dismissed EB-1A Case: Entertainer (Hypnotist)

U.S. Department of Homeland Security 
U. S. Citizenshio and Immieration Services 
- 
? 
 OAice ofAdministrat~ve Appeals MS 2090 
Washington, DC 20529-2090 
I 
U. S. Citizenship 
and Immigration 
LIN 07 012 5081 1 
IN RE: 
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. § 1 1 53(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. 5 103.5 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). 
,hB&~ilL 
John F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 3 1153(b)(l)(A). The director determined that the 
petitioner had not established the sustained national or international acclaim necessary for classification as an 
alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the following subparagraphs (A) through (C): 
(A) Aliens with Extraordinary Ability. -- An alien is described in this subparagraph if -- 
(i) 
 the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 
 8 C.F.R. 8 204.5(h)(3). An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight given to evidence submitted to hlfill the criteria 
at 8 C.F.R. 9 204.5(h)(3), or under 8 C.F.R. 9 204.5(h)(4), must depend on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained national or international acclaim at the very top of the 
alien's field of endeavor. A lower evidentiary standard would not be consistent with the regulatory definition 
of "extraordinary ability" as "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). 
This petition, filed on October 5, 2006, seeks to classify the petitioner as an alien with extraordinary ability as 
an entertainer. The petitioner submitted supporting evidence at the time of filing, in response to a Request for 
Evidence ("WE") dated October 23, 2007, and on appeal. The supporting evidence consists of letters of 
recommendation, fan mail, conference materials, information about the petitioner's show in Las Vegas, a DVD 
of his performance, news articles, and information about the American Council of Hypnotist Examiners 
("ACHE"). We address the evidence submitted in the following discussion of the regulatory criteria relevant to 
the petitioner's case. The petitioner does not claim eligibility under any criteria not addressed below. 
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(I) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in the$eld of endeavor. 
The petitioner submitted no evidence relevant to this criterion at the time of filing or in response to the RFE. On 
appeal, the petitioner submitted evidence that he was to receive the Star 2008 Award from the Stage Hypnotists 
of the World ("SHOW) in June 2008. This award may not be considered, however, because 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. 8 C.F.R. tj 103*2(b)(1),(12); Matter of Katigbak, 14 I. & N. Dec. 
45,49 (Comm. 1971). The petitioner submitted no evidence of other awards or prizes received. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
(iI) Documentation of the alien's membership in associations in thejield for which classiJication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines orjields. 
The petitioner submitted a copy of his certification by ACHE as a clinical hypnotherapist. In order to 
demonstrate that membership in an association meets this criterion, a petitioner must show that the 
association requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or 
experience, proficiency certifications, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues, do not satisfy this criterion as such requirements do not 
constitute outstanding achievements. Further, the overall prestige of a given association is not determinative; 
the issue here is membership requirements rather than the association's overall reputation. 
According to the ACHE information, in order to be certified as a clinical hypnotherapist, the member must have 
"completed at least three hundred (300) hours of instruction in hypnosis from a school approved by the 
appropriate state agency and by the [ACHE]." The information about ACHE indicates that membership does 
not require outstanding achievement, but is instead based on completion of educational and practical 
requirements. In addition, the ACHE information does not indicate that membership is judged by recognized 
national or international experts in the field. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
(iii) 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 classijication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
The petitioner submitted numerous published articles about himself and his work in publications such as The 
Vancouver Sun, The Banner Post, Cochrane Times, Maple Creek News, The Regional Trader, Crownsnest Pass 
Herald, The Edmonton Sun, The Signal, the Richmond Review, The Peace Arch News, The Puyallup Herald, 
Skagit Valley Herald, The Quincy Valley Post-Register, Yorktown This Week, The Central Peace Signal, 
Record-Gazette, The World-Spectator, The Mitchell Advocate, The Okanagan, Capital News, The Morning Star, 
Mile Zero News, Falher Smohy River Express, The Cold Lake Sun, The Lloydminster Meridian Booster, IZe 
Pass Herald, Valley Views, the Bricklayer, Fort Macleod Gazette, Today in Las Vegas Magazine, Las Vegas 
Sports Magazine, and Las Vegas Magazine. The petitioner also submitted a number of articles without 
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indicating the publication in which they appeared as required by 8 C.F.R. 5 204.5(h)(3)(iii). The record 
contains no evidence such as the usual circulation of any of these publications or any other evidence to 
demonstrate that these articles were published in professional, major trade, or other major media publications. 
Instead, the publications indicate a local distribution either through their name, i.e. Skagit Valley Herald and the 
Cochrane Times or through their subtitle such as The Record-Gazette which states that it has been "[slerving 
Peace River and [alrea since 1914" or The World-Spectator which states that it is "Saskatchewan's oldest 
weekly newspaper." On appeal, the petitioner submitted a list of the "Top Ten Daily Newspapers in Canada 
According to Circulation September 30, 2002." That list states that The Globe and Mail, a newspaper which 
published articles about the petitioner, enjoys a circulation of 3 17,138, which is the second highest circulated 
newspaper in Canada and The Vancouver Sun enjoys a circulation of 180,888, which is the seventh highest 
circulated newspaper in Canada. That list, however, does not identify its source or contain any other 
information regarding its authority or authenticity so that we are unable to conclude that The Globe and Mail, 
The Vancouver Sun, or any other publication which published articles about the petitioner constitutes major 
media. The letter from, Executive Director of Ontario Students Against Impaired Driving, states 
that coverage in The Globe and Mail is "equivalent . . . to . . . ha[ving] front page coverage in the New York 
Times or the Washin on Post." The petitioner submitted no evidence to support statement or to 
establis duty to make such a statement. 
The articles submitted in response to the RFE that bear dates indicate that they were published in 2007, which 
was after this petition was filed. As previously indicated, articles appearing after the date the petition was filed 
evidence future eligibility instead of eligibility at the time of filing so cannot be considered in this proceeding. 8 
C.F.R. 3 103.2(b)(1),(12); Matter of Katigbak, 14 I. & N. Dec. at 49. In addition, we note that the magazines 
submitted, such as Las Vegas Magazine, operate more like advertising or promotional material instead of as 
independent media. As such, they cannot be considered professional or major trade publications or other major 
media under this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of 
major signiJicance in thefield. 
On appeal, counsel states that the petitioner made "outstanding efforts and successes in combating DUI" by 
"educat[ing] thousands of young people on the dangers of driving and drinking. He has utilized hypnotherapy to 
save lives. No other performer on the Las Vegas stage or elsewhere can make that claim" An October 24,2005 
letter fro- and of the Royal Canadian Mounted Police and the May 3, 2004 letter fiom 
- of the Saanich Police Department state that the petitioner is an effective speaker on alcohol 
awareness. The letter from of the Edmonton Police Service also credits the etitioner with the 
decrease in the number of car crashes, fatalities, and drunk driving. The letter from states that "[the 
petitioner's] Road safety presentation is without a doubt the most original and effective performance I have ever 
seen on the issue of road safety, sober driving promotion, and teen responsibility and safe choices (emphasis in 
original)." The petitioner also submitted a number of letters from police departments and school representatives 
thanking him for his presentation and stating that his presentation made a difference. For example, the letter 
from - states that "[tlhe attitude regarding drinking and driving in our school, 
particularly within the group of students I was concerned with, became completely unacceptable" and thanks the 
petitioner for "inspiring profound attitude change amount our youth." The October 24, 2000 letter £?om- 
provincial coordinator of Students Against Dd Driving, states that the petitioner's performance is 
L'powefil, thought provoking, and very entertaining" and that the petitioner is ranked "as one of the best 
[students and teachers] had ever seen." These letters reveal that the petitioner's presentation is respected and 
appreciated by the audience members and that the authors believe that the petitioner employs unique or original 
methods. These letters, however, do not demonstrate how the petitioner made a contribution of major 
significance. For example, the letter from and Stone credit the petition with a decrease in fatalities 
due to drunk driving in the area, but do not include any evidence supporting their statement. Nor do the letters 
indicate how the petitioner enjoys national or international acclaim from these presentations made to local 
groups. 
The etitioner also submitted letters that speak highly of his overall abilities. The May 27,2008 letter from= 
PExecutive Director of the American Council of Hypnotist Examiners, states that the petitioner is "one of 
the very best stage hypnotists" and that "he is on the forefront of educating the public about hypnosis and 
impacting their perception of hypnotherapy as a viable tool for growth and change." The October 24, 2005 
letter from chief executive officer of Red Horse Press and the petitioner's instructor, states that as a 
good stage hypnotist, the petitioner "has the ability to educate the audience, inspiring them with hope and 
turning them into clients for hypnotherapists working in the local area. People who would never have sought the 
counseling they need will see [the petitioner's] show and find the courage to seek help." The July 3,2004 letter 
from certified clinical hypnotherapist with Change Now Hypnosis, states that the petitioner has "a 
truly unique talent that others only dream to possess." Although these letters are complimentary of the 
petitioner's abilities, they do demonstrate how he has made an original contribution of major significance to his 
field. For example, none of the letters state that the petitioner is employing new or different methods or that his 
methods have been adopted by other hypnotists. 
As the record lacks extensive documentation showing that the petitioner's work has been unusually influential, 
highly acclaimed throughout his field, or has otherwise risen to the level of original contributions of major 
significance, the petitioner has failed to establish that he meets this criterion. 
(vii) Evidence of the display of the alien's work in thejeld at artistic exhibitions or showcases. 
This criterion generally applies to the visual, not performing, arts. However, because counsel on appeal states 
that the petitioner "demonstrated successful performances," we have considered the relevant materials as 
comparable evidence of the petitioner's eligibility pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). It is 
inherent to the performing arts to perform. Therefore, not every production is a showcase or exhibition of the 
work of every performer. We find that the petitioner's performance in "Mesmerized" is not a showcase of 
the petitioner's work but a general commercial production for entertainment. Without evidence that the 
petitioner's performance is comparable to the exclusive artistic showcases that might serve to meet this 
criterion for a visual artist, we cannot conclude that the petitioner meets this criterion. However, while the 
evidence regarding the petitioner's performances cannot serve to meet this criterion, they are not without 
evidentiary value. For this reason, the regulations establish separate criteria, especially for those whose work 
is in the performing arts. As we find the petitioner's performances are far more relevant to the "evidence of 
commercial success" criterion set forth at 8 C.F.R. § 204.5(h)(3)(x), they have been discussed separately 
within the context of that criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion 
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(x) Evidence of commercial successes in the perjorming arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
The petitioner submitted a program from his Las Vegas show and a DVD of his performance. The letter &om 
the company that produced the petitioner's Las Vegas show, states that the petitioner's show 
"produced an estimated $20,000.00 in revenue per week." That letter is written in the past tense and does not 
otherwise indicate when those revenues were generated. We note that at the time of filing, the petitioner 
submitted no evidence regarding the existence of his show in Las Vegas. If his act did not begin until after 
filing, as previously indicated, evidence related to the commercial success of the act after filing cannot be 
considered in this proceeding. 8 C.F.R. 5 103.2@)(1),(12); Matter of Katigbak, 14 I. & N. Dec. at 49. = 
letter also gives no other substantiating details or support for the statement; the petitioner submitted no 
evidence to substantiate assertions. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sofici, 22 I. & N. 
Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I. & N. Dec. 190 (Reg. Cornrn. 
1972)). Further, even if the claims were documented, the petitioner submitted no evidence to establish that 
$20,000 per week is indicative of commercial success. The letter from, president of the SHOW, 
states that the petitioner erfonns 200 shows per year and that each show has anywhere from 200 to 1,000 
audience members. does not state how he came to learn of the petitioner's audience numbers nor 
does he give any information about the amount of revenue generated. Again, the petitioner submitted no 
evidence to substantiate assertions. 
Accordingly, the petitioner does not meet this criterion. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The evidence in 
this case indicates that the petitioner is well-known hypnotist who has worked with schools in the United States 
and Canada and currently works with a show in Las Vegas. However, the record does not establish that the 
petitioner achieved sustained national or international acclaim as a hypnotherapist or entertainer so as to place 
him at the very top of his field. He is thus ineligible for classification as an alien with extraordinary ability 
pursuant to section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1 153(b)(l)(A), and his petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. 
 The petitioner here has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.