dismissed EB-1A Case: Stage Construction And Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 1, 2024 In Re: 33669009 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner seeks to classify himself as "an individual of extraordinary ability in the field of Stage 
Construction and Engineering as it applies to Art, Theatre, and Film Production." See Immigration 
and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § l 153(b)(l)(A) . This first preference 
classification makes immigrant visas available to those who can demonstrate their extraordinary 
ability through sustained national or international acclaim and whose achievements have been 
recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition. Although the Director concluded 
that the record does not establish the Petitioner received a one-time achievement of a major, 
internationally recognized award, the Director determined that, in the alternative, the record satisfies 
at least three of the 10 initial evidentiary criteria. However, the Director ultimately concluded that the 
record does not establish sustained national or international acclaim and that the Petitioner is among 
the small percentage at the very top of the field of endeavor. The matter is now before us on appeal 
pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 
203(b)(l) of the Act makes visas available to immigrants with extraordinary ability if: 
(i) the [ non citizen] 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 [ noncitizen] seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the [ non citizen]' s entry into the United States will substantially benefit 
prospectively the United States. 
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." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained 
acclaim and the recognition of their achievements in the field through a one-time achievement (that 
is, a major, internationally recognized award). If that petitioner does not submit this evidence, then 
they must provide sufficient qualifying documentation that meets at least three of the 10 categories 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as awards, published material in certain 
media, and scholarly articles). 
Additionally, if the criteria at 8 C.F.R. § 204.5(h)(3) "do not readily apply to the beneficiary's 
occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility." 
8 C.F.R. § 204.5(h)(4). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). 
TI. ANALYSIS 
As noted above, the Director concluded the record does not establish the Petitioner received a one­
time achievement of a major, internationally recognized award; however, the Director determined that, 
in the alternative, the record satisfies at least three of the 10 listed at 8 C.F.R. §§ 204.5(h)(3)(i)-(x). 
Specifically, the Director found that the record satisfies the plain language of the criteria at 8 C.F.R. 
§§ 204.5(h)(3)(iii), (vi), and (viii); however, the Director concluded that the record does not satisfy 
the criteria at 8 C.F.R. §§ 204.5(h)(3)(v), (vii), and (ix). The Director noted that the Petitioner did not 
assert that the record satisfies the criteria at 8 C.F.R. §§ 204.5(h)(3)(i)-(ii), (iv), and (x). The Director 
concluded, upon examining the evidence presented in its entirety for the final merits determination 
addressed in Kazarian, that the record does not show sustained national or international acclaim or 
that the Petitioner is among the small percentage at the top of the field of endeavor. See Kazarian, 
596 F.3d at 1119-20 (citing section 203(b)(l)(A) of the Act; 8 C.F.R. §§ 204.5(h)(2)-(3)). 
On appeal, the Petitioner reasserts that the record satisfies the criteria at 8 C.F.R. §§ 204.5(h)(3)(v), 
(vii), and (ix), in addition to the criteria at 8 C.F.R. §§ 204.5(h)(3)(iii), (vi), and (viii). The Petitioner 
does not assert on appeal that the record satisfies the criteria at 8 C.F.R. §§ 204.5(h)(3)(i)-(ii), (iv), or 
(x), thereby waiving these criteria. See, e.g., Matter ofM-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009) 
(citing Greenlaw v. US., 554 U.S. 237 (2008) (upholding the party presentation rule)). Moreover, the 
Petitioner does not assert on appeal that the record shows both sustained national or international 
acclaim and that the Petitioner is among the small percentage at the top of the field of endeavor. See 
Kazarian, 596 F.3d at 1119-20 (citing section 203(b)(l)(A) of the Act; 8 C.F.R. §§ 204.5(h)(2)-(3)). 
Instead, on appeal, the Petitioner asserts that Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich 1994) 
instructs that, upon satisfying at least three of the criteria at 8 C.F.R. §§ 204.5(h)(3)(i)-(x), "the 
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[P]etitioner should be deemed qualified, and the burden shifts onto [USCIS] to reject the evidence that 
meet the criteria, if suppose, it finds that the evidence was fraudulent or too dated and stale." The 
Petitioner summarizes Kazarian with directly conflicting statements that "[t]he Kazarian case contains 
no mention of a 'final merits determination' nor any discussion of what such a determination might 
entail" while also acknowledging, two sentences later, that "the Kazarian decision in the Ninth Circuit 
mentions the concept of a 'final merits determination' exactly twice." 
We need not address whether the record satisfies the criteria at 8 C.F.R. §§ 204.5(h)(3)(v), (vii), and 
(ix), in addition to the criteria at 8 C.F.R. §§ 204.5(h)(3)(iii), (vi), and (viii) because, in any event, the 
Petitioner does not establish on appeal how the record shows both sustained national or international 
acclaim and that the Petitioner is among the small percentage at the top of the field of endeavor, which 
is the Director's basis for denying the Form 1-140, Immigrant Petition for Alien Workers. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 I&N 
Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible); Kazarian, 596 F.3d at 1119-20 (citing section 203(b)(l)(A) of the Act; 8 C.F.R. 
§§ 204.5(h)(2)-(3)). 
We first note that the Petitioner does not clarify how Buletini, a district court case published within 
the Sixth Circuit in 1994, may supersede Kazarian, a circuit court case published in 2010 within the 
Ninth Circuit-wherein the Petitioner resides. See, e.g., Matter of K-S-, 20 I&N Dec. 715, 718-20 
(BIA 1993) ( contrasting the precedential value of circuit court cases for matters arising therein from 
the non-precedential value of district court cases, especially district court cases within other circuits). 
Moreover, the Buletini decision does not clearly conflict with the Kazarian court's characterization of 
the adjudication process as including a final merits determination. The Buletini opinion indicates that 
the court considered the possibility that a petitioner can submit evidence satisfying three criteria and 
still not meet the extraordinary ability standard if USCIS provides specific and substantiated reasoning 
for its conclusion. See Buletini, 860 F. Supp. at 1234. The court in Buletini did not reject at any time 
the concept of examining the quality of the evidence presented to determine whether it establishes a 
Petitioner's eligibility for this highly restrictive classification. 
We next note that the Petitioner mischaracterizes the extent to which Kazarian not only acknowledges 
but also articulates the requisite two steps of analysis for a request for classification as an individual 
of extraordinary ability under section 203(b )( 1 )( A) of the Act. The Ninth Circuit began by noting that 
a petitioner may satisfy initial evidentiary criteria by establishing receipt of a one-time achievement 
of a major, internationally recognized award, or through at least three of the criteria at 8 C.F.R. 
§§ 204.5(h)(3)(i)-(x). The Ninth Circuit continued, stating: 
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 the[ir] field of endeavor," 
8 C.F.R. § 204.5(h)(2), and "that the [individual] 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 [individuals] whose achievements have 
garnered "sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. § 1153(b)(l)(A)(i). 
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Kazarian, 596 F.3d at 1119-20. In addition to acknowledging that the analysis for a request for 
classification as an individual of extraordinary ability entails a two-step process, specifically citing 
section 203(b )(1 )(A) of the Act and 8 C.F.R. §§ 204.5(h)(2)-(3) as the basis for such a process, the 
Ninth Circuit itself declined to conduct the second step of the analysis because the individual in that 
case did not satisfy the first step. Specifically, the Ninth Circuit determined that the record in that case 
satisfied only two of the criteria at 8 C.F.R. §§ 204.5(h)(3)(i)-(x), and it concluded the following: 
Whether an applicant for an extraordinary visa [sic] presents two types of evidence or 
none, the proper procedure is to count the types of evidence provided (which the AAO 
did), and the proper conclusion is that the applicant has failed to satisfy the regulatory 
requirement of three types of evidence (as the AAO concluded). 
Kazarian, 596 F.3d at 1122 (citing 8 C.F.R. § 204.5(h)(3)). The Kazarian court then declined to 
conduct the second part of the analysis for that case by omitting a discussion of whether the record 
shows sustained national or international acclaim and demonstrates that the individual is among the 
small percentage at the very top of the field of endeavor, because that petitioner did not satisfy the 
initial evidentiary requirements. Id. 
Here, the Director found that the record satisfies the plain language of the criteria at 8 C.F.R. 
§§ 204.5(h)(3)(iii), (vi), and (viii). Thus, the primary issue on appeal is whether the Director erred by 
concluding that the totality of the evidence does not show both sustained national or international 
acclaim and that the Petitioner is among the small percentage at the very top of the field of endeavor. 
On appeal, the Petitioner does not clarify how the Director erred in concluding the record does not 
satisfy both of those requirements. 
Black's Law Dictionary defines "sustain" as "to support or maintain, especially over a long period of 
time" or "to persist in making (an effort) over a long period of time." Sustain, Black's Law Dictionary 
(11th ed. 2019). In general, the record contains limited information pertinent to any particular 
criterion, which does not demonstrate that the Petitioner has supported or maintained any level of 
acclaim he may have earned in any particular capacity, especially over a long period of time. For 
example, the copies of published material about the Petitioner, as contemplated by the criterion at 
8 C.F.R. § 204.5(h)(3)(iii), are limited to 2023 and 2024, shortly before the Petitioner filed the Form 
I-140, Immigrant Petition for Alien Workers; thus, they are not supported or maintained especially 
over a long period of time. Se id. The record establishes that the Petitioner published one article in 
1990, as contemplated by the criterion at 8 C.F.R. § 204.5(h)(3)(vi). However, the record does not 
establish how publishing a single article demonstrates that the Petitioner is among the small percentage 
at the very top of the field of endeavor, or how he may have sustained whatever acclaim he may have 
garnered by publishing that article in the decades leading up to the Form I-140 filing date. Relatedly, 
as the Director noted, the record does not establish that any other individual in the field has cited the 
article the Petitioner published, indicating an absence of notoriety by virtue of having published that 
article. In turn, the Petitioner's leading or critical role for an organization or establishment that has a 
distinguished reputation, as contemplated by the criterion at 8 C.F.R. § 204.5(h)(3)(viii), appears to 
be limited to 2014, without evidence of how the Petitioner may have sustained any acclaim acquired 
thereby. See id. 
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Although the record establishes that the Petitioner has made contributions of significance to his 
employers over a sustained period, it does not establish how the Petitioner has made contributions of 
major significance in the broader "field of Stage Construction and Engineering as it applies to Art, 
Theatre, and Film Production," as the Petitioner described the field in question, as contemplated by 
the criterion at 8 C.F.R. § 204.5(h)(3)(v). We note that, on appeal, the Petitioner discusses projects 
unrelated to art, theatre, and film production, such as a "[u]nique engineering project for the new 
research station and a "[m ]obi le [ w ]orkshop for 
The record does not establish the materiality of these projects to art, theatre, and 
film production. Without establishing how the Petitioner's contributions are of major significance in 
the in the broader "field of Stage Construction and Engineering as it applies to Art, Theatre, and Film 
Production," beyond significance to his employers, the record does not establish how his contributions 
demonstrate that the Petitioner may be among the small percentage at the very top of the field of 
endeavor, as contemplated by the criterion at 8 C.F.R. § 204.5(h)(2). 
In tum, as the Director explained, because the record does not contain probative evidence of the 
salaries or other remuneration of others in the field, the record does not satisfy the plain language of 
the criterion at 8 C.F.R. § 204.5(h)(3)(ix), contemplating "[e ]vidence that the [individual] has 
commanded a high salary or other significantly high remuneration for services, in relation to others in 
the field." Moreover, without establishing whether the salary or other remuneration the Petitioner has 
received is high in relation to others in the field, the record also does not establish how the salary or 
other remuneration the Petitioner has received may demonstrate that the Petitioner may be among the 
small percentage at the very top of the field of endeavor, as contemplated by the criterion at 8 C.F.R. 
§ 204.5(h)(2). 
Because the Petitioner does not establish on appeal that the totality of the material provided shows 
both sustained national or international acclaim and demonstrates that the Petitioner is among the small 
percentage at the very top of the field of endeavor, the Petitioner is not eligible for the requested 
classification. See Kazarian, 596 F.3d at 1119-20 (citing section 203(b)(l)(A) of the Act; 8 C.F.R. 
§§ 204.5(h)(2)-(3)). 
III. CONCLUSION 
The evidence meets at least three of the 10 criteria at 8 C.F.R. §§ 204.5(h)(3)(i)-(x). However, the 
totality of the record does not support a conclusion that the Petitioner has established the acclaim and 
recognition required for the classification sought. See Kazarian, 596 F.3d at 1119-20. The Petitioner 
has not shown that the significance of his work is indicative of the required sustained national or 
international acclaim or that it is consistent with a "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); see also section 203(b )(l)(A) 
of the Act. The record does not otherwise demonstrate that the Petitioner has garnered national or 
international acclaim in the field and that he is one of the small percentage who has risen to the very 
top of the field of endeavor. See section 203(b)(l)(A) of the Act; see also 8 C.F.R. § 204.5(h)(2). 
ORDER: The appeal is dismissed. 
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