dismissed EB-1A Case: Martial Arts

(b)(6)
DATE : AUG 1 0 2015 
IN RE: Petitioner: 
Benefic iary: 
FILE#: 
PETITION RECEIPT#: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immi gration Services 
Office of Admin istrative Appeals 
20 Massachusetts Ave. , N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION : Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER : 
INSTRUCTIONS: 
Enclo sed is the non-precedent decision of the Admini strative Appeals Office (AAO) for your case . 
If you believ e we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding . The requirements for motions are located at 8 C.F .R. § 103.5. 
Moti o ns mu st be filed o n a Not ice of Appeal or M otion (Fo rm I-290B) within 33 days of the date of this 
decision. Th e Form I-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing 
location, and other requirements . Please do not mail any motions directly to the AAO . 
Thank you, 
~~ 
»ton Rose nberg 
l.Chief, Admini strative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center , denied the employment-based immigrant visa 
petition and the matter is now before the Administrative Appeals Office (AAO) on appeaL' We will 
dismiss the appeal. 
The petitioner, a martial artist, seeks classification as an "alien of extraordinary ability" in the arts, 
pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act) , 8 U.S.C. 
§ 1153(b)(l)(A), which makes visas 
available to individuals 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 determined that the petitioner 
had not satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires 
documentation of a one-time achievement or evidence that meets at least three of the ten regulatory 
criteri a. 
On appeal, the petitioner submits a brief and additional evidence. The petitioner asserts that he meets 
the categories of evidence at 8 C.F.R. § 204.5(h)(3)(i), (iii), (iv), (vii), and (viii). In addition, the 
petitioner attributes inconsistencies in the record to previous counsel. While the petitioner on appeal 
submits multiple online postings from dissatisfied clients of previous counsel, he does not provide 
the evidence required to establish ineffective assistance of counsel outlined in Matter of Lozada, 19 
I&N Dec. 637 (BIA 1988) , affd, 857 F.2d 10 (1st Cir. 1988) (requiring an appellant to meet certain 
criteria when filing an appeal based on ineffective assistance of counsel). 
For the reasons discussed below, we agree that the petitioner has not established his eligibility for 
the exclusive classification sought. Specifically, the petitioner has not submitted qualifying evidence 
of a one-time achievement pursuant to 8 C.F.R. § 204.5(h)(3), or evidence that satisfies at least three 
of the ten regulatory criteria set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). As such , the 
petitioner has not demonstrated that he is one of the small percentage who is at the very top in the 
field of endeavor, and that he has sustained national or international acclaim. See 8 C.F.R. 
§ 204.5(h)(2), (3). Accordingly, we will dismiss the petitioner's appeal. 
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, 
1 The petitioner was initially repr esented by different counsel, who will be referred to in this decision as 
"previous counsel." 
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NON-PRECEDENT DECISION 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101sr 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 has risen to the very top of the field of endeavor. /d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can 
demonstrate sustained acclaim and the recognition of his achievements in the field through evidence of 
a one-time achievement (that is, a major, internationally recognized award) . If the petitioner does not 
submit this evidence, then he must submit sufficient qualifying evidence that meets at least three of the 
ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination). See also Rijal v. USCIS, 
772 F.Supp.2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of Kazarian), aff'd, 683 
F.3d. 1030 (9
1
h Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) (finding that 
USCIS appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 201 0) (holding that the "truth is to be determined not by the quantity of evidence alone but by 
its quality" and that USCIS examines "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"). 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The director determined that the petitioner had not established eligibility for this criterion. On 
appeal, through counsel, the petitioner asserts he has won "several major national awards." 
The petitioner initially submitted two certificates from the 
1 stating that he won 1
51 
place in ,. ' and 
2 We have reviewed all of the evidence the petitioner has submitted and will address those criteria the 
petitioner asserts that he meets or for which the petitioner has submitted relevant and probative evidence. 
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_ " and listing the "place" of the competition as " , China ." The 
director issued a Notice of Intent to Deny (NOID) informing the petitioner that the logo appearing 
atop the two certificates did not match the official logo of the 
3 Specifically , the director noted that the spacing of the words on the logo atop the 
certificates did not match that of the official logo and the word "Championships " had an incomplete 
spelling. The submitted certificates ' logo wording appears as follows : 
THE 3RD WORLD T RA DIT IONAL WUSHU CHAMPION SH 
In addition , the petitioner submitted two certificates from the " 
' stating that he won first place in the ' . and " _ " competitions. Regarding 
these certificates , the director's decision stated: "Multiple internet queries failed to list the 
in These awards also have the official Olympics 
seal on them. Multiple internet queries failed to show any connection between the Olympic s and the 
" 
In response to the director's NOID, counsel asserts that previous counsel submitted the 
aforementioned certificates unbeknownst to the petitioner. Counsel states: 
The petitioner, who is now my client, did send [previous counsel] a massive number of 
documents, which notably did NOT include the two certificates that the Ex aminer referred to 
in this NOID. We can only speculate as to how [previous counsel] submitted these 
certificates - perhaps he retrieved them from an online source. Regardle ss, as stated in the 
signed statement my client , [the petitioner] did in fact win the prizes that were the subject of 
the examiner's comments, but does not have these certificates in his possession, nor did he 
have them when he sent his materials to [previous counsel]. I have asked my client to find 
the original certificates , or otherwise obtain documentary evidence that he did in fact win the 
events that were the subject of the examiner's comments. 
The petitioner's appellate documentation, submitted more than eleven weeks after the director's 
NOID was issued , does not include the original certificates or any other documentary evidence from 
the competition organizers demonstrating that the petitioner "did in fact win the prizes " at the 
or as 
asserted by 
counsel. 
The petitioner 's response to the director 's NOID included the "Regulations of the 
_ _ " (in English) printed from the website of the Internation al Wushu 
Federation, "the internation al federation which governs wushu in all its forms worldwide." The 
submitted regul ations state that the "place" of the competition was ": 
Chin a" and not " China " as indicated on the certificates initially submitted with the petition. 
In addition, the petitioner submitted a November 2014 letter from a martial arts coach 
in the stating: "I know for a fact that [the 
1 See )HJJ2:Lili'ww · which displays the official logo, accessed on July 14, 2015, 
copy incorporated into the record of proceeding. 
(b)(6)
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petitioner] has won the _ _ _ , which 
I understand [USCIS] has some doubt about." The record, however, does not include any 
verifiable 
primary evidence from the competition to support Mr. Wang's assertion. users need not rely on 
unsubstantiated statements. See 1756, Inc. v. U.S Att'y Gen., 745 F. Supp. 9, 15 (D.D.C. 1990) 
(holding that an agency need not credit conclusory assertions in immigration benefits adjudications); 
see also Visinscaia, 4 F.Supp.3d at 134-35 (upholding USCIS' decision to give limited weight to 
uncorroborated assertions from practitioners in the field). The official results for the " 
China" that are available on the website of the 
International Wushu Federation do not list the petitioner as the winner of any events at the 
. . 4 
compet1t10n. 
On appeal, the petitioner submits a notarized statement asserting: 
I need to clarify that I was not aware that these documents were in my petition. Also I have 
been asked to signed [sic] ONLY one document by my previous lawyer [ ], it was a contract 
for the payment for the attorney fee. It was December 20(,] 2010. Afterward, I have not 
signed any other documents. I have not seen the final petition before he submit the petition, 
which was received by USCrS on August 2[,] 2011. 
Although the petitioner asserts that he had no knowledge of the aforementioned award certificates 
submitted in connection with the Immigrant Petition for Alien Worker (Form r-140), the petition was 
"Certified and Filed By Internet" from the petitioner's e-mail address, , on 
August 2, 2011. On that date, the petitioner certified under penalty of perjury that the petition and all 
evidence submitted with it, either at the time of filing or thereafter, are true and correct. See section 
287(b) of the Act; 8 U.S.C. § 1357(b); 8 C.F.R. § 103.2(a)(2); 28 U.S.C. § 1746; 18 U.S.C. § 1621. As 
the petitioner certified the truthfulness and correctness of the evidence submitted with his petition, he 
bears responsibility for the award certificates offered in support of the petition. See Hanna v. Gonzales, 
128 F. App'x 478, 480 (6th Cir. 2005) (finding that an applicant who signed his application for 
adjustment of status but who disavowed knowledge of the actual contents of the application because a 
friend filled out the application on his behalf was still charged with knowledge of the application's 
contents). Cf, Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533 
(1991) (finding that a represented party who signs his or her name to documents filed in court bears 
personal, non-delegable responsibility to certify truth and reasonableness of the documents and failure 
to meet that duty subject signor to Rule 11 sanctions). The law generally does not recognize deliberate 
avoidance as a defense to misrepresentation. See Bautista v. Star Cruises, 396 F.3d 1289, 1301 (11th 
Cir. 2005); United States v. Puente, 982 F.2d 156, 159 (5th Cir. 1993). 
In addition to the aforementioned awards, the petitioner submitted two certificates from the " 
stating that he won 
and listing the "place" of the competition as ' 
" In response to the director's NOID, the petitioner submitted information about the 
4 See 
accessed on July 14,2015, copies incorporated into the record of proceeding. 
(b)(6)
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competition printed from which states that the competition was "held in 
The petitioner has not resolved the inconsistency regarding the location 
Furthermore, the logo appearing atop the two certificates does not match the 
5 
of the competition. 
official logo of the 
With regard to the multiple inconsistencies relating to the ' 
certificates, the certificates, and the 
'
1 
" certificates, it is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. 
Any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner 
submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 
582, 591-92 (BIA 1988). Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the 
visa petition. Id. 
The petitioner submitted three certificates from the ' 
stating that he won first place in the " 
" and " ' competitive categories. In addition, the petitioner submitted 
information about the competition printed from but he does not 
identify the operator of the website or explain how its information has the same level of reliability as 
that available on the websites of the or the 
Furthermore, the director's denial notice stated that the foreign language documentation submitted 
for this criterion was not accompanied by properly certified English language translations. The 
regulation at 8 C.F.R. §103.2(b)(3) provides in pertinent part: 
Translations. Any document containing foreign language submitted to USCIS shall be 
accompanied by a full English language translation which the translator has certified as 
complete and accurate, and by the translator's certification that he or she is competent to 
translate from the foreign language into English. 
Although the director informed the petitioner of this deficiency in the denial notice, the petitioner 
has not submitted certified English language translations for any of his award certificates or the 
competition information in the Chinese language. Because the petitioner did not submit properly 
certified English language translations for any of the Chinese language award certificates and 
competition information, we cannot determine whether the evidence supports the petitioner's claims. 
Accordingly, the existing English language translations of the documents in Chinese are not 
probative and will not be accorded any weight in this proceeding. 
The petitioner submitted five certificates from the " 
stating that he won first place in the all-around, sparnng, long fist and other weapons 
See which displays the official logo, accessed on July 14, 2015, copy 
incorporated into the record of proceeding. 
(b)(6)
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categories; second place in the broad sword and other fist categories; and third place in the staff art 
category. The preceding certificates reflect provincial recognition rather than nationally recognized 
prizes or awards for excellence in the field. In addition, the petitioner submitted three certificates 
from the " _ stating that he won first place in 
the staff art, sword art, and long fist art categories. The aforementioned certificates reflect local 
recognition rather than nationally recognized prizes or awards for excellence in the field. 
Furthermore, the English language translations accompanying the certificates from the 
and the were not 
certified by the translator as required by the regulation at 8 C.P.R. §103.2(b)(3). 
The plain language of the regulation at 8 C.P.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 
demonstrating that the aforementioned awards were recognized beyond the presenting organizations 
at a level commensurate with nationally or internationally recognized prizes or awards for excellence 
in the field. Accordingly, the petitioner has not established that he meets this regulatory criterion. 
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 director determined that the petitioner had not established eligibility for this criterion. 
On appeal, the petitioner asserts that he submitted published media reports, DVD video of himself 
performing in a play in and documentation of his appearance on the ' 
" 
The petitioner initially submitted a 2011 article in 
1, a 2011 article in 
an 2011 article in 
the a 2011 article in the 
2011 article in the ,a 
Carolina), a 2011 article in 
, 
a 2007 article in 
a 2011 article in the 
, an article in 
(a student newspaper at the 
(Kentucky), a 2011 article in 
, an _ 2011 article in 
North Carolina), an 
South 2011 article in . 
(Kentucky), an 
(South Carolina), an 
), a 
and a 
2006 article in 
2011 article in 
2011 article in 
2007 article in 
The aforementioned articles are about the 
and its many acts, and they do not identify the petitioner. The plain language of the 
regulation, however, requires "published material about the alien." Materials that are not about the 
petitioner do not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV -00820 at 
*1, *7 (D. Nev. Sept. 2008) (upholding a finding that articles about a show are not about the actor). 
Furthermore, there is no documentary evidence showing that the aforementioned newspapers are 
major media. 
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In response to the director's NOID, the petitioner submitted advertisements for the 
Ill 2011), 
2011), , Texas) · 2011), and 
2011). The petitioner is not named in the advertisements, they are not about him, and their authors 
were unidentified. Accordingly, the submitted material does not meet the plain language 
requirements of this regulatory criterion. 
The petitioner submitted an 2011 article in ·entitled' 
2011 article in ·entitled' 
" a 2011 article in entitled 
''a 2011 article in, entitled' 
" and a 2011 article in entitled ' 
'' The aforementioned articles are about the circus and its many acts, and do not 
identify the petitioner. Again, articles that are not about the petitioner do not meet this regulatory 
criterion. 
The petitioner submitted a 
entitled ' 
2011 article about himself and his partner in 
" but the author of the material was not identified as required by the plain language of this 
regulatory criterion. 
The petitioner submitted a photograph from a 2012 article in (northern New 
Jersey) entitled ' 
The caption under the photograph does not identify the petitioner. In addition, the submitted 
evidence does not include the text of the accompanying article or its author. Without submitting the 
full content of the article, the petitioner has not established that the material is about him. 
The petitioner submitted an 
'an 
2012 article in 
2012 article in 
" a . 2012 article in" 
'a 2012 article in entitled' ' 
· entitled " 
(Virginia) entitled '' =====­
entitled ' 
," a 2013 
article in. South Carolina) entitled ' ',a 2013 article in the 
" The entitled ' 
aforementioned articles do not mention the petitioner and they are not about him. 
The petitioner submitted two articles entitled " 
' and " ' section of 
2012). The submitted material includes a photograph of the petitioner, but he is not mentioned in the 
articles. 
The petitioner submitted an 2012 article in (Ohio) entitled " 
" The article describes multiple circus acts and includes only one sentence mentioning the 
petitioner and his partner. According! y, the article is about the circus and not the petitioner. 
The petitioner submitted the beginning of an 
entitled " 
2012 article in Ohio) 
" The incomplete article is accompanied by three 
(b)(6)
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Page 9 
photographs, one of which identifies the petitioner and his partner. As the submitted evidence does 
not include the full text of the article, the petitioner has not established that the article is about him. 
The petitioner submitted a 2013 photograph in _ entitled " -~----' 
" but the accompanying text does not identify the petitioner. 
The petitioner submitted 2014 articles in and In 
addition, the petitioner submitted three articles (2013) from Spanish language publications in 
Mexico. The submitted articles were unaccompanied by certified English language translations as 
required by the regulation at 8 C.F.R. §103.2(b )(3). Without proper translations, the foreign 
language articles are not probative and will not be accorded any weight in this proceeding. 
In addition to the aforementioned deficiencies, all of the articles from 2011 and later were 
published subsequent to filing the Form I-140 on August 2, 2011. Eligibility, however, must be 
established at the time of filing. 8 C.F.R. § 103.2(b )(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). Accordingly, we cannot consider any articles published after August 2, 2011, 
as evidence to establish the petitioner 's eligibility at the time of filing. Furthermore, aside from 
the circulation information submitted for the remaining newspapers does not 
establish that they are major media. 
The petitioner submitted a DVD video of his performance in a stage show entitled " ' (2008) and 
Chinese language articles about the show, but the articles were unaccompanied by certified English 
language translations as required by the regulation at 8 C.F.R. §103.2(b )(3). Again, without proper 
translations, the foreign language articles are not probative and will not be accorded any weight in 
this proceeding. Furthermore, the petitioner has not established that the ' video and 
accompanying articles constitute published material about him in major media. 
The petitioner also submitted documentation that he appeared in Act 7 
( on the 
, 2012 , episode of the ' ' television program on The 
petitioner's television appearance, however, post-dates the filing of the Form I-140. In addition, the 
petitioner asserts that he received an invitation in 2014 to perform on future episodes 
" Again, eligibility must be established at the time of filing. 8 C.F.R. 
§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, we cannot consider any 
televised performances after _ 2011 , as evidence to establish the petitioner's eligibility at the 
time of filing. Furthermore, the plain language of this regulatory criterion requires "published 
material about the alien" including "the title, date and author of the material." The petitioner has not 
established that a televised act meets these requirements. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the 
work of others in the same or an allied field of specification for which classification is 
sought. 
·- --------------------- -·-·-··-·---- ---------------
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The director determined that the petitioner established eligibility for this criterion. A review of the 
record of proceeding, however, does not reflect that the petitioner submitted sufficient documentary 
evidence establishing that he meets the plain language of this criterion, and the director's 
determination on this issue will be withdrawn. We maintain de novo review of all questions of fact 
and law. See Soltane v. United States Dep 't of Justice, 381 F.3d 143, 145 (3d Cir. 2004). 
The petitioner initially submitted three Certificates of Appreciation for participating as a judge at the 
" In addition, the petitioner 
submitted information about 
the ' 'from the website of 
the but the online material did not identify the petitioner as a judge for the competition or 
the individuals whose work he judged. 
The plain language of this regulatory criterion requires evidence of the petitioner's "participation ... 
as a judge of the work of others." Submitting certificates of appreciation without evidence 
demonstrating whose work the petitioner judged is insufficient to establish eligibility for this 
criterion. Furthermore, the multiple inconsistencies relating to the ,
. 
' certificates and the '' 
( certificates submitted for the criterion at 8 C.F.R. § 204.5(h)(3)(i) cast doubt on the 
reliability of the appreciation certificates submitted for this regulatory criterion. Again, doubt cast 
on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter ofHo , 19 I&N 
Dec. at 591-92. 
In response to the director's NOID, the petitioner submitted a "Certificate of Recognition " stating that 
he participated as a judge in the " ' in _ 
2014. In addition, the petitioner submitted photographs from the championships reflecting his 
involvement , a poster for the event, a listing of the event's 194 competitive categories , and a registration 
form for the event. The petitioner 's participation in the 
post-dates the filing of the Form 1-140. Again, eligibility must be established at the 
time of filing. 8 C.F.R. § 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. at 49. Accordingly, we 
cannot consider any events judged by the petitioner after August 2, 2011, as evidence to establish his 
eligibility at the time of filing. 
In light of the above, 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 exhibitions or 
showcases. 
The director determined that the petitioner had not established eligibility for this criterion. 
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On appeal, the petitioner asserts that his stage performances , martial arts demonstrations , and circus 
acts meet this regulatory criterion. The petitioner mentions his performances at the 2014 
in Illinois, the 2014 at the m 
Illinois , the 2014' ., at 
in Illinois, and on the 2012 episode of the '' 
television program. The aforementioned performances post-date the filing of the Form I-140. 
Again, eligibility must be established at the time of filing. 8 C.F.R . § 103.2(b )(1), (12) ; Matter of 
Katigbak, 14 I&N Dec. at 49. Accordingly, we cannot consider any performances by the petitioner 
after August 2, 2011, as evidence to establish his eligibility at the time of filing. 
Furthermore, the petitioner is a martial arts performer. When he performs on stage, as part of a 
martial arts demonstration, or as part of a circus act, he is not displaying his work in the same sense 
that a painter or sculptor displays his or her work in a gallery or museum. In addition , to the extent 
that the petitioner is a martial arts performer, it is inherent to his occupation to perform and 
demonstrate his skills. The ten criteria in the regulations are designed to cover different areas; not 
every criterion will apply to every occupation. 6 The interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is 
limited to the visual arts is longstanding and has been upheld by a federal district court in Negro­
Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding an 
interpretation that performances by a performing artist do not fall under 8 C.F .R. 
§ 204.5(h)(3)(vii)). See also Visinscaia v. Beers, 4 F.Supp.3d 126, 135-36 (D.D.C. 2013) . As the 
petitioner is not a visual artist and has not created tangible pieces of art that were on display at 
exhibitions or showcases, he has not submitted qualifying evidence that meets the plain language 
requirements of the regulation at 8 C.F .R. § 204.5(h)(3)(vii). 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director determined that the petitioner had not established eligibility for this crit erion. On 
appeal, the petition er asserts that a letter of support from 
a circus program book, and newspaper articles demonstrate his leading or critical role for the 
circus. 
In response to the director's NOID, the petitioner submitted a November 2014 letter from 
, Paymaster, stating: 
[The petitioner] has been up until recently when he left the Circus, a leading and key member 
of our circus performance group, has been the team leader of our 
for several years. His amazing skill and incredible performance acumen 
6 Stage and circus performances are far more relevant to the "commercial successes in the performing arts" 
criterion at 8 C.F.R. § 204.5(h)(3)(x), which focuses on volume of sales and receipts as a measure of the 
petitioner's commercial success in the performing arts. The petitioner, however, did not submit any 
documentary evidence of "sales" or "receipts" demonstrating that his performances were indicative of 
commercial successes in the performing arts. 
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Page 12 
both of which have impressed our audience across America. [The petitioner] is a top martial 
artist whose skills enable him to jump through a ring of knives that is also ablaze . . . . His 
act has been featured on our program book and his image used as a representation of 
demonstration on our tickets, in our advertisements and other marketing materials. 
Mr. does not explain how his administrative position as paymaster qualifies him to assess 
the importance of petitioner's role as a performer in the show in the same manner as the circus 
director or general manager, for example. The petitioner also submitted photocopies from the 
"Illuscination" program book. The cover of the 
program book includes an image of the petitioner along with multiple other circus acts and 
performers. Two circus performers holding birds are at the center of the cover and their images are 
three times larger than that of the petitioner who is in the background. The "Illuscination" program 
book includes a full-page photograph of the petitioner diving through a blazing ring of swords. In 
addition, the program book includes full pages devoted to other performers such as magician 
acrobat the , animal trainer · 
trapeze artist : tightrope walkers . and horse 
trainers The submitted evidence does not demonstrate that the petitioner 
was featured more prominently in promotional materials than the other circus acts . Not every 
performing act constitutes a leading or critical role for the circus. 
As discussed previously, the petitioner submitted newspaper articles about the _ _ 
and its many acts. The submitted published materials demonstrate that the 
~ has a distinguished reputation , but the articles are not 
about the petitioner and they do not single out his role as leading or critical for the circus. Although 
the petitioner submitted a 2011 article about himself and his partner in 
the article was published after the Form I-140 was filed. Again, eligibility must be 
established at the time of filing. 8 C.F.R. § 103.2(b )(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
Accordingly, we cannot consider any articles published after 2011, as evidence to establish 
the petitioner's leading or critical role for the circus at the time of filing. 
In general , a leading role is demonstrated by evidence of where the petitioner fits within the hierarchy 
and duties of an organization or establishment, while a critical role is demonstrated by evidence of the 
petitioner's contributions to the organization or establishment's operational viability. The petitioner 
did not provide an organizational chart or other similar evidence to establish where his role fit within 
the overall hierarchy of the circus. The submitted documentation does not differentiate the petitioner 
from the other circus performers so as to demonstrate his leading role, and fails to establish that his 
performances contributed to the circus in a way that was of substantial importance to its success or 
standing in the entertainment industry. 
In light of the above , the petitioner has not established that he meets this regulatory criterion. 
B. Summary 
For the reasons discussed above, we agree with the director that the petitioner has not submitted the 
requisite initial evidence, in this case, evidence that satisfies three of the ten regulatory criteria. 
(b)(6)
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C. Director's "finding of fraud or willful misrepresentation of a material fact" 
With regard to the inconsistencies concerning the petitioner's award certificates, the director's 
decision mentioned "multiple internet queries" that revealed significant concerns regarding the 
reliability of the submitted evidence. The director's decision, however, did not point to specific 
internet query results or offer clear and probative evidence demonstrating that the petitioner 
submitted fraudulent documentation or willfully misrepresented a material fact. Although the 
inconsistencies regarding the petitioner's awards raise serious concerns and cast doubt regarding the 
reliability of the petitioner's evidence , the evidence of record does not support the director's finding 
of fraud or willful misrepresentation of a material fact. Denial of this petition cannot be based upon 
the serious allegations of the director without evidence offered in support of those conclusions. Just 
as the unproven assertions of counsel are not evidence, neither are the unsupported conclusions of 
the director. Cf Matter of Obaigbena, 19 I&N Dec. 533, 534 note (BIA 1988); Matter of Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Accordingly, the director's finding of fraud or willful 
misrepresentation of a material fact is withdrawn. 
D. Prior P-1 Nonimmigrant Visa Status 
The record reflects that the petitioner has been in the United States as a P-1 nonimmigrant, a visa 
classification that requires him to perform "with an entertainment group that has been recognized 
internationally as being outstanding in the discipline for a sustained and substantial period of time." 
See section 214(c)(4)(B) of the Act, 8 U.S.C. § 1184(c)(4)(B). While USCIS has approved prior P-1 
nonimmigrant visa petitions filed on behalf of the petitioner, these prior approvals do not mandate 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. 
Many 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., 724 F. Supp. at 1103. See also Texas 
A&M Univ. v. Upchurch, 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 r eassessment of the 
alien's qualifications). 
We are not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). USCIS is not required to treat 
acknowledged errors as binding precedent. See Sussex Eng 'g Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, our 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 petitioner, we 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. Mar. 
2000), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
(b)(6)
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III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the individual has achieved sustained national or international acclaim and is one of the small 
percentage who has risen to the very top of his or her field of endeavor. 
Had the petitioner 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 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. As the petitioner has not done so, the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of 
presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) 
and ( 4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final 
merits determination referenced in Kazarian, a review of the evidence in the aggregate supports a 
finding that the petitioner has not demonstrated the level of expertise required for the classification 
sought. 7 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner ' s burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende , 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
7 We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justic e, 
381 F.3d at 145 . In any future proceeding, we maintain 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)(l)(ii) ; see also INA 
§§ 103(a)(1), 204(b); DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 
8 C.F .R. § 103.l(f)(3)(iii) (2003) ; Matter of Aurelio , 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy 
INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).