dismissed EB-1A Case: Video Editing

identifving l.sia i!t~!~t"te tto 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
OfJice of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
- and Immigration 
Services 
'C 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
 AUG 2 6 ZOO9 
LIN 08 003 53005 
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. 4 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. 5 103.5 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. tj 103.5(a)(I)(i). 
U 
John F. Grissom 
Acting Chief, Administrative Appeals Office 
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. 5 1153(b)(l)(A), as an alien 
of extraordinary ability. The director determined that 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. 
5 204.5(h)(3) and that the director applied incorrect standards in denying the petition. 
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. 
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 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). 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 have 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, filed on August 16, 2007, seeks to classifSI the petitioner as an alien with extraordinary 
ability as a video editor andlor camera operator. 
The regulation at 8 C.F.R. 5 204.5(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. 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. 
204.5(h)(3). In determining whether the petitioner meets a specific criterion, the evidence itself 
must be evaluated ip 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. 
0 204.5(h)(2). 
We note that although the record contains evidence of the petitioner's prior approval as an 0-1 non- 
immigrant, the prior approval does not preclude USCIS from denying an immigrant visa petition 
based on a different, if similarly phrased, standard. It must be noted that many 1-140 immigrant 
petitions are denied after USCIS approves prior nonirnmigrant petitions. See e.g. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. 
Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Because USCIS spends less time reviewing 1-129 nonirnrnigrant 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. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). 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 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonirnmigrant 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.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
As aforementioned, each petition must be adjudicated on its own merits under the statutory provisions 
and regulations which apply. Thus, the petitioner's eligibility will be evaluated under the regulatory 
criteria under 8 C.F.R. 5 204.5(h)(3) relating to the immigrant classification as claimed by the 
petitioner. 
Page 4 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner initially submitted the following as evidence for this criterion: 
1. A picture of an award with no legible inscriptions on it, with a caption below the picture that 
indicates it is the 2006 Terry Award (Silver) for Formula-D; 
2. A picture of the inscription from item 1, which says "2006 Telly Award" and indicating that 
the award is for Formula D, WATV Productions - G4 TV with the petitioner's name on the 
bottom of it; 
3. A pamphlet for the 2gth Annual Telly Awards, which provides guidelines for entrants; 
4. A picture of the 2006 Terry Award with a caption that says it is for "NOPI;" 
5. A picture of what is supposed to be the 2003 Terry Award for "NOPI," but the picture is not 
clear and the petitioner's name does not appear to be on the award; 
6. A certificate indicating that F.J. Productions, Inc. (Client: Varig AirlinesIVarig Promo) was 
the 2003 Finalist for the 24" Annual Telly Awards; 
7. Internet pages from www.tellv.com; and 
8. A "Fact Sheet" from the 27th Annual Telly Awards. 
In response to the Request For Evidence ("RFE), the petitioner submitted the following evidence: 
9. A certificate for the 27th Annual Telly Awards for the 2006 Silver Winner, which indicated 
the award was given to Formula D, WATV Productions - G4 TV, Giovanni Dal Monte 
(Editor); 
10. A certificate for the 27'h Annual Telly Awards for the 2006 Bronze Winner, which indicated 
the award was given to NOPI Tunervision, Speed Channel, WATV Productions, Giovanni 
Dal Monte (Editor); 
11. A clear picture of item 2; 
12. A clear picture of item 4; 
13. An email to the petitioner from someone, whose position is not indicated, at the Telly 
Awards that confirmed the petitioner placed in the editing category (referred to as TV28) in 
2006 and 2007 and stated that judges rate each entry on a 10 point scale and that those with 9 
points or higher are awarded the "Silver Telly" Statuette; 
14. Internet printouts from the Telly Awards website, one page which indicates that WATV 
Productions, NOPI Tunervision won the 2006 FilmNideo Bronze Winners in the 27th Annual 
Telly Awards and another that indicates WATV Productions, Formula D won the 2006 
FilmNideo Silver Award (neither mention the petitioner); and 
15. A "Fact Sheet" for the 29th Annual Telly Awards, which stated that 7-10% of entrants are 
chosen for Silver Telly Awards and 18-24% of entrants are chosen for Bronze Telly Awards 
among approximately 14,000 applicants. 
In his decision, dated September 30, 2008, the director found that the evidence was not sufficient to 
meet this criterion. On appeal, no new evidence for this criterion was provided. We agree with the 
director that the petitioner failed to establish that he has received lesser nationally or internationally 
recognized prizes or awards for excellence in his field of endeavor. 
We fixther agree with the director that inadequate evidence was provided to demonstrate that the 
2003 Telly Award was awarded to the petitioner. The petitioner's name does not appear on the 
actual award or the certificate (items 5 and 6). Moreover, no additional information regarding this 
award was submitted in response to the RFE or on appeal. 
Similarly, it is unclear whether the Bronze and Silver Telly Awards in 2006 were personally 
awarded to the petitioner. We agree with the director, that without fbrther evidence, "it appears that 
the awards identified are personalized statuettes and certificates to commemorate the petitioner's 
involvement in the productions." This can be evidenced through the Telly Award website (item 14), 
which lists the productions that the petitioner was involved in and the award, but does not mention 
the petitioner's name. 
The petitioner also failed to provide independent documentation that any of these alleged awards 
constitute nationally or internationally recognized prizes for excellence in the petitioner's field, or 
that these awards are prestigious, the selection process is difficult or the candidates that he was 
competing against were of a caliber consistent with this highly restrictive category. The plain 
language of the regulatory criterion at 8 C.F.R. 6 204.5(h)(3)(i) specifically requires that the petitioner's 
awards be nationally or internationally recognized in the field of endeavor and places the burden on him 
to establish every element of this criterion. None of the evidence provides insight into the types of 
competitors that the petitioner was competing against in order to win these awards. Items 8 and 15 
indicate that there were 14,000 applicants, but it is unclear whether all 14,000 applicants were editors. 
Further, item 3 and 13 explain the selection process, and item 15 (as well as item 8) specifically states 
that 7-10% of entrants are chosen for Silver Telly Awards and 18-24% of entrants are chosen for 
Bronze Telly Awards. Therefore, even if only 7% of the entrants are chosen for silver awards, 
nearly 1,000 people will win the award. Such a high number of winners is not consistent with a 
prestigious award that would bring acclaim upon the recipient. 
Lastly, we would note that the Telly Award was referred to as the "Terry" Award in each caption in 
the petitioner's initial submission. This inconsistency was never addressed in the brief. 
 It is 
incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to explain or reconcile such inconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing to where the truth lies. Matter of Ho, 19 
I&N Dec. 582,591-92 (BIA 1988). 
In light of the above, the petitioner has not established that he meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien j. 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 did not initially claim this criterion. However, in response to the RFE, the petitioner 
submitted an article from Speedway with an uncertified partial translation. The petitioner's WE 
response brief also referenced and submitted a report showing the ratings for the Speed Channel's 
"Superbikes" program, accompanied by a letter and emails explaining the report, claiming that it 
applied to this criterion. The petitioner also submitted pictures from a program, presumably 
"Superbikes," that indicated he was the lead editor and producer of the show and an advertisement 
for another television show "Party Mix." Internet printouts from Speed TV were also submitted, 
which provided a description of the show and the programming times. No additional evidence was 
provided on appeal. 
The director found that the petitioner failed to satisfy this criterion, and we concur with his decision. 
Among many other deficiencies noted by the director, the director found that the article in Speedway 
was not primarily about the petitioner. The plain language of this regulatory criterion requires that the 
published material be "about the alien." We agree, and would add that the article just briefly stated the 
petitioner's role as an editor. In addition, this criterion specifically requires that the evidence submitted 
contains a title, date, author and translation, if necessary. However, the petitioner failed to provide a 
title and date for the Speedway article. Moreover, the article was not accompanied by a complete 
certified translation, and instead only a partial uncertified translation was provided. Without 
complete certified translations, the actual content of the articles cannot be ascertained. See 8 C.F.R. 
9 103.2(b)(3). Pursuant to 8 C.F.R. 5 103.2(b)(3), any document containing foreign language 
submitted to USCIS shall be accompanied by a full English language translation that the translator 
has certified as complete and accurate, and by the translator's certification that he or she is 
competent to translate from the foreign language into English. 
Moreover, to qualify as major media, the publication should have sipficant national or international 
distribution. An alien would not earn acclaim at the national level from a local publication. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers.' The 
petitioner also failed to submit evidence to establish that the Speedway article was published in a 
professional or major trade publication or other major media. Regional coverage or coverage in a 
publication read by only a small segment of a country's total population is not evidence of national 
or international acclaim. As there was no evidence that the publication has significant national or 
international distribution, or any other information to support that it should be considered a professional 
or major trade publication, or another form of major media, the Speedivay article does not satisfy this 
criterion. 
Further, the broadcast of radio or television interviews or programs do not qualify the petitioner under 
this criterion. The specific regulatory requirements reference published written work instead of visual 
or audio work. As such, the additional evidence regarding the petitioner's work on television programs 
1 
 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
does not satis@ this criterion. Moreover, the programs were not about the petitioner, but rather were 
programs that he worked on. 
For all of the above stated reasons, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's original scientlJic, scholarly, artistic, athletic, or business- 
related contributions of major signficance in the field. 
The petitioner provided various reference letters, which the petitioner's brief argued confirms that he 
"pos~esses talents, abilities and achievements that put him in the very highest levels of his field." 
The petitioner also submitted evidence regarding his participation in covering the CART season and 
his successful completion of a tandem skydive which he argued satisfied this criterion. In his WE, 
the director states that "simply working in his field is not an original contribution." The director also 
notes in his RFE that "it is unclear how completing a tandem skydive constitutes an original 
contribution let alone an original contribution of major significance to video editing." The petitioner 
did not provide new evidence in response to the RFE or on appeal. However, in the petitioner's WE 
response brief and his appeal brief, he argued that his experience on various programs as an editor 
and that his awards, which he originally mentioned with reference to 8 C.F.R. $ 204.5(h)(3)(i), 
demonstrate that he has made contributions of major significance to his field. 
We agree with the director that the petitioner has failed to fulfill this criterion. 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. However, none of these letters indicate a specific contribution made 
by the petitioner. While the letters indicate the petitioner has extensive experience as a video editor, 
talent, language skills, and a unique cultural perspective, they fail to demonstrate specifically how 
the petitioner made a contribution of major significance in his field. Moreover, while 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. 9 103.2(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. 5 1153(b)(l)(A)(i), and 8 C.F.R. § 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 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). Primary evidence of 
achievements and recognition is of far greater probative value than the opinions of one's 
professional acquaintances. 
In addition, although the prizes were not even addressed as pertaining to this criterion until the 
appeal, the prizes themselves do not support the proposition that the petitioner has made a 
contribution of major significance. Similarly, the petitioner's coverage of the CART season, his 
tandem skydive and his work as an editor in and of itself does not satis@ this criterion. The 
petitioner failed to assert how his involvement in these events andlor his employment constitutes a 
contribution of major significance. 
As discussed above, the petitioner has failed to establish how his work has influenced his field and to 
detail specifically what contribution he has made of major significance in his field. Accordingly, the 
petitioner has not established that he meets this criterion. 
Evidence of the display of the alien> work in the field at artistic exhibitions or 
showcases. 
The petitioner initially submitted evidence to confirm his participation and success in various motor 
sports events in an attempt to satisfy this criterion. In his RFE, the director requests that the 
petitioner explain how his involvement in motor sport events constitutes displays of his work at 
artistic exhibitions or showcases. The petitioner does not further argue, or provide any further 
evidence regarding the same, that his participation in these events satisfies this criterion either in 
response to the RFE or on appeal. As such, this evidence does not provide any support for this 
criterion. 
In response to the RFE, the petitioner argued that he has worked as an Editor andlor Senior Editor on 
various successful television programs and submitted various advertisements for these programs 
(none of which reference his name). On appeal, no new evidence was submitted. 
In his decision, the director indicated that the petitioner has failed to explain and demonstrate how 
"his work on these productions constitutes a display of his work at an artistic exhibition or showcase 
within the context of this criterion." We agree with the director, finding also that the petitioner has 
not met this criterion. 
The plain language of this criterion indicates that it is intended for visual artists (such as sculptors 
and painters). It is inherent in the petitioner's position as a video editor that he contributes to the 
production of various television programs. Without evidence that the petitioner's work as a video 
editor is comparable to the exclusive artistic showcases that might serve to meet this criterion for a 
visual artist, we cannot conclude that the petitioner meets this criterion. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner's initial brief argued that he satisfied this criterion because he is working as a Senior 
Editor for WATV productions, and because he has worked on various other projects for the Speed 
Channel, Spike TV and Bandeirantes TV. The petitioner's brief also states that he covered the 
CART season and successfully completed a Tandem Skydive for "Mazda Rev It Up." The petitioner 
then submitted various documents that confirmed his employment and participation in these events. 
However, the evidence did not provide any information regarding the nature and level of the roles 
the petitioner played within these various organizations, or his responsibilities in such roles. As 
such, the director requested this information in his WE. In response to the WE, the petitioner 
provided a letter from a Production Manager at WATV Productions, dated August 12, 2008, which 
stated that the petitioner is a "lead/supervising editor" for the "Superbikes" program and that he 
"leads a team of as many as five editors and instructs operational staff on ways editors can be 
helped." The petitioner also provided a letter from a Producer at WATV Productions, which 
indicated that he "leads a team of editors" and "takes the time to help mentor [our] younger staff." 
No new evidence was provided on appeal. 
In order to establish that the petitioner performed in a leading or critical role for an organization or 
establishment with a distinguished reputation, he must establish the nature of his role within the 
organization or establishment and its reputation. The position should also be of such significance 
that the alien's selection to fill the position, in and of itself, is indicative of or consistent with 
national or international acclaim. Although the petitioner provided evidence that he has acted in the 
capacity as Senior or Supervising Editor in various productions, he failed to show that such 
involvement is commensurate with a leading or critical role. Additionally, although the letters claim 
that the petitioner played a leading role as an editor, such letters failed to distinguish his career and 
his specific employment from others in his field. 
The evidence further lacks proof that the television stations the petitioner was employed by had a 
"distinguished reputation." There was no independent evidence included regarding the background of 
the various media organizations for which the petitioner worked or their standing in the community or 
world. 
As such, the petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other signiJcantly high 
remuneration for services, in relation to others in thejeld. 
The petitioner did not initially claim that this criterion applied to him. However, in response to the 
RFE, the petitioner provided a few earnings statements for 2008 from WATV Productions, a tax return 
for 2007 and a Wage and Tax Statement for 2007 ("W-2"). The petitioner's W-2 indicated that his 
salary for 2007 was approximately $76,000. The petitioner claimed that his annual income with 
benefits is over $100,000 per year. The petitioner's RFE response brief requested that the AAO visit 
the U.S. Department of Labor Website at www.bls.~ov/oco/ocos09l .htrn#earnina which indicates that 
the median annual salary for video editors for 2006 was $46,670. However, the petitioner failed to 
mention that the same webpage indicated that video editors in "the highest 10 percent earned more 
than $1 10,720." Therefore, even with benefits, the petitioner's compensation is not even equal to 
the highest 10 percent of video editors. 
In his decision, the director found that the evidence failed to establish that the beneficiary received a 
high remuneration for his services in relation to others in his field. As no additional evidence was 
provided on appeal, we concur with the director. The plain language of this regulatory criterion 
requires the petitioner to submit evidence that the beneficiary has commanded a high salary "in 
relation to others in the field." The petitioner only provided a link to a website in attempt to 
demonstrate his salary was high in relation to others in his field. However, no actual documentary 
evidence was provided. There is no indication that the petitioner has earned a level of compensation 
that places him among the highest paid video editors in Brazil, the United States or any other country. 
Accordingly, the petitioner does not meet this criterion. 
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 criteria at 8 C.F.R. $204.5(h)(3). 
Review of the record does not establish that the petitioner has distinguished hlmself 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 the national or international 
level. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A)(i) of the 
Act and the petition may not be approved. 
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. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.