remanded EB-1A Case: Dance

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
iwi@ing data deleted to 
pnyent ddy ~wa*~ted 
inWiOD of PC'SO~ P~~V~CY 
FILE: 
 office: VERMONT SERVICE CENTER Date: MAR 2 9 2007 
EAC 04 219 53655 
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. 5 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. 
p~obert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and in now before the Administrative Appeals Office (AAO) on appeal. The decision of the director will 
be withdrawn and the petition will be remanded for further action and consideration. 
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. 8 1 153(b)(l)(A), as an alien of extraordinary ability.' 
The director determined the petitioner had not established eligbility for classification as an alien of extraordinary 
ability. 
On appeal, counsel questions whether the evidence submitted by the petitioner was properly considered. Counsel 
cites errors in the notice of denial, problems with the director's request for additional evidence, and evidence that 
was ignored by the director. For the reasons discussed below, we find that the director's request for additional 
evidence erroneously implied that the petitioner had to meet specific criteria and the final decision contains errors 
of law and ignores much of the evidence submitted. 
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 ths 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. 
Citizenship and Immigration Services (CIS) 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, 60898-9 (November 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. tj 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. 
' The petitioner was initially represented by attorney Sergei Danilov. In ths decision, the term "previous counsel" shall refer 
to Sergei Danilov. 
fj 204.5(h)(3). 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 July 21, 2004, seeks to classify the petitioner as an alien with extraordinary ability as a 
"Professional Dance Sport Competitor" and "Dance Instructor." The regulation at 8 C.F.R. fj 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, international 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. The criteria follow. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which classification 
is sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields; 
(iii) Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work 
of others in the same or an allied field of specialization for which classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field; 
(vi) Evidence of the alien's authorshp of scholarly articles in the field, in professional or major 
trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales. 
At the time of filing, the petitioner submitted award certificates, published articles that discuss his dancing 
achievements, recommendation letters, and photographs. In his July 1, 2004 letter accompanying the petition, 
previous counsel argued that the petitioner satisfied the regulatory criteria at 8 C.F.R. $6 204.5(h)(3)(i), (iii), (iv), 
and (v). 
On January 19, 2005, the director issued a request for additional evidence. Specifically, the director requested 
evidence of the petitioner's awards, memberships, published material about the petitioner, and his salary. The 
director provides no explanation for singling out these four criteria. Nothing in the regulation implies that an 
alien must meet any specific criterion as long as the alien meets at least three of the ten criteria at 8 C.F.R. 
$ 204.5(h)(3). The director also noted that the record lacked letters "from well-known persons" in the petitioner's 
field although most of the criteria require objective evidence of accomplishments as opposed to letters of support 
from recognized experts, however credible their opinions may be. 
In response, the petitioner submitted additional letters of recommendation, evidence of an "Associate" diploma 
from the North American Dance Teachers Association, further photographs, and digital video disc recordings of 
his dance performances. 
In the August 18, 2005 decision denying the petition, the director states: "Your cover letter claims that your 
extraordinary ability is shown in the awards received, and the writing career you have followed in the literature 
industry of cosmetology." This statement, however, is irrelevant to the petitioner's case. The director's decision 
listed all ten of the regulatory criteria, but only discussed awards, memberships, and remuneration. The director's 
decision included no discussion of the published material submitted by the petitioner or the specific awards he 
received, nor did it address previous counsel's arguments that the petitioner meets the criteria at 8 C.F.R. 
§$ 204.5(h)(3)(iv) and (v). The director acknowledged the petitioner's submission of awards but concluded that 
he had not demonstrated whether the awards were individual or "as a member." Nothing in the regulation at 
8 C.F.R. $ 204.5(h)(3)(i) precludes team awards. As such, the director's focus on that issue was in error. The 
director also stated that the petitioner had not submitted "objective evidence, such as affidavits from well-known 
U.S. organizations or individuals, to support your claims of prestige and ability." While affidavits may serve as 
valid evidence, they are far more subjective than objective. Evidence that addresses the regulatory criteria, such 
as awards and independent journalistic coverage of the alien, is far more persuasive that the subjective opinions of 
experts in the field. Thus, the implication that expert letters from U.S. sources are required to establish eligbility 
under ths classification is in error. 
The director then discusses the membership criterion at length, concluding that the petitioner had not established 
that he met the criterion set forth at 8 C.F.R. 204.5(h)(3)(ii). After that conclusion, the director noted that the 
petitioner's personal statements and those of his attorney are not objective. While we concur with these 
statements, their order does not make it clear to the petitioner that one's personal statements as to the membership 
requirements of an association cannot serve to establish that it requires outstanding achievements of its members. 
Rather, the petitioner must submit official documentation from the association, such as the association's 
membership bylaws. Moreover, the limited inquiry in the director's request for additional evidence may have led 
the petitioner to believe he had to meet the membership criterion and could not rely on evidence to meet other 
criteria instead. 
In this matter, we find that the director's decision fails to explain the deficiencies in the evidence submitted 
consistent with the regulations such that the petitioner could file a meaninghl appeal addressing those 
deficiencies. Thus, while we agree with the director that the petitioner has not demonstrated eligbility pursuant 
Page 5 
to section 203(b)(l)(A) of the Act, we must remand the matter to the director for issuance of a new request for 
evidence notice that properly addresses the deficiencies in the record. On appeal, counsel now asserts that the 
petitioner meets the criteria at 8 C.F.R. $5 204.5(h)(3)(i), (ii), (iii), (v), (vii), (viii), and (ix). A petitioner, 
however, cannot establish eligibility for this classification merely by submitting evidence that simply relates 
to at least three criteria. In determining whether a 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). 
8 C.F.R. fj 204.5(h)(3)(i) calls for documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. The petitioner has not established that his 
awards are reflective of national or international recognition rather than local or regional recognition. The 
director should instruct the petitioner to submit any media coverage of the events at which the petitioner has won 
awards or other comparable evidence of their national or international significance. 
8 C.F.R. 8 204.5(h)(3)(ii) calls for documentation of the alien's membership in associations in the field for 
which classification is sought, which require outstanding achievements of their members, as judged by 
recognized national or international experts in their disciplines or fields. The petitioner has not submitted 
evidence of the membership bylaws or the official admission requirements for the organization's to which he 
belongs showing that they require outstanding achievement for admission to membership or that prospective 
members are evaluated by national or international experts in consideration of their admission to membership. 
The director should instruct the petitioner to submit official documentation from associations of which the 
petitioner claims to be a member showing their membership criteria (such as membership bylaws). 
8 C.F.R. 5 204.5(h)(3)(iii) calls for 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 classification is sought. Such 
evidence shall include the title, date, and author of the material, and any necessary translation. The petitioner has 
not shown that the published material he submitted was primarily about him and published in major media. The 
director should instruct the petitioner to submit evidence from the publications that have covered the petitioner 
regarding their circulation statistics. 
8 C.F.R. 5 204.5(h)(3)(v) calls for evidence of the alien's original scientific, scholarly, artistic, athletic, or 
business-related contnbutions of major significance in the field. In this case, the evidence submitted by the 
petitioner does not establish that any of his past accomplishments represent original contnbutions of major 
significance in the fields of professional Dance Sport competition or dance instruction. In order to satisfy this 
criterion, the petitioner must submit evidence showing that his artistic or athletic contnbution has 
demonstrably influenced professionals throughout his field or that the field has somehow changed as result of 
his work. The director should instruct the petitioner to submit evidence showing that the petitioner's past 
accomplishments rise to the level of an original contribution of major significance in the field of dance. 
8 C.F.R. 5 204.5(h)(3)(vii) calls for evidence of the display of the alien's work in the field at artistic 
exhibitions or showcases. The plain language of this criterion, however, indicates that it is more appropriate 
for visual artists (such as sculptors and painters) rather than for dancers such as the petitioner. 
8 C.F.R. 4 204.5(h)(3)(viii) calls for evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation. In order to establish that he performed 
in 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 and the reputation of the 
organization or establishment. The director should instruct the petitioner to submit evidence establishing that 
he has performed in a leading or critical role for a distinguished organization in a manner reflective of 
sustained national or international acclaim. 
8 C.F.R. 5 204.5(h)(3)(ix) calls for evidence that the alien has commanded a high salary or other significantly 
high remuneration for services, in relation to others in the field. The petitioner submitted evidence of biweekly 
compensation paid to him by The Wedding Dance Specialists LLC. The petitioner also submitted a prevailing 
wage determination issued by the Virgnia Employment Commission. Prevailing wage statistics limited to 
Virginia are not an appropriate basis for comparison. The petitioner must submit evidence demonstrating that his 
level of compensation places him at the very top of his field at the national level rather than above average at the 
local level. The petitioner offers no national salary statistics as a basis for comparison showing that his 
compensation was significantly high in relation to others in his field. The director should instruct the petitioner to 
submit national wage statistics for competitive dancers or dance instructors (from an organization such as the U.S. 
Department of Labor) to establish that the petitioner earns a level of compensation that places him among the 
highest paid individuals in his field at the national level. 
In conclusion, we concur with the director's finding that the petitioner has failed to demonstrate 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 withn 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. Nevertheless, the director's request for evidence was deficient in that it singled out 
criteria that the petitioner did not initially claim to meet. Further, the director's decision denying the petition was 
deficient in that it contained errors of law and ignored much of the evidence submitted. Therefore, we must 
remand the matter to the director for issuance of a new request for evidence notice that properly addresses the 
deficiencies in the record as outlined above. The director may request any additional evidence deemed warranted 
and should allow the petitioner 12 weeks to respond. Pursuant to 8 C.F.R. 5 103.2(b)(12) and Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971), any evidence submitted by the petitioner in response to the 
director's request must demonstrate his eligibility at the time of filing (July 21, 2004). If the director 
concludes that the petitioner's response does not overcome the deficiencies in the record, the director must issue a 
decision that addresses all of the petitioner's evidence and that applies the pertinent statutory and regulatory 
requirements in the analysis of his evidence. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the alien 
has achieved sustained national or international acclaim and is one of the small percentage who has risen to the 
very top of the field of endeavor. The evidence of record does not establish that the petitioner meets these 
requirements. 
As always, the burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. tj 1361. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for hrther action 
in accordance with the foregoing and entry of a new decision which, if adverse to the petitioner, 
is to be certified to the AAO for review.