dismissed EB-1A Case: Film Industry

identifying data deleted to 
prevent clearlv unwarranted 
invasion of personal privacy 
PUBLIC COpy 
U.S. Oepartment of Homeland Sccurit), 
U.S. ('ili'lL:n .... tllp and [Jllmi~r;lli()n Sen-icc ... 
Admini;;'lrali\'t..: ,'\pr1l'~lh OJ fiL"l' (1\:\0) 
2U I\Ll~~:ll'hll"l'Ij'" ,\\'(, __ l\J.\V._ t'.;IS 2J)')() 
\\"-a"llill!2ton. Dl .~(I:'i:)f) ":(11)0 
u.s. Citizenship 
and Immigration 
Services 
DATE: 
JUl 1 7 2012 
Office: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ahility Pursuant to 
Section 203(h )(1 )(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)( I )(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 heen returned to the office that originally decided your casco Please 
he advised that any further inquiry that you might have concerning your case must be made to that office. 
If you helieve the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form 1·290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can he found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAG. Please he aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to he filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Tltank you, " . 
,,~,t:~ ~ .. 
r"~ 
Perry Rhcw . 
Chief, Administrative Appeals Office 
\\lww.usci",.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center, and 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)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C § 1153(b)(I)(A) as 
an executive producer in the film industry. 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 CF.R. § 204.5(h)(3). The implementing regulation at 8 CF.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 CF.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 the regulatory categories of evidence at 
8 CF.R. §§ 204.5(h)(3)(i), (iii), (v), (vii) and (x). 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 bencfit 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 !OI" Cong .. 2d 
Sess. 59 (1990); 56 Fed. 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.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the 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 F.3d 1115 (9th Cir. 2(10). 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.! With respect to the criteria at 
8 C.F.R. ~ 204.5(h)(3)(iv) and (vi), the court concluded that while uscrs 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 "!inal 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 statcd 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.F.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. Id. 
t Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary rcquircmt:nts 
beyond those set itJrth in the regulations at 8 CF.R. § 204.5(h)(3)(iv) and 8 CF.R. § 204.5(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Critcri} 
Docllmentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
listing 
the numerous awards distributed at the SFF. Page 4 of the nine-page press release states: '"The 
Audience Awards are film in four Competition 
categories as voted . The Audience Award: Dramatic 
was presented to THE WACKNESS, directed hy jonathan Levine." [Emphasis added.] The 
preceding SFF press release identifies Jonathan Levine, but it does not state that the petitioner 
received an Audience Award. On the submits a July 3, 2008 article in the New 
York Slln The article states: _ who won 
the Audience Award at this year's Sundance' ' .... " [Emphasis ad~ 
~ner also submits a January 30, 2008 posted at www.screendaily.com stating: _ 
_ proves that he can handle character-driven drama, albeit still of the teen variety, in his 
second film The audience winner at Sundance last week .... " [Emphasis 
added.] The s appellate submission also includes a January 27, 2008 article posted at 
Premiere.com entitled "Sundance film Festival: 2008 awards" stating: "[n the main Dramatic 
Competition the winner was .. " It's a stmtlingly accomplished second feature 
by jonathan Levine . ... " [Emphasis added.] The petitioner also submits an article entitled "An 
independent vote for 'The Wackness'" '''The ' helmed by jonathan Levine 
and which also was the winner of this 
year's Sundance the preceding articles 
specifically identify the petitioner as the recipient of the SFF Audience Award. In addition, the 
petitioner submits a photograph of the 2008 Sff "Audience Award: Dramatic" trophy presented 
to there is no documentary evidence demonstrating that the petitioner, 
received this trophy. 
Angeles Film Festival." 
narrative feature this past Sunday at the 
np.i·iti,nn,>.r also submitted a June 30, 2008 article 
posted The article states: 
"Audicnce Award for Best Narrative Feature: 
_ [Emphasis added.] In addition, the petitioner submitted a July 1,2008 article posted 
The article 
won the audience award for narrati ve feature 
... " [Emphasis added.[ On appeal, the petitioner submits a July 1,2008 article in 
::. On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
The article 
whose coming-of-age dramedy home an 
audience aw at recent Los Angeles Film Festival, set up two new projects." 
[Emphasis added.] None of the preceding articles state that the petitioner received the Audience 
Award at the Los Angeles Film Festival (LAFF). 
article states won most 
no documentary evidence showing that the petitioner himself received the award. 
the 
The 
The plain language of the regulation at t\ CF.R. § 204.5(h)(3)(i) specifically requires 
documentation of "the alien's receipt" of nationally or internationally recognized prizes or 
awards. The SFF Audience Award, the LAFF Audience Award, and the MIFF Audience Award 
were presented to rather than to the petitioner himself. 
While the petitioner was among the multiple producers of The Wackness, there is no 
documentary evidence specifically identifying him as a recipient of the preceding three awards. 
Further, the petitioner did not submit evidence demonstrating the national or international 
recognition of the LAFF and the MIFF audience awards. The plain language of the regulation at 
8 CF.R. § 204.5(h)(3)(i) specifically requires that the petitioner's awards be nationally or 
internationally recognized in the field of endeavor and it is his burden to establish every element of 
this criterion. In this case, there is no documentary evidence showing that the LAFF and the 
MIFF audience awards have garnered a significant level of recognition beyond the context of the 
film festivals in which they were presented and therefore are commensurate with nationally or 
internationally recognized awards for excellence in tbe field. Accordingly, tbe petitioner bas not 
established tbat he meets this regulatory criterion. 
Published material about the alien ill 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 tille, date, and author of the material, and 
WI}-' lleCeSsary translation. 
The AAO witbdraws tbe director's tinding tbat the petitioner meets this regulatory criterion. In 
general, in order for published material to meet tbis criterion, it must be primarily about the 
petitioner and, as stated in the regulations, be printed in professional or major trade publications or 
other major media. Some newspapers, such as tbe New York Times, nominally serve a particular 
locality but would qualify as major media hecause of significant national distribution, unlike small 
local community papers:' 
The petitioner submitted an article 
counsel asserts was published in The Hollywood Reporter, 
& [the petitioner]" that 
but the submitted article bears no 
:; Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Page 6 
indicia of its publication in that particular magazine. The unsupported assertions of counsel do 
not constitute evidence. Mutter ofOhaighena, 19 I&N Dec. 533, 534 n.2 (BlA 1988); Matter of 
Laureano, 19 I&N Dec. 1,3 n.2 (BlA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BlA 1980). Regardless, the date of the article was not identified as required by the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, the petitioner failed to submit 
documentary evidence (such as circulation data) showing that The Hollywood Reporta is a 
"major" trade publication or some other form of '"major"' media. 
petItIOner. The plain 
regulal:ion at 8 C.F.R. § 204.S(h)(3)(iii) requires that the published material be 
"about the alien." See, e.g., Accord Negro-P!umpe v. Okin, 2:07-CV-820-ECR-RJJ at *1,*7 (D. 
Nev. Sept. 8, 2008) (upholding a finding that articles about a show are not about the actor). 
Compare 8 C.F.R. § 204.5(i)(3)(i)(C), which requires evidence "about the alien's work:' It cannot 
be credibly asserted that the movie review of The Wackness is "about" the petitioner. Further, the 
date of the article was not identified as required by the plain language of the regulation at 8 C.F.R. 
§ 204,S(h)(3)(iii). In addition, there is no circulation evidence showing that Women '.\' Wear Daily 
qualifies as a "major" trade publication or some other fom1 of "major" media. 
The petitioner submitted an August 2007 article in The Hollywood Reporter entitled "6 light up 
for Occupant's' Wackness." The article is not about the petitioner as it fails to even mention his 
name, Further, as previously discussed, there is no circulation evidence showing that The 
Hollywood Reporter is a "major" trade publication or some other form of "major" media. 
The petitioner submitted a movie review of The Wackness in BBook.com entitled "Two for the 
Road," but the article does not even mention the petitioner. Further, the date of the article was 
not included as required by the plain language of this regulatory criterion. In addition, there is 
no documentary evidence showing that BBook. com qualifies as a "major" trade publication or some 
other form of "major" media 
The petitioner submitted a July 3, 2008 movie review of The Wackness in the New York Times 
entitled "Summer of '94, With Boy, Girl, Love and Dope Sales," but the article is not about the 
petitioner as it fails to even mention his name. 
The petitioner submitted an article entitled '''Wackness' packed," but the article only briefly 
mentions the petitioner. Further, the date of the article and the name of the publication were not 
identified as required by this regulatory criterion. In addition, there is no evidence showing that 
the article was published in a professional or major trade publication or some other form of major 
media. 
The petitioner submitted a captioned photograph entitled "Mary-Kate & Ben go 'Wacky,'" but the 
date of the material and the name of the newspaper or magazine in which the photograph was 
displayed were not identified. Further, the petitioner does not appear in the photograph and he is 
not mentioned in the accompanying caption. The plain language of this regulatory criterion 
requires "published material about the alien" including "the title, date and author of the 
Page 7 
material." The preceding captioned photograph does not meet the preceding requirements. 
Moreover, there is no circulation evidence showing that the photograph appeared in a professional 
or major trade publication or some other form of major media. 
The petitioner submitted a July 28, 2008 article in USA Today entitled "Big-name films fail to find 
buyer audience," but the article is not about the petitioner as it fails to even mention his name. 
article entitled 
and it does not even mention the petitioner. Further. the 
name of the publication in which the article appeared was not identified as required by this 
regulatory criterion. In addition, there is no evidence showing that the article was published in a 
professional or major trade publication or some other form of major media. 
'tioner submitted a July 29, 2007 article in the Los Angeles Times entitled 
The 27-paragraph article only briefly mentions the petitioner's name 
peti tioncr 1 
ce genrc wou financed by 
outside investors and to various distributors." The AAO cannot conclude that the 
preceding article is "about" the petitioner. Instead. the article is about the "low-budget" horror 
film All the Boys Love Mandy Lane and the film's "on-again, off-again journey to a release 
date" 
The petitioner submitted an article in 
_ eutitled 'Trio Trust," but the were 
required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, there is no 
evidence showing that this arts publication ±rom the petitioner's alma mater, the University of 
Southern California, qualifies as a form of major media. 
The petitioner submitted a July 17,2007 article 
but the article only briet1y mentions the petitioner and 
it is not about him. Further, there is no circulation evidence showing that Screen Daily IS a 
'"major'" trade publication or some other fom) of "major'" media. 
The petitioner submitted an April 25, 2007 article posted 
but the article only briefly quotes the petitioner and it is not about 
him. Further, the petitioner failed to submit documentary evidence (such as readership data) 
showing that.J (mmal Sentinel Online qualifies as a [(1m) of "major" media. 
The petitioner submitted a September II, 2006 article posted at www.cincmatical.colTI entitled 
"TIFF Review: All the Boys Love Mandy Lane," but the movie review is not about the petitioner 
and it fails to even mention his name. Further, there is no showing that www.cil1el1F.\.U.c;~L(:()Il1 is a 
"major"' trade publication or some other form of"major" media. 
The petitioner submitted a March 20, 2009 article entitled "Can the cast of 'Peep World' get any 
bett er0" The article is not about the petitioner as it fails to even mention his name. Further, the 
Page R 
name of the publication in which the article appeared was not identified as required by this 
regulatory criterion. In addition, there is no evidence showing that the article was published in a 
professional or major trade publication or some other form of major media. 
The petitioner submitted a February 8, 2007 type-written article entitled "'Peep' show for 
Occupant, Himmelstein film set to start this summer" bearing the Variety magazine logo, but the 
submitted material bears no indicia of its actual publication. Further, the article is primarily 
about and only mentions the petitioner's name in passing. In 
addition, the petitioner failed to submit documentary evidence showing that Variety is a "major" 
trade publication or some other fonn of "major" media. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence of the alien's original scientific. scholarly. artistic, athletic, or husilless­
related contrihutions of major significance in the field. 
Creative Artists Agency. The preceding 
references discuss their collaborations with the petitioner, but they fail to provide specific 
examples of how the petitioner's original work has substantially impacted the filmmaking industry, 
has significantly influenced the work of other producers in the field, or otherwise equates to 
original contributions of "major significance" in the field. Vague, solicited letters from local 
colleagues that do not specifically identify contributions or provide specific examples of how 
those contributions influenced the field are insufficient. Kazarian v. USCIS, 580 F.3d 1030, 
1036 (9th Cir. 2009) afrd in part 596 F.3d 1115 (9th Cir. 2010). rn 2010, the Kazarian court 
reiterated that the AAO's conclusion that "letters Irom physics professors attesting to [the alien'sJ 
contributions in the field" were insufficient was "consistent with the relevant regulatory language" 
596 F.3d at 1122. Furthcnnore, uscrs may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter oj' Caron International, 19 I&N Dec. 791, 795 
(Comm·r. 1988). However, uscrs is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. The submission of reference letters 
supporting the petition is not presumptive evidence of eligibility; uscrs may evaluate the 
content of those letters as to whether they support the alien's eligibility. See id. at 795-796; see 
also Matter of V-K-, 24 I&N Dec. 500, n.2 (BlA 2008) (noting that expert opinion testimony 
does not purport to be evidence as to "fact"). Thus, the content of the references' statements and 
how they became aware of the petitioner's reputation are important considerations. Even when 
written by independent experts, letters solicited by an alien in support of an immigration petition 
are of less weight than preexisting, independent evidence that one would expect of a film 
producer who has made original contributions of major significance in the field. 
There is no documentary evidence showing that the petitioner's co-involvement In the 
production of a few low-budget films equates to original artistic contributions of major 
Page 9 
significance in the filmmaking industry. In the director's decision, she determined that the 
petitioner failed to demonstrate the "major signifIcance" of his contributions. The plain language 
of the regulation at ~ C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the alien's original 
scientific, scholarly, artistic, athletic, or business-related contributions of major significance in 
the tield.'· [Emphasis added.] Here, the evidence must be reviewed to see whether it rises to the 
level of original artistic contributions "of major signiticance in the field." The phrase "major 
signiticance" is not supertluous and, thus, it has some meaning. Silverman v. Eastrich Multiple 
Investor Fund, L.P., 51 F. 3d 2~, 31 (3,d Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 
(2",1 Cir. Sep 15, 2003). The director discussed the specific evidence submitted for this 
regulatory criterion and found that the petitioner failed to establish his eligibility. 
On appeal. counsel does not specifIcally challcnge the director's analysis of the documentary 
evidence submitted for this criterion or offer additional arguments. Instead, counsel states: 
"With regard to criteria (v) and (x), [the petitioner] respectfully refers the Service again to the 
extensive evidence in the original submission and in the reply to the Service's request for 
evidence CRFE')." While counsel's appellate brief expresses general disagreement with the 
director's findings, it does not point to any specitic error in the director's analysis on this issue 
and offers no directed argument to focus the AAO on a particular area for review. Given the 
absence of a specific discussion regarding the issue contested, the AAO considers this issue to be 
abandoned. See Sepulveda v. U.S. AIt'v Cen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2(05); Hristov 
v. Roark, No. 09-CV-27312011, 2011 WL 471l~~5 at * I, *9 (E.D.N.Y. Sept. 30, 2011) (the 
court found the plaintiff s claims to be abandoned as he failed to raise them on appeal to the 
AAO). Accordingly, the petitioner has not established that he meets this regulatory criterion. 
Evidence of the display of the alien's work in the field at artistic exhihitions or 
showcases. 
The AAO atlinns the director's tinding that the petitioner's evidence meets the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
c'vidence of commercial sllccesses ill the perj(Jrming arts, as shown hy hox office 
receipts or record, cassette, compact disk, or video sales. 
This regulatory criterion focuses on volume of sales and box office receipts as a measure of the 
petitioner's commercial success in the performing arts. Therefore, the mere fact that the 
petitioner has co-produced a few low-budget films would be insufficient, in and of itself, to meet 
this regulatory criterion. The evidence must show that the volume of sales and box office 
receipts reflect the petitioner's commercial success relative to other filmmakers in the motion 
picture industry. In response to the director's request for evidence, the petitioner submitted 
documentation from .1Ii •••••••••••••• 
amounted to $3,175,469 from July 3, 2008 (release date) to October 
23, 200~ (close date). In comparison, information submitted by the petitioner from Variety' s 
website shows, for example, that Sony's Hancock had grossed $103.9 million in the United 
States and another $78.5 million overseas in less than one week after its opening in July 200~. 
The AAO further notes that the petitioner has not demonstrated that the level of success of The 
Page 10 
Wacklless was attributable to himself rather than the film's writer. director, and experienced 
actors. 
The petitioner failed to submit evidence of box office receipts or DVD sales for any of his other 
films as documentation of their commercial success, Even if the AAO were to conclude that The 
Wacklless enjoyed commercial success relative to other motion picture films and that such 
success was based on the petitioner's specific individual contribution, which the AAO does not, 
section 203(b)(I)(A)(i) of the Act requires the submission of extensive evidence, Consistent with 
that statutory rcquirement, the plain language of the regulation at 8 CER. § 204,5(h)(3)(x) requires 
cvidence of "commercial successes" in the plural. Significantly, not all of the criteria at ~ CF.R. 
§ 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 CFK §§ 204,5(h)(3)(iv) 
and (ix) only require service on a single judging panel or a single high salary, 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 CER. § 204.5(1)(2) requires a single degree rather than a 
combination of academic credentials), Therefore, submitting evidence limited to thc commercial 
success of a single motion picture film does not meet the plain language requirements of this 
regulatory criterion, 
The director found that the evidence submitted by the petItIOner failed to demonstrate his 
'·commercial success relative to others involved in similar pursuits in the performing arts." On 
appeal. counsel does not specifically challenge the director's analysis of the documentary 
evidence submitted for this criterion or offer additional arguments, Instead, counsel states: 
'·With regard to criteria (v) and (x), [the petitioner] respectfully refers the Service again to the 
extensive evidence in the original submission and in the reply to the Service's request for 
evidence CRfE·)." While counsel's appellate brief expresses general disagreement with the 
director's finding, it does not point to any specilic error in the director's analysis on this issue 
and offers no directed argument to focus the AAO on a particular area for review. Given the 
absence of a specific discussion regarding the issue contested, the AAO considers this issue to be 
abandoned. Sepulveda. 401 F,3d at 122~ n,2; Hristov, 2011 WL 4711885, at *9, Accordingly, 
the petitioner has not established that he meets 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 
Page 11 
preference employment-based immigrant categories, the statute and regulations define the term 
dilTerently lor each classification. Section 101(a)(46) of the Act states, "The tenn 'extraordinary 
ability' means, for purposes of section 101(a)(15)(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 C.F.R. 
§ 214.2(0 )(3)(ii). "Distinction" is a lower standard than that required for the immigrant 
classilication, 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 lield of endeavor." 
8 c.F.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 C.F.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 he noted that many 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Conslliting, file. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2(03); IKEA US v. US Dept. of Jllstice, 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, Ine. v. INS, 293 F. Supp. 2d at 29-30; see also 
Texas A&M Univ. v. Upchllrch, 99 Fed. Appx. 556 (5th Cir. 2004) (finding that prior approvals do 
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., Maller of 
Chllrch Scientology International, 191&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). 
Furthem10re. the AAO's authority over the service centers is comparable to the relationship 
hetween 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, 
20()() WL 282785, *1, *3 (ED. La.), aff'd, 248 F.3d 1139 (5th Cir. 20(H), cert. denied, 122 S.O. 51 
(200 I). 
Ill. 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. 
Page 12 
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 
'·Ievel of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[irJ 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's(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. 4 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. 
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. 
, The AAO maintains de novo review of all questinns of fact and law. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004). 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)(I)(ii). See also section 100(a)(I) of the Act: section 
204(h) of the Act; DHS Delegation Numher 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 (BlA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions).