remanded EB-1A Case: Television And Film Production

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U.S. Department of fIomeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
fi 
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 11 53(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. 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, initially approved the preference visa petition. 
Subsequently, the Director, California Service Center (hereinafter "the director"), issued a notice of 
intent to revoke the approval of the petition (NOIR). In a Notice of Revocation (NOR), the director 
ultimately revoked the approval of the Immigrant Petition for Alien Worker (Form 1-140). The matter 
is now before the Administrative Appeals Office (AAO) on appeal. While the appeal does not succeed 
on its merits, we withdraw the director's decision and remand the matter for the sole purpose of 
issuance of a new notice of intent to revoke, affording the petitioner an opportunity to respond to 
inconsistencies in the record and eligibility issues not raised in the original notice of intent to revoke. 
Section 205 of the Act, 8 U.S.C. 5 1155, states, in pertinent part, that the Secretary of Homeland 
Security "may, at any time, for what he deems to be good and sufficient cause, revoke the approval 
of any petition approved by him under section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board of 
Immigration Appeals has stated: 
In Matter ofEstime, . . . this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the notice of intention to revoke, would warrant such denial. 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988)(citing Matter ofEstime, 19 I&N Dec. 450 (BIA 
1987)). Finally, the realization by the director that the petition was approved in error may be good 
and sufficient cause for revoking the approval. Id. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. €j 1 1 53(b)(l)(A). The director 
determined the petitioner had not established that she seeks to enter the United States to continue 
working in her area of expertise. In the NOIR and the NOR, the director expressed concerns about the 
petitioner's work history since arriving in the United States. 
On appeal, counsel submits a brief and additional evidence. While the director's concerns are not 
unfounded, the director omitted certain facts that would strengthen the director's basis of revocation. 
Moreover, the director may wish to consider whether the petitioner has ever enjoyed the type of 
sustained national or international acclaim required for the classification sought. While an application 
or petition that fails to comply with the technical requirements of the law may be denied by the AAO 
even if the Service Center does not identify all of the grounds for denial in the initial decision,' a 
revocation can only be grounded upon, and the petitioner is only obliged to respond to, the factual 
allegations in the notice of intent to revoke. Matter of Arias, 19 I&N Dec. 568, 570 (BIA 1988). Thus, 
in order to ensure a thorough analysis of all the evidence and issues in this matter, we must remand the 
matter for a new notice of intent to revoke that includes all of the relevant factual allegations. 
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. 
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. 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 she has sustained national or 
international acclaim at the very top level. 
According to Part 6 of the petition, this petition seeks to classify the petitioner as an alien with 
extraordinary ability as a television director, scriptwriter and producer. 
1 
See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 200 1 ), aff'd. 345 F.3d 
683 (9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
Page 4 
Continued Employment 
The regulation at 8 C.F.R. 5 204.5(h)(5) provides: 
No offer ofemployment required. Neither an offer for employment in the United States 
nor a labor certification is required for this classification; however, the petition must be 
accompanied by clear evidence that the alien is coming to the United States to continue 
work in the area of expertise. Such evidence may include letter(s) from prospective 
employer(s), evidence of prearranged commitments such as contracts, or a statement 
from the beneficiary detailing plans on how he or she intends to continue his or her 
work in the United States. 
(Bold emphasis added.) The "Introduction of Evidence" submitted initially provides that the petitioner 
worked as a television director, scriptwriter and producer at the Shanghai Center for Family Planning 
and that she "will continue her work without real retirement." An addendum to the Form 1-140 petition 
provides the "bases of annual income," calculating the income in Chinese RMB on the assumption that 
the petitioner "will take at least four films per year." On the Form G-325 Biographic Information, 
signed by the petitioner on August 14, 1997 and submitted with the petitioner's corresponding Form I- 
485 Application to Register Permanent Residence or Adjust Status, the petitioner indicated that she still 
worked for the Shanghai Center for Family Planning. 
The petitioner was interviewed at the Los Angeles District Office in September 2003 regarding her 
Form 1-485 Application to Register Permanent Residence or Adjust Status, filed concurrently with this 
petition. At the interview, the petitioner presented her Form 1040 U.S. Individual Income Tax Returns 
for 2000, 2001 and 2002. Although the petitioner listed her television work under occupation in 
addition to "housekeeping," the only documented wages during these three years were horn 
housekeeping employment for Hospital Housekeeping Systems and Marriott International 
Administrative Services. An e-mail letter fi-om the petitioner's daughter to "Dianne" asserts that after 
the petitioner becomes a lawful permanent resident she plans to establish a studio but also asserts that 
permanent residency "will offer her mobility to travel to China and to produce films related to 
intercultural learnings on women and kids." 
On May 8, 2006, the director issued a notice of intent to revoke. While the director asserted that the 
petitioner must be intending to continue in her field "such as to substantially benefit the United States," 
the director ultimately concluded that there "is no evidence that you have come to the United States to 
continue work in your field of expertise." 
In response, the petitioner submitted her own personal statement discussing her future plans to work in 
her area of expertise. She also noted that she traveled to China between 1998 and 2000 to direct and 
produce television shows in China and that she wrote a script based on her housekeeping experiences in 
the United States. She asserted that she wrote a script for a local Chinese school and incorporated The 
Visual Voice allowing her to "more freely negotiate, discuss and cooperate with other film and TV 
Page 5 
organizations in making TV or film programs." Finally, she discussed several future projects she hopes 
to complete. 
In response to the NOIR, counsel cited Buletini v. INS, 860 F. Supp. 1222, 1229 (E.D. Mich. 1994) and 
other sources for the proposition that aliens of extraordinary ability who work in their area of expertise 
are presumed to substantially benefit the interests of the United States. Counsel further noted that the 
regulation at 8 C.F.R. 5 204.5(h)(5) requires only a statement detailing plans on how the alien plans to 
continue working in her area of expertise. Counsel reiterated the claims made in the petitioner's 
personal statement. 
The petitioner also submitted (1) untranslated Chinese credits for programs the petitioner allegedly 
directed or produced in China after filing the petition, (2) the petitioner's screenplays in Chinese, (3) a 
"Co-shooting Agreement" between The Visual Voice and C&S Media International, Inc., (4) the 
articles of incorporation for The Visual Voice, (5) plans for The Visual Voice including a 10- 15 minute 
production, (6) e-mail correspondence regarding proposed collaborations, (7) a letter from the President 
of the School Board of the Chinese school that performed the petitioner's play and (8) a letter from- 
, the first female Chinese-American mayor in the United States, authorizing the petitioner to 
direct and produce a documentary drama about 
 life in America. 
The director acknowledged the petitioner's response, concluding that the petitioner had not overcome 
the concerns stated in the notice of intent to revoke as the proposed work "will be available once 
funding has been provided." 
On appeal, counsel asserts that the director defined the petitioner's "field" too narrowly and discusses 
examples of other famous individuals whose art reflects their life experiences. Counsel further asserts 
that where the petitioner directs and produces is irrelevant as "film production is a cultural activity and 
has no country boundary." Nevertheless, counsel also asserts that the petitioner is attempting to 
continue working in the United States as is apparent from her incorporation of The Visual Voice, 
although counsel asserts that "it may take a long time to have a film on the screen." Counsel then 
provides examples of famous film directors/producers who initially lacked funding. 
Not mentioned by the director, however, is the fact that on June 29, 1999, the petitioner filed a Form I- 
13 1 Application for Travel Document. In support of this application, the petitioner requested a travel 
document that would "allow her to travel to other countries to film, which in some cases, she might 
leave as long as two years, and come back every now and then, but less than 180 days per year." 
Regardless of whether film production is a "cultural activity" with "no country boundq," the 
regulation at 8 C.F.R. $204.5(h)(5) unambiguously requires evidence that the petitioner intends to 
work in her area of expertise "in the United States." While the regulation permits a detailed statement 
from the alien, such a statement must be consistent with the other evidence of record. In this matter, 
the petitioner's statement, submitted in response to the director's NOIR, is not consistent with the 
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original petition, supported by statements that she was still employed in China and intended to continue 
her employment there, and the document submitted in support of the Form 1-1 3 1. 
While the director's conclusion that the petitioner did not intend to work in her area of expertise in the 
United States is not without support, the director did not mention the inconsistencies discussed above. 
Thus, in accordance with Matter of Arias, 19 I&N Dec. at 570, we will remand the matter for a new 
notice of intent to revoke that allows the petitioner to respond to the above inconsistencies. 
We note, however, that 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, 59 1-92 (BIA 1988). 
Extraordinary Ability 
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, international 
recognized award). Baning the alien's receipt of such an award, the regulation outlines the following 
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. 
(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 specification 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 authorship 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. 
It should be reiterated, however, that the petitioner must show that the beneficiary has sustained 
national or international acclaim at the very top level. The director may wish to review whether the 
record contains any evidence regarding the significance of the petitioner's awards, such as media 
coverage of the award selections; whether the petitioner's certificates of appreciation from her 
housekeeping employers are awards for excellence in her field; whether the local Shanghai TV Artists 
Association, whose members must be "qualified TV artists, who has got professional tilles [sic] of 
middle or high level, who are the influential scriptwriters, directors, actors or actresses with some own 
works [sic], who has been involved in TV art for over six years, and three or more works have won the 
prizes" requires outstanding achievements as judged by recognized national or international experts in 
the field; whether the petitioner has submitted evidence that the published materials are "about" the 
petitioner or that they appeared in "major media;" whether teaching constitutes the type of "judging" 
contemplated by the regulation at 8 C.F.R. § 204.5(h)(3)(iv); and whether the petitioner submitted the 
required initial evidence of commercial success. The director may also raise any other concerns. 
In light of the above, the matter is remanded to the director for the sole purpose of issuing a new 
notice of intent to revoke advising the petitioner of the inconsistencies above and any findings 
regarding the petitioner's purported sustained acclaim in 1997 when the petition was filed. 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 5 1361. 
ORDER: 
 The director's decision is withdrawn. The petition is remanded to the director for 
further action in accordance with the foregoing and entry of a new decision that, if 
adverse to the petitioner, is to be certified to the Administrative Appeals Office for 
review.