dismissed EB-1A Case: Theatrical Characterization

U.S. Department of EIomeland Security 
U. S. Citizenshir, and Immigration Services 
. b 
 identifyi2s data. dci3~2d ~CI 
 Ofice of~dmrn;stratlve ~~ieals MS 2090 
prevent c!~a+ly u~;wzrranted 
Washington, DC 20529-2090 
invasion of persoilal privacy 
 U. S. Citizenship 
PUBLIC COPY 
and Immigration 
FILE: - Office: NEBRASKA SERVICE CENTER Date: gulN 1 2 20~ 
LIN 07 009 51594 
IN RE: 
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. 3 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 3 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
1 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 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, the petitioner argues that he meets at least three of the regulatory criteria at 8 C.F.R. $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 into the United States will substantially benefit prospectively 
the United States. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 
 8 C.F.R. $ 204.5(h)(3). 
 An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight given to evidence submitted to fulfill the criteria 
at 8 C.F.R. $ 204.5(h)(3), or under 8 C.F.R. 5 204.5(h)(4), must depend 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). 
This petition, filed on September 28, 2006, seeks to classify the petitioner as an alien with extraordinary 
ability as a "characterization stylist" in the field of "theatrical characterization." The petitioner initially 
submitted information about Teatro Colon, letters of recommendation, programs, photos of his work, and 
salary information. In response to a Request for Evidence ("RFE") dated November 30, 2007, the petitioner 
Page 3 
submitted evidence of his award, information about that award, additional programs, and information about 
tours with which the petitioner participated. 
On appeal, counsel asserts that the director erred by stating that the petitioner was a "stylist." Counsel cites 
the district court decisions of Grimson v. INS, 934 F.Supp. 965 (N.111 1996), and Muni v. INS, 891 F.Supp. 
440 (N.111. 1995), for the proposition that the director "erroneously categorized [the] petitioner in the larger 
more generic group (Stylist) as opposed to the subset of that group (Characterization)." Counsel asserts that 
the director did not acknowledge "the fact that this is indeed a separate and distinct field from a 'stylist' and 
one that has not reached the level of recognition in the U.S. as it has in Argentina." In contrast to the broad 
precedential authority of the case law of a United States circuit court, the AAO is not bound to follow the 
published decision of a United States district court in cases arising within the same district. See Matter of K-S, 
20 I. & N. Dec. 715 (BIA 1993). The reasoning underlying a district judge's decision will be given due 
consideration when it is properly before the AAO; however, the analysis does not have to be followed as a 
matter of law. Id. at 719. Regardless of their lack of precedential authority, the Grimson and Muni cases do 
not warrant a reevaluation of the petitioner's evidence. The court in Grimson and Muni found that the aliens 
in those cases should be compared to other hockey players in the same position who were serving their teams 
in the same capacity. Even if the director erroneously categorized the petitioner as a stylist and not within the 
subset of stylists working in the characterization profession, such error would be harmless because the 
evidence fails to demonstrate that the petitioner has achieved sustained national or international acclaim in his 
specific field. 
Counsel further contends that, as stated in Buletini v. INS, 860 F.Supp. 1222 (E.D.Mich. 1994), an alien's 
profession should be "characterized by the commonly offered degree." Counsel asserts that the petitioner's 
accomplishments should be "evaluated under his awarded degree, i.e. Characterization," which "is a unique 
program7' and has an "exclusive and rigorous" admissions process. Even accepting counsel's statements as 
true, those aspects of the petitioner's academic training are insufficient to establish that the petitioner 
achieved sustained national and international acclaim in his field after receiving his degree. The petitioner 
has not demonstrated how his professional achievements compare to others employed in characterization so 
as to demonstrate that he is at the top of his field. 
The regulation at 8 C.F.R. tj 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). 
Congress' example of a one-time achievement is a Nobel Pnze. H.R. Rpt. 101-723, 59 (Sept. 19, 1990). Given 
that the House Report specifically cited to the Nobel Pnze as an example of a one-time achievement, examples of 
one-time awards which enjoy major, international recognition may include the Pulitzer Prize, the Academy 
Award, and an Olympic Medal. The regulation is consistent with ths legislative history, stating that a one-time 
achievement must be a major, internationally recognized award. 8 C.F.R. tj 204.5(h)(3). Significantly, even a 
lesser internationally recognized award could serve to meet only one of the ten regulatory criteria, of which an 
alien must meet at least three. 8 C.F.R. 5 204.5(h)(3)(i). The selection of Nobel Laureates, the example provided 
by Congress, is reported in the top media internationally regardless of the nationality of the awardees, is a familiar 
name to the public at large, and includes a $1 million cash prize. While an internationally recognized award 
could constitute a one-time achievement without meeting all of those elements, it is clear from the example 
provided by Congress that the award must be internationally recognized in the alien's field as one of the top 
awards in that field. 
The petitioner asserted that his receipt of the Konex award evidences his receipt of a major internationally 
recognized award. The petitioner submitted a copy of the 2004 Special Mention awarded by Konex and 
information about the award that states that it is awarded by "[tlhe Grand Jury . . . to those figures standing out for 
their achievements . . . though they do not specifically fit withn given disciplines." The information submitted 
about the Konex awards states that they are "annually delivered . . . [to] the most distinguished Argentine 
personalities and institutions." There is no evidence establishing the international recognition of this award. For 
example, the petitioner submitted no evidence to show that the winner of this award received international media 
attention in the general or entertainment media of multiple countries worldwide or other indicia of major, 
international recognition. We cannot ignore that the plain language of the regulation at 8 C.F.R. 4 204.5(h)(3) 
qualifies the phrase "international recognized award" with the limitation "major." Nonetheless, the petitioner's 
receipt of ths award is relevant to the first criterion at 8 C.F.R. 8 204.5@)(3)(i) and will be fkther discussed 
below. On appeal, counsel asserts that the Konex Award is a major, internationally recognized award, but this 
assertion is not supported by the record. Instead, the evidence submitted addresses the significance of the Award 
withln Argentina. Only the articles submitted from Wikpedia, wapedia (Wikipedia's mobile device service), 
and mundoandino.com assert that the Konex Awards are internationally recognized. There are no assurances 
about the reliability of the content from Wikipedia, an open, user-edited internet site.' As such, we will not 
give significant weight to claims for which Wikipedia is the only cited source. The page from 
www.mundoandino.com states that the awards "are internationally recognized since its [sic] creation, and are one 
of the most important and distinguished in Argentina." No information was provided about ths website to 
indicate that it provides reliable evidence regarding the recognition due to winners of the Konex Award. The 
petitioner did not submit secondary evidence, such as news articles or letters from sponsoring organizations, 
documenting the prestige associated with his award that would indicate national or international recognition as a 
major award for excellence in his field. 
Outside of winning a major internationally recognized 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. A petitioner, however, cannot establish eligibility for this classification merely by 
submitting evidence that simply relates to at least three criteria at 8 C.F.R. 4 204.5(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 
I 
 Online content from Wikipedia is subject to the following general disclaimer: 
Wikipedia is an online open-content collaborative encyclopedia, that is, a voluntary 
association of individuals and groups working to develop a common resource of human 
knowledge. The structure of the project allows anyone with an Internet connection to alter 
its content. Please be advised that nothing found here has necessarily been reviewed by 
people with the expertise required to provide you with complete, accurate or reliable 
information. . . . Wikipedia cannot guarantee the validity of the information found here. 
The content of any given article may recently have been changed, vandalized or altered by 
someone whose opinion does not correspond with the state of knowledge in the relevant 
fields. 
See http://en.wikipedia.org/wikirWikipedia:Disclaimers, accessed on April 15,2009. 
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. 4 204.5(h)(2). The petitioner has submitted evidence pertaining to the following criteria. 
The petitioner does not claim to meet any of the criteria not discussed below. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognizedprizes or 
awards for excellence in thejield of endeavor. 
As stated above, the petitioner submitted evidence of his receipt of the Konex special mention award. 
The plain language of the regulatory criterion at 8 C.F.R. fj 204.5(h)(3)(i) specifically requires that the 
petitioner's award be nationally or internationally recognized in the field of endeavor and it is his burden 
to establish every element of this criterion. As stated above, the only information submitted about the 
Konex award from a source other than the awarding organization is from Wikipedia, wapedia 
(Wikipedia's mobile device service), and www.mundoandino.com. No information was provided about 
these websites to indicate that they are reliable indications of the recognition due to the recipients of the 
Konex Award. The petitioner did not submit secondary evidence, such as news articles or letters from 
sponsoring organizations, documenting the prestige associated with his award that would indicate national or 
international recognition as an award for excellence in his field. In response to the RFE, the petitioner 
submitted information about other recipients of the Konex award which includes an Academy Award winner, 
an Academy Award nominee, a renowned nuclear physicist, a World Cup soccer player, and other famous 
Argentineans. The receipt of the same award by other renowned Argentineans does not mean that every 
recipient of the award is renowned or that the award conveys national or international acclaim. In addition, 
the petitioner submitted no evidence as to how a "special mention" award compares to other awards given by 
Konex or how, even if a Platinum or Diamond Konex award conveys national or international acclaim, 
whether a special mention award would convey the same acclaim. Simply conveying the criteria used in 
selecting special mention award winners does not establish the level of acclaim due to recipients. 
In light of the above, the petitioner has not established that he meets this criterion. 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in thefield. 
The petitioner identified seven letters in the record purportedly supportive of his claim of eligibility under this 
criterion. While letters such as these provide relevant information about an alien's experience and 
accomplishments, they cannot by themselves establish the alien's eligibility under this criterion because they 
do not demonstrate that the alien's work is of major significance in his field beyond the limited number of 
individuals with whom he has worked directly. Even when written by independent experts, letters solicited 
by an alien in support of an immigration petition carry less weight than preexisting, independent evidence of 
major contributions that one would expect of an alien who has achieved sustained national or international 
acclaim. 
projects manager for the Miami-Dade County Department of Cultural Affairs, states that she 
learned of the petitioner's reputation upon inquiring with the Colon Theatre about available talent. She stated 
that she learned from Colon that the petitioner "was one of the only persons with the training in 
Page 6 
Characterization to perform the necessary functions that the Florida Grand Opera required" for the operas it 
intended to produce. letter states that the Florida Grand Opera has not utilized the 
petitioner's service nor has she seen any production in which he engaged in characterization. The letter from 
, producing artistic director for Teatro Avante International Hispanic Theatre Festival, 
states that "[he] find[s] [the petitioner's] work and experience in the performing arts invaluable, as he is one 
of the few individuals in this particular field with the ability to perform 'a one of a kind' artistic element to 
the art of 'characterization."' The letter from, board president of the Florida Grand Opera, 
states that the petitioner "is one of the few trained in this field. The exclusiveness of his services and slull has 
made him a highly demanded artisan in this field. His reputation within the domestic and international 
performing arts has given [the petitioner] a unique and exclusive position in this field." The letter from 
, board trustee of the Arts & Business Council of Miami states that he is "aware of [the 
petitioner's] international reputation within the characterization profession, and [has] asked him to embark on 
a business project" as a result. The letter from, Japan Committee Tango Project, states that the 
petitioner's work on four Japanese tours that traveled the world garnered him international acclaim. Ms. 
stated that the choice to use the petitioner on this tour "proved correct as [the} performances were 
received with much acclaim." The letter from general director of The Tango Bizzaro Dance 
Company, states that the Company chose to use the petitioner for the 2003 World Tour "since he was one of 
the only people who could perform what we were looking for. His outstanding creative ability put together a 
total artistic and integrated look for our dancers." None of these letters state that the petitioner made an 
outstanding contribution as opposed to stating that the petitioner is successful in his chosen occupation. 
On appeal, counsel states that the submitted pictures evidence the petitioner's contribution to the field and 
that the petitioner's work "is inherently original because he is one of the few individuals with this training at 
this time, not only in the U.S. but in Argentina as well." According to the regulation at 8 C.F.R. 
5 204.5(h)(3)(v), an alien's contributions must be not only original but of major significance. We must 
presume that the phrase "major significance" is not superfluous and, thus, that it has some meaning. An alien 
cannot establish that he meets this criterion by narrowing his field so that he is one of very few engaged in the 
particular field. In addition, while the petitioner's profession may be unique, there is no evidence 
demonstrating that this work has had major significance in the field. For example, the record does not 
indicate the extent of the petitioner's influence on others engaged in characterization, nor does it show that the 
field has somehow changed as a result of his work. 
Counsel also asserts that the petitioner meets this criterion by virtue of his receipt of the Konex award. Each 
criterion under 8 C.F.R. 5 204.5(h)(3) is separate and distinct. The petitioner's argument that he made a 
significant contribution to the field by receiving an award means that the awards considered under criterion (i) 
would also qualify as major achievements within the field under criterion (v). 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. In addition, counsel did not submit any evidence of the work done by 
the petitioner that received recognition by the Konex Award. Neither the evidence in the record nor 
statements by counsel or the petitioner demonstrate how the petitioner's undefined work recognized by the 
Konex Award made a major, original contribution to the overall field. 
Accordingly, the petitioner has not established that he meets this criterion. 
Page 7 
(viii) Evidence that the alien has pe$ormed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
In order to establish that he performed a leading or critical role for an organization or establishment with a 
distinguished reputation, the petitioner must establish the nature of his role within the entire organization or 
establishment as well as the reputation of the organization or establishment. The petitioner claimed eligibility 
under this criterion based on his work with Colon Theatre and other operatic producers as evidenced by the 
playbills submitted. 
The petitioner's evidence establishes that he did the characterization work for the productions whose playbills 
were submitted. That evidence, however, does not establish the petitioner's role for the operatic companies 
including the Colon Theatre beyond the specific performance or production for which the playbill was 
printed. This evidence does not demonstrate how the petitioner's role with a particular production constitutes 
a role with the company as a whole. In addition, no evidence appears in the record, for example, from 
producers of the show detailing the petitioner's role or news articles extolling the petitioner's role with the 
production. Nor did the petitioner submit evidence to differentiate his role from that of any other member of 
the production including the director, lead singers, or producers. 
Even if the petitioner had established his role as leading or critical by virtue of his characterization in the 
performances, the petitioner did not establish that Colon Theatre or the other production companies have 
distinguished reputations. The evidence submitted about the Colon Theatre states that it has hosted a number 
of popular events including playing host to "famous artists, both foreign and Argentine." Several of the 
webpages indicate that the Colon Theatre "is one of the most famous opera houses in the world." The 
petitioner also submitted a webpage of search results from Google. However, those webpages provide scant 
information about the Theatre (with the exception of the Theatre's own website) and do not provide evidence 
of the Theatre's standing in the community or world or any other aspect of its reputation. The petitioner 
submitted no information about the other companies with whom he worked. As such, the petitioner failed to 
establish the reputation of any of the companies with which he worked. 
In light of the above, the petitioner has not established that he meets this criterion. 
(ix) Evidence that the alien has commanded a high salary or other signijicantly high remuneration for 
services, in relation to others in thefield 
The letter from, executive director for the Arts & Business Council of Miami, states that "the salary 
range for ths profession in characteridon, in the Miami area, is &om $50,000 to $80,000 per annum." On 
appeal, counsel cites this letter as evidence that the petitioner establishes eligibility under this criterion. The 
petitioner, however, submitted no evidence of a salary that he has received in Miami or elsewhere. As such, we 
are unable to compare his salary to others in the field to be able to conclude that he receives more than others in 
the field. 
In light of the above, the petitioner has not established that he meets this criterion. 
(x) Evidence of commercial successes in the pe$orming arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
The petitioner claimed eligbility under ths criterion by virtue of his pa~cipation with films and operatic 
performances. Although evidence appears in the record of the petitioner's role with various operas and films, i.e. 
through billing in programs and in a letter from no evidence was submitted about the revenue 
generated by any of these events. The plain language of ths criterion requires that evidence of the commercial 
success of the endeavor be submitted. The petitioner did not submit any evidence of commercial success of the 
films or the operatic performances such as the submission of box office receipts, video sales numbers, or other 
records of the success enjoyed by any of the performances or films with which he participated. In addition, the 
petitioner submitted no evidence to show that his work significantly contributed to the success of any of these 
productions. Without such evidence of the profit garnered by the performances with which the petitioner has 
been involved, we are unable to conclude that the petitioner's work garnered commercial success. 
Accordingly, the petitioner has not established that he meets ths criterion. 
On appeal, counsel states that we should consider his evidence under the comparable evidence provisions 
because of the uniqueness of the petitioner's profession. He reasons that this would be appropriate because 
"the area of operatic characterization is novel and exclusive -novel in that there are not many higher learning 
institutions in the U.S. which offer a full degree in characterization." The regulation at 8 C.F.R. 8 204.5(h)(4) 
allows for the submission of "comparable evidence," but only if the ten criteria "do not readily apply to the 
beneficiary's occupation." The petitioner's narrowing of the category of his profession does not lower the 
evidentiary standard applicable to his case. 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 consideration of 
comparable evidence. Counsel likens the petitioner's profession to that of an "artistic makeup stylist" for the 
opera, but the preponderance of the evidence fails to show that the petitioner has risen to the top of either the 
stylist profession or the characterization profession. 
In this case, the petitioner has failed to demonstrate receipt of a major, internationally recognized award, or 
that he meets at least three of the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). Review of the record does not 
establish that the petitioner has distinguished himself to such an extent that he may be said to have achieved 
sustained national or international acclaim or to be within the small percentage at the very top of his field. 
The evidence is not persuasive that the petitioner's achievements set him significantly above almost all others 
in his field at a national or international level. 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. tj 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.