dismissed EB-1A Case: Film

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBUCCOPY 
DATE: MAR 22 201l Office: TEXAS SERVICE CENTER 
INRE: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative f\ppeals Office (AA()) 
20 IVlassachuscrts Avr .. N.W., MS 2()')() 
Washim!ton. DC 20:'29-2090 
u.s. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.S(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Th(lnk you, 
.. ~~.,- " 
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Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
I 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), as an 
alien of extraordinary ability in the arts. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of his 
sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability 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 international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 c.F.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel asserts that the petitioner meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. § 204.5(h)(3). For the reasons discussed below, the AAO will uphold the 
director's decision. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue 
work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
Page 3 
u.s. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 WIst Cong., 2d 
Sess. 59 (1990); 56 Ped. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. Id.; 8 c.P.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.S(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) 
or through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 P.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.1 With respect to the criteria at 
8 C.P.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate 
concerns about the significance of the evidence submitted to meet those two criteria, those concerns 
should have been raised in a subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the 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 requirement of three types of evidence (as the AAO concluded)." Id. at 1122 
(citing to 8 c'P.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy 
the regulatory requirement of three types of evidence. [d. 
II. ANALYSIS 
A. Evidentiary Criteria 
This petition, filed on November 
extraordinary ability as 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
-Page 4 
The petitioner has submitted documentation pertaining to the following categories of evidence 
under 8 C.F.R. § 204.5(h)(3)? 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The petitioner submitted published material about himself and his work in newspapers such as the 
New York Times and the Los Angeles Times, and in trade publications such as Indiewire. 
Accordingly, the petitioner has established that he meets the plain language requirements of this 
regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The petitioner submitted letters of support from the Commissioner of the State of New 
Hampshire Department of Cultural Resources, the Director of Operations for See Factor Industry 
Inc., the Senior Vice President of Technicolor New York, the Executive Director of the Spain -
U.S. Chamber of Commerce, the Executive Director of the New York State Film Commission, 
and the Senior Vice President of Panavision New York indicating that the petitioner is the 
creator and founder of the_discussing the international scope of the festival, and 
explaining the significance of the festival in the short film industry. The petitioner also 
submitted documentation of extensive media coverage of the in newspapers throughout 
the United States. Therefore, the AAO affirms the director's finding that the petitioner's creation 
of the MSFF constitutes an original contribution of major significance in the field. 
The AAO notes, however, that the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) 
requires "contributions of major significance" (emphasis added) in the plural. The use of the 
plural is consistent with the statutory requirement for extensive evidence. Section 
203(b)(1)(A)(i) of the Act. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are 
worded in the plural. Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(3)(iv) and (ix) only 
require service on a single judging panel or a single high salary. When a regulatory criterion 
wishes to include the singular within the plural, it expressly does so as when it states at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." Thus, the 
AAO can infer that the plural in the remaining regulatory criteria has meaning. In a different 
context, federal courts have upheld USCIS' ability to interpret significance from whether the 
singular or plural is used in a regulation. See Maramjaya v. USCIS, Civ. Act. No. 06-2158 
(RCL) at 12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at 
* 10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory requirement for "a" 
bachelor's degree or "a" foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) requires a single 
degree rather than a combination of academic credentials). Thus, the plain language of this 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
regulatory criterion requires evidence of more than one original contribution of major significance 
in the field. Without documentary evidence of more than one qualifying original contribution, the 
petitioner has not established that he meets the plain language requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(v). 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
rt indicate that the petitioner has performed in a leading role 
as the Further, the published material submitted by the 
petitioner about the MSFF is sufficient to demonstrate that the organization has a distinguished 
reputation. The AAO notes, however, that the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii) requires evidence that the petitioner has performed in a leading or critical role 
for distinguished "organizations or establishments" in the plural. As previously discussed, the 
use of the plural is consistent with the statutory requirement for extensive evidence. Section 
203(b)(1)(A)(i) of the Act. Accordingly, demonstrating a leading or critical role for only a single 
distinguished organization, th' does not meet the plain language requirements of the 
regulation at 8 c.F.R. § 204.5(h)(3)(viii). 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The petitioner submitted a September I, 2008 "Employment Agreement" indicating that his 
company, the MSFF, would pay him a salary of $100,000 per year. The record, however, does 
not include documentary evidence (such as payroll records or U.S. income tax forms) showing 
the petitioner's actual earnings for any specific time period. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). In response to the director's notice 
of intent to deny, the petitioner submitted a February 26, 2006 article entitled "What nonprofits 
pay their CEOs" indicating that 
$50,000 per year. The pre,ceom 
only two film festival and they are not an 
appropriate basis for comparison in demonstrating that his compensation constitutes a "high 
salary or other significantly high remuneration for services, in relation to others in the field." 
[Emphasis added.] The petitioner's sample size is too low and thus lacks the precision to 
provide a reliable basis for comparison. For instance, the petitioner's limited comparison 
excludes the salaries of Executive Directors from more film festivals in the U.S. such as 
and the Chicago International Film Festival. The record does not include an adequate sampling 
of reliable earnings information showing that the petitioner has received a "high salary" or 
Page 6 
"significantly high remuneration" relative to other film festival Executive Directors working in 
the United States. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering 
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). In the present matter, the documentary 
evidence submitted by the petitioner does not establish that he has received a high salary or other 
significantly high remuneration for services in relation to others in the field. Accordingly, the 
petitioner has not established that he meets the plain language requirements of this regulatory 
criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
C Prior 0-1 Nonimmigrant Visa Status 
The record reflects that the petitioner was the beneficiary of an approved 0-1 nonimmigrant visa 
petition for an alien of extraordinary ability in the arts. Although the words "extraordinary 
ability" are used in the Act for classification of artists under both the nonimmigrant 0-1 and the first 
preference employment-based immigrant categories, the statute and regulations define the term 
differently for each classification. Section 101(a)(46) of the Act states, "The term 'extraordinary 
ability' means, for purposes of section 101(a)(l5)(0)(i), in the case of the arts, distinction." The 
0-1 regulation reiterates that "[ e ]xtraordinary ability in the field of arts means distinction." 8 CF.R. 
§ 214.2(0)(3)(ii). "Distinction" is a lower standard than that required for the immigrant 
classification, which defines 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 CF.R. § 204.5(h)(2). The evidentiary criteria for these two classifications also differ in several 
respects, for example, nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 
8 CF.R. § 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of nationally 
or internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear statutory 
and regulatory distinction between these two classifications, the petitioner's receipt of 0-1 
nonimmigrant classification is not evidence of his eligibility for immigrant classification as an alien 
with extraordinary ability. Further, the AAO does not find that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each petition must be decided on a case-by-case 
basis upon review of the evidence of record. 
It must be noted that many 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C 
2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 1-
129 nonimmigrant petitions than 1-140 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 (5th Cir. 2004) (finding that prior approvals do 
Page 7 
not preclude USCIS from denying an extension of the original visa based on a reassessment of 
the alien' s qualifications). 
The AAO is not required to approve applications or petItIons where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 
2000 WL 282785, *1, *3 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(2001). 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small 
percentage who has risen to the very top of the field of endeavor. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories, 
in accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top of 
the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final merits determination? Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three categories of evidence. Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b )(1 )(A) of the Act and the 
petition may not be approved. 
:l The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F.3d at 145. In any 
future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office that made the 
last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section l03(a)(l) 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 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USeIS, is the sale authority 
with the jurisdiction to decide visa petitions). 
Page 8 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.