dismissed EB-1A Case: Sciences

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac) 
PUBLlCCOPY 
FILE: 
INRE: Petitioner: 
Benefic iary: 
U.S. llepartment of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W .. MS 20YO 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date FEB 252011 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I )(A) of the Immigration and Nationality Act; 8 u.s.c. § 1153(b)( I )( 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 thc office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-2908, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § I 03.5(a)( I )(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
/1(;;,/.1- 1 
I ./ 
k Perry Rhew 
,,'Chief, Administrative Appeals Office 
www.uscis.gO\! 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center. The Administrative Appeals Office (AAO) rejected the appeal as untimely filed. 
The matter is now before the AAO on a motion to reopen and a motion to reconsider. The motions 
will be granted, the previous decision of the AAO will be withdrawn, and a new decision will be 
entered on this petition. The appeal will be dismissed. 
We note that the AAO rejected the petitioner'S appeal on November 4, 2009. Although the 
AAO's decision informed the petitioner that "[alII motions must be submitted to the office that 
originally decided your case," counsel submitted the motions to AAO instead of the Texas 
Service Center. In order to properly file a motion, the regulation at 8 C.F.R. § 103.S(a)(l)(iii)(E) 
requires that a motion must be submitted to the office maintaining the record upon which the 
unfavorable decision was made for forwarding to the official having jurisdiction. In addition, the 
regulation at 8 C.F.R. § l03.S(a)(l)(i) provides that the affected party must file the motion within 
30 days after service of the unfavorable decision. If the decision was mailed, the motion must be 
filed within 33 days. See 8 C.F.R. § 103.Sa(b). The date of filing is not the date of mailing, but 
the date of actual receipt. See 8 C.F.R. § 103.2(a)(7)(i). The AAO rejected the motions and 
returned them to counsel, who subsequently submitted the motions to the Texas Service Center 
on December 9, 2009, a period of 3S days after the decision of the AAO. Accordingly, the 
motions were untimely filed. A motion that does not meet applicable requirements shall be 
dismissed. See 8 C.F.R. § 103.S(a)(4). 
However, a review of the documentary evidence submitted with the motions retlects that the 
petitioner timely submitted the original appeal. The director denied the petition on July 29, 
2008. Although the director stamped the petitioner's appeal as being received on October 28, 
2008, a period of 3S days after the denial of the petition, counsel submitted documentary 
evidence from the United States Postal Service retlecting that the appeal was actually received at 
the Texas Service Center on October 27, 2008, a period of 34 days after the denial of the 
petition. As the 33'" day fell on Sunday, October 26, 2008, the petitioner properly filed the 
appeal. See 8 C.F.R. § l.l(h). As the record of proceeding retlects that the petitioner timely 
filed his original appeal, the AAO will enter a new decision. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 11S3(b)(l)(A), as an 
alien of extraordinary ability. The director determined that the petitioner had not established the 
requisite extraordinary ability and failed to submit extensive documentation of his sustained 
national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "sustained national or international acclaim" and present 
"cxtensive documentation" of his or her achievements. See section 203(b)(l)(A)(i) of the Act 
and 8 C.F.R. § 204.S(h)(3). The implementing regulation at 8 C.F.R. § 204.S(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement. specifically a major, internationally recognized award. Absent the receipt of such 
an award, the regulation outlines ten categories of specific evidence. 8 C.F.R. §§ 204.S(h)(3)(i) 
Page 3 
through (x). The petItIOner must submit qualifying evidence under at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel claims that the petitioner meets at least three of the regulatory criteria at 8 
C.F.R. § 204.5(h)(3). 
I. Law 
Section 203(b) of the Act states, in pertinent part, that: 
(l) Priority workers. -- Visas shall first be made available ... to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (e): 
(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 H.R. 723 10 I S[ Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29,1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the 
field of endeavor. Id. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the 
following ten 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; 
Page 4 
(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 intemational expe1ts in their disciplines or 
fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, aJtistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, 111 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has 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. USClS, 596 F.3d IllS (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion 1 With respect to the criteria 
at 8 C.F.R. §§ 204.5(h)(3)(iv) and (vi), the court concluded that while USC IS may have raised 
legitimate concems about the significance of the evidence submitted to meet those two criteria, 
those concems should have been raised in a subsequent "final merits determination." [d. 
I Specifically. the court stated that the AAO had unilaterally imposed novel, substantive. or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.S(h)(3)(iv) and 8 C.F.R. § 204.S(h)(3)(vi). 
Page 5 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, uscrs 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 the[irl 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)(1)(A)(i). 
/d. at 1119. 
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 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ajj'd, 345 F.3d 683 (9
th 
Cir. 2003): 
see also Sollane 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 December 17, 2007, seeks to classify the petitioner as an alien with 
extraordinary ability as a dancer. We note here that at the time of the original filing of the 
petition, the petitioner submitted documentation but failed to specifically identify the criteria under 
the regulation at 8 C.F.R. § 204.5(h)(3) he claimed to meet. It was not apparent ti-om the review of 
the evidence to which criteria the evidence pertained. The burden is on the petitioner to establish 
his eligibility and not on the director to infer or second-guess the intended criteria. As such. the 
director issued a notice of intent to deny the petition pursuant to the regulation at 8 C.F.R. 
§ 103.2(b)(8) describing each of the ten criteria under the regulation at 8 C.F.R. § 204.5(h)(3). 
In response to the director's notice of intent to deny the petition, the petitioner submitted 
additional documentation but again failed to identify the intended criteria. The director denied 
the petition determining that the petitioner failed to establish eligibility as an alien of 
extraordinary ability without addressing any of the criteria pursuant to the regulation at 8 C.F.R. 
-Page 6 
§ 204.5(h)(3). On appeal, counsel submits additional documentary evidence and claims the 
petitioner's eligibility for the awards criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i), the published material criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii), the judging criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iv), 
the display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii), and the leading or 
critical role criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii). Again, with the 
exception of a few brief references to documents, counsel failed to identify which documents on 
appeal, as well as which documents submitted by the petitioner at the time of the filing of the 
petition and in response to the director's notice of intent to deny, pertained to the specific 
claimed criteria. As counsel has failed to specify which documentary evidence relates to the 
regulatory criteria at 8 C.F.R. § 204.5(h)(3), we have considered the evidence submitted under the 
criterion we find to be most applicable. If it is counsel's contention that the documentary evidence 
meets a different criterion, he has never explained which criteria they are or how the evidence 
relates to those criteria. 
Documentation ()f' the alien's receipt (!f' lesser nationally or internationally 
recognized prizes or awardsfor excellence in the field of' endeavor. 
On appeal, counsel argues: 
The Petitioner has been a member of and other 
dancing ensembles in his home country. He has proved he received broad 
national recognition, awards and references. Internationally he has been 
recognized as a part of the National Ballet and its soloist, which means he has 
been a leading dancer and one of the most famous artists in the ballet troupe. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentary evidence: 
I. A diploma from the Cultural Relate Youth Center, Municipal Service of 
Youth Tbilisi Municipality reflecting "[a]rt leader of Ensemble 'GELATI' 
[the petitioner] is rewarded for active cultural work in 2001"; 
2. A diploma from the Tbilisi Municipal, City Office of Culture and Social 
Service, cm UNESCO and lOY Representative in Georgia, Cultural 
Relate Youth Center, reflecting '''FOLKART' REWARDS Leader of 
Choreographic Ensemble 'GELATI' [the petitioner] for active cultural 
work"; 
3. A diploma from the Cultural Relate Youth Center, Alliance of Georgian 
Unity reflecting "Member of' Ensemble 'MAMUU' [the petitioner] is 
rewarded for active cultural work in 2000"; 
Page 7 
4. A diploma from CID UNESCO and Folklore International Organization 
lOY Representative in Georgia, Cultural Relate Youth Center reflecting 
'''FOLKART' REWARDS Art Leader of Georgian Folk Dance Ensemble 
'GELATI' j the petitioner]"; and 
5. A diploma from the 1999 International Festival of Folk Dance, Youth 
Center of Cultural Relations reflecting "Awarded [the petitionerj Soloist 
of Folk Dance Company 'MAMUU.'" 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[ djocumentation of the 
alien's receipt of lesser nationally or internationally recognized prizes or awards f(Jr excellence 
in the field of endeavor jemphasis added]." Moreover, it is the petitioner's burden to establish 
eligibility for every element of this criterion. Not only must the petitioner demonstrate his 
receipt of awards and prizes, he must also demonstrate that those awards and prizes are 
nationally or internationally recognized for excellence. In other words, the petitioner must 
establish his awards and prizes are recognized nationally or internationally beyond the awarding 
entities. 
The petitioner failed to establish that any of his diplomas reflect prizes or awards for excellence. 
Instead, the diplomas are reflective of the petitioner's participation in dance ensembles and not 
evidence that he received an award or prize for excellence for his dance ensembles. For 
example, the diplomas recognize the petitioner for his "active cultural work" and leader of the 
ensembles. Furthermore, counsel's argument that the petitioner has "received broad national 
recognition" and "has been recognized as a part of the National Ballet and its soloist" fails to 
reflect the petitioner's receipt of nationally or internationally recognized prizes or awards for 
excellence. Merely submitting documentation recognizing or acknowledging the petitioner's 
participation in dance ensembles without evidence demonstrating his receipt of any prizes or 
awards is insufficient to meet the plain language of the regulation. 
In addition, even if the diplomas reflected prizes or awards for excellence, which they do not, the 
petitioner failed to submit any other documentary evidence demonstrating that the diplomas are 
nationally or internationally recognized for excellence. In other words, the petitioner failed to 
establish that his diplomas are recognized nationally or internationally beyond the Cultural 
Relate Youth Center, Municipal Service of Youth Tbilisi Municipality, "CID UNESCO," or 
"lOY" Representative in Georgia. Simply submitting evidence of the petitioner's receipt of 
prizes or awards without submitting documentary evidence that the prizes or awards arc 
nationally or internationally recognized for excellence is insufficient to establish eligibility for 
this criterion. 
As discussed, the plain language of this regulatory criterion specifically requires that the 
petitioner receive nationally or internationally recognized prizes or awards for excellence, and it 
is his burden to establish every element of this criterion. In this case, there is no evidence 
demonstrating that the petitioner has received any prizes or awards, let alone nationally or 
internationall y recognized prizes or awards for excellence. 
Page 8 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Puhlished material ahout 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 sou!(ht. Such evidence shall include the title, date, and author (If 
the material. and any necessary translation. 
On appeal, counsel argues: 
Evidence has been submitted with published material about [the petitioner] in the 
local newspaper popular among the Georgian community in NY, USA. Also, 
press release of the world newspapers for the Georgian National Ballet 
performances around the world. Online based testimonials (www.YouTube.com) 
from Georgian National Ballet spectator from all over the world. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "Ip]ublished material 
about the alien in professional or major trade publications or other major media, relating to the 
alien's work in the field for which classification is sought." In general, in order for published 
material to meet this criterion, it must be primarily about the petitioner and, as stated in the 
regulations, be printed in professional or major trade publications or other major media. To qualify 
as major media, the publication should have significant national or international distribution. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers2 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3 )(iii) requires that 
"I s luch evidence shall include the title, date, and author of the material, and any necessary 
translation. " 
As indicated by counsel above, the petitioner submitted an article entitled, 
January 15 - 21,2009, from Forum. The petition was filed 
on December 17,2007. Eligibility must be established at the time of filing. As the article was 
published after the filing of the petition, we will not consider this item as evidence to establish 
the petitioner's eligibility. 8 C.F.R. §§ 103.2(b)(I), (12); Matter (If Kati!(hak, 14 I&N Dec. 45, 
49 (Reg!. Comrnr. 1971). A petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. Matter of /zummi, 22 I&N Dec. 169, 17S (Comm'r. 
1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 
198 I), that we cannot "consider facts that come into being only subsequent to the fil ing of a 
petition." [d. at 176. We note that the article is an interview conducted with the petitioner in 
which the petitioner merely responds to the reporter's questions. The article is not ahollt the 
petitioner relating to his work. Furthermore, the petitioner failed to submit any documentary 
, 
- 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 repulation outside of that county. 
Page 9 
evidence establishing that Forum IS a professional or major trade publication or other major 
media. 
In addition, the petitioner submitted screenshots of a Press Release from the Center of the Arts' 
website entitled, Nov. 17 and 18," October 15,2007 
A review of the press release that it is an announcement for 
upcoming performances and not about the petitioner relating to his 
work. n~t;';,'n'>r is not even mentioned in the press release. Furthermore, the 
petitioner failed to submit any documentary evidence establishing that the website is considered 
major media. We are not persuaded that a press release posted on the Internet is automatically 
considered major media. In today's world, many businesses and organizations have websites 
and advertise and post information on the Internet. However, we are not persuaded that 
international accessibility by itself is a realistic indicator of whether a given website is "major 
media." 
Finally, as indicated above on appeal, counsel claimed that online testimonials were submitted 
from YouTuhe regarding the Georgian National Ballet. However, a review of the record of 
proceeding fails to reflect that the testimonials were ever submitted at any time during the 
proceeding. The unsupported statements of counsel on appeal or in a motion are not evidence 
and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 
n.6 (1984). Nonetheless, we further note that in a supplemental brief, counsel referred to the 
website of You Tuhe and provided the following website address: 
http://www.youtuhe.col1l/watch·)Y=PtpmxTlfLng. However, when the AAO attempted to access 
the website provided by counsel, the website was directed to the home page of YouTuhe.
1 
Regardless, testimonials of the performances by the Georgian National Ballet do not meet the 
plain language of the regulation requiring published material about the petitioner relating to his 
work. Even if counsel submitted the claimed testimonials or the provided website retlecting 
testimonials, counsel indicated that they were about the Georgian National Ballet and not about 
the petitioner. See. e.g., Negro-Plumpe v. Okin, 2:07-CY-820-ECR-RJJ at 7 (D.Nev. Sept. 8, 2008) 
(upholding a finding that articles about a show are not about the actor). 
As discussed above, the documentary evidence submitted by the petItIoner fails to retlect 
published material about him regarding his work in professional or major trade publications or 
other major media. As such, the petitioner failed to meet the plain language of the regulation at 8 
C.F.R. § 204.5(h)3)(iii). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of" others in the same or an allied field of" specification .tiJr which 
classification is sought. 
J Accessed on February 10. 20 II. and incorporated into the record of proceeding. 
Page 10 
On appeal, counsel argues that the petitioner is eligible for this criterion based on "submitted 
copies of the awards Ithe petitioner] received as a leader of the Georgian National Youth 
Ensemble 'Gelati' where he was teaching the students and organizing competitions [or them." 
Regarding counsel's reference to the petitioner's "awards," they have already been considered 
under the regulation at 8 C.F.R. § 204.5(h)(3)(i), and we will not presume that evidence relating to 
or even meeting the awards criterion is presumptive evidence that the petitioner also meets this 
criterion. Because the regulatory criteria under the regulation 8 C.F.R. § 204.5(h)(3) are separate 
and distinct from one another, USCIS clearly does not view these criteria as being 
interchangeable. If evidence sufficient to meet one criterion mandated a finding that an alien met 
another criterion, the requirement that an alien meet at least three criteria would be meaningless. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "Ielvidence of the 
alien's participation, either individually or on a panel, as a judge of the work of others in the same or 
an allied field of specification for which classification is sought." In a supplemental brief, counsel 
for this criterion and submitted a letter, dated May 4, 2009, 
who stated that the 
petitioner "will participate as an instructor and choreographer in our NEA-funded children's 
program that includes a children's dance school and performance ensemble [emphasis added I." 
Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Matter (!t' 
Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. Matter of' /zummi, 22 I&N Dec. at 175. That decision 
further provides, citing Matter or Bardouil/c, 18 I&N Dec. at I 14, that we cannot "consider facts 
that comc into being only subsequent to the filing of a petition." Id. at 176. The petitioner failed 
to establish that he participated as an instructor and choreographer for Dancing Crane, Inc. prior 
to the filing of the petition. Moreover, the record of proceeding contains numerous letters from 
parents, colleagues, and community leaders praising the petitioner for teaching children and 
students how to dance. We note that the letters were submitted on appeal and fail to reflect if the 
events occurred prior to the filing of the petition. 
Regardless, the petitioner submitted a letter from~ho indicated that the petitioner 
was a teacher of dance for the School-Gymnasium EAP-School from 2005 - 2007. However, 
the petitioner failed to submit any documentary evidence reflecting that he has judged the work 
of others. While the reference letters reflect that the petitioner instructed children and students, 
the petitioner failed to submit any other documentary evidence demonstrating that his teaching 
equates to the judging of others. Further, we are not persuaded that "organizing competitions," 
participating as a choreographer, or serving as a leader in a dance ensemble, equates to 
participating as a judge of the work of others. The petitioner failed to submit, for example. 
documentary evidence demonstrating that he has served as a judge or carried out the 
responsibilities of a judge. Submitting documentary evidence that merely reflects that the 
petitioner has taught children without evidence establishing that he has judged the work of others 
is insufficient to meet the plain language of this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Page 11 
Evidence o( the display of the alien's work in the field at artistic exhibitions or 
showcases. 
On appeal, counsel argues the petitioner's eligibility for this criterion based on the petitioner's 
"participatlion] in all the spectacles of the Georgian National Ballet for the period 2004 - 2008 
performed worldwide. He took part of numerous artistic performances as a solo dancer of the 
Georgian State troupe." 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)( vii) requires "Ie Ividence of the 
display of the alien's work in the field at artistic exhibitions or showcases." The petitioner is a 
dancer. When he dances before audiences, he is not displaying his dancing in the same sense 
that a painter or sculptor displays his or her work in a gallery or museum. The petitioner is 
performing his work, he is not displaying his work. In addition, to the extent that the petitioner 
is a performing artist, it is inherent to his occupation to perform. Not every performance is an 
artistic exhibition designed to showcase the performer's art. If we were to accept that a 
performance artist like the petitioner meets this criterion, it would render the regulatory 
requirement that the petitioner meet at least three criteria meaningless as this criterion would 
effectively be collapsed into the criterion at the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 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 8-9. (finding that the AAO did not abuse its 
discretion in finding that a performance artist should not be considered under the display 
criterion). While we acknowledge that a district court's decision is not binding, the court's 
reasoning indicates that the AAO's interpretation of the regulation is reasonable. 
Therefore, while the petitioner's performances have evidentiary value for other criteria, they 
cannot serve to meet this criterion. Instead, as the petitioner's performances are far more 
relevant to the aforementioned "leading or critical role" criterion set forth at the regulation at 8 
C.F.R. § 204.5(h)(3)(viii), they will be discussed separately within the context of that criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has perj()rmed in a leading or critical rolej()r organizations 
or establishments that have a distinguished reputation. 
A review of the record of proceeding reflects that the petitioner submitted the following 
documentation: 
1. A certificate from~ho certified that the petitioner was a 
ballet-dancer for the Georgian National Ballet (GNB); 
2. A letter 
for GNB; 
stated that the petitioner was a soloist 
Page 12 
3. A letter fro~who stated that the f'''''HL''' 
artist (soloist) of the Georgian National Dance Ensemble. 
4. A testimonial from who stated that the petitioner headed the 
children's choreographic ensemble, I 
5. A letter ~'" JU'Ull<'" worked as a 
and 
6. Numerous letters stating that the petitioner worked in the ensembles 
The plain language of the regulation at 8 c.F.R. § 204.5(h)(3)(viii) requires "leJvidence that the 
alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." In general, a leading role is evidenced from the role itself, and a 
critical role is one in which the alien was responsible for the success or standing of the 
organization or establishment. Based on the submitted documentary evidence listed above. we 
are not persuaded that the petitioner has performed in a leading or critical role consistent with the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). The petitioner failed to submit 
any documentary evidence reflecting that his roles for GNB or School-Gymnasium EAP-School 
were leading or critical. Merely submitting documentary evidence demonstrating that he 
performed for the GNB or worked as a teacher for a school is insufficient to establish that he 
performed in a leading or critical role. We are not persuaded that performing as a soloist in an 
ensemble also demonstrates a leading or critical role when compared to GNB as a whole. as well 
as working as a teacher when compared to the school as a whole. The petitioner failed to submit 
any documentary evidence comparing his roles for GNB to that of the other performers or 
individuals with GNB. We note here that the petitioner submitted another letter from _ 
_ who indicated that he was "the leader of the ensemble It that the 
~ subordinate to Furthermore. it appears 
_ are the leaders of the GNB. the has not np,+",·~p·rI 
or critical role for GNB, when compared to Mr. 
Moreover, the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires that the petitioner perform in a 
leading or critical role "for organizations or establishments that have a distinguished reputation." 
The petitioner failed to submit any documentary evidence regarding School-Gymnasium EAP­
School, so as to establish that it has a distinguished reputation. Regarding GNB, the petitioner 
submitted documents that appeared to be brochures and advertisements from GNB; however the 
petitioner failed to submit translations, let alone certified translations pursuant to the regulation 
at 8 C.F.R. § 103.2(b)(3). Regardless, the petitioner failed to submit independent, objective 
evidence demonstrating the distinguished reputation of GNB. We note that the petitioner 
submitted screenshots from the website of the Internet Broadway Database for the Georgian 
State Dance Company. The petitioner failed to submit any documentary evidence establishing 
Page 13 
that he performed for the Georgian State Dance Company, let alone that he performed 111 a 
leading or critical role. 
On appeal, counsel claims the petitioner's eligibility for this criterion based on the claim that he 
"is a dance instructor in two local NY based dancing schools." A review of the record of 
proceeding reflects that he submitted a letter, dated October 7, 2010, from ~ho 
stated: 
IThe petitioner I is a uniquely talented dancer who has been associated with 
programs since he arrived in the United States in 2007. He has 
an impeccable background as a soloist with Georgia's premier dance ensemble, 
He is a consummate performer and a featured 
soloist in our dance concerts. He is a specialist in all of the Georgian dance 
styles, and is able to combine subtlety, elegance and strength in his 
interpretations, as evidenced by his special mastery of the dances Kartuli 
(considered the most subtle and difficult Georgian dance, for two soloists - man 
and woman), Parikaoba (a courtship and battle dance) and Svanuri (a men's dance 
with complex techniques on the toes). We are fortunate to include a dancer of 
I the petitioner'sl training and talent in our ongoing program . 
•••••• President stated: 
Please be advised I ... have known I the petitioner I since September of 2008, he 
was a referral At the time my company 
and I were in dire a and teacher that was 
phenomenal at what they did. A prior experience as well as attained a degree in 
such field was a must and in addition, the grave importance to advance my school. 
I am very pleased and proud to have [the petitioner I on our team he is a great 
asset to my company and my children. IThe petitioner I has taught so much to my 
children in such a short time. I The petitioner I is a talented gentleman with a very 
bright future. He is a major key to our company we desperately need him and can 
not afford to loose him. 
As indicated earlier, to indicate that the petitioner was ever employed by 
Moreover, the second letter from _ referenced above merely 
pel:iti,)11t~r was "associated with . since he arrived in 
the United States in 2007." The petitioner failed to establish that he was emplo~ 
prior to the filing of the petition. Furthermore, the letter from _ refers 
to knowing the petitioner since September 2008, after the filing of the petition. Eligibility must 
be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of' Katighak, 14 I&N 
Dec. at 49. A petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. Matter of Izummi, 22 I&N Dec. at 175. That decision further 
provides, citing Matter of' Bardouille, 18 I&N Dec. at 114, that we cannot "consider facts that 
Page 14 
come into being only subsequent to the filing of a petition." [d. at 176. Regardless, the letters 
fail to reflect that the petitioner performed in a and the petitioner failed to 
submit any documentary evidence establishing that and_Jewish 
Youth Center have distinguished reputations. USCIS may, in its discretion, use as advisory 
opinion statements submitted as expert testimony. See Matter of Caron International, 19 I&N 
Dec. 791, 795 (Commr. 1988). However, USCIS is ultimate I y responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of 
letters of support from the petitioner's personal contacts 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. 
For the reasons discussed above, the petitioner failed to establish that he performed in a leading 
or critical for organizations or establish that have a distinguished reputation pursuant to the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must 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 C.F.R. § 204.5(h)(2); and (2) "that the alien has 
sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise." See section 203(b)(I)(A)(i) of the Act, 8 U.S.c. 
§ I 153(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The 
petitioner failed to establish eligibility for any of the criteria, in which at least three are required 
under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, 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 C.F.R. § 204.5(h)(3). 
In evaluating our final merits determination, we must look at the totality of the evidence to 
conclude the petitioner's eligibility pursuant to section 203(b)(l)(A) of the Act. In this case, the 
petitioner has performed as a dancer for GNB, and the majority of the petitioner's documentation 
relate to children and youth ensembles. However, the accomplishments of the petitioner fall far 
short of establishing that he "is one of that small percentage who have risen to the very top of the 
field of endeavor" and that he "has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." See 8 C.F.R. § 204.5(h)(2), section 
203(b)(1)(A)(i) of the Act, 8 U.S.c. § 1 153(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "Ia] petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's documentary evidence must be evaluated in terms of these requirements. The weight 
-Page 15 
given to evidence submitted to fulfill the criteria at 8 C.F.R. * 204.5(h)(3), therefore, depends on 
the extent to which such evidence demonstrates, reflects, or is consistent with sustained national 
or international acclaim at the very top of the alien's field of endeavor. 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. § 204.5(h)(2). 
Although we found that the petitioner failed to establish eligibility for the awards criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i), the petitioner's documentary evidence 
reflected certificates involving the petitioner's youth performances. Awards derived from youth 
ensembles and competitions do not reflect that "small percentage who have risen to the very top 
of the field of endeavor." See 8 C.F.R. § 204.5(h)(2). There is no indication that the petitioner 
faced significant competition from throughout his field, rather than mostly limited to a few 
individuals in youth level status or other similarly limited competition. uscrs has long held that 
even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Matter (If Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 1994); 56 Fed. Reg. 
at 60899 4 Likewise, it does not follow that a dancer like the petitioner who has been 
acknowledged as participating in youth ensembles 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." 
Similarly, while we found that the petitioner failed to establish eligibility for the judging 
criterion pursuant to the regulation at 8 C.F.R. 204.5(h)(3)(iv), the petitioner claimed eligibility 
based on teaching students and children. Judging local, amateur, or student competitions is not 
indicative of "that small percentage of individuals that have risen to the very top of their field of 
endeavor." Sec, e.g., Matter of Price, 20 I&N at 954. Evaluating the work of accomplished 
dancers as a member on a national panel of experts is of far greater probative value than evaluating 
the work of students and children. Likewise, counsel claimed the petitioner's eligibility for the 
leading or critical role criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii) based on 
4 While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of' 
Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated; 
[T]he plain reading of the statute suggests that the appropriate field of comparison is not 
a comparison of ; ability with that of all the hockey players at all levels of play; 
but rather, ability as a professional hockey player within the NHL. This 
interpretation is consistent with at least one other court in this district, Crimson v. INS, 
No. 93 C 3354, (ND. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
§ 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
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.F.R. § 204.5(h)(2) is 
reasonable. 
Page 16 
the petitioner's teaching of children. We note that the petitioner intends to continue to work in the 
United States teaching and working with children. 
We also cannot ignore that the statute requires the petitIOner to submit "extensive 
documentation" of the petitioner's sustained national or international acclaim. See section 
203(b)(1 )(A) of the Act. The commentary for the proposed regulations implementing section 
203(b)(1)(A)(i) of the Act provide that the "intent of Congress that a very high standard be set for 
aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to present 
more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 
30704 (July 5, 1991). Although we found that the petitioner failed to establish eligibility for the 
published material criterion, the petitioner claimed eligibility based on an interview in a local 
paper after the filing of the petition, a press release that did not mention the petitioner, and 
You Tube testimonials that that were not submitted. A dancer, such as the petitioner with 
sustained national or international acclaim should have substantial published material about him 
and his work. Further, the record of proceeding contains several letters reflecting the petitioner's 
participation as a dancer but do not distinguish the petitioner as "one of that small percentage 
who have risen to the very top of the field of endeavor." It must be emphasized that the 
favorable opinions of experts in the field, while not without evidentiary weight, are not a solid 
basis for a successful extraordinary ability claim. Again, uscrs may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Matter of' Caron Internatiol1al, 
19 I&N Dec. at 795. However, uscrs is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The truth is to be 
determined not by the quantity of evidence alone but by its quality. Matter of Chawathe, 25 I&N 
Dec. at 376 citing Matter of' E-M- 20 r&N Dec. 77, 80 (Comm'r. 1989). 
The petitioner failed to submit evidence demonstrating that he "is one of that small percentage who 
have risen to the very top of the field." In addition, the petitioner has not demonstrated his "career 
of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723,59 (Sept. 19, 
1990). 
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. The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of the 
small percentage who has risen to the very top of the field of endeavor. 
III. P-I Nonimmigrant Admission 
Finally, we note that at the time of the filing of the petition, the petitioner was last admitted on 
September 29, 2007, to the United States as a P-I nonimmigrant, a visa classification that 
requires the alien to perform as an entertainer as an integral and essential part of the performance 
of an entertainment group that has been recognized internationally as being outstanding in the 
discipline for a sustained and substantial period of time and the alien seeks to enter the United 
Page 17 
States "temporarily and solely for the purpose of performing as such a performer or entertainer 
or as an integral and essential part of a performance." See section 214(c)(4)(B) of the Act, 8 
u.s.c. * 1184( c)( 4 )(B). The current record is devoid of any evidence to indicate that the 
petitioner is performing as an entertainer at an internationally recognized level or that he is in the 
United States "temporarily and solely" for the purpose of performing as such an entertainer. 
While USCIS has approved at least one pol nonimmigrant visa petition filed on behalf of the 
petitioner, the prior approval does not preclude USCIS from denying an immigrant visa petition 
based on a different standard. It must be noted that many 1-140 immigrant petitions are denied 
after USC IS 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. ofJustice, 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 USC IS 
spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some 
nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 
1240482 (5th Cir. 2004) (finding that prior approvals do not preclude USCIS from denying an 
extension of the original visa based on a reassessment of petitioner's qualifications). 
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" Maller 
of' Church Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that 
USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. 
Montgomery, 825 F.2d at 1090. 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director had approved 
the nonimmigrant petitions on behalf of the beneficiary, 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.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.O. 51 (2001). 
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, 
(ifj'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). 
IV. 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)( 1 )(A) of the Act, and the petition may not be approved. 
Page 18 
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 met. 
ORDER: The appeal is dismissed.