dismissed EB-1A Case: Performing Arts

U.S. Department of Homeland Security 
U.S. ~l&enshl~ and Imrmptlon SeMces 
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 Ofice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
Prevent clearly unwmmed 
invmi~ of-1~1 privacy 
 U. S. Citizenship 
and Immigration 
@@@ZFIC~~ 
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. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 4 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
 103.5(a)(l)(i). 
V 
Xohn F. Grissom 
Acting Chief, Administrative Appeals Office 
. Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Nebraska Service 
Center, 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. 9 1153(b)(l)(A), as an alien 
of extraordinary ability in the arts. The director determined that the petitioner had not established the 
sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability. The director also determined the petitioner had not submitted clear evidence that 
he would continue to work in his area of expertise in the United States. 
On appeal, counsel argues that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. 
9 204.5(h)(3) and that he continues to work as a performing artist. 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available . . . to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if -- 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national or 
international acclaim and whose achievements have been recognized in the 
field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means a level of 
expertise indicating that the individual is one of that small percentage who have risen to the very top 
of the field of endeavor. 
 8 C.F.R. 8 204.5(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. 4 204.5@)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
he has sustained national or international acclaim at the very top level. 
. Page 3 
This petition, filed on July 25, 2007, seeks to classify the petitioner as an alien with extraordinary 
ability as an actor and a singer. 
The regulation at 8 C.F.R. § 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, internationally 
recognized award). In a June 27, 2007 letter accompanying the petition, counsel states that the 
petitioner "is part of an award-winning pop vocal group known as '111 of a Kind"' and that "[iln 
2001, one of the songs by I11 of a Kind won the prestigious Awit Award for 'Best Vocal 
Arrangement."' Counsel further states: 
111 of a Kind's debut album Groove-a-pella was first released in the Philippines by ABS- 
CBN's Star Records . . . . Groove-a-pella featured original compositions of David 
Pomeranz, Jungee Marcelo, Christine Bendebel and members Annie Nepomuceno and Gelo 
Francisco. It contains . . . the carrier single, "Wala Pa Rin" by Dada de Pano Supnet. 
The petitioner submitted a blurred photograph of a 14" Awit Awards trophy, but the inscription on 
the trophy is illegible. Counsel argues that this "significant one-time national award" satisfies the 
regulation at 8 C.F.R. § 204.5(h)(3). A notation above the trophy states that the award for "Best 
Vocal Arrangement" was presented to "Gelo Francisco and Annie Neopmuceno" rather than to the 
petitioner. On appeal, the petitioner submits a "Previous Awit Awardees" list reflecting that "Annie 
Nepomuceno" received the award for "Best Vocal Arrangement" in 2001 for her song "Wala Pa 
Rin." There is no evidence showing that an Awit Award was presented to the petitioner or that he 
was a member of 111 of a Kind when the group released "Wala Pa Rin." In fact, a compact disc 
jacket submitted by the petitioner indicates that the three original members of I11 of a Kind were 
Annie Neopmuceno, Gelo Francisco, and Edward Granadosin. Further, we cannot conclude that the 
Philippine music industry's Awit Award, which counsel specifically refers to as a "national award," 
constitutes a major, internationally recognized award. 
Given Congress' intent to restrict this category to "that small percentage of individuals who have 
risen to the very top of their field of endeavor," the regulation permitting eligibility based on a one- 
time achievement must be interpreted very narrowly, with only a small handful of awards qualifying 
as major, internationally recognized awards. See H.R. Rep. 101 -723, 59 (Sept. 19, 1990), reprinted 
in 1990 U.S.C.C.A.N. 6710, 1990 WL 200418 at *6739. Given that the House Report specifically 
cited to the Nobel Prize as an example of a one-time achievement, examples of one-time awards 
which enjoy major, international recognition may include the Pulitzer Prize, the Academy Award, 
and (most relevant for athletics) an Olympic Medal. The regulation is consistent with this legislative 
history, stating that a one-time achievement must be a major, internationally recognized award. 8 
C.F.R. !.j 204.5(h)(3). Significantly, even a lesser internationally recognized award could serve to meet 
only one of the ten regulatory criteria, of which an alien must meet at least three. 8 C.F.R. 
5 204.5(h)(3)(i). The selection of Nobel Laureates, the example provided by Congress, is reported in 
the top media internationally regardless of the nationality of the awardees, is a familiar name to the 
public at large and includes a large cash prize. %le an internationally recognized award could 
conceivably constitute a one-time achievement without meeting all of those elements, it is clear fiom 
Page 4 
the example provided by Congress that the award must be global in scope and internationally 
recognized in the alien's field as one of the top awards in that field. 
The petitioner's appellate submission includes information from the Awit Awards internet site stating 
that the awards exist "to promote the Philippine Music industry" and that musical entries for the 
competition must have been "released in the Phlippines." Therefore, we find that receipt of a Filipino 
Awit Award reflects national recognition rather than "major, international" recogmtion as required by 
the regulation at 8 C.F.R. § 204.5(h)(3). 
In addressing the Awit Award, the director's decision stated that "the record lacks any evidence that 
the claimed award was actually gven to the petitioner, or to demonstrate that he was a member of I11 
of a Kind for the recording of the winning arrangement." We concur with the director's findings. 
Accordingly, the petitioner has not submitted evidence establishing that he is the recipient of a 
major, internationally recognized award. 
Barring the alien's receipt of a major, internationally recognized award, the regulation at 8 C.F.R. 
204.5(h)(3) 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. A petitioner, 
however, cannot establish eligibility for this classification merely by submitting evidence that simply 
relates to at least three criteria at 8 C.F.R. fj 204.5(h)(3). In determining whether the petitioner meets 
a specific criterion, the evidence itself must be evaluated in terms of whether it is indicative of or 
consistent with sustained national or international acclaim. A lower evidentiary standard would not 
be consistent with the regulatory definition of "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.F.R. 5 204.5(h)(2). The petitioner has submitted evidence pertaining to the 
following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
On appeal, counsel argues that the Awit Award for "Best Vocal Arrangement" in 2001 meets this 
regulatory criterion. As previously discussed, there is no evidence from the presenting organization 
demonstrating that the petitioner himself received an Awit Award as a member of I11 of a Kind in 
2001. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The 
record does not include evidence establishing that the petitioner is a 2001 Awit Award recipient. A 
petition must be filed with any initial evidence required by the regulation. 8 C.F.R. $ 103.2@)(1). 
The nonexistence or other unavailability of primary evidence creates a presumption of ineligibility. 
8 C.F.R. $ 103.2@)(2)(i). In this case, there is no evidence showing the petitioner's receipt of a 
nationally or internationally recognized prize or award for excellence in his field of endeavor. 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 5 
In light of the above, the petitioner has not established that he meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classiJication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
In order to demonstrate that membership in an association meets this criterion, the petitioner must 
show that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, minimum 
education or experience, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues, do not satisfy this criterion as such requirements 
do not constitute outstanding achievements. Further, the overall prestige of a given association is 
not determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
On appeal, the petitioner submits an unsigned letter dated June 4, 2008 from Doug Dixon, 
Membership Department, Los Angeles Office, Actors' Equity Association, stating: "This will 
confirm that [the petitioner] is a member of Actors' Equity Association and has been employed in 
our jurisdiction under an Equity contract. The above joined the Association on February 26, 2002, 
paid $800 in initiation fees, and is currently paid to November 1, 2006." As the letter from Mr. 
Dixon was unsigned and did not provide an address, telephone number, or any other information 
through which he can be contacted, we cannot assign any weight to this evidence. The petitioner 
also submits general information about the Actors' Equity Association, but there is no evidence 
(such as membership bylaws or official admission requirements) showing that the Actors' Equity 
Association requires outstanding achievements of its members as judged by recognized national or 
international experts in the petitioner's field or an allied one. 
In light of the above, the petitioner has not established that he 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 classiJication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
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. An alien would not earn acclaim at the national or international level from a local 
publication. Some newspapers, such as the New York Times, nominally serve a particular locality but 
Page 6 
would qualify as major media because of significant national distribution, unlike small local community 
papers.2 
The petitioner submitted several newspaper articles about the theatrical production of Miss Saigon; 
however, as noted by the director, the petitioner hmself was not the primary focus of these articles. 
The plain language of this regulatory criterion requires that the published material be "about the 
alien." In addressing the petitioner's evidence, the director's decision stated: 
[Mluch of the published material provided was about the theatrical production "Miss Saigon" 
itself, not about the petitioner. In fact, many of the articles about "Miss Saigon" pre-date the 
petitioner's involvement with the production by several years. Of the articles about "Miss 
Saigon" which do relate to the performances involving the petitioner, he is mentioned only 
briefly. The record contained a single article specifically about the petitioner, and that article 
appeared to have been published in a regional publication. Publications which are distributed 
at a local or regional level are not commensurate with major publications or other major 
media. It is further noted that this single article claims that the petitioner was born in 
Glendale, California, which questions whether the article was actually about him rather than 
a similarly named performer. 
The article entitled "Performing Is A Dream Come True" in Dateline Memphis states: 
"I am a pretty calm, quiet person and never get tired of doing the show because of this 
incredible release," [the petitioner] said fiom his hotel room in Raleigh, N.C." 
Born in Glendale, Calif., the Filipino actor never even thought about acting until late into his 
20s. "I am a licensed physical therapist. I happened to be at a medical conference in Seattle 
when a fiiend took me to see the national tour of Miss Saigon in 1995." 
A short time later, [the petitioner] found himself at an open audition in New York City 
actually trying out for the show. "The producers told me that I was a little too ripe and that I 
needed some formal training. So they sent me away to build my skills and about a year later 
I was in the Broadway company!" 
He began understudying the role of the villainous Thuy and then actually took over the part 
for about a year before going out on the national tour. 
The date of the preceding article was not provided and there is no evidence (such as circulation 
statistics) showing that Dateline Memphis qualifies as a form of major media. Another article, 
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. 
. Page 7 
entitled "'Saigon' Actors Share World With Student Hopefuls" in The Virginia Pilot, states: "In real 
life, when not acting, [the petitioner] plays a physical therapist. The tour provides money for 
medical school fund, [the petitioner] said." The article in The Virginia Pilot mentions the 
petitioner's visit to Salem High School along with two other Miss Saigon touring performers, but 
there is no evidence showing that this local newspaper qualifies as a form of major media. 
The director's decision further stated: 
Therefore, the petitioner was requested to indicate if he has been the primary subject of any 
published material in major media at the national or international level and, if so, to 
document any such material along with evidence regarding the nature of the source 
publication, including readership, distribution area, and circulation. The petitioner was also 
requested to address the discrepancy in the article regarding his birthplace, and to 
demonstrate that the material was actually about him. 
In response, the petitioner simply provided duplicate copies of the material already 
submitted. No additional articles were provided, nor did the petitioner submit evidence 
regarding the source publication of the sole article primarily about him. The petitioner also 
did not address the discrepancy in the article regarding his birthplace, or demonstrate that the 
article actually related to him. 
Further, counsel's cover letter emphasizes articles allegedly written about the group I11 of a 
Kind. However, counsel is simply quoting snippets of articles referenced on 111 of a Kind's 
website, http://members.tripod.comilouieal3ofakind. No evidence of the actual articles was 
provided, nor is there evidence that the articles related to the group at a time in which the 
 , 
petitioner was actually a member. 
With regard to the information in Dateline Memphis regarding the petitioner's birthplace, it is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582, 591-92 (BIA 1988). On appeal, the petitioner does not address the discrepancy 
regarding his actual place of birth. Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support 
of the visa petition. Id. at 591. 
Upon review, we find the director properly considered the evidence submitted, thoroughly addressed 
counsel's arguments and appropriately addressed the evidence and arguments in his decision. 
Accordingly, we concur with the director's finding that the petitioner does not meet this criterion. 
On appeal, the petitioner submits newspaper articles from April and May of 2008 discussing the 
Civic Light Opera of South Bay Cities' performance of Miss Saigon at the Redondo Beach 
Performing Arts Center. These articles are not primarily about the petitioner and only mention his 
name in passing. Nevertheless, the preceding articles were all published subsequent to the petition's 
. Page 8 
filing date. 
 A petitioner, however, must establish eligbility at the time of filing. 
 8 C.F.R. 
$5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Comrnr. 1971). Accordingly, 
the AAO will not consider these articles in this proceeding. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the display of the alien's work in the jield at artistic exhibitions or 
showcases. 
The petitioner submitted evidence of his stage performances as the character Thuy in theatrical 
productions of Miss Saigon. The director concluded that the petitioner's supporting role in the 
traveling and regional productions of Miss Saigon and his work as an understudy in the Broadway 
production was not commensurate with sustained national or international acclaim. We concur with 
the director's finding. The petitioner also submitted material reflecting hs participation in Honolulu 
Broadway Babies' production of "Broadway Mixed Plate 2004" at the Leeward Community College 
Theater and in a "community programs" benefit concert at the Ellen White Memorial Church of 
Seventh-day Adventists in 2004. There is no supporting evidence showing that the petitioner's 
performances at these two local venues were consistent with sustained national or international acclaim. 
As discussed by the director, the plain language of this regulatory criterion indicates that it is 
intended for visual artists (such as sculptors and painters) rather than for performing artists such as 
the petitioner. In the performing arts, it is inherent to the occupations of actor and musician to perform 
on stage. National or international acclaim is generally not established by the mere act of appearing 
in a theatrical production, but rather by attracting a substantial national or international audience. 
For this reason, the regulations establish separate criteria, especially for those whose work is in the 
performing arts. The petitioner's stage performances are far more relevant to the "commercial 
successes in the performing arts" criterion at 8 C.F.R. 8 204.5(h)(3)(x) and will be fUrther addressed 
there. 
Aside fkom his musical performances, the petitioner submitted evidence showing that he produced a 
concert for the Moreno Hills Seventh-day Adventist Church entitled "A Night on Broadway." The 
petitioner also submitted an event program reflecting that Homebase Missions selected him to produce a 
benefit concert entitled "Crystal Heard 2nd Annual Awards: An Evening on Broadway" at the Riverside 
Convention Center in 2004. Counsel states that the latter event honored citizens of Riverside who have 
exemplified compassionate service to the needs of others. There is no supporting evidence showing that 
the preceding events produced by the petitioner at these local venues were consistent with sustained 
national or international acclaim. Further, the petitioner has not established that producing concerts 
falls within his area of expertise. 
Upon review, we find the director properly considered the evidence submitted, thoroughly addressed 
counsel's arguments and appropriately addressed the evidence and arguments in his decision. 
Accordingly, we concur with the director's finding that the petitioner does not meet this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner submitted newspaper articles and playbills indicating that he played Thuy in touring 
and regional productions of Miss Saigon. With regard to the Cameron Mackintonsh's Broadway 
production, there is no evidence showing that the petitioner was a cast member when the show 
premiered on Broadway in 1991 and won three Tony Awards. While the 1991 Broadway production 
certainly had a distinguished reputation, the petitioner has not established that the subsequent 
productions of Miss Saigon in which he played a role enjoyed a similar reputation. The petitioner 
submitted a playbill for the touring production stating: 
[The petitioner] joined us direct from the Broadway company of Miss Saigon where he 
understudied and played the role of Thuy. He is a medical professional whose prior theater 
credits include Lun Tha in The King and I, Lucas in The Student Prince and Nanki Poo in 
The Mikado. He will miss being the unofficial masseur to the Broadway cast but is looking 
forward to sharing his talents with his new touring cast. 
The record does not include letters from the producers or directors of the preceding productions 
indicating that the petitioner's role for them was leading or critical. Nor is there evidence 
demonstrating how the petitioner's role differentiated him from the other performers in the cast, let 
alone its artistic management. For example, there is no evidence showing that the petitioner's name 
frequently received top billing or that the popularity of the productions increased when he was 
known to be performing. Accordingly, the petitioner has not established that he was responsible for 
the productions' success or standing to a degree consistent with the meaning of "leading or critical role" 
and indicative of sustained national or international acclaim at the very top of his field. 
The petitioner submitted an October 2006 article in Celebrity Chronicle, a Southern California 
Filipino American entertainment publication, indicating that he performed as member of I11 of a 
Kind in 2006. While the record includes evidence showing that I11 of a Kind had distinguished 
reputation in the Philippines in the early part of the present decade, there is no evidence showing that 
the petitioner was a member of the group at that time or that he has played a primary role in their 
past musical successes. Without evidence showing the specific dates when the petitioner performed 
for this group and the national success of his recordings as a member of the group, the petitioner has 
not established that he has sustained national or international acclaim in a leading or critical role for 
I11 of a Kind. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box ofice 
receipts or record, cassette, compact disk, or video sales. 
The petitioner submitted evidence showing that I11 of a Kind's album Tanging Yaman received a 
Platinum Record Award in 2000 for sales in the Philippines exceeding 40,000 units. The record, 
however, does not include evidence showing that the petitioner was a member of the group at that time. 
The petitioner also submitted newspaper articles and a document entitled "Miss Saigon Show Facts" 
demonstrating the commercial success of Cameron Mackintonsh's Miss Saigon. The documentation 
submitted by the petitioner, however, does not establish that the commercial success of th~s musical 
production was primarily attributable to the petitioner's stage pedormances. 
The director's decision noted that the record lacked evidence showing the petitioner's own commercial 
success. The director's decision firher stated: 
First, while I11 of a Kind attained a platinum album in the Philippines, the record does not 
demonstrate that the petitioner was a member of the group for the recording of that album. 
Further, while Miss Saigon has had commercial success in the theater since its debut in 1989, 
well before the time that the petitioner was hired first as an understudy then as a touring cast 
member, the record lacks evidence of the success of the specific productions in which the 
petitioner was involved, and lacks evidence that such success was due to his involvement with 
the production. 
Upon review, we find the director properly considered the evidence submitted, thoroughly addressed 
counsel's arguments and appropriately addressed the evidence and arguments in his decision. 
Accordingly, we concur with the director's finding that the petitioner does not meet this criterion. 
On appeal, counsel argues that the newspaper articles from April and May of 2008 discussing the 
Civic Light Opera of South Bay Cities' performance of Miss Saigon at the Redondo Beach 
Performing Arts Center demonstrate the petitioner's commercial success. The petitioner's 
performance as described in these articles occurred subsequent to the petition's filing date. As 
discussed, a petitioner must establish eligibility at the time of filing. 8 C.F.R. $8 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not consider this evidence in 
this proceeding. 
Nevertheless, the plain language of this regulatory criterion calls for evidence of commercial successes 
in the form of "sales" or "receipts." The record does not include evidence of documented "sales" or 
"receipts" showing that the petitioner has achieved commercial successes in the performing arts in a 
manner consistent with sustained national or international acclaim at the very top of his field. For 
example, there is no evidence showing that leading performances headlined by the petitioner 
consistently drew record crowds, were regular sell-out performances, or resulted in greater audiences 
than other similar performances that did not feature him. Nor is there evidence showing, for 
example, that musical recordings made by the petitioner have generated substantial national or 
international sales. 
In light of the above, the petitioner has not established that he meets this criterion. 
In this case, we concur with the director's determination that the petitioner has failed to demonstrate 
his receipt of a major, internationally recognized award, or that he meets at least three of the criteria 
at 8 C.F.R. $204.5(h)(3). The conclusion we reach by considering the evidence to meet each 
criterion separately is consistent with a review of the evidence in the aggregate. Even in the 
aggregate, the evidence does not distinguish the petitioner as one of the small percentage who has 
risen to the very top of the field of endeavor. 8 C.F.R. $ 204.5(h)(2). 
The director also found that the petitioner had not submitted clear evidence that he would continue to 
work in his area of expertise in the United States. The regulation at 8 C.F.R. 8 204.5@)(5) requires 
"clear evidence that the alien is coming to the United States to continue work in the area of 
expertise. 
 Such evidence may include letter(s) from prospective employer(s), evidence of 
prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on 
how he or she intends to continue his or her work in the United States." The director's decision 
stated: 
The initial record did not adequately demonstrate that the petitioner would be coming to the 
United States to continue work in his claimed area of expertise, acting. First, the petitioner 
submitted no specific information regarding how he intends to continue working in the 
United States. Further, several of the biographies from the programs provided as well as the 
regional newspaper article discussed in criterion (iii) indicate that the petitioner is a "medical 
professional" and that he has been performing services as a physical therapist even while on 
tour. Further, the petitioner's G-325 indicates that he has recently been acting only as a 
"freelance" actorlsinger, and the evidence of record indicates that the petitioner was most 
active in the field of acting in 1998, with only sporadic performances in the intervening 
years. 
Therefore, the petitioner was requested to submit evidence that he is coming to the United 
States to continue work in the area of expertise. 
In response, the petitioner submitted a 2008 itinerary for the Harana Men's Chorus, a flyer 
for a performance of the Philippine Madrigal Singers, and a promotional flyer for a 
performance of the Harana Men's Chorus. First, the petitioner submitted no objective 
evidence of his involvement with either the Harana Men's Chorus or the Philippine Madrigal 
Singers. . . . Finally, the petitioner did not address the information regarding his work as a 
medical professional or otherwise provide clear evidence to demonstrate that he would be 
coming to the United States to continue his work as an actor. 
We concur with the preceding findings. On appeal, counsel states that the petitioner continues to 
star as Thuy in regional productions of Miss Saigon with organizations such as the "Fullerton Civic 
Light Opera . . . and most recently the Civic Light Opera of South Bay Cities." The petitioner's 
appellate submission includes a 2005 playbill from the Fullerton Civic Light Opera (FCLO) stating: 
"Already a medical professional, [the petitioner] is back in school full time pursuing a degree in 
nursing. . . . He thanks . . . FCLO for welcoming him back with open arms." The petitioner also 
submits newspaper articles from April and May of 2008 discussing the Civic Light Opera of South 
Bay Cities' performance of Miss Saigon at the Redondo Beach Performing Arts Center. These 
articles briefly mention the petitioner's role as Thuy, but they are not about him. The 2008 
newspaper articles, the itinerary, and the promotional flyers do not qualify as any of the forms of 
evidence specified in the regulation at 8 C.F.R. 8 204.5(h)(5). Further, as the newspaper articles and 
playbills contained in the record refer to the petitioner as a bbphysical therapist," "medical 
professional," and "full time" nursing student, we cannot conclude that he has submitted "clear 
evidence" of his employment intentions as required by the plain language of the regulation. 
Accordingly, the petitioner has not established that he intends to continue working in his area of 
expertise in the United States. 
Review of the record does not establish that the petitioner has distinguished himself to such an extent 
that he may be said to have achieved sustained national or international acclaim or to be within the 
small percentage at the very top of his field. The evidence is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field at a national or international 
level. Nor is there clear evidence showing that the petitioner will continue to work in his area of 
expertise in the United States. 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. 8 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed.