of this criterion. 
The director determined that the petitioner failed to satisfy the requirements of this criterion. On . 
appeal, counsel largely advances the 'same arguments and refers to the same evidence that the 
·director considered under this criterion with the exception of two updated additions. 
. . . . . . . 
As an ·initial matter , counsel . ass.erts that the petitioner ptaye_d a leading and critical role for two 
establishments with - ~ distinguished reputation: the 
. While the record contains promotional evidence about the head of . 
. . from an unidentified source,· there is no independent evidence 
. establishing the distinguished reputation .of ·the ballet · company or the dance club, apart from the 
assertions. of counse,l. However, the unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533; 534 (BIA 1998); Matter of Ramirez-Sanchez , 17 I&N Dec . 
SO~ S06 (BIA 1980). · The record, therefore, does not support . the claim that and 
are establishJ:1lents with a distinguished reputation . 
. 
4 
See http:Uwww.merriam -wcbster.et~midictionary / distinguishcd, ac~essed on January 22,2013. 
(b)(6)
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Counsel submits two letters on appeal, one from 
one from to 
substantiate the claim of leading or critical role for the above mentioned establishements. The head 
of and the owners of previously submitted letters in support Of the petitjoner 
along with the Form -1:-140. The letters on appeal reflect a July 2012 date and more specifically 
detail the petitioner' ·s leading . or critical role in their ~ respective establishements. 
!writes: 
[The petitio 'ner] was . the lead erformer in one of our most famous ballet 
compositions called. 
the show for . 
Also, took a big part in creating 
known artist c·alled 
This concert had an outstanding success and was translated 
and displayed later in [multiple countries]. 
ofurther ·comments that she picked him from a pool of 30,000 to aid her in 
developing the project idea and choreography for the show. While the letter 
does clarify the pe,titionei's contributions for two specific performances or projects, there is 
insufficient details to. conclude that the petitioner's impact on the establishment on the whole. The 
record indudes a single program, that lists th_e 2etitione'r only as responsible for choreography and 
costumes and the only review is of the general : concept and does not mention the 
petitioner at all. · · 
Similarly; the joint letter from states that: "[the petitioner] 
played a critical role' in our studio .for more thap 10 years." The remainder of the letter discusses his 
excellence as a teacher and chore<?grapher, but fails to articulate how the petitioner's role played a 
critical roie in \ on the whole. USCIS need not accept primarily conclusory assertions. 1756, 
Inc. v. The Attorney 9eneral -o[ the United States, 745 F.Supp. ·9, 15 (D.C . Dist. 1990). 
Accordingly, the petitioner failed ~o satisfy this criterion. 
B. Summary 
Th~ petitioner has failed to submit' sufficient relev~nt, probative evidence to satisfy the regulatory 
requirement of three types of evidence. · 
III. CONCLUSION 
The documentation ~u\)mitted in support of a claim of extraord;inary ability must clearly demonstrate 
. that the aiieh 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. 
(b)(6)
... 
' ' . 
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Had the petitioner submitted· the requisite. evidence unde'r at' leas·t three evidentiary categories, in 
accordance with the Kazarian opinio~, the next s.tep would , be a final merits determination that 
con~iders all of the' evidence in the context of whether or not the petitioner' has demonstrated: (1) a 
"level of expertise indicating that the .individual is o~e of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien pas 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 1119-29. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with., th~ small percentage at the very topof 
the field or sustaineq national or ~nternational acclaim, the AAG need not explain that conclusion in a 
final merits determination. 5 Rather, the proper CQnclusion is that thepetitioner has failed to satisfy the 
regulatory requirement of three types of evidence. !d. at 1122. . . 
The petitioner has nqt established eligibility pursuant to section 203(b )(1 )(A) of the Act and the petition 
may not be approved. . . · 
The burden of proof ~nvisa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act; 8 U.S.C. § 13.61. Here, the petitioner hasnot sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed: 
' I 
5 The AAO maint~ins de n~vo review of all questions of fa~t a~d law. See Soltane v. DOl, 38i F.3d 143, 145 
(3d Cir. 2004). In af1y future proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination as the office that made the last decision in th,is 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 (2003);: 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 1-:--&-No Dec. 458, 460 (BIA 
1987) (holding that legacy INS, ~now USCIS, is the sole authority with the jurisdiction to decide vi~a 
petitions). · . .