dismissed EB-1A Case: Performing Arts

(b)(6)
DATE: FEB 0 6 2014 
Offic~: TEXAS SERVICE CENTER 
INRE: Petitioner : 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Fll-E : 
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 : 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www .uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
M b~OJY\dlL-J 
0 Ron Rosenberg 
~ Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by 
the Director, Texas 
Service Center, on June 12, 2013, and is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien 
of extraordinary ability. The director determined that the petitioner had not established the requisite 
extraordinary ability and failed to submit extensive documentation of her sustained national or 
international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "sustained national or international acclaim" and present 
''extensive documentation" of his or her achievements. See section 203(b)(l)(A)(i) of the Act and 8 
C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-:time achievement, 
specifically a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific 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, counsel claims that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3). 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. --Visas shall first be made available . .. to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if -- ' 
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue 
work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized 
that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. I d.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USC/S, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion. 1 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 determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court 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)." Id. at 1122 
(citing to 8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this matter, the AAO will review the 
evidence under the plain language requirements of each criterion claimed. As the petitioner did not 
submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requirement of three types of evidence. I d. 
II. ANALYSIS 
A. Evidentiary Criteria2 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(iv) and 8 C.P.R. 
§ 204.5(h)(3)(vi). 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed 
in this decision. 
(b)(6)
Page4 
NON-PRECEDENT DECISION 
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 did not establish eligibility for this criterion. On appeal, 
counsel claims the petitioner's eligibility for this criterion based on the following: 
1. First place winner of the 2004 
competition; 
2. Selected to participate in the 
3. Selected to attend the Free Training Initiative with the 
4. Selected to reprise her role in at the 
and 
5. The cast of was awarded one of the 
The plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the 
alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the 
field of endeavor." It is the petitioner's burden to establish eligibility for every element of this 
criterion. Not only must the petitioner demonstrate her receipt of prizes and awards, she must also 
demonstrate that those prizes and awards are nationally or internationally recognized for excellence 
in the field of endeavor. In other words, the petitioner must establish that her prizes and awards are 
recognized nationally or internationally for excellence in the field beyond the awarding entities. 
Regarding item 1, the petitioner submitted a letter from who 
indicated that the petitioner received first place at the scholarship competition. Although Ms. 
indicated that she was one of the adjudicators for the petitioner's class, the petitioner did not submit 
primary evidence of her receipt of the award. The regulation at 8 C.P.R. § 103.2(b)(2)(i) provides 
that the non-existence or unavailability of required evidence creates a presumption of ineligibility. 
According to the same regulation, only where the petitioner demonstrates that primary evidence does 
not exist or cannot be obtained may the petitioner rely on secondary evidence and only where 
secondary evidence is demonstrated to be unavailable may the petitioner rely on affidavits. In this 
case, although the petitioner submitted a letter, the petitioner did not submit any documentary 
evidence demonstrating that primary evidence, such as evidence from the awarding entity, and 
secondary evidence do not exist or cannot be obtained. Regardless, the letter that has been provided 
is not an affidavit as it was not sworn to or affirmed by the declarant before an officer authorized to 
administer oaths or affirmations who has, having confirmed the declarant's identity, administered the 
requisite oath or affirmation. See Black's Law Dictionary 58 (9th Ed., West 2009). Nor, in lieu of 
having been signed before an officer authorized to administer oaths or affirmations, does it contain 
the requisite statement, permitted by Federal law, that the signers, in signing the statements, certify 
the truth of the statements, under p~nalty of perjury. 28 U.S.C. § 1746. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
Regardless, academic study is not a field of endeavor, but rather training for a future field of 
endeavor. As such, academic scholarships, student awards, postdoctoral fellowships, and financial 
aid awards cannot be considered nationally or internationally recognized prizes or awards in the 
petitioner's field of endeavor. Therefore, the petitioner did not establish that her scholarship is a 
nationally or internationally recognized prize or award for excellence in the field. Although they 
may be prestigious, fellowships, scholarships, and other sources of competitive financial support are 
not nationally or internationally recognized prizes or awards because only other students - not 
recognized experts .in the field- compete for such funding. Such support funding is presented not to 
established musicians and artists with active professional careers, but rather to students seeking to 
further their education. Academic awards and honors received while preparing for a vocation do not 
constitute a national or international prize or award for recognition in the field. 
Moreover, although the petitioner submitted screenshots from the 
the petitioner did not submit any independent, objective documentary evidence regarding 
the scholarship competition, so as to demonstrate that the scholarship is a nationally or 
internationally recognized prize or award for excellence in the field. USCIS need not rely on self­
promotional material. See Braga v. Poulos, No. CV 06 5105 SJO, aff'd 317 Fed. Appx. 680 
(C.A.9). 
Regarding items 2 
- 4, they reflect the petitioner's selection to perform in roles or at theatres and 
festivals. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "prizes or 
awards." The petitioner did not demonstrate that her selections equate to "prizes or awards" 
consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i). The petitioner did 
not establish that she received any prizes or awards based on her performances or roles. 
Furthermore, regarding item 2, the petitioner submitted screenshots from 
reflecting that "[ d]ue to the huge interest in performing at the 
, admittance to the festival for performers is now awarded by a lottery system [emphasis 
added]." Thus, selection to perform at the is not based on 
"excellence in the field of endeavor" as required by the regulation but rather through a lottery 
system. 
Regarding item 5, the petitioner submitted screenshots from that listed 
as one of the top ten cast albums of 2012. However, there no indication that 
the website listing resulted in a prize or award, let alone a nationally or internationally recognized 
prize or award for excellence. Regardless, an award that was not specifically presented to the 
petitioner cannot be tantamount to her receipt of a nationally or internationally recognized award; it 
cannot suffice that the petitioner was one member of a large group that earned collective recognition. 
As the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the 
alien's receipt" of prizes or awards, the submission of screenshots that listed a show, in which she 
participated, as being in the top 10 cast albums of 2012 is insufficient to demonstrate that the 
petitioner received a nationally or internationally recognized award for excellence in the field. The 
petitioner did not submit any documentary evidence establishing that she received any prizes or 
(b)(6)
- ----- --- - - - -- - -------- ·-
NON-PRECEDENT DECISION 
Page 6 
awards for her performance in Furthermore , the petitioner did not submit any 
documentary evidence demonstrating that the website listing is recognized as a national or 
international prize or award for excellence in the field. 
As discussed above, the plain language of this regulatory criterion specifically requires the 
petitioner's receipt of prizes or awards that are nationally or internationally recognized for 
excellence in her field. The petitioner failed to establish that she meets this 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 did not establish eligibility for this criterion. On appeal, 
counsel claims the petitioner's eligibility for this criterion based on the following: 
1. 
2. 
3. 
4. 
5. 
An article entitled, ' 
by 
An article entitled. 
27,2005,by 
An article entitled, " 
An article entitled, ' 
2009, by 
A photograph with a caption entitled, ' 
6. A screenshot entitled, 
7. 
8. 
9. 
unidentified date, by 
A screenshot entitled, " 
author, 
A screenshot entitled, 
A screenshot entitled, ' 
February 19, 2006 , 
January 
January 27, 2005, by 
June 12, 
June 13, 2008, 
unidentified · date, unidentified 
' August 15, 2012, by 
August 20, 2012, by 
(b)(6)
Page 7 
10. 
11. 
A screenshot entitled, 
unidentified author, 
A screenshot entitled, 
August 
12. A screenshot entitled, " 
August16,2012, by 
13. A screenshot entitled, 
16, 2012, 
''August 20, 2012, by 
14. 
15. 
16. 
A screenshot entitled, 
date, unidentified author, 
A screenshot entitled, 
author, 
A screenshot entitled, 
unidentified author, 
and 
NON-PRECEDENT DECISION 
' August 14, 2012, 
unidentified author, 
unidentified 
unidentified date, unidentified 
unidentified date, 
The plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii) requires "[p]ublished 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." In general, in order for published 
material to meet this criterion, it must be primarily about the petitioner and, as stated in the 
regulations, be printed in professional or major trade publications or other major media. To qualify 
as major media, the publication should have significant national or international distribution. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers.3 
Furthermore, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii) requires that "[s]uch 
evidence shall include 
the title, date, and author of the material, and any necessary translation." 
Regarding items 1 - 13, they reflect published material about shows rather than published material 
about the petitioner. Articles that are not about the petitioner do not meet this regulatory criterion. 
See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) 
(upholding a finding that articles about a show are not about the actor). For example, item 1 is a 
review for the show, items 2 - 3 are 
reviews for the show, items 4- 5 are reviews for the show, and items 6-
13 are reviews for the show, Although the articles briefly mention the petitioner 
as a cast member, none of the articles are about the petitioner relating to her field. 
3 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
Regarding items 14 - 15, they reflect promotional material for the show, 
Although item 14 lists the petitioner as being a cast member, item 15 makes no mention of the 
petitioner. Further, flyers, advertisements, posters, and other promotional material do not equate to 
"published material," (with an identified author, title, and date) consistent with the plain language of 
this regulatory criterion as they are not independent, journalistic coverage of the petitioner relating to 
her work. 
Regarding item 16, it reflects an interview with the petitioner in which her answers are recorded in 
the submitted material. The author does not discuss the petitioner , and the material does not qualify 
as published material about the petitioner relating to her work. 
Notwithstanding the above, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii) 
requires the material to be published "in professional or major trade publications or other major 
media." As indicated above, the majority of the petitioner's documentary evidence reflects articles 
that were posted on the Internet. However, articles posted on the Internet from a printed publication 
or from an organization are not automatically considered major media. h1 today's world, many 
newspapers, publications, and organizations, regardless of size and distribution, post at least some of 
their stories on the Internet. To ignore this reality would be to render the "major media" requirement 
meaningless. However, international accessibility by itself is not a realistic indicator of whether a 
given website is "major media." The petitioner did not submit any independent , objective evidence 
establishing that the websites are considered major media. 
Similarly, regarding the printed publications, the petitioner did not submit any documentary 
evidence establishing that they are professional or major trade publications or other major media. 
On appeal, counsel claims that "[t]he media in which the reviews appear are some of the oldest 
publications in the U.S. and Canada, as well as publications regularly sought out by actors, 
musicians and theater-goers and those simply looking for entertainment in New York." However , 
counsel did not submit any documentary evidence to support her assertions. The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any 
evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). 
Finally, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(i'ii) requires that "[s]uch 
evidence shall include the title, date, and author of the material, and any necessary translation." 
However, items 6, 7, 10, 11, 
14, 15, and 16 do not include the date and/or author of material as 
required by this regulatory criterion. 
As discussed above, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii) requires 
"[p]ublished 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." The petitioner's 
documentary evidence does not reflect published material about her relating to her work in 
professional or major trade publications or other major media. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
(b)(6)
NON-PRECEDENT DECISION 
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. 
The director determined that the petitioner established eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence 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." A review of the record of proceeding 
reflects that the petitioner submitted sufficient documentary evidence establishing that she meets the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
Accordingly, the petitioner has 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 director determined that the petitioner did not establish eligibility for this criterion. On appeal, 
counsel claims the petitioner's eligibility for this criterion based on the following: 
1. Co-produced and performed in the lead role in at the 
2. 
3. 
4. 
5. 
Selected to reprise the role in 
The cast of 
Albums of 2012 by 
Performed with the 
Hosted TV's show, 
at the 
was awarded one of the Top Ten Cast 
our times; and 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the 
alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation [emphasis added]." In general, a leading role is evidenced from the role 
itself, and a critical role is one in which the alien was responsible for the success or standing of the 
organization or establishment. · 
Regarding item 1, the petitioner submitted a playbill for the show reflectingthat she had a starring 
role in the show. However, counsel did not submit any documentary evidence to support her 
assertion that the petitioner co-produced the show. The unsupported statements of counsel on appeal 
or in a motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. 
Phinpathya, 464 U.S. at 188-89 n.6. Regardless, the plain language of the regulation at 8 C.F.R. 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
§ 204.5(h)(3)(viii) requires the petitioner's leading or critical role be for "organizations or 
establishments." Therefore, the petitioner must establish that she performed in a leading or critical 
role for the as a whole rather than limited to a show. 
However, the petitioner did not submit any other documentary evidence demonstrating that her role 
at the festival was leading or critical. The record of proceeding contains no documentation, for 
example, comparing the petitioner's role to the other participants at the festival, so as to demonstrate 
the petitioner performed in a leading or critical role. Moreover , the plain language of the regulation 
at 8 C.F.R. § 204.5(h)(3)(viii) requires the organizations or establishments to have a "distinguished 
reputation." The petitioner submitted screenshots from Wikipedia . However, as there are no 
assurances about the reliability of the content from this open, user-edited Internet site, weight will 
not be assigned to information from Wikipedia. See Laamilem Badasa v. Michael Mukasey, 540 
F.3d 909 (8th Cir. 2008).4 Moreover, while the petitioner submitted a screenshot from 
- · regarding the 2013 festival, the petitioner did not 
submit any independent, objective evidence establishing that the 
has a distinguished reputation . USCIS need not rely on self-promotional material. See 
Braga v. Poulos, at 680. 
Regarding items 2 and 3, similar to item 1, the petitioner must demonstrate that she performed in a 
leading or critical role for the as a whole rather than limited to 
the show, However, the petitioner did not submit any documentary evidence 
reflecting that her performance in the show constituted a leading or critical role for the 
There is no evidence differentiating the petitioner's role from t e other 
performers, so as to reflect the petitioner's role was leading or critical. Regarding the reputation of 
the the petitioner submitted photographs of promotional 
material for the that indicates it was the winner of the 2013 
However, the petitioner did not submit any documentary evidence 
regarding the significance of the award, so as to demonstrate that the theatre festival has a 
distinguished reputation. USCIS need not rely on self-promotional material. See Braga v. Poulos, at 
680. 
Regarding item 4, the petitioner submitted playbills from the reflecting that she 
was a member of the choral roster for four shows. However, the petitioner did not submit any other 
documentary evidence that demonstrated that her roles were leading or critical. For example, the 
documentary evidence does not reflect that the petitioner was featured or received top billing in any 
4 See also the online content from http://en.wikipedia.org/wiki/Wikipedia: General disclaimer, accessed on November 6, 
2013, and copy incorporated into the record of proceeding is subject to the following general disclaimer: 
WIKIPEDIA 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 be 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
of the shows consistent with the meaning of leading or critical pursuant to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(viii). There is no evidence demonstrating how the petitioner's roles differentiated her 
from the other performers. In addition, the petitioner did not submit any documentary evidence 
establishing that the has a distinguished reputation consistent with this regulatory 
criterion. 
Regarding item 5, the petitioner submitted a letter, dated June 26, 2010, from 
Producer/Director for TV, who 
stated that the petitioner hosted seven episodes of the show, 
and "[h]er work was critical to the production of '' 
However, Mr. did not explain how the petitioner's hosting of seven episodes was leading or 
critical to TV. The petitioner did not submit any organizational charts, for example, to 
demonstrate that her roles were leading or critical when compared to other employees at the 
television station. Based on Mr. job title, it appears that he performed in a far more 
leading or critical role. Vague, solicited letters that do not specifically explain how the petitioner's 
roles were leading or critical are insufficient. Repeating the language of the statute or regulations 
does not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 
WL 188942 at *5 (S.D.N.Y.). Furthermore, although Mr. provided some background 
information regarding TV, the petitioner did not submit any independent, objective evidence 
establishing that TV has a distinguished reputation. USCIS need not rely on self-promotional 
material. See Braga v. Poulos, at 680. 
Again, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(viii) requires "[e]vidence that 
the alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." The burden is on the petitioner to establish that she meets every element 
of this criterion. Without documentary evidence demonstrating that the petitioner has performed in a 
leading or critical role for organizations or establishments that have a distinguished reputation, the 
petitioner has failed to establish that she meets the plain language of this regulatory criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The .director determined that the petitioner did not establish eligibility for this criterion. In counsel's 
brief submitted on appeal, she did not contest the findings of the director for this criterion or offer 
additional arguments. Therefore, this issue is abandoned. See Sepulveda v. U.S. Att'y Gen., 401 
F.3d 1226; 1228 n. 2 (11th Cir. 2005); Hristov v. 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). 
Accordingly, the petitioner failed to establish that she meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
III. 0-1 NONIMMIGRANT 
The petitioner indicated on her Form I-140, Immigrant Petition for Alien Worker, that she was last 
admitted to the United States on December 30, 2012, as an 0-1 nonimmigrant. Although the words 
"extraordinary ability" are used 
in the Act for classification of artists under both the nonimmigrant 
0-1 and the first preference employment-based immigrant categories, the statute and regulations 
define the term differently for each classification. Section 101(a)(46) of the Act states that "[t]he 
term 'extraordinary ability' means, for purposes of section 101(a)(l5)(0)(i), in the case of the arts, 
distinction." The 0-1 regulation reiterates that "[ e ]xtraordinary ability in the field of arts means 
distinction." 8 C.P.R. § 214.2(o)(3)(ii). "Distinction" is a lower standard than that required for the 
immigrant classification, which defines extraordinary ability as "a level of expertise indicating that 
the individual is one of that small percentage who have risen to the very top of the field of 
endeavor." 8 C.P.R. § 204.5(h)(2). The evidentiary criteria for these two classifications also differ 
in several respects, for example, nominations for awards or prizes are acceptable evidence of 0-1 
eligibility, 8 C.P.R. § 214.2(o)(3)(iv)(A), but the immigrant classification requires actual receipt of 
nationally or internationally recognized awards or prizes. 8 C.P.R. § 204.5(h)(3)(i). Given the clear 
statutory and regulatory distinction between these two classifications, the petitioner's receipt of 0-1 
nonimmigrant classification is not evidence of her eligibility for immigrant classification as an alien 
with extraordinary ability. Further, an approval of a nonimmigrant visa does not mandate the 
approval of a similar immigrant visa. Each case must be decided on a case-by-case · basis upon 
review of the evidence of record. 
Many I-140 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. v. Sava, 724 F. Supp. 1103 
(E.D.N.Y. 1989). Some nonimmigrant petitions are simply approved in error. Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 
2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude USCIS from 
denying an extension of the original visa based on a reassessment of the alien's qualifications). 
Applications or petitions are not required to be approved where the petitioner has not demonstrated 
eligibility because of prior approvals that may have been erroneous. See, e.g., Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Agencies need not treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's 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 alien, the AAO 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.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
(b)(6) NON-PRECEDENT DECISION 
Page 13 
An application or petition that does not comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd, 345 F.3d 683 (9
1
h Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the 
AAO conducts appellate review on a de novo basis). 
IV. 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. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories, 
in accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level 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" 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. While the AAO concludes that the 
evidence is not indicative of a level of expertise consistent with the small percentage at the very top 
of the field or sustained national or international acclaim, the AAO need not explain that conclusion 
in a final merits determination .5 Rather, the proper conclusion is that the petitioner has failed to 
satisfy the antecedent regulatory requirement of three types of evidence. Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the 
petition may not be approved. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
5 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d at 145. In 
any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.P.R. § 103.5(a)(l)(ii). See also section 103(a)(l) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.P.R. § 2.1 (2003); 8 C .P.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).