dismissed EB-1A Case: Television Production/Directing

identifying data deleted to 
prevent clearly uwarranted 
invasion of persolla\ privacy 
U.S. Department of Homeland Security 
U.S. citizenship and Immigration Services 
Ofice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
puEnJC COPY 
R 7. 
- 
FILE: Office: NEBRASKA SERVICE CENTER Date: MAY 2 8 2009 
LIN 06 210 50435 
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. 9 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
3 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Fonn I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
103.5(a)(l)(i). 
M.QrPrc~i 
f- John F. Grissom 
?b Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petition 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. 5 1153(b)(l)(A), as an 
alien of extraordinary ability in the arts. The director determined the petitioner had not 
established the sustained national or international acclaim necessary to qualify for classification 
as an alien of extraordinary ability. 
On appeal, counsel argues that the director misapplied the law and the facts and that the 
petitioner meets at least three of the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority Workers. - Visas shall first be made available . . . to qualified 
immigrants who are aliens described in any of the following subparagraphs (A) 
through (C): 
(A) Aliens with Extraordinary Ability. - An alien is described in this 
subparagraph if - 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national 
or international acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area 
of extraordinary ability, and 
(iii) the alien's entry to the United States will substantially benefit 
prospectively the United States. 
As used in this section, the term "extraordinary ability" means a level of expertise indicating that 
the individual is one of that small percentage who has risen to the very top of the field of 
endeavor. 8 C.F.R. 5 204.5(h)(2). The specific requirements for supporting documents to 
establish that an alien has sustained national or international acclaim and recognition in his or her 
field of expertise are set forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant criteria 
will be addressed below. It should be reiterated, however, that the petitioner must show that he 
has sustained national or international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a 
producerldirector. In describing the job on the Form 1-140, Immigrant Petition for Alien Worker, 
the petitioner stated that he would "[plroduce and direct noncommercial productions." In 
denying the petition, the director stated that the petitioner "must establish extraordinary ability in 
the field as a whole, not just in a particular area." Counsel takes issue with this statement on 
appeal, arguing that "[a] reasonable narrowing of the scope of consideration is obligatory in this 
case as commercial television and non-commercial community television are such diametrically 
different arenas."' Counsel cites to an unpublished opinion by the AAO in support of his 
argument. While 8 C.F.R. 8 103.3(c) provides that precedent decisions of the United States 
Citizenship and Immigration Services (USCIS) are binding on all USCIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. Precedent decisions 
must be designated and published in bound volumes or as interim decisions. 8 C.F.R. 5 103.9(a). 
Nonetheless, in this instance we concur with counsel that the director's statement regarding the 
petitioner's designated area of expertise is overreaching. As with other fields of endeavor, such 
as acting (movie, television or theater), athletics, musicians, or artists, it is reasonable to 
distinguish between the various categories of producing and directing, although they may fall 
within the same general category and use the same general skill set. Counsel has submitted 
voluminous evidence to establish that the petitioner's work in noncommercial television is 
separate and distinct from commercial television. This finding, however, in no way minimizes 
the petitioner's burden of proof in establishing that he is among the very top of his field in 
directing and producing noncommercial television. 
The regulation at 8 C.F.R. $ 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, 
internationally recognized award). Barring the alien's receipt of such an award, the regulation 
outlines ten criteria, at least three of which must be satisfied for an alien to establish the 
sustained acclaim necessary to qualify as an alien of extraordinary ability. 
In his June 29, 2006 letter accompanying the petition, prior counsel alleged that the petitioner 
qualified for this visa preference classification because of his receipt of a major internationally 
recognized award. specifically, the petitioner had been the recipient of an Emrny Award as 
director of the program "Access Democracy: Smackdown Your Vote." The petitioner provided 
photographs of himself posing with an Emmy Award and submitted a May 15, 2006 letter fiom 
B, founder and director of the Downtown Community Television Center (DCTV). Mr. 
indicated that the petitioner was recruited to work on DCTV's show I.M.N. Y. and stated: 
[The petitioner's] work on I.M.N. Y. was recognized with the 2004 Emmy Award 
for Outstanding Teen Programming as well as the Aurora Awards Gold Award 
and the 2003 Chicago International Television Award. He is a principal force in 
providing groundbreaking, non-commercial media work to the public. His 
contribution to our non-commercial work is well documented and gained both 
DCTV and [the petitioner] great national and international acclaim Other 
programs he directed here at DCTV include Bridge to Baghdad which aired 
1 
 As the petitioner has obtained new counsel on appeal, the terms "prior counsel" or "previous counsel" 
will be used in reference to the attorney who represented the petitioner prior to the appeal. 
Page 4 
nationally on MTV and received outstanding reviews, Access Democracy which 
was awarded yet another Emmy Award, and a special program on the 1-year 
anniversary of September 11, which aired nationally on Link TV, as well as in 
Asia on the channel NHK. 
The petitioner submitted what appears to be a program or flyer indicating that the New York 
Chapter of the National Television Academy "honors Access Democracy Smackdown Your 
Vote," was nominated for Outstanding ChildrensIYouth & Teen Programming at the 2001 -2002 
New York Emmy Awards. The document identifies the petitioner as the director, but does not 
indicate that the program actually won the award. The petitioner also provided a list of the 2003 
winners of the Annual New York Emmy Awards. The document includes "Access Democracy 
Smackdown Your Vote" under ChildrensNouth & Teen Programming; however, the source of 
this document is not shown. 
In response to the director's request for evidence (RFE) dated March 28, 2007, the petitioner 
submitted another photograph of the 2001-2002 Emmy Award for the show "Access Democracy 
Smackdown Your Vote." This photograph clearly indicates that the Emmy was awarded to Time 
Warner Cable. The award inscription included the name of s the producer of 
the program but did not name the petitioner. We note that the petitioner submitted no photograph 
of the 2003 Emmy. The petitioner also submitted a copy of a June 16, 2007 letter from- 
who identified himself as "an elected Director representative of the New York Chapter of 
the National Academy of Television Arts and Sciences (NATAS), "which is associated with the 
famous Emmy Awards@ for television programming." stated, "[als the same high 
standards are used for the granting of all Emmy@ Awards around the country, in both national 
and regional competitions, all Emmy@ Awards are recognized internationally as the top award 
for television shows and professionals in the United States." stated that the petitioner 
directed "Access Democracy Smackdown Your Vote," which was awarded an Emmy in 2001 
and IMNY, produced by 
 which was awarded an Emmy in 2003-for Teen 
Programming. further stated: 
Traditionally, when an award is given to a program (not an individual person), the 
program's title and the producer's name are inscribed on the award. The producer 
is the "official representative" of the entire production team. It should be noted 
that under the "Children/Youth" category there is no specific award given to "best 
director", "best producer", "best editor", etc. 
The show as a whole is awarded and recognized under this category. This same 
procedure is followed for similar categories in the Academy Awards (the 
"Oscars"@), as well. Naturally, the Director plays a pivotal role in creating the 
production. The award is given to the program due to the Director's vision and 
leadership that made a show stand-out in comparison to other nominated 
productions. The Producer is the 'point person' responsible for everything from 
financing and the smooth running of the set, to development, sales and post- 
production. Thus, the Director, not the Producer, is the artistic, creative and 
technical force behind every award-winning film or TV broadcast. The Producer 
is the "official representative" accepting the award on behalf of the production 
team. The Director's share in every "Best Show" award is extremely significant! 
On appeal, counsel asserts: 
When a television production wins an award, the Director is an immediate 
recipient of that award. The producer traditionally acts as the "official 
representative" when a telecast or film is honored as a whole, but it is ignorant to 
discredit the Director's role in creating the award winning production or to deny 
the Director his share in the award. It is the Director's vision and leadership that 
cause a show in its entirety to be honored . . . No person would dare claim that the 
Director is not specifically honored in such an accolade. It is also important to 
note that the NY Emmy@ does not provide a separate award for Best Director in 
each category. 
While we do not dispute the petitioner's role as director in the programs that were awarded the 
- - 
Emmy, we cannot i&ore the-fact that the prize was awarded to Time Warner Cable and not to 
the detitioner. 
 letter underscores this point. The producer is the official 
representative of the team, the producer's name appears on the award and the producer accepts 
the award on behalf of the team. We also do not dispute counsel's assertions that the director 
reaps some benefit from the award. Nonetheless, the plain language of this criterion requires the 
alien to document his or her own receipt of the award. The petitioner has not done so. Awards 
presented to a third-party or organization are not sufficient to establish eligibility. The fact that 
the New York chapter does not award a "best director" award in the petitioner's field does not 
lessen his burden or proof. 
Accordingly, despite counsel's assertions that it is an "an act of extraordinary folly," we find that 
the evidence does not establish that the petitioner won an Emmy Award. Further, the petitioner's 
contention that the Emmy awarded by the New York Chapter is internationally recognized as an 
award of excellence is not supported by the record. We are not persuaded that an award whose 
participants and recipients are-constrained to one particular local area is indicative of the national 
or international recognition of that award. ~hile claims that the regional award 
carries the same national and international recognition as the national award, the petitioner 
provides no evidence to support this statement. The petitioner has failed to produce documentary 
evidence to establish that the receipt of an Emmy fi-om a local chapter carries the same 
significance as an Emrny awarded on a national level, much less an international level. 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. 158, 165 (Comm. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner has not established that he is the recipient of a major, internationally recognized 
award. 
The petitioner also submitted evidence that, he claims, meets the following criteria.* A petitioner, 
however, cannot establish eligibility for this classification merely by submitting evidence that 
simply relates to at least three of the criteria outlined in 8 C.F.R. 8 204.5(h)(3). In determining 
whether the petitioner meets a specific criterion, the evidence itself must be evaluated in terms of 
whether it is indicative of or consistent with sustained national or international acclaim. A lower 
evidentiary standard would not be consistent with the regulatory definition of "extraordinary 
ability" as "a level of expertise indicating that the individual is one of that small percentage who 
have risen to the very top of the field of endeavor." 8 C.F.R. 5 204.5(h)(2). 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
Prior counsel alleges that the petitioner meets this criterion based on recognition of his work 
"with Emmy and Aurora Awards," as well as other organizations such as the Television News 
Directors Association, the National Federation of Community Broadcasters, and the Chicago 
International Television Award. As noted above, the petitioner submitted photographs of him 
with two Aurora Awards. 
 stated in his May 15,2006 letter: 
[W]e at DCTV invited [the petitioner] to direct a project titled Live from 
Downtown. The show as groundbreaking . . . The program gained enormous 
popularity among viewers . . . [The petitioner] is responsible for the critical and 
popular success of the program. He ensured that all aspects of the production ran 
smoothly, including all technical aspects of the broadcasts, such as lighting and 
sound design, positioning and blocking of the sets, staging the performances, 
timing the live broadcast, calling all camera shots, as well as overseeing the 
technical direction of the program and all camera and tape traffic. As a result of 
its innovative style, the program acquired a sizeable cult following. Based on [the 
petitioner's] extraordinary skills, the program received The Aurora Awards Gold 
Award; Alliance for Community Media Northeast Regional Video Festival - First 
Place in Performing Arts; The Aegis Award; and Alliance for community Media 
Northeast Regional Video Festival - First Place in Comedy. 
The petitioner submitted a copy of a Febru 
Television Awards (The Hugoes) addressed to 
Community Television, informing her that her submission "Access Democracy" had been 
awarded a Gold Plaque in the category of Public Access Program at the 39th Chicago 
International Film Award; a copy of a July 22, 2003 letter from The Aurora Awards in Salt Lake 
City, Utah addressed to and indicating that two entries, "'Live from 
Downtown - Ethel' Musical-Variety" and "'IMNY - Best of IMNY Part 1 ' For Children/YouthV 
received Gold Awards; a copy of a document indicating a "Gold Award 2003" for "Live from 
Downtown - Ethel;" a copy of a webpage from the Alliance for Community Media - Northeast 
2 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Page 7 
Region, listing the 2003 ACM-NE Video Festival Winners and Place Award Recipients 
indicating "1- New York, NY "Live from Downtown;" and a copy of a 
page from the P we site a out the EGG arts show. The document indicates that the program 
was the recipient of the Peabody Award. Additional documentation from the website indicates 
that the petitioner produced programs about a; however, there is no 
documentation to indicate that either of the petitioner's programs was a Peabody Award winner. 
In response to the RFE, the petitioner submitted additional photographs of the Aurora award 
statues. The photographs indicate that the awards were given to DCTV, with as 
producer for "Live from Downtown" and as producer for IMNY - Best of IMNY 
Part 1. As previously discussed with these awards were not given to the 
petitioner but to DCTV. In addition, there is no evidence that the Aurora Award is nationally or 
internationally recognized as an award of excellence. The petitioner submitted no documentation 
that he received a individual award from the Aurora  wards or any of the organizations 
discussed above. 
As it relates to the petitioner's claimed receipt of the Emmy award, as previously discussed, even 
if the petitioner had adequately documented his receipt of this award, he has failed to 
demonstrate that an award issued on a regional level, is a nationally or internationally recognized 
award. 
The petitioner has not established that he meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classlJication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
To demonstrate that membership in an association meets this criterion, the petitioner must show 
that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, 
minimum education or work experience, standardized test scores, grade point average, 
recommendations by colleagues or current members, or payment of dues do not satisfy this 
criterion as such requirements do not constitute outstanding achievements. The overall prestige 
of a given association is not determinative. The issue is membership requirements rather than the 
association's overall reputation. 
The petitioner claims to meet this criterion based on his membership in the Producers Guild of 
America (PGA). The petitioner submitted a copy of his PGA membership card and a page from 
the organization's website that lists the requirements for joining: 
To join the PGA, an applicant must have received on-screenlon-air credits and 
performed the job functions for at least one of the capacities listed under the 
section "The Producing Team" . . . within the past seven (7) years, as indicated 
below: 
Page 8 
Film: At least two (2) feature films that have had broad domestic or verifiable 
international theatrical release, subject to PGA Council requirements. 
Television: At least two (2) long-form television programs (MOW'S, movies, etc.) 
or thirteen (13) weeks of episodic or (26) weeks of non-episodic programs that 
have been marketed broadly in the domestic territory. 
Other: Recommended for membership by the Membership Committee due to 
sufficient equivalent production experience that justifies membership as part of 
the producing team. 
Those who are eligible for membership as part of the producing team include producers and 
executive producers, co-producers and co-executive producers, supervising producers, associate 
producers, segment producers, production supervisors and managers, post-production 
supervisors and managers, production and post production coordinators. 
On its Frequent Asked Questions (FAQ) page, the PGA states that "Members who join the PGA 
represent the highest standards in film, television and new media professionals" and that the 
organization is "setting the industry standards for knowledge, professionalism, expertise and 
quality." On appeal, the petitioner also submits a June 15, 2007 letter from - 
Director of Operations at the PGA East Coast ofice, who states that potential members for the 
organization must "pass a rigorous review process," and that the petitioner was granted 
membership because of his "award-winning TV programming." 
Nonetheless, a review of the PGA's membership requirements reveals that while the 
organization may have a "rigorous review process," "rigorous" is not synonymous with 
"outstanding." The requirements as listed above do not establish that the PGA requires 
outstanding achievements of its members. 
On appeal, counsel asserts that the petitioner also meets this criterion based on his membership 
in the Directors Guild of America (DGA). However, although the petitioner submits a copy of 
his DGA membership card for the year 2008, he submits no information regarding the 
membership requirements of the DGA or evidence to establish when he first became a member. 
A petitioner must establish eligibility at the time of filing; a petition cannot be approved at a 
future date after the petitioner or beneficiary becomes eligible under a new set of facts. 8 C.F.R. 
$ 103.2(b)(1),(12); Matter of Katigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
The evidence does not establish that the petitioner meets this criterion. 
Page 9 
Published materials about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classiJication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
The petitioner submitted several published articles about the show Democracy Now! on which he 
served as the director. Articles that appeared in the June 2002 issue of The Independent and the 
MayIJune 2004 issue of Clamor recognized the petitioner as director of the show. However, the 
articles are about the show Democracy Now! or its host and are not primarily about the petitioner 
and his work on the show. Although the petitioner did not claim to meet his criterion, the director 
addressed it in his RFE and in his decision. The petitioner submitted no additional 
documentation relevant to this criterion and does not address it on appeal. Accordingly, the 
petitioner has failed to establish that he meets this criterion. 
Evidence of the alien's original scientiJic, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in theJe1d. 
The petitioner did not initially allege that he meets this criterion. However, the director addressed 
the issue in his decision and, on appeal, counsel asserts that the evidence submitted, including his 
"innovation and pioneering proliferation of Democracy Now!" and his "Rediscovering the Map," 
a "cutting-edge multimedia documentary," was sufficient to establish that the petitioner qualifies 
under this criterion. 
The petitioner submitted letters of recommendation from several individuals who attest to his 
skills as a director and producer; however, while the references describe the petitioner's 
influence over specific shows, none indicated that any of the techniques employed by the 
petitioner constituted a contribution of major significance to directing or producing. 
In a May 4, 2006 letter, 
 Director of Current Affairs of Link TV, 
described the petitioner as a pioneer who uses "innovative and thought-provoking 
concepts to produce outstanding television broadcasts," and who "offer[s] startling 
originality and conceptual ingenuity." 
In his May 3 1, 2006 letter, ~ssociate Director of Martha, stated that the 
petitioner "developed and turned Democracy Now! - a formerly radio-only broadcast - 
into the number one non-commercial, independent news program in the country," and 
that "His significant contribution to other award-winning non-commercial programs, such 
as Egg: the arts show, TV 411 and Access Democracy, made him into one of the most 
sought after names in the non-commercial industry." stated that he is 
"extremely impressed by the techniques and artistic solutions developed by [the 
petitioner] in order to deal with the difficulties of producing quality programming for the 
non-commercial market. 
an independent producer, stated in a May 25, 2006 letter that the 
petitioner's "original thinking and deep technical knowledge allow him to create quality 
television programming under very small budgets." 
Executive Director of the Alliance for Community Media, stated in a 
June 18,2007 letter: 
[A]s the head of Democracy Now's Broadcast Department, [the petitioner] 
developed and employed innovative techniques that made this broadcast 
possible for only a small portion of the budget usually needed for a live 
national TV news program. For example, he implemented the use of the 
Globecaster ,video switching platform in the production of Democracy 
Now! This unique device was designed and built for use in religious 
organizations, government agencies and schools as a way to control close- 
circuit video feeds. Following [the petitioner's] lead, product developers at 
Globecaster added downstream key channels, color correctors and DVE 
options to their product, so that it could be used for live broadcasts. This 
had never been done. The Globecaster has become the main tool used in 
the production of Democracy Now!, replacing expensive broadcast 
equipment commonly used in mainstream TV productions . . . [The 
petitioner's] innovation undoubtedly saved his organization hundreds of 
thousands of dollars over the years. [Emphasis in the original.] 
As noted, these individuals describe the petitioner's work as significant to his employers by 
saving them money while producing quality programs. However, none of them indicate that his 
contributions were of major significance to the petitioner's field of endeavor. In denying the 
petition, the director "noted that most of the authors fail to identify the particular techniques or 
concepts" used or developed by the petitioner, and that while adapting the use of the Globecaster 
video switching platform "may demonstrate the petitioner's ingenuity and creativity, there is no 
indication that the petitioner designed or developed this device." The director determined that 
"the record fails to establish that the petitioner has developed new equipment, techniques, 
methodologies, etc that have been recognized and adopted by others and which have 
significantly impacted the field." 
Counsel's argument on appeal focuses primarily on the petitioner's work with Democracy Now!, 
asserting that the director "neglected to mention or consider [the petitioner's] ground-breaking 
and critically acclaimed work" on that program. Counsel states that the petitioner developed a 
television show from a radio show and turned it "into a household name, known to the masses, as 
never done before." Counsel asserts that the petitioner "is responsible, in part, for changing the 
face of public television as we know it today." In support of his appeal, the petitioner submitted 
additional testimonials. We quote at length from, Executive Producer and host of 
Democracy Now!, who, in a June 15,2006 letter stated: 
Just days after the September 11 attacks on the World Trade Center we made the 
decision to expand the show, which was a radio-only broadcast at the time, into a 
television program . . .. 
Despite the show's established reputation as one of the leading radio programs in 
the non-commercial industry, the transition was not simple. The budget usually 
available to mainstream, commercial television productions was not available to 
us. Furthermore, our extremely small staff of engineers and news producers did 
not have any experience producing television programs. We looked for a 
television professional who could spearhead the development of the broadcast 
fiom a low-budget radio show to a nationally syndicated television broadcast, and 
lead us all into this new exciting era of television production. Undoubtedly, the 
right man for the job was [the petitioner]. 
Having already worked as a ProducerIDirector on a few of the most prestigious 
non-commercial television programs in the country, [the petitioner] brought his 
vast experience and expertise to Democracy Now!, and immediately began 
training the crew, developing the technical elements required for a television 
broadcast, supervising the artistic sides of the production and creating the unique 
and famous on-air look of Democracy Now! His innovative ides, original thinking 
and extraordinary talent, allowed us to overcome the many obstacles we were 
facing, and move ahead with the development of the show. 
[The petitioner] is perhaps the most prominent and skilled directorlproducer in 
our industry. He has risen to the top of his field, and his contribution to the 
enormous success of Democracy Now! as a nationally syndicated television 
program can be easily demonstrated: When he joined our team, the program was 
airing on one station in New York City. Today, four years after he's been our 
television team leader, Democracy Now! is available to tens of millions of 
viewers across the U.S. on PBS stations, both TV satellite networks . . . and on 
hundreds of local community access television stations. The broadcast is also 
viewed by a very large audience around the world on our internet "podcasts[.]" 
With his leadership, professional excellence and superior artistic skills, [the 
petitioner] helped Democracy Now! become what was called by the press "an 
independent media empire[.]" Indeed, the program is today the leading, most 
popular independent news program in North America. 
letter confirms that the petitioner played a major role in the development and 
success of Democracy Now! as a television news program. In a June 12, 2007 letter, Ms. 
stated that she had previously "explained how [the petitioner's] work as Director of 
our award-winning TV programs had a tremendous impact on the entire field of independent, 
non . 
- 
-commercial, public broadcasting." However, the record does not support this assertion by 
. The evidence establishes that the petitioner is a talented and resourceful 
letters or any other documentation in the record, 
Page 12 
however, confirms that the petitioner's work on Democracy Now! constituted a contribution of 
major significance to his field of endeavor. Despite counsel's assertion, success as a director 
does not automatically signify that the individual has made a significant contribution to his field. 
Counsel also asserts that the petitioner's "innovative use" of the Globecaster video switching 
platform, which was a "pioneering contribution," was "dismissed" by the director. On appeal, the 
petitioner submits a copy of an April 10, 2008 letter from - Executive 
Director of Cambridge community Television, in which she discusses, among other issues, the 
and differences between commercial and non-commercial television. 
described the alterations that the petitioner had made to the Globecaster video 
switcher and stated that it allowed the operator to perform the work "usually performed by 3 to 7 
people in mainstream television." further stated: 
It's worth mentioning that [the petitioner] introduced this innovative technical 
solution to other community television organizations that encountered the same 
technical difficulties: In April 2003, when he was asked to direct a live production 
of Democracy Now from the Free Speech TV studios in Boulder, Colorado, while 
the show was traveling across the country, he introduced this innovative technical 
solution to the local station engineers and managed to increase the video capacity 
of the production video switcher the station was using at the time. 
Counsel asserts that "[tlhis new use of technology defined new heights for the arena of non- 
commercial television," and that "[tlhis industry defining revelation cannot be underestimated." 
However, the record does not support counsel's assertion. Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N 
Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Rarnirez- 
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). While counsel cites the use of the altered device by 
Free Speech TV, the record contains no confirmed use by any other non-commercial entity. 
Further, while the altered device apparently proved innovative, useful and money saving to his 
individual show, the evidence of record does not reflect that use of the altered Globecaster video 
switching platform was of major significance to the field. 
The evidence does not establish that the petitioner meets this criterion. 
Evidence of the display of the alien's work in the Jield at artistic exhibitions or 
showcases. 
The wording of this criterion indicates it is intended for those in the visual arts such as sculptors 
and painters. According to prior counsel, the petitioner's artistic showcase is "broadcast," and 
that the petitioner's "artistic work has been displayed extensively through broadcast media." 
Counsel asserts on appeal that the determination that the petitioner "did not satisfy the criterion 
is particularly egregious" as "the copious documentation regarding the illustrious reputation of 
Democracy Now!" was not considered. Nonetheless, while the evidence indicates that the 
petitioner worked behind the scene in securing the success of the broadcast of Democracy Now! 
as a director, the evidence does not indicate that the broadcast of the programs are considered 
"artistic" showcases. 
Counsel also asserts that the petitioner meets this criterion based on his documentary 
Rediscovering the Map about award-winning composer and conductor 
 which was 
broadcast in China, on the National Geographic Channel in the United States, and at the Asia 
Society in New York, which counsel claims "is one of the foremost cultural forums in the 
world." Counsel states that these "exhibitions conclusively prove that the petitioner's work has 
been exhibited in premier forums." However, as with the directing and producing of Democracy 
Now!, the evidence does not indicate that the film Rediscovering the Map and the petitioner's 
work as a producer and director was an "artistic exhibition or showcase." Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of 
proof. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 
19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The petitioner submitted no 
documentation that establishes his work as a director or producer has been the focus of a specific 
exhibition or showcase. 
The evidence does not establish that the petitioner meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that he performed a leading or critical role for an 
organization or establishment and that the organization or establishment has a distinguished 
reputation. The petitioner claims to meet this criterion as director of Democracy Now!. The 
director concluded that while the record established the distinguished reputation of the 
organizations for which he worked, it failed to establish that the petitioner worked in a leading or 
critical role. 
Upon review, we find that the petitioner has sufficiently documented his position within and 
contributions to Democracy Now! as the program's director and producer. We further find that 
the petitioner has adequately demonstrated that his role with that program was leading or critical 
to the success of the program. We, therefore, withdraw the director's finding on this issue. 
The petitioner has established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other signzjicantly high 
remuneration for services, in relation to others in the field. 
With the petition, the petitioner submitted a June 22,2006 letter from the accountant for Docuart 
Productions Inc. stating that the petitioner was an employee of the company and was paid a 
salary of $37,000 for the year 2006. 
Page 14 
In his RFE, the director advised the petitioner that if he claims to meet this criterion, he should 
submit evidence of his salary or other remuneration for the year 2005 (the year prior to filing the 
petition) and to provide evidence that his remuneration was "significantly higher than that 
normally encountered in the field." 
In his June 19, 2007 letter accompanying the petitioner's response to the RFE, prior counsel 
stated that the petitioner was currently the director of the studio production division with 
IMGISpring and earned an annual salary of $100,000, which placed him within the top 25% of 
all producers and directors. The petitioner submitted a copy of a March 12, 2007 letter from 
IMG Worldwide offering him the position of director for Sprint Power View. The offer, accepted 
by the petitioner on March 13, 2007, indicated that the petitioner's salary would be $100,000 per 
year with merit increases "based on performance consistent with other employees at a similar 
level in the Company." The letter indicated that the petitioner's start date was March 19,2007. 
We note first that the position with IMG was obtained after the filing date of the petition. 
Therefore, it cannot be considered as evidence that the petitioner commanded a high salary at the 
time of filing the petition. The petitioner must establish eligibility at the time of filing. The 
petition cannot be approved after the petitioner becomes eligible under a new set of facts. 8 
C.F.R. 5 103.2(b)(1),(12); Matter of Katigbak, 14 I&N Dec. at 49. Second, to establish that this 
salary is significantly high compared to others in his field, the petitioner provided information 
regarding salaries for producers and directors in the New York-White Plains-Wayne, NY-NJ 
metropolitan area. The petitioner must establish that his salary or other remuneration is 
significantly high compared to all others in his field of endeavor and not just in a specified or 
discrete area. Further, the documentation submitted by the petitioner indicates that producers and 
directors, who are paid at Level 4 in the New York-White Plains-Wayne, NY-NJ metropolitan 
area, earn up to $125,400 per year. The petitioner's proposed salary of $100,000 is not evidence 
that his salary is significantly high compared to others in his field. The remaining evidence of 
the petitioner's 2006 salary is also insufficient to establish that he has commanded a high salary 
in relation to others in his field. 
The petitioner does not address the director's findings any further on appeal and submits no 
further evidence regarding this criterion. Accordingly, the petitioner has failed to establish that 
he meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box ofice receipts 
or record, cassette, compact disk, or video sales. 
Prior counsel alleged in his June 29, 2006 letter accompanying the petition that the petitioner 
meets this criterion based on the success of the documentary Rediscovering the Map, which 
followed award-winning composer Tan Dun's return to his homeland in rural China. The 
petitioner submitted documentation reflecting that the documentary was broadcast on the 
National Geographic Channel and was critically reviewed in the April 2005 issue of BBC Music 
Magazine, on Amazon.com, and in other forums such as on the Philadelphia Orchestra website 
and The New Arcadia Review. However, the petitioner submitted none of the documentation 
required by the regulation such as evidence of box office receipts or video sales. The petitioner 
submitted no additional documentation about this criterion in response to the director's request 
for evidence and does not pursue this issue on appeal. 
The petitioner has not established that he meets this criterion. 
Counsel asserts that "the regulations provide that eligibility may be established through the 
submission of 'comparable evidence' of extraordinary ability," and indicates that the testimonials 
submitted by the petitioner fall within this provision. The regulation at 8 C.F.R. 8 204.5(h)(4) 
allows for the submission of "comparable evidence" only if the ten criteria "do not readily apply 
to the beneficiary's occupation." The regulatory language precludes the consideration of 
comparable evidence in this case, as there is no evidence that eligibility for visa preference in the 
beneficiary's occupation cannot be established by the ten criteria specified by the regulation at 
8 C.F.R. 8 204.5(h)(3). Where an alien is simply unable to meet three of the regulatory criteria, 
the plain language of the regulation at 8 C.F.R. 8 204.5(h)(4) does not allow for the submission 
of comparable evidence. 
Nevertheless, the reference letters submitted in support of this petition have already been 
addressed under the regulatory criteria at 8 C.F.R. $8 204.5(h)(3)(i) and (v). Further, there is no 
evidence showing that the documentation the petitioner requests evaluation of as comparable 
evidence constitutes achievements and recognition consistent with sustained national or 
international acclaim at the very top of the beneficiary's field. mle reference letters can provide 
useful information about an alien's qualifications or help in assigning weight to certain evidence, 
such letters are not a substitute for objective evidence of the alien's achievements and recognition as 
required by the statute and regulations. The nonexistence of required evidence creates a 
presumption of ineligibility. 8 C.F.R. 8 103.2(b)(2)(i). Further, the classification sought requires 
"extensive documentation" of sustained national or international acclaim. See section 
203(b)(l)(A)(i) of the Act, 8 U.S.C. $ 1153(b)(l)(A)(i), and 8 C.F.R. 4 204.5(h)(3). 
 The 
commentary for the proposed regulations implementing the statute provide that the "intent of 
Congress that a very high standard be set for aliens of extraordinary ability is reflected in th~s 
regulation by requiring the petitioner to present more extensive documentation than that required" 
for lesser classifications. 
 56 Fed. Reg. 30703, 30704 (July 5, 1991). 
 Primary evidence of 
achievements and recognition is of far greater probative value than opinion statements from 
individuals selected by the petitioner. 
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 his field of endeavor. 
Review of the record indicates that the petitioner is a highly talented and skilled director. 
However, the evidence is not persuasive that the petitioner's achievements set him significantly 
above almost all others in his field. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.