dismissed EB-1A Case: Dramatic Arts

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U.S. C~t~zenship and Imm~grat~on Servlces 
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Office: TEXAS SERVICE CENTER Date: wy 2 6 2009 
WAC 08 006 5 1490 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 
 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. 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 $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
V 
& F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualifL for classification as an alien of extraordinary ability. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we 
concur with the director that the petitioner must establish that the occupation listed on the Form 1-140 
petition is within his area of expertise. Regardless, we uphold the director's findings that the record 
does not establish the beneficiary's national or international acclaim in any occupation. 
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 56 Fed. Reg. 60897, 60898-9 (Nov. 29, 
1991). As used in this section, the term "extraordinary ability" means a level of expertise indicating 
that the individual is one of that small percentage who have risen to the very top of the field of 
endeavor. 8 C.F.R. § 204.5(h)(2). The specific requirements for supporting documents to establish that 
an alien has sustained national or international acclaim and recognition in his or her field of expertise 
are set forth in the regulation at 8 C.F.R. $204.5(h)(3). The relevant criteria will be addressed below. 
It should be reiterated, however, that the petitioner must show that he has sustained national or 
international acclaim at the very top level. 
According to Part 3 of the petition, the petitioner seeks classification as an alien with extraordinary 
ability as a "Teacher of Dramatic Arts." Thus, the director determined that the petitioner needed to 
demonstrate national or international acclaim in that occupation. On appeal, counsel asserts that the 
petitioner's abilities and accomplishments as a director, actor, teacher and screenwriter are 
"inextricably intertwined and depend on the same skills, training and abilities." Counsel cites Giilen v. 
Chert08 2008 WL 2779001 *2 (E.D. Pa. 2008) and Buletini v. INS, 860 F. Supp. 1222, 1229 (E. D. 
Mich. 1994) for the proposition that USCIS cannot overly narrow an alien's field. 
In contrast to the broad precedential authority of the case law of a United States circuit court, the 
AAO is not bound to follow the published decision of a United States district court in matters arising 
within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning 
underlying a district judge's decision will be given due consideration when it is properly before the 
AAO, the analysis does not have to be followed as a matter of law. Id. at 719. 
Regardless, in Buletini, 20 I&N Dec. at 1230-31, the court was mostly concerned that the legacy 
Immigration and Naturalization Service (INS), now USCIS, made a factual error in characterizing 
the alien's occupation as a researcher in nephrology when he was employed as a physician who 
performed research in multiple areas of medical science including but not limited to nephrology. 
Moreover, the Buletini court was willing to narrow the alien's field to "medical science" as opposed 
to "science." Id. In Giilen, 2008 WL 2779001 at *2, the court was concerned that USCIS constructed 
the statutorily permissible fields of endeavor too narrowly, considering only the alien's 
accomplishments in the field of education rather than as a religious leader. That court did not consider 
the issue of whether an alien can seek to enter the United States to work in a different occupation than 
the one in which he has demonstrated expertise. 
The AAO is bound by the Act, agency regulations and precedent decisions of the agency.' The 
regulation at 8 C.F.R. 5 204.5(h)(5) requires the petitioner to establish that he will "continue work in 
the area of expertise." While an actor/screenwriter and dramatic arts teacher certainly share 
knowledge of the dramatic arts, the two rely on very different sets of basic skills. Thus, 
actinglscreenwriting and teaching are not the same area of expertise. This interpretation as applied to 
athletes and coaches has been upheld in federal court. See Lee v. I.N.S., 237 F. Supp. 2d 914 (N.D. 
Ill. 2002). While also a non-binding district court decision, the court persuasively 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 
1 
 The AAO is also bound by published decisions from the circuit court of appeals from whatever circuit that 
the action arose. See N L. R. B. v. Ashkenazy Property Management Corp., 8 17 F.2d 74, 75 (9th Cir. 1987) 
(administrative agencies are not free to refuse to follow precedent in cases originating within the circuit). 
Counsel, however, has not suggested that any federal circuit court has ruled on this issue. 
Page 4 
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 and we are persuaded that the court's 
decision is consistent with the regulation at 8 C.F.R. 5 204.5(h)(5). 
We acknowledge that there exists a nexus between participating in the dramatic arts and teaching the 
dramatic arts. To assume that every extraordinary actor's area of expertise includes teaching, 
however, would be too speculative. To resolve this issue, the following balance is appropriate. In a 
case where an alien has clearly achieved national or international acclaim as an actor and has 
sustained that acclaim as a teacher at a nationally distinguished institution, we can consider the 
totality of the evidence as establishing an overall pattern of sustained acclaim and extraordinary 
ability such that we can conclude that coaching is within the petitioner's area of expertise. 
Specifically, in such a case we will consider the level at which the alien acts as teacher. A teacher 
who has an established successful history of teaching the top tier of dramatic arts students nationally 
has a credible claim; a teacher of local novices does not. Thus, we will first examine whether the 
petitioner has demonstrated his extraordinary ability in the dramatic arts. We will next consider the 
level at which he has taught. 
The regulation at 8 C.F.R. tj 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at 
least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify 
as an alien of extraordinary ability. The petitioner has submitted evidence that, he claims, meets the 
following  riter ria.^ 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
President and Chief Executive Officer of Baez Entertainment 2000, asserts that the 
petitioner produced and starred in the company's 12 minute film "Racket." The petitioner submitted a 
certificate fiom The Director's Cut film festival that provides: 
This is to certify that Racket has been recognized by the Director's Cut Panel to be a 
filmmaker of great potential, demonstrating hisher art by technical, creative and 
original means as to set them apart fiom other filmmakers. We endorse their future in 
the film industry as they have officially made The Director's Cut. 
2 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
(Emphasis added.) Promotional materials for the festival provided by the petitioner state that the 
festival, held quarterly, was "created purely as a vehicle to promote and further the careers of new 
filmmaking talent." 
The director requested additional evidence, inquiring as to what awards the petitioner himself was 
awarded, the pool of candidates for such awards and the criteria for those awards. In response, counsel 
did not assert that the Director's Cut certificate served to meet this criterion. Rather, counsel asserts 
that the petitioner meets this criterion through a 1993 Best Leading Actor award from the National 
Academy for Theater and Film Arts (NATFA) in Benidorrn, Spain. The petitioner submitted the award 
and a letter from - , Director of the Benidonn 
International Theatre Festival, advising that he visited Bulgaria in 1992 and was so impressed with the 
beneficiary's performances as a student at the National Academy for Theatre and Film Arts, that he 
invited the petitioner's class to perform at Benidorm. This letter strongly suggests that the Benidonn 
festival is a student competition. 
While not discussed by counse 
, founder and President 
asserts that he cast the 
1 under this criterion, the petitioner submitted a letter from = 
of Dirt Road Films, which produced "The Definition of Sanity." Mr. 
petitioner in the movie and that the petitioner "also agreed to work as 
our on-set acting coach and artistic consultant." The record contains no evidence that the petitioner was 
officially credited with these duties. lists several film festivals where the film was shown 
and several film festival awards. The petitioner also submitted materials listing the awards and 
containing excerpts of several favorable reviews. None of the reviews mention the petitioner by name. 
The director concluded that the record lacked evidence that the NATFA Best Leading Actor award was 
nationally or internationally recognized. The director further concluded that the Director's Cut 
certificate was issued to the film, not the petitioner, and that the petitioner had not demonstrated the 
significance of this award. 
On appeal, counsel asserts that the petitioner's role as producer for and lead actor in "Racket" 
demonstrate that the accolades won by the film are attributable to him. Counsel further asserts that the 
national recognition of the competition is evidenced by its judging panel. Counsel Mher notes that 
"Racket" was selected for presentation at other film festivals. Next, counsel asserts for the first time 
that the petitioner should be credited with prizes awarded to "The Definition of Insanity" because the 
petitioner served as the on-set artistic consultant and acting coach. Finally, counsel asserts that the 
NATFA award meets this criterion and cites Buletini, 860 F. Supp. at 1230, for the proposition that an 
award need not be recognized internationally to meet this criterion. 
According to the plain language of the regulation at 8 C.F.R. $204.5(h)(3)(i), the petitioner must 
provide evidence of "the alien's receipt" of qualiQing prizes or awards. Thus, it is not sufficient to 
demonstrate that the petitioner worked on an award-winning project if he himself is not the recipient of 
the award, whether individually or as part of a team as when a team of writers wins a writing award. 
As such, the awards won by "Racket" and "The Definition of Insanity" cannot meet this criterion. 
Moreover, we concur with the director that the Director's Cut is not a nationally recognized award for 
excellence as it is limited to new filmmakers and, thus, is not an award for which the most experienced 
and renowned filmmakers compete. 
The "display" at film festivals of the films in which the petitioner appears will be considered below 
under the criterion set forth at 8 C.F.R. $204.5(h)(3)(vii). The selection for display at a film festival is 
not an award or prize. 
Finally, despite the director's request for evidence regarding the significance of any awards, the 
petitioner has failed to provide any evidence as to the significance of the NATFA award. While the 
award need not be internationally recognized as noted on appeal, the award must be at least nationally 
recognized according the plain language of the regulation at 8 C.F.R. 8 204.5(h)(3)(i). The materials 
about the Shakespeare Foundation of Spain make no mention of the NATFA award. As stated above, 
- strongly implies that the award was limited to students. 
 Thus, once again, the 
most experienced and renowned members of the field do not aspire to win this award. Moreover, the 
award was issued in 1993 and cannot be considered evidence of sustained acclaim in 2007 when the 
petition was filed. 
In light of the above, the petitioner has not demonstrated that he meets this criterion. 
Documentation of the alien S membership in associations in the field for which classfication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines orjelds. 
Counsel does not challenge the director's conclusion in the request for additional evidence that the 
petitioner's membership in the Screen Actor's Guild (SAG) cannot serve to meet this criterion and we 
concur with the director that the record lacks evidence that SAG membership is limited to those with 
outstanding achievements as judged by recognized national or international experts in the field. 
In response to the director's request for additional evidence, counsel asserts that the petitioner is a 
"member" of the Harlem Arts Alliance Dramatic Writing Academy, which has a long waiting list. The 
petitioner submitted a letter from - Founder and Director of the academy, asserting 
that entry into the academy requires "an extraordinary gift for screenwriting and the extraordinary 
stamina, passion, and commitment it takes to keep working on a script through many drafts and 
further asserts that the academy faculty members are nationally renowned. 
Finally, 
 the beneficiary's screenplay, "Green Light." 
The director concluded that the petitioner had submitted insufficient evidence of the academy entry 
requirements and the stature of the faculty and noted that the record contained no evidence that "Green 
Light" was recognized beyond the academy. 
Page 7 
On appeal, counsel asserts that the petitioner was admitted to the academy based on the impressive 
nature of "Green Light." Counsel cites a non-precedent decision by this office reversing a finding that 
the Japan Artists Association and the Dokuritsu Art Association could not serve to meet this criterion. 
The petitioner submits a letter from 
 Founding Member and Executive Producer of the 
Harlem Arts Alliance asserting that the petitioner "has been enrolled" in the Columbia University 
School of the Arts' Writers Guild of America East in association with Harlem Arts Alliance's New 
Heritage Theatre Group Screenwriting Workshop and is one of the permanent members of the 
alliance's Dramatic Writing Academy. 
While 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Regardless, counsel has not explained how the academy is similar to the two Japanese art 
associations listed above. 
While the academy may be a competitive dramatic arts program, it remains that it is an educational 
and training program that admits promising students rather than an association that admits members 
based on their outstanding achievements in the field. As acceptance as a student or trainee is not a 
"membership," it cannot serve to meet this criterion. 
In light of the above, the petitioner has not demonstrated that he meets this criterion. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in theJield for which classrJication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner submitted (1) a February 26, 1995 article in Duma about the petitioner's student movie, 
"Wake up the Bride," selected for the Valencia Cinema Festival, a youth festival; (2) a May 8, 1995 
issue of Standart containing an interview with the petitioner; (3) a review of "The Secret Gospel of 
John, Mystery #l" in the May 10, 1995 issue of 24 Hours; (4) a photograph of the petitioner appearing 
on the television program "The New Yorkers" and (5) an article about the Lake Placid Film Festival 
characterizing the petitioner as "a student at New York's Writers Guild East" in the June 11, 2000 
edition of the Times Union. 
The director requested evidence that the published materials appeared in professional or major trade 
publications or other major media. In response, the petitioner did not submit circulation data for the 
above publications or other evidence suggesting that they are major media. Rather, the petitioner 
submitted reviews of "Marco the Prince" that all postdate the filing of the petition. The petitioner must 
establish eligibility as of that date. See 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 
45,49 (Reg'l. Comm'r. 1971). 
The director concluded that the petitioner had not demonstrated that the original published materials 
appeared in professional, major trade or other major media and that the new materials were not about 
the petitioner. On appeal, counsel no longer asserts that the petitioner meets this criterion. 
We concur with the director that the petitioner has not established that he meets this criterion because 
the older materials have not been demonstrated to have appeared in professional, major trade 
publications or other major media (and cannot demonstrate sustained acclaim in 2007 when the petition 
was filed) and the newer materials are not "about" the petitioner and postdate the filing of the petition. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same or an allied$eld of speciJication for which classijication is sought. 
The initial submission included no evidence relating to this criterion. In response to the director's 
request for additional evidence, the petitioner submitted a letter from Artistic Director 
for Drama Theatre ( Rousse. asserts that when the petitioner decided to 
leave the production of "The Secret Gospel of John" in 1996, he headed the panel to select his 
replacement for the role of Jesus from among the 300 actors from all over Bulgaria who competed for 
the role. 
The director concluded that this experience did not involve judging the work of other drama teachers. 
As discussed above, counsel asserts on appeal that the director should have considered the petitioner's 
acting and screenwriting accomplishments. 
While we are willing to consider the petitioner's acting accomplishment at this stage in our analysis, the 
petitioner has not demonstrated that the beneficiary's service on the casting panel is sufficient to meet 
this criterion. Specifically, the beneficiary's selection to head up the panel casting his replacement at 
the theater where he had been performing is not reflective of his acclaim beyond that theater. 
Regardless, the petitioner served on this panel in 1996, 11 years before filing the petition. Thus, it 
cannot be considered evidence of the petitioner's sustained national or international acclaim in 2007 
when the petition was filed. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien's original scientijc, scholarly, artistic, athletic, or business-related 
contributions of major signljicance in theJield 
In response to the director's request for additional evidence, counsel asserted that the petitioner is "an 
outstanding actor, exceptional dram teacher and accomplished screenwriter, whose original work is in 
great demand, as evidenced by the numerous commitments that he had secured with leading theater and 
movie production companies." Counsel references the beneficiary's recent supporting role in "Marco 
the Prince," which postdates the filing of the petition; the beneficiary's role in the "The Definition of 
Insanity"; the interest of independent film producer in making a feature length 
production of "Racket"; and the petitioner's work with Impact Repertory Theatre of Harlem, an 
outreach youth program operated by Columbia University, where, according to the 
petitioner "has been" a student. 
The director concluded that the petitioner had not established that his work has had "major significance 
to his occupation." On appeal, counsel no longer asserts that the petitioner meets this criterion. 
According to the regulation at 8 C.F.R. 4 204.5(h)(3)(v), an alien's contributions must be not only 
original but of major significance. We must presume that the phrase "major significance" is not 
superfluous and, thus, that it has some meaning. To be considered a contribution of major 
significance it can be expected that the contributions will have had a demonstrable impact in the 
field. We concur with the director that the petitioner has not demonstrated that he is known for an 
influential original acting or screenwriting method or has otherwise impacted the field at the national 
or international level. The petitioner's roles for various productions and the display of his films will 
be considered below and are not presumptive evidence to meet this criterion. 
Finally, an October 25, 2008 letter from 
 indicates that the production of the feature 
length version of "Racket" is on hold for economic reasons. Thus, this project is not even underway, 
let alone complete and distributed nationally or internationally. As such, the petitioner cannot 
demonstrate the impact of this project. 
In light of the above, we concur with the director's uncontested conclusion that the petitioner does 
not meet this criterion. 
Evidence of the display of the alien S work in the field at artistic exhibitions or showcases. 
As stated above, the petitioner has appeared as a lead role in the 2004 short film "Racket" and in a 
supporting role in the 2004 "The Definition of Insanity." Both of these films have been showcased at 
film festivals. The petitioner also director productions for Impact Repertory Theatre of Harlem. While 
Founder and Director of the group, attests to the prestigious venues where the group has 
performed he does not state that the petitioner directed those productions. As stated above, the 
petitioner's performance in "Marco the Prince" postdates the filing of the petition, the date as of which 
the petitioner must establish eligibility. See 8 C.F.R. $5 103.2(b)(l), (1 2); Matter of Katigbak, 14 I&N 
Dec. at 49. Historically, in the 1990's the petitioner appeared as Jesus in "The Secret Gospel of John." 
The director concluded that the evidence meets this criterion in the field of acting, but not as a dramatic 
arts teacher. On appeal, counsel reiterates previous claims. 
This criterion is primarily for the visual arts. The petitioner is a performing artist. It is inherent to the 
field of performing arts to perform. Not every performance is a "display" at an artistic exhibition or 
showcase. The petitioner's appearance in "The Secret Gospel of John" relates far more to the leading 
or critical role criterion at 8 C.F.R. $204.5(h)(3)(viii) than this one. Moreover, these performances 
ended in 1996, 11 years before the petition was filed. As such, they are not indicative of sustained 
acclaim in 2007 when the petition was filed. 
The petitioner had only a supporting role in "The Definition of Insanity." None of the reviews mention 
his influence on the film. Thus, the displays of this film at film festivals cannot serve to meet this 
criterion. More persuasive are the showings of "Racket" at film festivals given the petitioner's role in 
that film. 
In view of the film festival showings of "Racket," a 12-minute short film, the petitioner has 
demonstrated that he minimally meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
In response to the director's request for additional evidence, counsel referenced the petitioner's role as 
Jesus in "The Secret Gospel of John" and his supporting role in "Marco the Prince." As stated above, 
the petitioner's performance in "Marco the Prince" postdates the filing of the petition and cannot 
establish his eligibility as of that date. See 8 C.F.R. $9 103.2(b)(l), (12); Matter of Katigbak, 14 I&N 
Dec. at 49. 
The director concluded that the petitioner had not demonstrated the reputation of the theater that 
produced "The Secret Gospel of John," "Racket" and the Impact Repertory Theatre of Harlem. The 
director also questions the leading nature of the petitioner's role for the Impact Repertory Theatre of 
Harlem. On appeal, counsel asserts that the petitioner meets this criterion by directing shows for the 
Impact Repertory Theatre of Harlem and his role in "Marco the Prince." 
While the petitioner may have played a leading role in "The Secret Gospel of John," that role predates 
the petition by 11 years and is not evidence of sustained acclaim when the petition was filed. 
Moreover, counsel does not respond to the director's concerns regarding the national reputation of the 
theater that produced this show. 
asserts that the Impact Repertory Theatre of Harlem has performed at Lincoln Center, the 
Public Theater, the Apollo Theater, the New York City Marathon and the Kennedy Center in 
Washington and has been featured on Good Morning America and Nightline. further 
asserts that the group has appeared in HBO movies. further asserts that students trained by 
the petitioner have one on to earn admission and scholarships into college-level dramatic arts 
programs. explains that the petitioner directed "a number of Impact productions," two of 
khch were recognized locally by the ~&lem Arts Alliance, AUDELCO and the union Square Award, 
which is not in the record. Finally, 
 asserts that the petitioner has arranged international 
performance tours for the student productions. 
Page I I 
The factors for this criterion are the role the petitioner was selected to fill for an organization and the 
reputation of that organization. The petitioner did not provide programs from the repertory group 
establishing his role for specific productions or an organizational chart demonstrating his role within 
the group as a whole or the number of other volunteer trainers and directors. While ffirms 
that the petitioner has fulfilled his assigned role successfully, it is less clear that selection for this role is 
indicative of the petitioner's national or international acclaim. As stated above, according to Ms. 
, the petitioner "has been" a student at Columbia University, which sponsors the repertoly group. 
For the reasons discussed above, the petitioner's role in "Marco the Prince" cannot be considered 
evidence of eligibility as of the date of filing since it postdates that date. See 8 C.F.R. $5 103.2(b)(l), 
(12); Matter of Katigbak, 14 I&N Dec. at 49. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other signiJicantly high remuneration for 
services, in relation to others in the$eld. 
asserts that 
 increased the petitioner's compensation to 1,000 Bulgarian 
leva per performance, averaging 25,000 leva per month, 10 percent higher than the typical actor's 
salary. The director concluded that the petitioner did not corroborate these claims. Counsel no longer 
asserts that the petitioner meets this criterion on appeal. The petitioner left this theater in 1996. Thus, 
any compensation earned at that theater cannot establish the petitioner's sustained acclaim 11 years 
later in 2007 when he filed the petition. 
In light of the above, the petitioner has not provided evidence consistent with sustained acclaim to meet 
this criterion. 
Evidence of commercial successes in the performing arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
also asserts that the 
 would sell out performances of "The Secret Gospel of 
John." The petitioner did not submit box office receipts as required under 8 C.F.R. 9 204.5(h)(3)(x). 
Thus, the petitioner has not submitted the required initial evidence to meet this criterion. 
In addition to the above evidence relating to the regulatory criteria, the petitioner submitted several 
reference letters praising the petitioner's talent. While we have considered the statements in these 
letters as they relate to the above criteria, general and necessarily subjective affirmations of the 
petitioner's talent by those asked to support the petition cannot demonstrate sustained national or 
international acclaim. Ultimately, evidence in existence prior to the preparation of the petition carries 
greater weight than new materials prepared especially for submission with the petition. An 
individual with sustained national or international acclaim should be able to produce unsolicited 
materials reflecting that acclaim. 
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. 
Review of the record, however, does not establish that the petitioner has distinguished himerself as an 
actor/screenwriter to such an extent that he may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of his field. The evidence 
indicates that the petitioner shows talent as an actor/screenwriter, but is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field. Therefore, the 
petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition 
may not be approved. 
Even if the petitioner had demonstrated national or international acclaim as an actor or screenwriter, the 
record does not suggest that teaching is within his area of expertise. We have reviewed the 
nonimmigrant visa petitions filed in the beneficiary's behalf as of 2003. These petitions all indicate 
that the petitioner would teach local Latino and African-American students at Baez Entertainment 
2000, Inc. full-time for between $500 and $577 per week. Baez Entertainment 2000 indicated that it 
employed between two and three employees. On the Form G-325A accompanying the petitioner's 
Form 1-485 Application to Register Permanent Residence or Adjust Status, the petitioner indicated 
that he had worked solely as an actor for Baez Entertainment 2000. Significantly, the June 11, 2000 
issue of the Times Union submitted in support of the petition indicates that the petitioner was a 
"student at New York's Writer's Guild East." The evidence submitted with the initial Form 1-140 
petition before us reveals that a professor at Columbia University, where the petitioner was and 
possibly still is a student, utilizes the petitioner as "an assistant instructor" and that the petitioner 
"began volunteering as a drama instructor at IMPACT Repertory Theater." All of the beneficiary's 
teaching experience is either highly questionable (the record contains no evidence that Baez 
Entertainment 2000 with its three employees operates a teaching facility in addition to the production 
company formed to produce the founder's short films) or is aimed at youth at a very local level. 
While we acknowledge that the record contains some evidence that the petitioner also seeks to continue 
acting, the proposed employment on the Form 1-140 petition is teaching. Any amendment to this claim 
would be a material claim. A petitioner may not make material changes to a petition that has already 
been filed in an effort to make an apparently deficient petition conform to CIS requirements. See 
Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). 
Finally, we acknowledge that the petitioner was previously awarded non-immigrant 0-1 visas as an 
alien of extraordinary ability. The regulatory requirements for an immigrant and non-immigrant alien 
of extraordinary ability in the arts are dramatically different. 8 C.F.R. 5 214.2(0)(3)(ii) defines 
extraordinary ability in the arts (including the performing arts) as simply "distinction," which is firther 
defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
As discussed above, the regulation at 8 C.F.R. 5 204.5(h)(3) sets forth ten criteria as evidence of 
sustained national or international acclaim, of which a petitioner must meet at least three. While these 
ten criteria appear in 8 C.F.R. 8 214.2(0), they refer only to aliens who seek extraordinary ability in the 
fields of science, education, business or athletics. The distinction between these fields and the arts, 
which appears in 8 C.F.R. 5 214(0) does not appear in 8 C.F.R. 204.5(h). As such, the petitioner's 
approval for non-immigrant visas under the lesser standard of "distinction" is not evidence of his 
eligibility for the similarly titled immigrant visa. 
Moreover, the prior approval of nonimmigrant visas does not preclude USCIS from denying an 
immigrant visa petition based on a different, if similarly phrased, standard. It must be noted that 
many I- 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. Suva, 724 F. Supp. 1103 
(E.D.N.Y. 1989). Because USCIS spends less time reviewing I- 129 nonimmigrant petitions than I- 
140 immigrant petitions, some nonimmigrant 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, 19 I&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 had approved the 
nonimmigrant petitions on behalf of the beneficiary, 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.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.