dismissed EB-1A Case: Performing Arts

invasion 
U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
PIJ'lmC COPY 
c 
FILE: Office: TEXAS SERVICE CENTER Date: SEp 0 6 2W7 
SRC 06 040 53249 
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. 8 1 153(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. 
&&x /39&111~ 
I obert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability," pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualify for classification as an alien of extraordinary ability. 
On appeal, counsel submits a brief. For the reasons discussed below, we uphold the director's decision. 
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 
intemational 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 to the United States will substantially benefit 
prospectively the United States. 
Citizenship and Immigration Services (CIS) 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 (November 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. tj 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 
intemational acclaim at the very top level. Moreover, the statutory standard requires individual acclaim 
in the field, not simply unique skills and talent. We will not presume individual acclaim from 
participation in highly competitive ensemble troupes or circuses. 
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This petition seeks to classify the petitioner as an alien with extraordinary ability as a performing artist. 
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. The petitioner has submitted evidence that, she claims, meets the 
following criteria. ' 
Documentation of the alienJs receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the Jield of endeavor. 
The director appears to have acknowledged that the petitioner meets this criterion through tumbling and 
gymnastics awards but concluded that none of the awards were recent enough to be indicative of 
sustained acclaim as of the date of filing. On appeal, counsel asserts that "sustained" merely means 
over a period of time, but not necessarily recent. Counsel's argument is not persuasive. 
To be "sustained" something must be kept up or maintained. The language contained in the Act 
supports a finding that acclaim must still be current and that if not sustained up to the present time it is 
not sufficient to meet the requirements of this visa classification, an employment based classification, 
for acclaimed individuals coming to the United States to continue in their areas of expertise and 
prospectively benefit the United States. Section 203(b)(l)(A) of the Act. Clearly, this classification is 
not intended simply as recognition of past achievement, regardless of current ability or acclaim. That 
said, as in this case, an alien may meet one criterion primarily with older evidence provided that 
evidence which satisfies another criterion is more recent. In this matter, however, the petitioner has not 
established that she meets any other criterion, either recently or otherwise. Therefore, we concur with 
the director that while the petitioner meets this one criterion, she has not established her eligibility for 
the classification sought, which requires that an alien meet at least three criteria. 
Published materials about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classifcation is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
Initially, counsel asserted that the petitioner had been recognized "in local, national and international 
media for her accomplishments as an athletic champion and as performer for Cirque du Soleil." In the 
request for additional evidence, the director noted that all of the published materials was either local or 
not primarily about the petitioner. Counsel's response does not address this criterion. Thus, the 
director concluded that the petitioner does not meet this criterion. Counsel does not challenge this 
conclusion on appeal. We concur with the director's analysis and conclusion regarding this criterion. 
Evidence ofthe display of the alien 's work in the field at artistic exhibitions or showcases. 
1 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
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Initially and in response to the director's request for additional evidence, counsel asserted that the 
petitioner's performances with Cirque du Soleil shows serve to meet this criterion. The director 
concluded that the Cirque du Soleil shows were not "showcases" of the petitioner's work individually. 
On appeal, counsel asserts that performing artists are rarely featured solo. 
This criterion applies to visual artists. The petitioner is a performing artist. It is inherent to her 
occupation to perform. Accordingly, her performances are not considered to be artistic exhibitions 
designed to showcase her art. Thus, we concur with the director that 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. 
At the outset, it is useful to set forth the requirements for this criterion. At issue are the role the 
petitioner was selected to fill and the reputation of the entity that selected her. While the petitioner 
submitted her contract, she relies on the statements of several references to meet this criterion. 
e references merely assert that the petitioner is the member of various acrobatic teams. 
asserts that the petitioner "played an integral role" in "Mystere" and that the petitioner's 
talents are "critical to the success of Cirque du Soleil." 
 , designer of acrobatic 
performances for Cirque du Soleil asserts that the petitioner "was a star in the Mystere show" and 
"indispensable to the show." , a fellow performer, asserts that the petitioner "was an 
irreplaceable star of Mystere" and "the main focus of the show." , another performer with 
"Mystere" asserts that it took several attempts to find qualified cast members to replace the petitioner. 
r, another performer with   m st ere," asserts that they have never been ableio replace 
the petitioner., a dancer who worked with the petitioner on "Mystere" asserts that the 
petitioner stood out "enough to become a star," and has proven difficult to replace. Regardless, as 
"Mystere" appears to have continued after the petitioner joined La Nouba, clearly the petitioner was not 
literally indispensable or irreplaceable. Notably, the review of "Mystere" in Out and About does not 
single out the petitioner from the rest of the cast or even mention her by name. While the reviewer 
enjoyed the Chinese Pole act, he also singles out as a highlight an act performed by Portuguese brothers 
as well as the bungee-cord team. According to the review, the show utilizes 70 performers. 
The record includes similar letters regarding the petitioner's performances for "La Nouba." For 
- 
example,a sound engineer, asserts that he viewedula Nouba" and the petitioner "stole 
all the focus.", Public Relations and Marketing Manager for "La Nouba," asserts that 
as a very important role" and that the show would not be as strong without her. 
, the petitioner's coach, asserts that she is a "key performer" for "La Nouba." - 
a human resources representative for Cirque du Soleil, asserts that the petitioner "plays a 
w- 
critical and leading role in the Powertrack and Trampoline act" which has "led her to become a star of 
La Nouba and Cirque du Soleil." 
The opinions of experts in the field, while not without weight, cannot form the cornerstone of a 
successful claim of sustained national or international acclaim. CIS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 
I&N Dec. 791, 795 (Comm. 1988). However, CIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters 
from experts supporting the petition is not presumptive evidence of eligibility; CIS may evaluate the 
content of those letters as to whether they support the alien's eligibility. See id at 795-796. CIS 
may even give less weight to an opinion that is not corroborated, in accord with other information or 
is in any way questionable. Id. at 795; See also Matter ofsoffici, 22 I&N Dec. 158, 165 (Comm. 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner's contracts are the primary evidence of her roles and are simply not consistent with the 
above letters. Schedule B of the petitioner's contract with "Mystere" includes the following 
description of her roles: 
Participation as all-around artist in all acrobatic numbers created for the Production 
include, without limitation, Fast Track, Teeter Board and Chinese Poles. 
Section 1.2.2 states that if the producer requires the petitioner to assume the position of "team 
leader," the producer agrees to pay the petitioner an additional $10 per performance in which she 
serves in that role. The record contains no evidence that she routinely served as team leader. 
Schedule B of the petitioner's contract with "La Nouba" provides the following description of her role: 
Participation as an all-around Artist in all acrobatic numbers created for the Production 
including, without limitation Fast Track and Trampoline. 
As with the previous contract, the producer agrees to pay the petitioner an additional $10 per 
performance in which she serves as team leader. More significantly, while asserts that the 
petitioner is the only back up for "Green Bird," a March 1,2005 addendum indicates that the petitioner 
became the "alternate back-up for the character of the 'Green Bird."' (Emphasis added.) Moreover. 
I \ L , 
asserts that the petitioner is only the back up because the role relies on more acting 
remains that the producer agreed to pay the petitioner an additional $30 per 
performance in which she appears as "Green Bird," strongly suggesting it is a much bigger role. The 
photographs taken from the DVD of "La Nouba" reflect several acrobats serving in a similar role to that 
of the petitioner and the photograph of the credits reveal 22 Power TracWTrampoline artists. They are 
followed in the credits by the musicians, suggesting that no acrobat received lower billing. 
The description of the petitioner's roles for "Mysthe" and "La Nouba" in her contracts does not rise to 
the level suggested by the petitioner's references. We emphasize that the fundamental issue for this 
criterion is the role for which the petitioner was selected, not her skill in fulfilling her role. It is 
Page 6 
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). The petitioner has not resolved the inconsistencies between her 
contracts and the reference letters. 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field. 
Initially, counsel asserted that the petitioner eamed $58,208, higher than the "90% percentile" in 
Florida, $49,130. Counsel finther asserted that the petitioner's contract was amended to include a 
provision whereby the BBC and DVD productions would pay her $250,000 in the event she is 
interviewed "behind the scenes." The unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 
1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The petitioner submitted her 
2004 Form W-2 Wage and Tax Statement reflecting wages of $43,602. In addition, the petitioner 
submitted an amendment to her contract with "La Nouba" reflecting that she would be compensated 
only $250 if interviewed for a BBC documentary, 100 times less than the amount claimed by counsel. 
The petitioner also submitted evidence that the Level 4 wage for entertainers, performers, sports and 
related workers in the Orlando area was $49,130 for 2005. 
In the request for additional evidence, the director noted that the petitioner's 2004 W-2 did not reflect 
wages of $58,208 and concluded that even if she eamed such wages, it was not significantly above 
"average performers." The director further noted a lack of evidence that the petitioner was contracted 
to perform any "behind the scenes" interviews for BBC and DVD productions. The director expressly 
requested national wage data. 
In response, the petitioner submitted the letter fiom, in which she asserts that the petitioner 
"is one of the highest paid performers in the show, earning $65,900." The petitioner also submitted her 
2005 Form W-2 reflecting wages of $65,560. These wages are relevant as the petition was filed in 
November 2005. The petitioner also submitted new wage data for entertainers, performers, sports and 
related workers in the Orlando area, which shows that the level four wage dropped to $39,728 per year 
in 2006. 
The director reiterated the concerns stated in the request for additional evidence but then acknowledged 
the Form W-2 showing that the petitioner earned $65,560 in 2005. Thus, the director no longer appears 
to question counsel's initial assertion that the petitioner earned at least $58,208. The director noted that 
the petitioner had failed to submit the requested national wage data and concluded that earning $25,000 
more than "the average performer" was insufficient. 
On appeal, counsel reiterates that the petitioner earned $65,560 and claims to resubmit the petitioner's 
2005 Form W-2. While this evidence was not included on appeal, it is already part of the record, as 
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acknowledged by the director. Counsel asserts that the Department of Labor defines a Level 4 worker 
as "fully competent." Counsel does not attempt to address the director's concern that the petitioner 
failed to provide national wage data. 
We concur with the director that the petitioner must demonstrate that she earns remuneration that is 
significantly high nationally, not merely in comparison with other cast members in a particular show or 
even members of the field regionally. Thus, assertion that the petitioner is one of highest 
paid members of the cast is insufficient. Moreover, the record does not support this assertion as the 
petitioner's contract clearly suggests that permanent team leaders and cast members who are hired 
specifically to play character roles earn more. 
The record does not support counsel's initial implication that level 4 wages reflect the top 10 percent of 
wages in that field, rather than the average wages of fully competent employees as acknowledged on 
appeal. Thus, the wage data provided does not even reflect the top 10 percent of salaries in the field 
regionally, let alone nationally. 
In light of the above, the petitioner has not demonstrated that her remuneration compares with the 
remuneration of the most renowned members of her field. 
Evidence of commercial successes in the performing arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
Initially, counsel asserted that both "Mystere" and "La Nouba" are commercially successful, with "La 
Nouba7' being featured in a BBC documentary and released on DVD. While the petitioner submitted 
favorable reviews of both shows, she did not submit the primary evidence required for this criterion, 
box office receipts and evidence of the actual DVD sales, although the director did not question the 
commercial success of either show. The director requested evidence that the petitioner "is the reason 
for the top draw of these shows." 
In response, counsel reiterates the claim that the petitioner plays a "leading critical role" for "La 
Nouba" and, therefore, is responsible for its commercial success. The director concluded that the 
record only established that the petitioner shared the stage with many performers and could not be said 
to have played a major part in any commercial success of the Cirque du Soleil shows. 
On appeal, counsel asserts that the petitioner is the "focal point" of the entire production and that "La 
Nouba" would be "doomed for failure" without her presence. Counsel is not persuasive. As discussed 
above, the record is not persuasive that the petitioner plays a leading or critical role for "La Nouba" 
above and beyond the ensemble cast. As noted above, the reviews submitted do not single out the 
petitioner or her act as essential to the show. The petitioner has not demonstrated that she is 
prominently featured in the show's promotional materials or is otherwise a personal draw for the show. 
In light of the above, the petitioner has not demonstrated that she meets this criterion. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or intemational 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 a 
performing artist to such an extent that she may be said to have achieved sustained national or 
intemational acclaim or to be within the small percentage at the very top of her field. The evidence 
indicates that the petitioner shows talent as a performing artist, 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.