remanded EB-1A Case: Dance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 14, 2024 In Re: 29853630 
Appeal of Texas Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a dancer, seeks classification as an individual of extraordinary ability in the arts. 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § l 153(b)(l)(A) . This first 
preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner has a level of expertise indicating that she is one of the small percentage 
who have risen to the very top of her field of endeavor. The matter is now before us on appeal. 
8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
An individual is eligible for the extraordinary ability classification if they have extraordinary ability 
in the sciences, arts, education, business, or athletics which has been demonstrated by sustained 
national or international acclaim and their achievements have been recognized in the field through 
extensive documentation; they seek to enter the United States to continue work in the area of 
extraordinary ability; and their entry into the United States will substantially benefit prospectively the 
United States. Section 203(b )(1 )(A) of the Act. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate a one­
time achievement (that is, a major, internationally recognized award). If that petitioner does not 
submit this evidence, then they must provide documentation that meets at least three of the ten 
categories listed at 8 C.F.R. § 204.5(h)(3)(i) - (x) (including items such as awards, published material 
in certain media, and scholarly articles). The regulation at 8 C.F.R. § 204.5(h)( 4) allows a petitioner 
to submit comparable material if they are able to demonstrate that the standards at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x) do not readily apply to the individual's occupation. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCJS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCJS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
Because the Petitioner did not indicate or establish that she has received a major, internationally 
recognized award, she initially sought to demonstrate her eligibility by submitting evidence related to 
the following regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x): 
• (i), Receipt of lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iii), Published material about the Petitioner in major media; 
• (iv), Participation as a judge of the work of others; 
• (vii), Display of the Petitioner's work at artistic exhibitions, 
• (viii), Leading or critical role for organizations with distinguished reputations; and 
• (ix), Commanded significantly high remuneration in comparison with others in the field. 
The Director's notice of intent to deny (NOID) concluded, without explanation, that the Petitioner met 
the criteria regarding published material, participation as a judge, and display at artistic exhibitions, 
but did not meet the other four requested criteria. Because the Petitioner had satisfied the required 
three initial criteria, the Director conducted a final merits determination which only discussed the 
evidence for those three criteria, and then requested further documentation establishing the Petitioner's 
eligibility for the four criteria that were denied, as well as her overall record of sustained national or 
international acclaim. 
The Petitioner provided a timely response to the NOID, and the Director denied the pet1t10n, 
concluding without any explanation that the Petitioner had not met any additional criteria and 
repeating the NOID's final merits analysis. 
Remanding a matter is appropriate when the Director does not fully explain the reasons for the denial 
so that the affected party has a fair oppmiunity to contest the decision and we have an opportunity to 
conduct a meaningful appellate review. 8 C.F.R. § 103.3(a)(l)(i) (providing that the director's 
decision must explain the specific reasons for denial); cf Matter of M-P-, 20 I&N Dec. 786 (BIA 
1994) (finding that the reasons for denying a motion must be clear to allow the affected paiiy a 
meaningful opportunity to challenge the determination on appeal). 
On appeal, the Petitioner contends that no reason was given for why she did not meet the criteria 
regarding lesser nationally or internationally recognized awards, membership in associations, leading 
or critical roles, or her remuneration, and that the Director's final merits analysis did not consider the 
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totality of the record. Because the Petitioner met the initial evidentiary requirements with evidence 
corresponding to three of the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x) and has proceeded to the final 
merits determination, the four unmet criteria are not material to the outcome of this case. However, a 
final merits determination under Kazarian must consider the totality of the evidence, not only the 
evidence corresponding to criteria that have been satisfied. Kazarian, 596 F.3d at 1119-20; see 
generally 6 USCIS Policy Manual F.2(B)(2), https://www.uscis.gov/policy-manual. The record here 
includes letters of support, awards, salary documents, and various other documentation the Director 
did not address in the NOID 1 or denial notice. 
We further note that the Director's denial did not evaluate the contents of the attorney letter provided 
in response to the NOID. While the Director correctly noted that attorney statements are not 
considered evidence in and of themselves, 2 such statements do make legal arguments regarding the 
evidence, which the Director must address in any denial notice in order to specifically explain the 
reasons for that denial. 8 C.F.R. § 103.3(a)(l)(i). 
Because the Director did not analyze much of the Petitioner's evidence or arguments, the denial notice 
is insufficient to allow her a fair opportunity to challenge the decision or for us to conduct a meaningful 
appellate review. We will therefore remand this matter to the Director to consider again whether the 
overall record demonstrates that the Petitioner has sustained national or international acclaim and that 
she is one of that small percentage that has risen to the very top of her field. 
On remand, the Director shall weigh and review all of the evidence presented, including the materials 
submitted on appeal. The Director may request any additional evidence considered relevant to the 
new determination and any other issues. We express no opinion regarding the ultimate resolution of 
this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
1 8 C.F.R. § 103.2(b )(8)(iv) (stating that a NOID must, among other things, state "bases for the proposed denial sufficient 
to give the applicant or petitioner adequate notice and sufficient infmmation to respond"); see generally 1 USCIS Policy 
Manual, supra, at E.6(F)(4) (stating that NOIDs should "[i]dentify the reasons for the intended denial, including the 
eligibility requirement(s) that has not been established, and why the evidence submitted is insufficient"). 
2 See, e.g., Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1988) ("statements in a brief, motion, or Notice of Appeal are not 
evidence and thus are not entitled to any evidentiary weight"). 
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