dismissed EB-1A Case: Figure Skating

U.S. Citizenship 
and Immigration 
Services 
MATTER OF P-B-M-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 25,2018 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a figure skater, seeks classification as an individual of extraordinary ability in the 
arts. See Immigration and Nationality Act (the Act) section 203(b)(l)(A). 8 U.S.C. § 1153(b)(l)(A). 
This first preference classification makes immigrant visas available to those who can demonstrate 
their extraordinary ability through sustained national or international acclaim and whose 
achievements have been recognized in their field through extensive documentation. 
The Director of the Texas Service Center denied the Form I-140, Immigrant Petition for Alien 
Worker, concluding that the Petitioner had not satisfied any of the initial evidentiary criteria. of 
which he must meet at least three. 
On appeal, the Petitioner provides a brief and documentation, stating that he meets at least three 
criteria. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l )(A) of the Act makes visas available to qualified immigrants with extraordinary 
ability if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business. or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work m the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
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Matter uf P-B-M-
The term "extraordinary ability" refers only to those individuals in ''that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification 's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is, a major, 
internationally recognized award). If that petitioner does not submit this evidence, then he or she 
must provide documentation that meet s at least three of the ten categories listed at 8 C.F.R. 
§ 204.5(h)(3)(i)- (x) (including items such as award s, published material in certain media, and 
scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USC IS, 596 F.3d III5 (9th Cir. 20 I 0) 
(discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination) ; see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D .D.C. 2013); R(jal v. USCJS, 772 F. Supp . 2d 1339 
(W.O. Wash. 20 II) . This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality, '· as well as the prin ciple that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter (~{Chawathe , 25 I&N Dec. 369, 376 (AAO 2010) . 
11. ANALYSIS 
The Petitioner is an ice show figure skater who has performed in various production s, including 
shows. Because the Petitioner has not indicated or established that he has 
received a major , internationally recogni zed award, he must satisfy at least three of the ten criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). 
On appeal, the Petitioner maintains that he meets four criteria: published material under 8 C.F.R. 
§ 204.5(h)(3)(iii), artistic display under 8 C.F.R. § 204.5( h)(3)(vii) , lead ing or critical roles under 
8 C.F.R. § 204.5(h)(3)(viii), and high salary under 8 C.F.R. § 204.5(h)(3)(ix). We have reviewed all 
of the evidence in the record, and conclude it does not support a finding that the Petitioner satisties 
the plain language requirements of at least three criteria . 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's v.•ork in the field.fi>r which c/ass~fication is sought. Such evidence 
shall include the title, date. and author qf'the material. and any necessary translation. 8 C.F.R. 
§ 204.5(h)(3)(iii) . 
The Petitioner contends that , becau se the criterion uses the phrase "relatin g to the alien's work," it 
requires the published materials to have a logical connection to his work in the field, but does not 
require that his work be the primary emphasis of the article . He also claims that, within the 
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Matter of P-B-M-
published material in the record , he is often the "only performer interviewed and quoted regarding 
the production," and that it is significant to be "repeatedly singled out to represent the production 
and thus the company from among the other hundreds of performers." The plain language of 
8 C.F.R. § 204.5(h)(3)(iii) requires published material "about" the individual relating to his or her 
work. See. e.g .. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at * 1, *7 (D. Nev. Sept. 8. 2008) 
(upholding a finding that articles regarding a show are not about the actor). 
On appeal, the Petitioner submits an article entitled ' 
published online at in 2005 . The article discusses how 
and as well as other characters, will be meeting fans during a production. The 
article quotes the Petitioner as stating that "this was the first time all seven were 
brought 
together in one live production." While the article thus mentions the Petitioner as one of the 
skaters in the show, the article is not about him but rather about the production. 
Further, the record contains screenshots from 
and ili~name 
the Petitioner as one of the performers and at times include a quote from him relating to the 
productions, but they do not reflect published material "about" him consistent with the plain 
language of the criterion. For example , regarding the record include s a 
screenshot relating to an upcoming production at m Texas . 
Although the Petitioner is credited with being one of the ice skaters, the screenshot is about a 
promotional event to win tickets and to attend the show. Moreover , with the exception of 
the Petitioner did not provide sufficient evidence demonstratin g that the 
websites are major media. 
In addition, the record includes screenshots from and 
that do reflect published material about the Petitioner relating to his work. 
For instance, the screenshot posted on consists of an interview with the 
Petitioner regarding his experience working with shows. The Petitioner, however , did not offer 
adequate evidence, such viewership statistics, establishing that the websites are considered as major 
media. 
Finally, the record includes a letter from senior director of global public relation s at 
the company that produces shows. indicated that the 
Petitioner participated in filmings on and 
The record also contains screenshots of the Petitioner during television 
segments on and local news channels such as and While severa l 
of these television shows constitute major media 
1
, the Petitioner did not provide transcript s or 
recordings of these segments to demonstrate that they were about the Petitioner . In addition , the 
1 
Some of the television segments were on local news channels and the Petitioner did not provide documentation to 
establish that they are major media. 
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documentation does not 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). 
For the reasons discussed above, the petitioner has not submitted evidence that meets the 
requirements of this criterion. 
Evidence of the dL\play of the alien's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
The record contains evidence of the Petitioner's skating performances with various 
at arenas and ice rinks. Accordingly , we find the Petitioner satisfies this criterion. 
exhibitions 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C .F.R. § 204.5(h)(3)(viii). 
The Petitioner argues that his contribution as a principal performer and line captain have been 
critical to , the producer of shows. In general, a leading role is evidenced from the role 
itself: and a critical role is one in which a petitioner was responsible for the success or standing of 
the organization or establishment. 
The Petitioner states that he is a principal performer who stars in lead roles in the shows, and 
holds the important position of line captain. In a letter by senior director of 
human resources of he explained that the company currently has 12 productions that are 
touring either in United States or around the world. The Petitioner did not sufficiently explain or 
demonstrate that his role as a principal performer for one show out of 12 productions 
constitutes a leading role for the overall organization. 
In regards to whether the Petitioner holds a critical role for the record contains a letter from 
performance director, who stated that due to the Petitioner's "great versatility and 
extraordinary talent, [he] has skated in a large variety of leading roles from Character to Solo to Pair 
skating roles." She also explained that he is a line captain which is "in essence a staff related 
position as he works very close to the Performance Director." As line captain, he assists in teaching 
the choreography to the cast , ''facilitating the process to help the show take shape,'' and '·assisting in 
the audition process when scouting for new talent." 
In addition , the Petitioner provided other recommendation letters explaining his role for For 
example, a letter from a fonner choreographer of stated that the Petitioner 
has originated many roles with and ·'he was instrumental in creating the role and his work in 
each contributed to the overall strength of the show adding great value and wonderful reviews for 
talent director - production coordinator of stated in a letter 
that the Petitioner is an "important and valued world-class perform er in this company." She goes on 
to state that we "value [the Petitioner's] contributions to our productions and hope to have [him] as a 
lead performer for several 
years to come as he continue to evolve as an athlet e and performer." In a 
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Matter ofP-B-M-
letter by he states that the Petitioner is a feature skater and he is an "outstanding 
member of our cast bringing exceptional skating abilities and showmanship that are crucial to the 
success of our productions." The record includes additional letters of recommendation from skaters 
and choreographers that worked with the Petitioner on the shows, who indicate that he is a great 
skater with technical skill and presence that served in several principle roles for different 
productions. 
Although the individuals confirm the importance of his contributions to various specific shows, 
they do not establish that he performed in a critical role for as a whole, and such as by showing 
he int1uenced its overall reputation or status, or was responsible for the success of the organization. 
In addition, the record reflects that currently has 12 productions that are touring either in 
United States or around the world, and the Petitioner has not shown that his role as a principal 
performer in one of those shows constitutes a critical role for the company. While the Petitioner 
worked on various projects for throughout the years, and thereby supported its mission, he did 
not provide sufficient documentary evidence to show that his duties and responsibilities as an ice 
show figure skater were critical to the greater organization. 
For the reasons discussed above, the Petitioner did not demonstrate that he satisfies this criterion. 
Evidence that the alien has commanded a high salary or other sign(ficantly high remuneration 
fiJr services. in relation to others in the.field 8 C.F.R. § 204.5(h)(3)(ix). 
The Petitioner claims that the plain language of the criterion requires a determination of 
remuneration as compared to others in the field, rather than the tield as a whole. We interpret ''in the 
field" to require a comparison against similarly employed ice skaters in the larger field rather than 
solely comparing to others at the Petitioner's place of employment. In addition, he states that is 
the "largest and most prestigious ice show production company in the industry'' and thus, is able to 
offer "worthy performers a higher remuneration than any of its competitors." 
The Petitioner submitted Forms W-2 for two individuals employed by as principal or specialty 
performers. These employees received an annual salary of $26.549 and $32,359. as compared to the 
Petitioner's annual salary of $46,524. We do not find that the Petitioner's submission of salaries 
from a limited and specific selection of individuals satisfies this criterion. While the documentary 
evidence reflects that the Petitioner earns a higher salary than the submitted few samples, he did not 
demonstrate that he has commanded a high salary when compared to others in his field generally. 2 
In addition, a letter from board of directors of stated that "our research 
shows that, in comparison to most positions of lead role, [the Petitioner] can easily demand twice 
that standard compensation for an ice show," and that "compensation at that rate is completely 
commensurate with the performer's high level of talent and ability.' ' Although this letter attested 
2 Moreover, we note that without the employment contracts for these individuals, the Petitioner did not establish whether 
they worked the same amount of shows, which impacts their salaries. 
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that the Petitioner "can" demand a higher salary, it does not provide evidence that he actually does 
command a high salary for services in relation to others in the field, or that he has commanded such 
a salary in the past. Also, did not indicate an average salary for experienced ice show 
performers to compare with the Petitioner's salary. 
The Petitioner submitted evidence that his salary "falls in the top 10% of all skaters" employed by 
This evidence shows that he is at the higher end of the spectrum for his employer rather than 
evidence showing that his salary is at the top of the greater field of ice skaters. Thus. it does not 
establish whether his salary is high relative to others performing similar work. See Maner olPrice, 
20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering a professional golfer's earnings versus 
other PGA Tour golfers); see also Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) 
(considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 
444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NHL 
defensemen). 
According to the Petitioner, his position of ice show figure skater is similar to the occupational 
categories of"Dancers" or "Entertainers and Performers, Sports and Related Workers, All others·· as 
discussed in the U.S. Department of Labor's (DOL) Occupational Outlook Handbook. He submitted 
the "Online Wage Library - FLC Wage Search Results" listing the prevailing wage "dancers" and 
"entertainers and performers, sports and related workers, all others.'· On appeal, he notes that his 
salary is higher than the Level 4 wages ofthese two occupational categories, which are listed as $27,893 
and $42,390 respectively. Although this data shows that that the Petitioner's earnings exceeded the 
prevailing wage paid to fully competent individuals in these fields, the record does not sufficiently show 
that such wages qualify as high, or that the data regarding these broad categories represents an 
appropriate comparison against individuals engaged in similar work. 
For the reasons discussed above, the Petitioner has not established that he meets this criterion. 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of 
final merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise 
that we have reviewed the record in the aggregate, concluding that it does not support a finding that 
the Petitioner has established the level of expertise required for the classification sought. For the 
foregoing reasons, the Petitioner 
has not shown that he qualifies for classification as an individual of 
extraordinary ability . 
ORDER: The appeal is dismissed. 
Cite as Matter of P-B-M-, ID# 836834 (AAO Jan. 25, 2018)