dismissed EB-1A Case: Performing Arts

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
iden~fying dm de!e!zd to 
prever~ c!ear!y iic"aamnt~d 
 U. S. Citizenship 
invasion of pe;sor,nl privacy 
 and Immigration 
DZJ 
Office: NEBRASKA SERVICE CENTER Date: FEB I 1 2009 
EAC 06 043 52140 
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. 9 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form 1-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
u. 
phn F. Grissom, Act~ng Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition and reaffirmed that decision on motion. The matter 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 performing arts, pursuant 
to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1153(b)(l)(A). 
The director determined the petitioner had not established the sustained national or international 
acclaim necessary to qualifl for classification as an alien of extraordinary ability. 
On appeal, counsel submits a brief and additional evidence, some of which relates to achievements 
after the date of filing. We note that the petitioner must demonstrate her eligibility as of that date. See 
8 C.F.R. $8 103.2(b)(l), (12); Matter of Kutigbak, 14 I&N Dec. 45'49 (Reg'l. Comm'r. 1971). For the 
reasons discussed below, we uphold the director's concIusion that he petitioner has not established 
eligibility for the exclusive classification sought. Specifically, much of the evidence either does not 
relate to the regulatory criteria for which it is submitted or falls far short of the requirements to meet 
those criteria. 
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. 
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 56 Fed. Reg. 60897,60898-9 (Nov. 29, 
1991). As used in this section, the term "extraordinary ability" means a level of expertise indicating 
that the individual is one of that small percentage who have risen to the very top of the field of 
endeavor. 8 C.F.R. 5 204.5(h)(2). The specific requirements for supporting documents to establish that 
an alien has sustained national or international acclaim and recognition in his or her field of expertise 
are set forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant criteria will be addressed below. 
It should be reiterated, however, that the petitioner must show that she has sustained national or 
international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as an actress. Much 
of the evidence revolves around the petitioner's selection to play the role of in the Broadway 
musical '." We recognize the significance of performing on Broadway. As noted by the 
director, however, the commentary to the final rule, published at 56 Fed. Reg. 60899 (Nov. 29, 1991), 
states: 
The Service disagrees that all athletes performing at the major league level should 
automatically meet the "extraordinary ability" standard. . . . A blanket rule for all major 
league athletes would contravene Congress' intent to reserve this category to "that small 
percentage of individuals who have risen to the very top of their field of endeavor." 
Similarly, we are not persuaded that every actor or actress cast in a leading or critical role in a 
Broadway production qualifies for classification pursuant to section 203(b)(l)(A) of the Act. Rather, 
such evidence relates to only one of the regulatory criteria, 8 C.F.R. 5 204.5(h)(3)(viii), of which an 
alien must meet at least three. 
The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at 
least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify 
as an alien of extraordinary ability. Counsel has not consistently explained which criteria the petitioner 
is alleged to meet. The criteria follow: 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
At the outset, it is necessary to emphasize the precise wording of the regulation at 8 C.F.R. 
fj 204.5(h)(3)(i), which requires evidence of the alien's "receipt" of qualifying awards. The plain 
language is clear; the alien must actually be the named recipient of the award. 
Counsel, relying on the AAO's past acceptance of athletic team awards, asserts that the petitioner 
should be credited with Tony awards won by ' her association with this 
production. Specifically, 'I' was at the 2002 Tony Awards. 
The named nominees were the producers, not the cast. The petitioner signed her contract to perform in 
this musical in 2003. 
First, counsel relies on unpublished decisions by the AAO that have not been designated as precedents. 
While 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all USCIS 
Page 4 
employees in the administration of the Act, unpublished decisions are not similarly binding. 
Regardless, the broad assertion that any alien associated with an award-winning entity meets this 
criterion does not logically follow from the very limited proposition that an athlete competing in a 
team sport who receives a nationally or internationally recognized prize or award as a member of her 
team could meet this criterion. 
While a song writing award issued to a team of named songwriters and an acting award issued to a 
named actress would warrant consideration under this criterion, a generic '- award 
cannot be credited to every writer, composer, songwriter, musician, actor, actress and crew member 
working on the show. The assertion that an actress who was not even associated with the show when 
it was nominated can be credited with the award is even less persuasive. 
On appeal, counsel asserts that it is actually more persuasive that the petitioner became associated 
with the show after it won an award because an award-winning show is more selective. Such a 
consideration may be warranted when considering the reputation of an organization for which the 
petitioner claims to have performed in a leading or critical role, but has no merit under this criterion. 
It simply cannot be credibly asserted that the petitioner has presented evidence of her "receipt" of a 
nationally or internationally recognized prize or award. Thus, the petitioner has not established that 
she meets this criterion. 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines orjelds. 
Counsel asserts for the first time on appeal that the petitioner meet this criterion through her 
membership in the Canadian Actors Equity Association, the Alliance of Canadian Cinema Television 
and Radio Artists (ACTRA) and the Actors Equity Association. The petitioner submits evidence of her 
membership in these associations and evidence that they are professional memberships akin to unions. 
Specifically, the associations negotiate and administer collective agreements and working conditions, 
provide benefit plans, information and support and act as an advocate for their members. While 
asserts that the petitioner's 
membership "is based upon merit and her achievements within the industry," the petitioner did not 
provide the official membership requirements for any of these associations. 
The plain language of the regulation at 8 C.F.R. 5 204.5(h)(3)(ii) requires evidence of membership in 
an associations that require outstanding achievements as judged by recognized national or international 
experts. Professional associations or unions that merely require a specific amount of experience in the 
field, even a competitive field, cannot serve to meet this criterion. The record contains no evidence that 
any of these professional associations have nationally or internationally recognized experts in the field 
of theater judging the performances and accomplishments of prospective members. 
In light of the above, the petitioner's new claim on appeal to meet this criterion is not supported by the 
record. 
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 classijication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
Once again, it is necessary to review the plain language of the regulation at 8 C.F.R. tj 204.5(h)(3)(iii) 
prior to our analysis of counsel's assertions. Specifically, the regulation requires published material 
"about" the alien. As noted by the director in the request for additional evidence and the final denial, 
brief references to the alien in articles that are primarily about another topic cannot serve to meet this 
criterion. Finally, it is the petitioner's burden to establish that the published materials appeared in 
major media. 
Initially, the petitioner submitted evidence labeled as documenting the reputation of '9' and 
"Published Reviews of Applicant's Work." The reviews and promotions of '-' in the 
former exhibit do not even mention the petitioner by name. The latter exhibit includes: 
1. A review of the 
 and the 
 that notes that the petitioner 
was one of two soloists with the quartet posted on the website- 
2. Duplicate copies of the reviews of' that do not mention the petitioner and do not 
appear to relate to productions in which she was involved; 
3. The inclusion of the petitioner's name on a list of the cast members of all Broadway, Las Vegas 
and U.S. National Tours of "' appearing in an unknown publication; 
4. A 2004 article in the Toronto Star about the success of Canadian actors and actresses in London 
and New York that mentions the petitioner as performing in "-; 
5. A news article in an unidentified publication about "rising star" , that 
includes a photograph of him acting with the petitioner; and 
6. A 1996 review of various shows at Newfoundland Theater naming the petitioner as a cast 
member in m' in the Toronto Star. 
In the director's request for additional evidence, he advised that "mere references to the alien's work" 
would not suffice to meet this criterion. In response, counsel asserted that the petitioner has already 
submitted articles in major Canadian newspapers which "evidence [the petitioner's] extraordinary 
achievements." In a footnote, counsel asserts that the Toronto Star is Canada's largest daily paper. 
Finally, counsel notes the previous submission of articles about '-." Counsel reiterates 
these assertions in the motion to reopen the director's first denial. In his final notice of denial, the 
director concluded that the reviews of and publicity for " were not published materials 
about the petitioner and that the articles in the Canadian press, while referencing the petitioner, were 
not "about" her. 
On appeal, counsel concedes that the materials submitted do not "feature" the petitioner but asserts that 
they "offer evidence of her lead and important roles in highly publicized theater productions." While 
we concur with counsel that the materials are relevant to the leading role criterion at 8 C.F.R. 
fj 204.5(h)(3)(viii) insofar as they relate to the distinguished reputation of the shows in which the 
petitioner has appeared, we cannot consider the published materials submitted as serving to meet this 
criterion, set forth at 8 C.F.R. fj 204.5(h)(3)(iii). 
As stated above, the regulation at 8 C.F.R. 5 204.5(h)(3)(iii) clearly and unambiguously requires 
published material "about" the alien. We concur with the director that none of the materials submitted 
are "about" the petitioner. In fact, counsel does not challenge this conclusion. Thus, the petitioner has 
not established that she meet this 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 alliedJield of specijication for which classzfication is sought. 
The record contains contracts with the petitioner, although her name is misspelled, for judging the 
"Dance, Dance, Dance" competition in 2002 and 2003 in Niagara Falls. The petitioner did not submit 
any information about this competition. The evidence was not specifically submitted to meet this 
criterion and counsel has not raised a claim that the petitioner meets this criterion in his subsequent 
submissions. The director concluded that no evidence was submitted to meet this criterion. 
The evidence submitted to meet a given criterion must be indicative of or at least consistent with 
national or international acclaim if that statutory standard is to have any meaning. Without any 
evidence of the significance of the "Dance, Dance, Dance" competition, we cannot evaluate the quality 
of this evidence. Thus, the petitioner has not established that she meets this criterion. 
Evidence of the alien5 original scientlJic, scholarly, artistic, athletic, or business-related 
contributions of major signlJicance in the field. 
In response to the director's request for additional evidence, counsel asserted that the letters submitted 
initially and with counsel's response confirm the petitioner's talent and, thus, serve to meet this 
criterion. 
Initially, the petitioner submitted letters fro, who taught the petitioner at Randolph 
~cadek~; director of Disney's Lion King on Broadway who previdusly cast the petitioner 
with the Confederation Centre Young Company;, a U.S. casting director who has 
taught the petitioner; - Artistic Director of Studio 407 - Toronto who taught the 
petitioner at the Randolph Academy; , an agent and, president and 
Page 7 
founder of the. The letters all praise the petitioner's talent and professionalism and 
assert that she has risen to the top of her field. None of the letters, however, identify an original 
contribution or explain how the petitioner has impacted the field. 
In response to the director's request for additional evidence, the petitioner submitted a letter 
the creator of several Disney cruise shows in which the petitioner has performed. 
asserts that she "made important contribution[s] to many Disney performances with her charismatic 
presentation skills." This statement does not explain exactly what the petitioner contributed or how it 
was original and has impacted the field of acting as a whole. Simply performing well on a cruise 
cannot be considered an original contribution of major significance to the field of acting. The 
remaining letters are similar, coming fkom individuals who have worked with, taught or auditioned the 
petitioner and who praise her talent. 
The director concluded that the petitioner did not create the roles in which she performed or otherwise 
impacted the field through original contributions. On appeal, counsel asserts that the petitioner is not 
seeking extraordinary ability as a writer, but a performer. Counsel notes references to the petitioner as 
a "triple threat" in that she can act, sing and dance. Counsel concludes that the letters demonstrate that 
the petitioner has made original and significant contributions to the success of many performances. 
A petitioner cannot meet this criterion by "contributing" to the success of an individual show. The 
plain language requires that the contribution be "original" and of "major significance" to the field. 
Thus, in order to meet this criterion, the petitioner must demonstrate an impact beyond the shows in 
which she has performed. As noted by the director, the petitioner was not part of the original cast of 
Regardless, she has not demonstrated that her performances in that show have 
impacted theater in general. Similarly, the record lacks evidence that live theater has been noticeably 
impacted by the petitioner's performances onboard Disney cruises. 
Without evidence of the petitioner's original contributions that have had a demonstrable impact on the 
field in general, she cannot establish that she meets this criterion. 
Evidence of the alien S authorship of scholarly articles in the Jield, in professional or major trade 
publications or other major media. 
The record contains no evidence relating to this criterion and counsel has never asserted that the 
petitioner meets it. 
Evidence of the display of the alien S work in the field at artistic exhibitions or showcases. 
Counsel asserts that the petitioner's theatrical performances in Canada, on Disney cruises and on 
Broadway serve to meet this criterion. The director concluded that this criterion does not apply to the 
petitioner's field. On appeal, counsel asserts that the performing arts do fall under this criterion and 
Page 8 
references a non-precedent decision by this office allowing that film festivals can fall under this 
criterion. 
As stated above, while 8 C.F.R. $ 103.3(c) provides that AAO precedent decisions are binding on all 
USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
We concur with the director that, in general, this criterion applies to the visual arts. That said, in 
situations where this criterion does not directly relate to the alien's field, we can consider "comparable" 
evidence. Unlike counsel's example of a film festival, however, a general theatrical performance is not 
an exhibition or showcase of a particular artist's work. In other words, exhibition at an exclusive film 
festival is more relevant than mere commercial release. ' is not a showcase of the 
petitioner's work on her role but a general commercial production. Similarly, Disney cruises are not 
exhibiting or showcasing the work of an exclusive group of performers but providing entertainment for 
its customers. 
It is inherent to the field of performing arts to perform. Not every production, even on Broadway, is a 
showcase or exhibition of the work of every performer. We do not find that the petitioner's role on 
Broadway has no evidentiary value, but it cannot serve to meet this criterion. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner has performed in productions with undocumented significance in Canada and on Disney 
cruises. While asserts that the petitioner performed in "lead roles" for Disney, he does not 
role. In 2003, the petitioner was cast as in the Broadway production of 
Counsel's assertion that the leading nature of this role is apparent from where her 
name is listed in the cast is not persuasive. They are listed in order of speaking, not significance to the 
show. We acknowledge that the program includes a grou of actors and actresses in the "ensemble" 
and that the petitioner has a named role. Casting director , however, asserts only that the 
petitioner was selected for a "leading role in the chorus." Significantly, the reviews of the show that 
summarize the plot make no mention of the petitioner's character. 
The director concluded that there were several productions of "' and that the petitioner 
had not demonstrated the significance of her role. On appeal, counsel notes the significance of 
Broadway in the field of theater and goes over the evidence of record. 
Disney's reputation is not at issue. The record, however, contains no evidence that Disney cruise 
productions have a nationally distinguished reputation in the theatrical world. Moreover, the record 
lacks evidence as to the specific roles the petitioner has played. The record, however, does contain 
significant evidence establishing the distinguished national reputation of the Broadway version of 
Page 9 
" The evidence of record, however, does not consistently establish that the role o = 
is either leading or critical beyond the obvious need to fill every role in a given musical. Without more 
detail regarding the role beyond the vague assertions of its leading nature, we cannot conclude that the 
petitioner meets this criterion. 
That said, we acknowledge that the evidence relating to this criterion is the strongest of all the evidence 
submitted. Even if we concluded that the petitioner meets this criterion, and we do not, the petitioner 
would only meet one criterion. As stated above, the petitioner must meet at least three to establish 
eligibility. For the reasons discussed above and below, the petitioner falls far short of meeting any 
other criterion. 
Evidence that the alien has commanded a high salary or other signiJicantly high remuneration for 
services, in relation to others in the field. 
While the petitioner submitted evidence of her remuneration, she did not establish how her income 
compares with the most renowned live theater performers nationwide. Counsel has never asserted that 
the petitioner meets this criterion and we find no evidence that she does. 
Evidence of commercial successes in the performing arts, as shown by box ofJice receipts or record, 
cassette, compact disk, or video sales. 
The record contains evidence that '" is commercially successful. It appears, however, that 
the show was commercially successful prior to the petitioner's involvement with the show. The 
petitioner does not appear on any of the promotional materials such that she can be credited with the 
show's commercial success. Counsel has never asserted that the petitioner meets this criterion and we 
find no evidence that she does. 
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. 
Review of the record, however, does not establish that the petitioner has distinguished herself as an 
actress to such an extent that she may be said to have achieved sustained national or international 
acclaim or to be within the small percentage at the very top of her field. The evidence indicates that the 
petitioner shows talent as an actress, but is not persuasive that the petitioner's achievements set her 
significantly above almost all others in her field. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(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. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.