dismissed EB-1A Case: Performing Arts

identifying data deleted to 
prev~nt cle;;;"J :-mwarranted 
invasIOn of personal privacy 
VfmlTCCOPY 
DATE JAN 1 U 2012 Office NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Securit~ 
U,S. CitJI.cllship and immigration SCf\'iCl'.~ 
Administrative Appeals Offlce (AAOJ 
20 Massachusetts Ave., N.W .. MS 209{) 
Washington. DC 20529-20l)() 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)( I )(A) of the Immigration and National ity Act. 8 U.S.c. § I 153(b)( I )( A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documeills 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision. or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion. 
with a fee of $630. Please be aware that 8 C.P.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
cl2:- l5rJA 
Perry Rhew .c., r 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which 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. as a 
perch pole balancing performer, pursuant to section 203(b)(l)(A) of the Immigration and Nationality 
Act (the Act), 8 U.S.C § 1153(b)(l)(A). The director detennined the petitioner had not established the 
sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability. 
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)(I)(A)(i) of the Act; H.R. 
723 10i st Cong., 2d Sess. 59 (1990); and 8 CF.R. § 204.5(h)(3). The implementing regulation at R 
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 C.F.R. 
§ 204.5(h)(3)(i) through (x). The petitioner must submit qualifying evidence under at least three of the 
ten regulatory categories of evidence to establish the basic eligibility requirements. 
On appeal, the petitioner submits a brief with supporting documentation. For the reasons discussed 
below, the AAO upholds the director's ultimate determination that the petitioner has not established 
her eligibility for the classification sought. 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(I) Priority workers. -- Visas shall first be made available ... to qualified immigrants who arc 
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 arca 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 
([NS) 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. 723 101'1 Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898·99 (Nov. 29, [991). 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. ld.: 
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 following ten categorics oC 
evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) 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 or fields; 
(iii) 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; 
(iv) 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 specialization for which classification 
is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business· 
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has perfonned in a leading or critical role for organizations 
or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales, 
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. 2010). Although the coul1 
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 USCIS may have raised legitimate concerns 
about the significance of' the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits detennination." ld. 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 coul1 stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." ld. at 1122 (citing to 8 
C.F.R. § 204.5(h)(3». The court also explained the "final merits determination" as the corollary to this 
procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expel1ise indicating that the individual is one of 
that small percentage who have risen to the Vel) top of thefirj field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "that the alien has sustained national or international acclaim 
and that his or her achievements have been recognized in the field of expeI1ise." 
8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered "sustained 
national or international acclaim" are eligible for an "extraordinary ability" visa. 
8 U.s.c. § 1153(b)(1 )(A)(i). 
ld. at 1119-20. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits detennination. In reviewing Service Center decisions, the AAO will 
apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a 
I Specifically. the cOUl1 stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.S(h)(3)(iv) and 8 C.F.R. 
§ 204.S(h)(3)(vi). 
Page 5 
new analysis if the director reached his or her conclusion by using a one-step analysis rather than the 
two-step analysis dictated by the Kazarian court. See 8 C.F.R. 103.3(a)(l)(iv); Sollane v. DOl. 381 
F.3d 143, 145 (3d Cir. 2004); Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025. 1043 
(E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003) (recognizing the AAO's de novo authority). 
II. Analysis 
A. Evidentiary Criteria 2 
Documentation of the alien's receipt of lesser nationally or internationally recognized pri~e.\' or 
awardsf;" excellence in the.fleld olendeavor. 
The petitioner submits a single award as evidence under this criterion. The director determined the 
petitioner met the requirements of this criterion. The AAO departs from the director's eligibility 
determination related to this criterion. The plain language of the regulation at 8 C.F.R. ~ 204.5(h)(3)( i) 
requires evidence of "prizes" and "awards" in the plural. which is consistent with the statutory 
requirement for extensive evidence. Section 203(b)(1 )(A)(i) of the Act. Significantly. not all of the 
criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 C.F.R. 
§§ 204.5(h)(3)(iv) and (ix) only require service on a single judging panel or a single high salary. When 
a regulatory criterion wishes to include the singnlar within the plural, it expressly does so as when it 
states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." 
Thus, the AAO can infer that the plural in the remaining regulatory criteria has meaning. In a different 
context, federal courts have u~held USCIS: ability to interpret significance from whether the singular or 
plural IS used In a regulatIon.' As the petIlIoner has not submItted awards or pnzes. In the plural. she 
cannot meet the plain language requirements of this criterion. 
In reference to the award, the petitioner presents a photograph, a newspaper article from a 
foreign language, and the article's translation into English as evidence of the petitioner's receipt of the 
~ the circus professional's highest award" issued by a "jury that had been put 
together by the Argentine Union of Variety Performers." It is not apparent which organization isslled 
the award, or that this award was nationally or internationally recognized. The article's translation lacks 
the name of the organization that issued the award. The petitioner provides a web site printout from 
enjoyed a daily circulation of 
560,000 copies. This web site printout provides no information relating to the distribution data of 
this newspaper which might establish the paper's reach was national or international rather than 
regional. Most importantly, the information reflects the circulation in 2002, rather than in 19R9. the 
, The petitioner does not claim to meet or submit evidence relating to the regulatory categorics of cvidence 
not discussed in this decision. 
J See Maramjaya v. US CIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26.2008); Snapnam('s.ciJ/n 
Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that Ihe 
regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 C.F.R. ~ 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). 
year in which the article appeared. Thus, the petitioner may not rely on this article in Ciarin to 
establish that this award is nationally or internationally recognized. As a result, this award is not a 
qualifying one, and the petitioner has not established that she meets the plain language requirements 
of 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 re('og/l.i~ed 
national or international experts in their disciplines orfields. 
Counsel asserts that as part of "the troupe I the petitioner] qualifies as a defi.lc/o 
member of an association of outstanding performing artists." This circus is the only 
"membership" claimed by the petitioner. The director determined the petitioner failed to meet this 
criterion. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires evidence of "membership in 
associations" in the plural, which is consistent with the statutory requirement for extensive evidence. 
Section 203(b)(l)(A)(i) of the Act. As previously stated, the AAO can infer that the plural language in 
the regulatory criteria has meaning and that federal courts have upheld USClS' ability to interpret 
significance from whether the singular or plural is used in a regulation.4 As a result, the petitioner 
cannot meet the plain language requirements of this criterion. However, the AAO will still evaluate 
if the claimed de facto membership meets the plain language requirements of this regulatory 
criterion. 
As evidence under this criterion, the petitioner submits web page printouts of the circus acts performing 
for This printout provides a brief explanation of those acts which were 
performing in Las Vegas without any information related to memberships. While it is possible to be a 
member of a performing group, this colloquial use of the word "member" should not be construed to 
mean that a circus act is an association with a membership of performers as contemplated hy the 
regulation. The plain language of the regulation requires more than a single achievement, such as all 
audition for admittance. The individual must establish outstanding achievements, in the plural. prior to 
acceptance to the association. The petitioner fails to provide documentary evidence of the two 
regulatory requirements specific to this criterion: that the association requires outstanding achievemenh 
of its members as a condition of admittance, and that admittance is judged by nationally or 
internationally recognized experts in the field. 
The petitioner failed to submit evidence to establish that constitutes an "association" 
which has members admitted as anticipated by the regulation. In the altemative, if the AAO were to 
accept a qualifying association under the regulation, the petitioner provides no 
4 See Maramjaya v. USC/So Civ. Act. No. 06-2158 (RCL) at 12; Snapnames.com Inc. v. Chertoff: 2006 WL 
3491005 at * 10 (upholding an interpretation that the regulatory requirement for "a" bachelor's degree or ",," 
foreign equivalent degree at 8 C.F.R. § 204.5(1)(2) requires a single degree rather than a combination of 
academic credentials). 
evidence of the membership requirements for this association. The AAO will not presume exclusive 
membership requirements from the general reputation of a given association. As the record docs not 
contain the bylaws or other official documentation of the association's membership criteria, the AAO 
cannot evaluate whether the petitioner's memberships are qualifying. Thus, the petitioner has not 
established that she meets this criterion. 
Published material about the alien in professional or major trade publications or other IllUior 
media, relating to the alien's work in the/ieldle)r which classification is sought. Such (,I'idence 
shall include the title, date, and author of'the material, and any necessary trallslation. 
This criterion contains three evidentiary requirements the petitioner must address. First, the 
published material must primarily be about the petitioner and the contents must relate to the 
petitioner's work in the field under which she seeks classification as an immigrant. The published 
material must also appear in professional or major trade publications or other major media (in the 
plural). Professional or major trade publications are intended for experts in the field or in the 
industry. To qualify as major media, the publication should have significant national distribution 
and be published in a predominant national language. The final requirement is that the petitioner 
provide each published item's title, date, and author and if the published item is in a foreign 
language, the petitioner must provide a translation that complies with the requirements found at 8 
C.F.R. § 103.2(b)(3). The petitioner must submit evidence satisfying all of these elements to meet 
the plain language requirements of this criterion. 
The petitioner submits several foreign language newspaper articles, translations of these articles into 
English, and English language articles as evidence under this criterion. Several of the foreign 
language documents are not accompanied by an English translation and will not be considered or 
discussed within this decision as these articles do not comply with the terms of 8 C.F.R. ~ 
103.2(b)(3), which requires certified translations of foreign language documents. The director 
determined the petitioner failed to meet this criterion. 
The title of the first foreign language article 
_ The plain language of this criterion requires the title, date and author of any document. 
which if in a foreign language, must be incorporated within the translation. The translation of this 
article does not contain the article's date, nor is it signed by the translator. The translation does 
indicate, "!elcctronic signature!," however, this form of certification is insufficient. As a 
consequence, this article will not contribute to the petitioner meeting the plain language requirements 
of this criterion and the AAO will not considered consider this article during this decision's final 
merits determination. 
The petitioner submits the same article discussed under the lesser awards criterion from _ a 
. This decision previously discussed the reasons why _is not considered a 
or . rltem,ati,)mll publication. and it is also not considered a qualifying publication Ol~ 
media under this regulatory criterion for these same shortcomings, i.e., the information about_ 
Page 8 
reflects the newspaper's circulation statistics in 2002 rather than in 1989, when the article appeared in 
Clarin. 
The petitioner provides a translation of the article, 
The translation of this article does not bear the author's name, although the author IS 
clearly represented on the foreign language document. The regulation requires not only the title, 
date, and any necessary translation of the evidence, but it also requires the author of the material. 
See 8 C.P.R, § 204.5(h)(3)(iii). The petitioner failed to provide a translation with the article's full 
text; she only provided a summary translation containing the portions of the article relevant to her. 
The regulation requires that, "Any document containing foreign language submitted to USCIS shall 
be accompanied by afilll 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 frolll the 
foreign language into English." (Emphasis added.) 8 C.P.R. § 103.2(b)(3). As a result. summary 
translations are not considered sufficient to meet the requirements of the regulation. Since this is a 
summary translation, it docs not constitute evidence. This article will not satisfy the plain language 
requirements of this regulatory criterion and the article will not be considered during this decision's 
final merits determination. 
The evidence titled, ' the appears in the newspaper Lu Cu{)i/ul. 
This is actually the caption of a photo rather than an article that is about the petitioner and her work 
in the field. A caption does not rise to the level of published material. Additionally, the only 
evidence related to La Capital's circulation data provided is from the website Wikipedia. With 
regard to information from Wikipedia, there are no assurances about the reliability of the content 
from this open, user-edited internet site. s See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 
(8th Cir. 2008). As such this evidence does not meet the plain language requirements of this 
criterion. 
The article has less than one paragraph within the article related to the 
petIlloner. The plain language of this criterion requires that the published material be about the 
petitioner and her work in the field, which this article clearly is not. Additionally, the petitioner only 
provides a translation of the portion of the article that is relevant to her. The AAO previously noted 
5 Online content from Wikipedia is subject to the following general disclaimer, "WIKlPEDIA MAKES NO 
GUARANTEE OF VALIDITY. Wikipedia is an online open-content collaborative encyclopedia, that is, a 
voluntary association of individuals and groups working to develop a common resource of human knowledge. 
The structure of the project allows anyone with an Internet connection to alter its content. Please he advised 
that nothing found here has necessarily been reviewed by people with the expertise required to provide you 
with complete, accurate or reliable information. . Wikipedia cannot guarantee the validity of the 
information found here. The content of any given article may recently have been changed, vandalized or 
altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields. See 
http://cn.wikipcdia,grg/wiki/Wikipedia:Gcncr:aJ dis,;11irncr, [accessed on December 13, 2011, a copy of 
which is incorporated into the record of proceeding.] 
Page 9 
that summary translations of an article are not acceptable evidence under the regulation and will not 
be considered in this decision. See 8 C.F.R. § 103.2(b)(3). 
The article titled, . This article 
appears to contain a photograph of the caption ror this 
photograph indicates the performer's name The record does not contain any 
evidence that the petitioner has used this name as an alias. Furthermore, as previously noted. a 
caption does not rise to the level of published material. Additionally, this caption is followed by an 
article titled, _ packs big thrills under the big top." The petitioner failed to provide the rull 
article and the evidence on record only contains a small portion of the article on this photocopied 
document. Consequently, the AAO is unable to analyze the content to determine the article's 
applicability to the published material criterion. Notwithstanding the above noted derects. the 
petitioner provides the circulation data of this newspaper. 
In reference to this article appearing in a form of major media, the petitioner submits the circulation 
data of The Daily Review. According to a 2006 Gallup study of media usage and consumer 
behavior, this newspaper has a total daily review of 152,872 households. The petitioner has failed to 
establish the circulation statistics of other newspapers to compare with the circulation data of The 
Daily Review, and she has consequently failed to establish the The Daily Review is a form of major 
media. The petitioner also provides no information related to the distribution data of the The Daily 
Review outside of the California cities of Hayward, Castro Valley, and San Lorenzo to establish this 
published material has a national rather than a regional reach. Publications with only a regional reach 
are not considered to be major media and the petitioner has not established this publication is a 
professional or major trade journal as required by the regulation. 
In regard to the remaining articles, the petitioner failed to provide any information relating to the 
publications to establish if they are professional or major trade publications or if they could be 
considered major media. As a result, these articles will not satisfy the plain language requiremcnts 
of this criterion. 
The final form of evidence the petitioner claims is related to this criterion is her appearance on a 
television show, Showmalch. On appeal, the petitioner provides evidence relating to the show. 
however she failed to provide evidence that she appeared on the show. Even if this evidence were to 
indicate the petitioner appeared on Showmalch, which it does not, it originates from Wikipedill. This 
decision already discussed the lack of reliability of the information from Wikipedill. The petitioner 
provided a foreign language letter on Cirque XXI letterhead accompanying the initial petition which 
relates to this show, however she failed to provide a certified translation into English in accordance 
with 8 C.F.R. § I03.2(b)(3). As a result, the petitioner failed to establish her appearance on this 
show. 
Based on these numerous deficiencies and shortcomings, the petitioner has not submitted evidence that 
meets the plain language requirements of this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or iJusiness-reiated 
contriiJutions of major significance ill thefield. 
Counsel's appeal brief indicates the petitioner's contributions of major significance are articulated 
through several letters from industry experts. The director determined the petitioner failed to mect 
this criterion. 
According to the regulation at 8 C.F.R. § 204.5(h)(3)(v), an alien's contributions must be not only 
original, but also of major significance. The AAO must presume that the phrase "major 
significance" is not superfluous and, thus, that it has some meaning. Silverman v. Eastrich Multiple 
Investor Fund, L.P., 51 F. 3d 28, 31 (3,d Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 
(2nd Cir. Sep 15, 2003). To be considered a contribution of major significance in the field of thc 
performing arts, it can be expected that the petitioner can produce evidence of her inlluence and 
accomplishments in her field. 
The first letter is from 
identifies the petitioner's performance capabilities she displays for two ' shows as well 
as her skills, which "are a very important part of our customer retention strategy." However. he fails 
to identify any specific contributions the petitioner has made in her field of endeavor. 
The next letter cited in counsel's Pres ident of 
Showmark Entertainment group. focuscs primarily on the petitioner's unique act and 
the amount of time required to develop into a performer with her skillset. This letter's author, much 
like the previous letter, failed to specifically identify any contributions of major significance the 
petitioner has made to her field. 
The remaining letters, as counsel puts forth, "indicate the high regard that people in the industry hold 
for [the petitioner]." However, these letters do not stipulate the contributions the petitioner has made 
to her field as counsel asserts. Additionally, these letters lack specificity of how the petitioner's 
achievements have affected her field. While such letters are important in providing details about the 
petitioner's role in various organizations, vague, solicited letters that do not spccificall y 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) aff'd in part 596 F.3d 1115 (9th 
Cir. 2010)6 
The regulation requires original contributions of major significance in the field. While the petitioner 
has established she has made original contributions to her field, such as her act, her achievements and 
accomplishments, as of the priority date, fail to rise to the level of being considered of "major" 
" In 2010, the Kazurian court reiterated that the AAO's conclusion that "letters from physics professors attesting 
to [the alien'sl contributions in the field" were insufficient was "consistent with the relevant regulatory language," 
596 F.3d at 1122. 
Page II 
significance. As a result, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements of this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish her eligibility. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to he 
abandoned. Sepulveda v. U.S. AIt'y Gell .. 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hri.ltl!\· ". 
Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, 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 she meets this criterion. 
Evidence of commercial successes in the perj(lrming arts. as showll by box otfi'ce receipts or 
record, cassette. compact disk, or video sales. 
This criterion anticipates a petitioner will establish eligibility through volume of sales or hox office 
receipts as a measure of the petitioner's commercial success in the performing arts. These sales and 
box office receipts are a reflection of the petitioner's commercial success relative to others involved 
with similar pursuits in the petitioner's field of the performing arts. 
Within the initial filing the petitioner did not claim eligibility under this criterion, however. on 
appeal counsel now claims that the petitioner also meets the plain language requirements of this 
criterion. As the petitioner made no prior claim to qualify under this criterion, the director did not 
issue a determination of her eligibility. 
This criterion anticipates a petitioner will establish eligibility through the volume of sales or hox office 
receipts as a measure of the petitioner's commercial success in the perfonning arts. These sales and hox 
office receipts are a reflection of the petitioner's commercial success relative to others involved with 
similar pursuits in the petitioner's field of the perfonning mts. 
The petitioner submits contracts with entertainment companies as evidence under this criterion. 
Counsel states the following in the appeal brief: 
In particular, is an internationally known hotel and casino ... [and] in order 
to appeal to its circus acts in which there is no extra charge. 
At the same time, these circus acts are crucial to the commercial success of the hotel. As 
pm of the largest pennanent circus in the world, Petitioner plays a key role in 
supporting the hotel and its business and is one of the reasons behind the hotel's sllccess 
and international reputation. 
While counsel plainly states the petitioner plays a key role in the success of the businesses in which she 
works, no evidence is contained in the record to establish she, herself, has either enjoyed commercial 
successes in the performing arts, or that her employer's successes may be directly attributed to the fact 
that the petitioner was taking part in a particular act or performance. The petitioner has failed to provide 
evidence establishing that the petitioner is featured in any promotional material which might lend 
credence that the success of a particular show in which the petitioner performed can be attributed to her. 
Based on the petitioner's failure to provide evidence of sales or box office receipts, the petitioner has 
not submitted qualifying evidence that meets the plain language requirements of this criterion and she 
has failed to establish that she meets the plain language of this criterion. 
Summary 
In light of the above, the petitioner has not submitted the requisite evidence under at least three of the 
evidentiary categories for which evidence must be submitted to meet the minimum eligibility 
requirements necessary to qualify as an alien of extraordinary ability. Nevertheless, the AAO will 
review the evidence in the aggregate as part of our final merits determination. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, the next step is a final merits determination that considers all 
of the evidence in the context of whether or not the petitioner has demonstrated: (I) a "lcvel of 
expertise indicating that the individual is one of that small percentage who have risen to the very top of 
the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); 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)(3). See Kazarian, 596 F.3d at 1119-20. 
In the same manner that the petitioner's award is insufficient to meet the plain language requirements of 
the regulation, a single award which has not garnered any national or international recognition docs not 
represent a record of recognition or achievement that represents sustained acclairn or rises to the level of 
being in the top percentage of the petitioner's field. 
Being a member of while inconsistent with the type of membership anticipated by the 
regulation, is also not the of "membership" that might elevate the petitioner into the that small 
percentage at the top of her field. While the petitioner is employed in a creative and competitive field. 
she has not submitted evidence of sustained acclaim in the field or that she has attained the status as one 
of that small percentage who have risen to the very top of their field of endeavor among other 
performers. 
Published material that either appears in local or regional newspapers, that is not about he and in somc 
cases does not even mention the petitioner, or that is not accompanied by qualifying translations will not 
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serve to establish she has achieved sustained national or international acclaim or that she is within the 
small percentage who have risen to the very top of her field. 
Letters from former or current employers, and from the petitioner's collaborators that fail to identify any 
measureable contribution to the petitioner's field of endeavor will not serve to establish she has made 
contributions consistent with achieving sustained national or international acclaim or the status as one of 
that small percentage who have risen to the very top of their field of endeavor. The petitioner's failure 
to provide evidence that her employer's claimed commercial success is significantly attributable to her 
is not a level of success symbolic of national or international acclaim nor does it demonstrate the 
petitioner enjoys the status as one of that small percentage who have risen to the very top of their field 
of endeavor. 
Ultimately, the evidence in the aggregate docs not distinguish the peutlOner as one of the small 
percentage who has risen to the very top of the field of endeavor. The petitioner, a circus performer, 
relies on one award, which has not received national or international recognition, her membership 
which is fundamentally equal to being an employee of published material about her 
which does not appear in major media, indeterminate contributions significance to her field, and 
rather than her own commercial successes, her contributions toward her employer's commercial 
success, which is similar to the contribution of any performer. This hardly distinguishes the petitioner 
from other circus performers, and the AAO will not narrow the petitioner's field of circus performers to 
perch pole balancing performers with her level of training and experience. Thus, it appears that the 
highest level of the petitioner's field is far above the level she has attained. 
III. Conclusion 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished herself as a circus 
performer 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 circus performer, 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)(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.