dismissed EB-1A Case: Science

identifying data deleted to 
prevent clearly unw~ted 
iDvasioo of personal pnvac) 
PUBLIC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
u.s. nepartment of lIomcland Sccurit~ 
U,S. Cili/,CllShir and imnllgr.Hiun Ser\'ice" 
AJmini~trativc Apreal" Officl' (;\,-\0,) 
20 !\:las~achll:,c\l" ;\v(". ".W .. ivlS 2(l90 
'}/asilin!.'.\on. DC 2():'I29-2(l90 
u.s. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: FEB 1 7 2011 
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 in your case. All of the 
documents 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 I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Chief, Administrative Appeals Office 
www.uscis.goy 
--Page 2 
DISCUSSION: The employment-based immigrant visa petltlon was denied by the Director, 
Texas 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. § I 153(b)(J)(A), as an 
alien of extraordinary ability. The director determined that the petitioner had not established the 
requisite extraordinary ability through extensive documentation and 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 the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's 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 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, counsel argues that the petitioner meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. § 204.5(h)(3) and that he submitted comparable evidence of his 
extraordinary ability pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). We acknowledge that 
the standard of proof is preponderance of the evidence, as noted by counsel on appeal. The 
"preponderance of the evidence" standard, however, does not relieve the petitioner from 
satisfying the basic evidentiary requirements required by the statute and regulations. Therefore, 
if the statute and regulations require specific evidence, the applicant is required to submit that 
evidence. See section 203(b)(J)(A)(i) of the Act, 8 U.S.c. § 1153(b)(1)(A)(i), and 8 C.F.R. 
§§ 204.5(h)(2) and (3). In this case, the documentation submitted by the petitioner failed to 
demonstrate by a preponderance of the evidence that the beneficiary has achieved sustained national 
or international acclaim and that he is one of the small percentage who has risen to the very top of 
the field of endeavor. For the reasons discussed below, we uphold the director's decision. 
L 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 
Page 3 
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 H.R. 723 101" Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29,1991). The term "extraordinary ahility" 
refers only to those individuals in that small percentage who have risen to the very top of the 
field of endeavor. Id. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements 
must he established either through evidence of a one-time achievement (that is, a major, 
international recognized award) or through meeting at least three of the following ten categories of 
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) Puhlished 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 m the field, m 
professional or major trade publications or other major media; 
Page 4 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed 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. USC/S, 596 F.3d IllS (9
th 
Cir. 20 I 0). 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. I 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 pm1 of the initial inquiry, the coult 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)). 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 expertise indicating that the individual is one 
of that small percentage who have risen to the very top of thelirJ 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 
expertise." 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)(I)(A)(i). 
Id. at 1119-1120. 
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 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 new analysis if the director reached his or her conclusion by using a one-step analysis 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at S C.ER. § 204.S(h)(3)(iv) and 8 C.F.R. § 204.S(h)(3)(vi). 
Page 5 
rather than the two-step analysis dictated by the Kazarian COUlt. See Spencer Enterprises. Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), atf'd, 345 F.3d 683 (9
th 
Cir. 2003); 
see also So/tane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
II, Analysis 
A, Evidentiary Criteria 
This petition, filed on April 14, 2009, seeks to classify the pelltIOner as an alien with 
extraordinary ability as a ballroom dancer and instructor. The petitioner has submitted evidence , 
pertaining to the following categories of evidence at 8 C.F.R. ~ 204.5(h)(3).-
(i) Documentation (!j' the alien's receipt oj'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.f{Jr which 
classification is sought, which require outstanding achievements (!f' their members. as 
judged by recognized national or international experts in their disciplines or fields. 
The petitioner submitted his membership card for the World Dance and Dance Sport Council 
(WDDSC) reflecting an "end" date of December 2006. The petitioner also submitted general 
information about the World Dance Council (WDC), but there is no evidence (such as 
membership bylaws or rules of admission) showing that the WDDSC or the WDC require 
outstanding achievements of their members. 
stating that the petitioner is a valued member 
of the company. The petitioner also submitted evidence indicating that he has competed in 
_ competitions such as the 2008 Sundance Classic and the 2006 National Cross Country 
Dance Sport Championships. The petitioner's employment with_ and his participation in 
company sponsored competitions do not equate to membership in an association in the field. 
Further, there is no evidence showing that securing employment with the company or entering its 
competitions requires outstanding achievements. 
Counsel asserts that the petitioner is a member of the National Dance Council of America 
(NDCA), but there is no evidence to support the assertion. The unsupported assertions of 
counsel do not constitute evidence. Malter of' Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 
1988); Matter oj'Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter (If'Ramirez-Sanchez, 17 
~ The petitioner does not claim to meet or submit evidence relating to the categories of evidence not discussed in this 
decision. 
Page 6 
I&N Dec. 503, 506 (BIA 1980). A petition must be filed with any initial evidence required by 
the regulation. 8 C.F.R. § 103.2(b)(l). The nonexistence or other unavailability of primary 
evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). In this instance, the 
petitioner has not complied with the regulation at 8 C.F.R. § 103.2(b)(2) regarding his failure to 
submit primary evidence of his NDCA membership. 
The petitioner submitted a letter from the General 
Association (HDSA) stating that the petitioner was 
While an athletic team is not strictly speaking an "association," it is 
nonetheless equally true that an athlete can earn a place on a national or an Olympic team 
through rigorous competition which separates the very best from the great majority of 
participants in a given sport. Therefore, an athlete's membership on an Olympic team or a major 
national team such as a World Cup soccer team may serve to meet this criterion as such teams 
are limited in the number of members and have a rigorous selection process. We reiterate, 
however, that it is the petitioner's burden to demonstrate that he meets every element of a given 
criterion, including that he is a member of a team that requires outstanding achievements of its 
members, as judged by recognized national or international experts. We will not presume that 
every national "team" is sufficiently exclusive. Without cvidence showing, for instance, thc 
selection requirements for the Hungarian national team, we cannot conclude that the petitioner 
meets the elements of this regulatory criterion. 
The petitioner submitted letters from the 
that the petItIoner competed for the ADSF. The 
petitioner also submitted two competition record books confirming his registration and 
participation in the ADSF and the Hungarian Dance Spon Federation (HDSF), but there is no 
evidence showing the preceding federations' membership requirements. Further, the English 
language translations accompanying the competition record books from the ADSF and the HDSF 
do not meet the requirements of the regulation at 8 C.F.R. § 103.2(b)(3), which requires that any 
document containing foreign language submitted to USCIS shall be accompanied by a full 
English language translation that the translator has certified as complete and accurate, and by the 
translator's certi fication that he or she is competent to translate from the foreign language into 
English. The submitted English language translations signed by the translator simply state "I 
guarantee that the translation is correct." Therefore, the translator certifications submitted by the 
petitioner are not in compliance with the regulation at 8 C.F.R. § J03.2(b)(3). 
In response to the director's request for evidence, counsel points to nine letters of 
recommendation from individuals affiliated with the WDC, the NDCA, and FAFDS as further 
.lIIIiiiiiiilido not discuss the specific membership requirements for the WDC, the NDCA, or 
FAFDS, or state that the petitioner is a member of the NDCA, 
In this case, there is no evidence from the HDSF, the ADSF, the WDDSC, the WDC, FAFDS, or 
the NDCA showing that they require outstanding achievements of their members, as judged by 
recognized national or international experts in the petitioner's field. 
Page 7 
In light of the above, the petitioner has not established that he meets this criterion, 
(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 .f(Jr which 
classification is s()u[?ht. 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. 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.] 
The petitioner submitted a letter 
Consumer Interest 
the December 2008 issue of The Beacon, "A 
Palm Beach County," appearing under_ 
We note that _ works as a dance 
The published 
letter, authored by a student of the Fred Astaire Jupiter Dance Studio, describes in 
detail her problems with Osteo Arthritis and how ballroom dancing helped to alleviate her ailment. 
She concludes her letter by stating: 
I would like to take this oDloorturtit 
unknowingly inspiring me to 
and for their encouragement, suppor1 and extra coaching: and most of all to I the 
petitioner I for his patience, humor, kind heart, expertise, support, encouragement and for not 
giving up on me. 
Your Very Grateful Student, 
The preceding article is about_ overcoming her medical ailment rather than the petitioner 
and his work as a dance professional. 
The petitioner submitted an April 2008 article in The Beacon, "A Consumer Interest Magazine 
Serving Jupiter, Tequesta, Juno Beach, Palm Beach Gardens, Hobe Sound," again appearing under 
column. In the April 2008 article, discusses a visit by her and the 
petitioner to a client who requested that the petitioner give her a dance lesson on a horse. The 
petitioner also submitted a September 2006 article in the "Images" section of The Beacon entitled 
"A 'World Class' Challenge," but the author of the article was not identified as required by the plain 
-' 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 or that county. 
Page 8 
lan~ge of this criterion. The article describes a event for students hosted by 
the. 1 and briefly mentions the petitioner's participation in the event 
and two of his upcoming cOlmp,etitioJilj 
2007 articles in The Beacon ent:iti"d 
July 
and 
These articles are about _ 
and their business. The July 
2006 and July 2007 alticles briefly mention that the petitioner joined the at their Jupiter 
studio, but the articles are not about him. Further, the author of the July 2006 and luly 2007 articles 
was not identified as required by the plain language of this criterion. 
[n response to the director's request for evidence, the petitioner submitted information from The 
Beacon's home page stating that it showcases local businesses in the Nolth Palm Beach County 
area. Counsel asselts that this local business interest magazine in Florida "sends out approximately 
26,500 copies per month," but the record does not include circulation evidence to support the claim. 
As previously discussed, the unsupported assertions of counsel do not constitute evidence. 
Matter or Ohaighena, 19 I&N Dec. at 533, 534 n.2; Matter o(LaLlreano, 19 [&N Dec. at 1, 3 n.2; 
Maller of Ramirez-Sanchez, 17 I&N Dec. at 503, 506. Neveltheless, there is no evidence showing 
that this local advertising source equates to a professional or major trade publication or some other 
fonn of major media. 
The dates of the preceding articles were not identified as required 
by the plain language of this criterion. With regard to in 
Dallce Beat, the petitioner did not submit the first part of the article and its author was not identified. 
The second part of the article includes one sentence stating that the IJt".llllJl 
lists him among forty contestants in the results section. 
",~i0Ip in Dance Beat does not mention the petitioner in the body of the article and 
the results section among 56 contestants. The Fred Astaire chain of studios' 
National Dance Championships article in Dance Beat 
"Not as contested, but also exciting to watch, 
The preceding articles only briefly mention the petitioner and 
are instead articles about dance contests as a whole in which he competed. The plain language of 
this regulatory criterion requires "[p]ublished material about the alien." Articles that only briefly 
mention the petitioner in passing do not meet the plain language of this regulatory criterion: In 
response to the director's request for evidence, the petitioner submitted self-serving information 
from Dance Beat's web page staling that the publication was established in 1989 as a monthly 
dancesport newspaper. There is no evidence (such as circulation statistics) showing that this 
newspaper equates to a professional or major trade publication or some other form of major media. 
The petitioner submitted additional articles published in the German language, but the English 
language translations accompanying these mticles were not complete and they were not certified by 
, See. e.g .. Accord Negro-Plwnpe v. Ohll. 2:07-CV-820-ECR-RJJ at 7 (D. Nev. Sept. 8, 2008) (upholding a tinding that 
articles about a show are not about the actor). 
Page 9 
the translator as required by the regulation at 8 C.F.R. § 103.2(b)(3). Further, there is no evidence 
showing that these articles meet all the requirements of 8 C.F.R. § 204.5(h)(3)(iii). For instance, 
there is no evidence establishing that the German language newspapers and magazines in which 
the articles appeared qualify as major media. 
In light of the above, the petitioner has not established that he meets this criterion. 
(iv) Evidence of the alien '.I' participation, either individually or on a panel, as a 
judge "f the work of others in the same or an allied field of specification.j()r which 
classification is sought. 
Counsel states that several of the petitioner's "students have gone on to compete as 
Dancers." The submitted event from FAFDS cOlmpetil:iOlls 
students 
competed in "amateur" ladies events such as the 
January 19, 2009 letter from 
explaining how the petitioner and his partner's dance lessons have improved and his 
wife's dancing skills. Counsel does not explain how providing dance lessons and instruction to 
students who compete equates to participation as a judge of the work of others in the field. The 
phrase "a judge" implies a formal designation in a judging capacity, either on a panel or 
individually as specified at 8 C.F.R. § 204.5(h)(3)(iv). The regulation cannot be read to include 
every informal instance of dance instruction or coaching of pupils under one's immediate 
tutelage. 
The petitioner submitted evidence 
served as judges at the at 
_. Although the petitioner's evidence meets the plain language requirements of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv), certain deficiencies pertaining to this evidence will be 
addressed below in our final merits determination regarding whether the submitted evidence is 
commensurate with sustained national or international acclaim, or being among that small 
percentage at the very top of the field of endeavor. 
(v) Evidence (d' the alien '.I' original scientific, scholarly, artIstiC, athletic, or 
business-related contributions ()fmajor significance in the field. 
The petitioner submitted letters of support discussing his competitive success and talent as a 
dance instructor. We cite representative examples below. Competitive success and talent as a 
dance teacher, however, are not necessarily indicative of original contributions of major 
significance in the field. The record lacks evidence showing that the petitioner has made original 
contributions that have significantly influenced or impacted his field. 
In the original submission, counsel states that the petitioner is eligible under Ihis criterion by 
virtue of teaching ballroom dancing to students with intellectual and physical disabilities. The 
Page 10 
petitioner submitted a letter from •••••••••••••••••••••••• "a 
special syllabus school" in Hungary, stating: 
was still at the high school when she undertook a very difficult 
mission; teaching these children dancing in her free time. In our study circle we showed 
all the video material about which we had recorded from different Hungarian 
television channels. The pupils were enchanted! 
The first year pasted quickly and students reached excellent positions .... 
_ decided to go to Austria because of her dancing career. We are very thankful 
that after she moved to another country she still managed to find time to come regularly 
(several times a year) to our institution together with her partner [the petitionerl. They 
gave us important information and advice how to successfully continue this activity. 
* * * 
After years, all our children and adults still look forward every time to the possibility of 
working with_ and I the petitionerl .... They showed us how to practice the joy 
of movement, the love of dancing. the children self-confidence and have made 
their self picture stronger. Through work we have now 
happier students who are very active and believe in their own possibilities. 
* * * 
They have undoubtedly proven in our school that they are able to cope magnificently 
with teaching injured children who are not eas y to instruct and train. 
While the petitioner's work with studcnts at this school is certainly admirable, there is no 
evidence showing that his work equates to an original artistic, athletic, or business-related 
contribution of major significance in the field. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v) requires that the contributions be "of major significance in the field" rather than 
limited to a school where the petitioner helped with dance instruction. Moreover, the letter from 
indicatcs rather than the petitioner, was the originator of the 
instructional activity at the school. 
Counsel further states: 
One of [the petitioner's] 
a letter regarding her illness 
thanking [the petitioner I "for his patience, 
encouragement and for not giving up on me," 
from Osteo Arthritis. She wrote 
dancing has improved her life and 
humor, kind heart, expertise, support, 
As previously discussed, the petitioner submitted a letter ~UI.JW,I1"U 
2008 issue of The Beacon appearing 
column. In addition, the petitioner submitted a letter of recommendation written byiiiiiiiiiiilll 
-Page II 
which she praises his abilities as an instructor and describes how her life has changed thanks to 
her newfound ability to dance. 
Counsel continues: 
~ioner's] students 
__ He submits a letter of recommendation in which he explains how 
his life has changed since taking ballroom dance classes with [the petitioncrl._ 
first describes how he and his wife have improved their dancing ability and even compete 
now in ballroom dance events which is a contribution to the profession of ballroom 
dancing. 
While the petitioner's dance lessons have improved the abilities of his students at the_ 
•••••••••••••••• the preceding letters of recommendation do not specify 
exactly what the petitioner's "original" contributions in ballroom dancing have been, nor is there 
an explanation indicating how any such contributions were of major significance in his field. 
Counsel argues that "[als a ballroom dance instructor, [the beneficiary] is in a unique position to 
make real contributions to the lives of his students which in tum contribute to society in general 
as well as to the U.S. economy and of course the world of ballroom dancing." The record, 
however, does not include evidence showing that the petitioner's original instructional 
techniques have significantly impacted the field beyond the pupils under his immediate tutelage. 
As previously discussed, contributions limited to the dance school where the petitioner works do 
not equate to original contributions of major significance to the field of ballroom dancing as a 
whole. 
she is "an Internationally Recognized Latin American Dance 
and that she has been associated with the petitioner for the 
states: 
[The petitioner] is at the top of his field .... [The petitioner] maintains the reputation as 
one of the most gifted, results focused dancers and teachers in the world[']s dance 
community. 
* * * 
I have served as an adjudicator of various dance competitions in which his students have 
participated. His students possess an obvious level of talent developed by [the 
petitioner's] instruction. Their success is far beyond those with whom they compete 
against as evidenced by their championship awards. 
I highly commend Ithe petitioner] and fcel that he can make a significant contribution to 
DanceSport in American Isic]. Today the U.S. and other nation's Isic] top dance talent 
seeks [sic] Ithe petitioner'sl teachings, as he is one of the United States' brightest and 
most gifted dancer[s] in the World's dance scene. 
Page 12 
not specify the "championship awards" won by the beneficiary's students or 
the level of competition against which his dancers competed (such as novice, intermediate, 
amateur, or professional). Moreover, her letter does not explain how the petitioner's teaching 
techniques are original in ballroom dancing or how such techniques constitute "contributions of 
major significance in the field." 
states: 
I have served as the 
I have known [the petitioner) since he first came to the United States. In my professional 
opinion, I strongly feel that [the petitioner) is an exceptionally talented dancer, coach, and 
teacher. On several occasions I have worked directly with [the petitioner [ and his students 
as well as coached him with his dance partner. I feel [the petitioner] is currently one of 
the most outstanding International Latin competitive dancers representing the United 
States today. Most importantly though, there are not very many young American dancers 
who exhibit his abilities and it is very hard to find someone of that caliber in International 
Style, expertise and training in this country. So, someone of [the petitioner's] caliber is 
truly a gift to any employer in the dance instruction field .... 
_ does not specify exactly what the petitioner's "original" contributions as a 
competitive dancer have been, nor is there an explanation indicating how any such contributions 
were of . in his field. While the petitioner's abilities have contributed to the 
success of there is no evidence demonstrating that his original 
contributions in ballroom dancing have significantly influenced the field in general. 
Through my work in the Fred Astaire Company ... for many years, I had the possibility 
to meet many dedicated and talented young dancers. One of the most extraordinary 
people that I have had the pleasure to know is [the petitioner[. [The petitioner I drew my 
attention as being outstanding Ballroom and Latin Dancer. He has won multO 
National ... 
~ competitive achievements (such as first place in the 
__ have already been addressed under the regulatory 
§ 204.5(h)(3)(i), a criterion we find the petitioner has met. Here it should be emphasized that the 
regulatory criteria are separate and distinct from one another. Because separate criteria exist for 
Page 13 
awards and original contributions of major significance in the field, USCIS clearly does not view 
these criteria as being interchangeable, To hold otherwise would render meaningless the statutory 
requirement for extensive evidence or the regulatory requirement that a petitioner meet at least three 
separate criteria. 
_ continues: 
I The petitioner I is a superb teacher and coach who gives his pupils 100% of his 
knowledge and time. His knowledge of Dance. esteemed in the United 
States, making him a great asset to the and North American 
dancing in general. It is extremely rare a young can capture the 
attention of the judges, and competitors alike in the social dance field in the way that [the 
petitioner] has. His proven track record of excellence in the most prestigious and difficult 
competitions ... is a testament to [the petitioner's] abilities. 
* * * 
[The petitioner 1 would be an extraordinary gift to the United States dance community .... 
His achievements and experience can only elevate the quality of education for the youth 
of this country. 
With regard to the petitioner's contributions as a dance teacher and coach, there is nothing in the 
recommendation letters indicating that he has developed original teaching methodologies, as 
opposed to methodologies passed down from his own tutelage in the sport. Moreover. even if 
the educational techniques utilized by the petitioner were found to be original. there is no 
evidence demonstrating that these techniques are of major significance in ballroom dancing. 
identifies himself as one of the petitioner's teachers. _ 
I have won three World Ballroom Dance Champion amongst many other titles .... I am 
and ... respectively coach many of the World's 
Due to my profession I happen to be one of the main teachers of [the petitioner I .... I 
have invited him and his partner to participate as guests of honour in the training camps 
of the German National team, a privilege which is usually for only German competitors. 
* * * 
[The petitioner] could contribute to the development of U.S. Ballroom Dancing with his 
expertise from the influences of competitive dancing in Bulgaria, Austria and Germany 
likewise. The molding of different countries' styles would culminate in the improvement 
of competitive Ballroom Dancing in the U.S. 
Page 14 
I Emphasis added. J 
does not specify the original teaching methodologies developed by the 
petitioner or explain how those methodologies have already impacted the field. Rather than 
the petitioner's original contributions of major significance in the 
his future expectations for the petitioner's work. A 
petltlOner, , must eligibility at the time of filing. 8 C.F.R. §§ 103 .2(b)( I), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg!. Commr. 1971). It is not enough to be a talented 
dancer or instructor and to have others attest to that talent. An alien must have demonstrably 
impacted his field in order to meet this regulatory 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 of major significance. We must presume that the phrase "major significance" is 
not superfluous and, thus, that it has some meaning. There is no evidence demonstrating that any 
of the petitioner's original contributions were of major significance in the field, such as through 
the widespread adoption of his specific methods of instruction. Mastering and subsequently 
teaching ballroom dancing styles is not demonstrative of an "original" contribution to the field. 
While the submitted documentation suggests that the petitioner is a talented dancer and an 
effective instructor, it does not establish that he has made original athletic or artistic 
contributions of major significance in the field. 
The preceding letters from the petitioner's dancing contacts have been considered above. 
Although the petitioner has earned the admiration of his references, there is no evidence 
demonstrating that his impact on ballroom dancing is commensurate with an original 
contribution of major significance in the field. USCIS may, in its discretion, use as advisory 
opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N 
Dec. 791, 795 (Commr. 1988). USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of 
letters from experts supporting the petition is not presumptive evidence of eligibility; USCIS 
may evaluate the content of those letters as to whether they support the alien's eligibility. See id. 
at 795-796. Thus, the content of the writers' statements and how they became aware of the 
petitioner's reputation arc important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than 
preexisting, independent evidence that one would expect of a dancer or an instructor who has 
made original contributions of "major significance." Without supporting evidence showing that 
the petitioner's work equates to original contributions of major significance in his field, we 
cannot conclude that he meets this criterion. 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
Counsel states: "As a Professional Ballroom Dancer, Ithe petitioner's I art is constantly on 
display during his performances at competitions and events throughout the U.S. and abroad." 
The pctitioner submitted documcntation of numerous dances port contests in which the petitioner 
has competed as a professional ballroom dancer such as the 2009 Freddy Ball in St. Augustine, 
-Page 15 
The petitioner also suhmitted 
. partner competing in various dances port 
competitions. Regarding the petitioner's participation in dance competitions, dancesport is not a 
display of artwork but an athletic competition. The ten criteria in the regulations are designed to 
cover different areas; not every criterion will apply to every occupation. This interpretation has 
been upheld by at least one district court. See Negro·Plumpe v. Okin, 2:07·CV ·820·ECR·RJJ at 7 
(D. Nev. Sept. 8, 2008) (finding that the AAO did not ahuse its discretion in finding that a 
perfonning artist should not be considered under the display criterion). While we acknowledge that 
the district court's decision is not binding, the court's reasoning indicates that the AAO's 
interpretation of the regulation is reasonable. Moreover, the petitioner's participation and success in 
dance competitions have already been addressed under the awards criterion at 8 C.F.R. 
§ 204.5(h)(3)(i), a criterion we find the petitioner has met. 
with various members of the country club (located in Palm Beach Gardens, Florida). The 
content of the DVD indicates that the Frenchman's Creek Country Club event is not affiliated 
with the "Dancing with the Stars" television series reality show airing on the ABC network. The 
submitted DVD footage shows a social function for country club patrons rather than display of 
the petitoner's work in the field at an artistic exhibition or showcase. The petitoner is shown 
dancing with partners of varying skill levels from among the country club's patrons. 
In this case, the petitioner has not established that competing in dance contests, participating in 
the Frenchman's Creek Country Club local social event, or having one's competition 
photographs posted on the internet equates to "display of the alien's work in the field at artistic 
exhibitions or showcases." In light of the above, the petitioner has not submitted qualifying 
evidence that meets the plain language requirements of the regulation at 8 C.F.R. § 204.S(h)(3)(vii). 
(viii) Evidence that the alien has pCljcJrmed in a leading or critical role .f(Jr 
organizations or establishments that have a distinguished reputation. 
The petitioner submitted a letter from 
petitioner was a "member of the The 
preceding letter docs not include any information about the significance of the petitioner's role. 
The petitioner also submitted a competition record hook confirming his registration and 
participation in the HDSF. As previously discussed, the English language translation 
accompanying the competition record hook from the HDSF does not meet the requirements of 
the regulation at 8 C.F.R. § 103.2(b)(3). The evidence submitted by the petitioner does not 
demonstrate that his role significantly differentiated him from his fcllow teammates on the 
Hungarian National Team, or indicate how his role was leading or critical for the team as a 
whole, the HDSA, or the HDSF. Further, there is no supporting evidence showing that the 
preceding organizations have a distinguished reputation. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
Page 16 
proceedings. Matter (if Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter o(Treasure 
Craft ofCaiijc)rnia, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner submitted a lettcr from stating: 
As a Latin American Dancer, [the petitioner J has demonstrated extraordinary talent and 
achieved many victories whether it has been in Europe in champion dance competitions 
or overseas. 
* * * 
The Austrian Dancesport Federation is very proud having such a successful 
representative in competitive dancing. 
The petitioner also submitted a letter from •••••••••••••••••••• 
•• "stating: 
[The petitioner] was an 
outstanding competitor for the Austrian Dance Sport Federation, an excellent 
demonstrator of quality dancing for the Austrian and international audiences and a very 
much appreciated comrade to his friends, colleagues and coaches. 
[The petitioner [ danced for Austria in numerous international com~)etllI()J1s 
nominated to be 
He has become a role model for so many young dancers and through that he as been of 
the highest value for Austrian and International Dance Sport. Through his successes hc 
inspired a ncw generation of young dancers to thrive for the best. 
The petitioner also submitted a competition record book confirming his registration and 
participation in the ADSF. As previously discussed, the English language translation 
accompanying the competition record book from the ADSF does not meet the requirements of 
the regulation at 8 C.F.R. § 103 .2(b )(3). 
There is no supporting evidence showing that the ADSF has a distinguished reputation. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. Further, the 
submitted evidence does not establish that the petitioner's role as a dance competitor was leading 
or critical to the ADSF. While the petitioner has represented the ADSF in international 
competitions, the petitioner's documentation does not sufficiently explain how a competitor 
performs in a leading or critical role for ADSF as a whole. The aforementioned 
letters of support from the do not provide 
specific information differentiating the petitioner's role from that of the othcr competitors in 
non-Latin dancing events, let alone the ADSF's coaches and executive officers such as the 
president. 
Page 17 
The petitioner submitted a letter 
stating: 
As a Professional Dancer, [the petitioner 1 he has won many competitions that I have 
sponsored in the last three years. He is also a superb teacher and coach who gives his 
pupils 100% his knowledge and time. His ~rt is rare in the United 
States and makes him a great asset to th~ and North American 
dancing in general. 
As employee of he has gained the respect of 
his coworkers, managers and clients due to their dedication and work ethic. On a National 
level they have received awards for his sales abilities and have been TOP Pro-Am 
teachers at many Regional and National Dance Competitions. 
The petitioner also submitted a letter from 
stating: 
I am the current 
I I am registered with the Scottish Dance Teacher's Alliance, the World Dance 
Council, the National Dance Council of America and The Fred Astaire Dance studio 
organization. 1 hold SDTA and WDC Competitors and Adjudicators Licenses. 
* * * 
[The petitioner's J expertise, dedication and hard work earned 
•••••••••••••••• That means he has become eligible for the 
Florida Freddy Award which is bestowed to a percentage of the top teachers and 
executives in the state of Florida. 
* * * 
suc:fe;;s of the 
His outstanding knowledge of 
s students to achicve top results in 
national and international competitions. His student, has won the Top 
Student award and 
achieved to be 
November 2007. 
states that the petitioner "contributed to the success of but she 
does not identify as the petitioner's student or state that he is her primary coach. 
Page 18 
I am I currentl y 
am a Member of the National Dance Council of America and the United States Imperial 
Society of Teachers of Dancing. I also hold a World Officiating License with the World 
Dance Council .... 
* * * 
IThe petitioner] became my student and ever since I have been following Ithe 
petitioner's] dancing career and development for the last few years. 
* * * 
[The petitioner's1 ... highly professional way of tcaching and caring for his students has 
made him one of the most outstanding and respected instructors in the 
community as well as on the international dance circuit in very short 
has been a or contribute [ 
and the whole 
knowledge of Ballroom and Latin American Da.ncling ,,,,,a,,,.cu 
results in national and international competitions. 
His outstanding 
stuldents to achieve top 
The record adequately demonstrates that the ••• company has a distinguished reputation. 
With regard to the petitioner's role for the the submitted documentation indicates that 
he competes and works as an instructor for The 
preceding !etten; of support do not explain how 
other instructors employed at his studio (such as 
_, let alone franchise instructors from the company, Regional Dance Directors, 
members of the company's National Dance Director. 
National Choreographer, National Training Director, Executive National Examiner, and senior 
corporate executives such as the president. Without an organizational chart or other evidence 
documenting how the petitioner fits within the general hierarchy the petitioner has not 
established that his role was leading or critical for the company. In this instance, there is no 
evidence showing that the petitioner has been responsible for the success or standing of the 
~ompany to a degree consistent with the meaning of "leading or critical role." 
In light of the above, the petitioner has not established that he meets this criterion. 
(ix) Evidence thaI the alien has commanded a high salary or other significantly high 
remuneration/or services, in relation to others in Ihe/ield. 
The petitioner submitted a "UHI'HH.!; 
studios in locations such 
The submitted reports show that the petitioner worked the 
most number of "sessions" thereby generating more revenue than other _ instructors in his 
region in Florida. There is no evidence indicating that he received a higher level of earnings per 
session than his _ coworkers. Further, there is no evidence (such as pay statements or 
Page 19 
income tax forms) showing the petitioner's actual "salary" or "remuneration" received from 
_. The submitted documentation only shows the revenue he generated for the company as 
indicated in the sampling of regional weekly reports. The plain language of this regulatory 
criterion, however, requires evidence of "a high salary or other significantly high remuneration . .. 
in relation to others in his field." IEmphasis added.] Further, the submitted weekly revenue reports 
do not present an appropriate basis for comparison because they are limited to employees of_ 
in Florida and exclude instructors from outside his region and those employed by other dance chains 
(such as and by independent dance studios. Moreover, 
the difference in the revenue generated by the petitioner was based on him conducting more dance 
sessions rather than him commanding a significantly higher rate of pay per session. Accordingly, 
the petitioner has not established that he meets this criterion. 
(x) Evidence of" commercial successes in the performing arts. as shown hy hox 
office receipts or record, cassette, compact disk, or video sales. 
The petitioner submitted a letter from 
company sponsors the petitioner, but his letter does not 
The petitioner also submitted a letter from 
stating that the petitioner and his partner were interviewed for the television program "MAS­
NAP" in 2003. The petitioner'S evidence also includes video footage from a 2002 television 
performance. In addition, the petitioner submitted event programs and photographs from dance 
contests in which the petitioner has competed as a professional ballroom dancer. This regulatory 
criterion requires evidence of commercial successes in the form of "sales" or "receipts"; simply 
submitting evidence indicating that the petitioner received an apparel sponsorship, appeared on 
television, or performed in competition does not meet the plain language of this criterion. The 
record docs not include evidence of documented "sales" or "receipts" showing that the petitioner 
has achieved commercial successes in the performing arts. For instance, there is no evidence 
showing that dance performances headlined by the petitioner consistently drew record crowds or 
were regular sell-out performances. Accordingly, the petitioner has not established that he meets 
this criterion. 
Sllll1mary 
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 ten categories of evidence that must be satisfied to establish the minimum eligibility 
requirements necessary to qualify as an alien of extraordinary ability. 8 C.F.R. § 204.5(h)(3). 
B. Comparable Evidence Under 8 C.F.R. § 204.5(h)(4) 
On appeal, counsel argues that the director erred in failing to consider the documentation 
submitted for 8 C.F.R. §§ 204.5(h)(3)(ix) and (x) as comparable evidence of the petitioner's 
extraordinary ability. The regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of 
"comparable evidence" only if the ten categories of evidence "do not readily apply to the 
beneficiary's occupation." The regulatory language precludes the consideration of comparable 
Page 20 
evidence in this case, as there is no evidence that eligibility for visa preference in the petitioner's 
occupation cannot be established by the categories of evidence specified by the regulation at 
8 CF.R. § 204.5(h)(3). For instance, there is no evidence indicating that earning a high salary or 
other significantly high remuneration does not apply to professional dancers or ballroom dance 
instructors. Where an alien is simply unable to meet three of the regulatory criteria at 8 CF.R. 
§ 204.5(h)(3), the plain language of the regulation at 8 CF.R. § 204.5(h)(4) does not allow for the 
submission of comparable evidence. 
Nevertheless, there is no evidence showing that the documentation the petitioner requests 
reevaluation of as comparable evidence constitutes achievements and recognition consistent with 
sustained national or international acclaim at the very top of the field of professional ballroom 
dancing. For instance, the sampling of weekly revenue reports submitted by the petitioner are 
limited to employees ot_ in Florida and exclude instructors from outside his region and those 
employed by other dance companies. Accordingly, they do not demonstrate his sustained 
"national or international acclaim" at the very top of the professional ballroom dancing field. 
With regard to the petitioner's apparel sponsorship, television appearances, and dance 
competition entries, the petitioner has not established that such evidence significantly 
distinguishes him from other dance professionals at the national or international level. For 
example, the event programs submitted by the petitioner list him along with numerous other 
ballroom dancers who compete under the professional designation. We note the supplementary 
information at 56 Fed. Reg. 60899 (November 29, 1991) states: 
The Service disagrees that all athletes performing at the major league level should 
automatically meet the "extraordinary ability" standard .... A blanket rule for all major 
league athletes would contravene Congress' intent to reserve this category to "that small 
percentage of individuals who have risen to the very top of their field of endeavor." 
Likewise, it does not follow that being listed in an event program or securing a place to compete 
along with numerous other professionals equates to comparable evidence of a ballroom dancer's 
extraordinary ability. 
C. Final Merits Determination 
In accordance with the Kazarian opinion, we will next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (I) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of thelirl field of endeavor," 8 CF.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." Section 203(b)(1 )(A) of the Act; 8 CF.R. § 204.5(h)(3). See also Kazaria/l. 
596 F.3d at 1119-1120. In the present matter, many of the deficiencies in the documentation 
submitted by the petitioner have already been addressed in our preceding discussion of the 
regulatory criteria at 8 CF.R. §§ 204.5(h)(3)(ii) - (v) and (vii) - (x). 
With regard to awards won by the petitioner and his pupils in "amateur," "student" or "junior" 
dancing competitions, we cannot conclude that such awards demonstrate that he "is one of that 
-Page 21 
small percentage who have risen 
§ For instance, while 
at thel_.~!!!!1!!!!!~~!!!!!!!!!! 
have been 
top of the field of endeavor." 
is said to have won 
_ there is no evidence indicating that these dancers competed against 
professionals rather than contestants limited to their approximate age group or skill leveL USCIS 
has long held that even athletes performing at the major league level do not automatically meet the 
"extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 1994); 56 
Fed. Reg. at 60899. 5 Likewise, it does not follow that a dancer or instructor who has had past 
success competing and coaching at the amateur, student, or junior level should necessarily qualify 
for an extraordinary ability employment-based immigrant visa. To find otherwise would contravene 
the regulatory requirement at 8 C.F.R. § 204.5(h)(2) that this visa category be reserved for "that 
small percentage of individuals that have risen to the very top of their field of endeavor." 
Regarding the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(iv). the petitioner submitted an event 
that he and his dance partner served as judges at the 
event program lists only six 
participating dance studios and a total of seventeen participating professionals (eleven male and 
six female contestants). Without supporting evidence showing the level of national or 
international presti~ this competition, we cannot conclude that serving as a 
judge for this local __ is commensurate with sustained "national or international 
acclaim" at the very top of the field. Further, we cannot ignore that many of the petitioner's 
references' judging credentials are more impressive. _ states that~ "many 
National and NDCA recognized competitions across America and Canada." _ asserts 
that he is "certified to serve as an ~e world's largest and most prestigious 
international dan~~_~2~ms." __ indicates that he is a "World Class 
Adjudicator" and_ states that he holds "a World Officiating License with the World 
Dance CounciL" states that she holds Scottish Dance Teachers Alliance and World 
Dance Council Adjudicators Licenses. Moreover, we note that the petitioner has submitted 
evidence of his participation as a judge for only one competition in January 2007. The statute and 
S While we acknowledge that a district court's decision is not binding precedent, we note that in Maller of RaeiwI. 
1995 WL 153319 at *4 (N.D. 111. Feb. 16. 1995), the Court stated: 
[Tlhe plain reading of the statute suggests that the appropriate field of comparison is not a comparison of 
Racine's ability with that of all the hockey players at all levels of play; but rather, Racine's ability as a 
professional hockey player within the NHL. This interpretation is consistent with at least one other court in 
this district, Grimson v. INS, No. 93 C 3354. (N.D. lll. September 9, 1993), and the definition of the term 
8 C.FR. § 204.5(h)(2). and the discussion set forth in the preamble at 56 Fed. Reg. 60R9R·99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit. the court's 
reasoning indicates that USCIS' interpretation of the regulation at 8 c.ro.R. § 2045(h)(2) is reasonable. 
-Page 22 
regulations, however, require "extensive documentation" and the petitioner to demonstrate that his 
national or international acclaim as been sustained. See section 203(b)(1)(A)(i) of the Act, 
8 U.S.c. § 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). The documentation submitted for 
8 C.F.R. § 204.5(h)(3)(iv) is not extensive or commensurate with sustained national or 
international acclaim. 
While the petitioner has earned the respect and admiration of his references, the evidence of 
record falls short of demonstrating his sustained national or international acclaim as a ballroom 
dancer or instructor. The conclusion we reach by considering the evidence to meet each criterion 
at 8 C.F.R. § 204.5(h)(3) 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). 
D, Prior 0-1 Nonimmigrant Visa Status 
On appeal, counsel points out that the alien was the beneficiary of an approved 0-1 
nonimmigrant visa petition for an alien of extraordinary ability in the arts. 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, "The term 
'extraordinary ability' means, for purposes of section 10 I (a)(15)(0)(i), in the case of the Ms, 
distinction." The 0-1 regulation reiterates that "I e Ixtraordinary ability in the field of arts means 
distinction." 8 C.F.R. § 214.2(0)(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.F.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.F.R. § 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of 
nationally or internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear 
statutory and regulatory distinction between these two classifications, the beneficiary's receipt of 0-
I nonimmigrant classification is not evidence of his eligibility for immigrant classification as an 
alien with extraordinary ability. Further, we do not find that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each petition must be decided on a case-by-case 
hasis upon review of the evidence ofrecord. 
It must be noted that many 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.R., Q Data Consulting. Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. o( 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). Because US CIS spends less time reviewing [-
129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are 
simply approved in error. Q Data ConsultinR, 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). 
Page 23 
The AAO is not required to approve applications or petItIons where eligibility has not been 
demonstrated. merely because of prior approvals that may have been erroneous. See. e.g, Matter o( 
Church Scientology International, 19I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged elTOrs as binding precedent. Sussex 
EIlXX. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cal. 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 conlt. 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, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
III. Conclusion 
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 and 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. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(l )(A) of the Act and the petition may not be approved. 
An application or petition that fails to 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 at 1043, 
aff'd, 345 F.3d at 683; see also Soltane v. DO'!, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.c. ~ 1361. 
Here, that burden has not been mel. 
ORDER: The appeal is dismissed.