dismissed EB-2 Case: Choreography

(b)(6)
JAN 0 2 2014 
DATE: 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Ci tizenship and Immi gration Services 
Administr ative Appeals Offi ce (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2)(A) of the 
Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision . The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http: //www.uscis .gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
-\f), '/? 
(/~~-~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner seeks classification for the beneficiary as an "alien of exceptional ability ," as a 
choreographer pursuant to section 203(b)(2)(A) of the Immigration and Nationality Act (the Act), 8 
U .S.C. § 1153(b )(2)(A). The petitioner further asserts that the beneficiary qualifies for blanket labor 
certification pursuant to 20 C.F.R. § 656.5, Schedule A, Group II. 
The director found that the petitioner had not established that the beneficiary is "an individual of 
exceptional ability," and that the offered job as listed on the ETA Form 9089, Application for 
Permanent Employment Certification, "does not support the classification sought." The director also 
found that the petitioner had not established that the beneficiary qualifies for Schedule A 
designation. Finally, the director found that the petitioner had not established the ability to pay the 
proffered wage at the time the priority date was established. 
On appeal, counsel submits a brief and additionai evidence , including sufficient evidence to establish 
the petitioner's ability to pay the proffered wage. For the reasons discussed below, upon review of the 
entire record, the AAO upholds the director's conclusion that the petitioner has not established the 
beneficiary's eligibility for the classification sought. 
I. LAW 
Section 203(b) of the Act states in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or 
Aliens of Exceptional Ability.--
(A) In General. --Visas shall be made available ... to qualified immigrants who 
are members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences , arts, or business, will 
substantially benefit prospectively the national economy, cultural or educational 
interests, or welfare of the United States, and whose services in the sciences, 
arts, professions, or business are sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the following six criteria, at least three of 
which an alien must meet in order to qualify as an alien of exceptional ability in the sciences, the 
arts, or business: 
(A) An official academic record showing that the alien has a degree, diploma , 
certificate, or similar award from a college, university, school, or other institution of 
learning relating to the area of exceptional ability; 
(b)(6)Page 3 
NON-PRECEDENT DECISION 
(B) Evidence in the form of letter(s) from current or former employer(s) showing that 
the alien has at least ten years of full-time experience in the occupation for which he 
or she is being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for 
services, which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the 
industry or field by peers, governmental entities, or professional or business 
organizations. 
Where the petitioner fails to submit the requisite evidence, the proper conclusion is that the 
petitioner failed to satisfy the regulatory requirement of three types of evidence. See Kazarian v. 
USCIS, 596 F.3d 1115, 1122 (9th Cir. March 4, 2010). If the petitioner has submitted the requisite 
evidence, users makes a final merits determination as to whether the evidence demonstrates "a 
degree of expertise significantly above that ordinarily encountered. " 8 C.F.R. § 204.5(k)(2); see also 
Kazarian, 596 F.3d at 1119-20. Only aliens whose achievements have garnered "a degree of 
expertise significantly above that ordinarily encountered" are eligible for classification as aliens of 
exceptional ability. 8 C.F.R. § 204.5(k)(2); see also Kazarian , 596 F.3d at 119-22. 
While involving a different classification than the one at issue in this matter, the similarity of the two 
classifications makes the court's reasoning in Kazarian persuasive to the classification sought in this 
matter. Specifically, the regulations at 8 C.F.R. §§ 204.5(h)(2), (3) (relevant to the extraordinary 
ability classification at issue in Kazarian) and 8 C.F.R. §§ 204.5(k)(2) , (3)(ii) state a regulatory 
standard and provide a list of suggested types of evidence, of which the petitioner must submit a 
certain number. Significantly, USCIS may not unilaterally impose novel substantive or evidentiary 
requirements beyond those set forth at 8 C.F.R. § 204.5. Kazarian, 596 F.3d at 1221, citing Love 
Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir.2008). Thus, if the regulatory standard is to 
have any meaning, users must be able to evaluate the quality of the evidence in a final merits 
determination. 
The Kazarian court stated that the AAO's evaluation in that case rested on an improper understanding 
of the regulations. Instead of parsing the significance of evidence as part of the initial inquiry, the court 
stated that "the proper procedure is to count the types of evidence provided (which the AAO did)," and 
if the petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has 
failed to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." !d. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence on behalf of the beneficiary under at least three criteria, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. !d. 
II. ANALYSIS 
A Comparable Evidence 
As stated in the director's decision and request for evidence (RFE), the regulation at 8 C.P.R. 
§ 204.5(k)(3)(iii) allows for the submission of "comparable evidence" only if the above standards 
"do not readily apply to the beneficiary's occupation." Thus, it is the petitioner's burden to 
demonstrate why the standards at 8 C.P.R. § 204.5(k)(3)(ii) are not readily applicable to the alien's 
occupation and how the evidence submitted is "comparable" to the specific objective evidence required 
at 8 C.P.R. §§ 204.5(k)(3)(ii)(A)- (F). 
Although counsel asserts that a letter from regarding the applicability of certain 
categories of evidence was overlooked, the regulatory language precludes the consideration of 
comparable evidence in this case, as there is no indication that the standards specified by the 
regulation at 8 C.P.R. § 204.5(k)(3)(ii) are not readily applicable to the beneficiary's occupation. In 
fact, the petitioner submitted evidence with the original Form I-140 that specifically addresses three 
of the six categories of evidence set forth in the regulation at 8 C.P.R. § 204.5(k)(3)(ii), and an 
additional criterion in response to the director's RFE. Furthermore , the letter from 
submitted in response to the director's RFE and the letter from the petitioner submitted on appeal do 
not state that the criteria at 8 C.P.R. § 204.5(k)(3)(ii)(A), (D) and (E) do not apply to 
choreographers at all, rather the letters state that they are not indicative of exceptional ability. The 
letters only clarify that that the criterion at 8 C.P.R. § 204.5(k)(3)(ii)(C) is not applicable to the field 
of choreography. The six criteria in the regulations are designed to cover different areas; not every 
criterion will apply to every occupation. 
Where an alien is simply unable to satisfy the plain language requirements of at least three categories 
of evidence at 8 C.P.R. § 204.5(k)(3)(ii), the regulation at 8 C.P.R. § 204.5(k)(3)(iii) does not allow 
for the submission of comparable evidence. 
(b)(6) NON-PRECEDENT DECISION 
Page 5 
B. Evidentiary Criteria
1 
·Evidence in the form of letter(s) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or she 
is being sought 
Upon review of the entire record, the director's finding for this criterion must be withdrawn. As stated 
by the director in his RFE, the plain language of the regulation requires "ten years of full-time 
experience in the occupation for which he or she is being sought." In the instant petition, the 
petitioner has specified on the Form I-140 petition, part 6, and the Form ETA 9089, Part H, line 3, 
that it is offering the relevant occupation is choreographer. The petitioner lists "dancer" as an 
"alternate occupation" for acceptable experience on the Form ETA 9089, Part H, line 10-B. In 
response to the director's RFE, counsel concedes that the beneficiary "did not work exclusively as a 
choreographer for the last 10 years," but urges consideration of comparable evidence. As stated 
above, the consideration of comparable evidence is not allowed in the instant petition. In addition, 
the petitioner submitted new letters detailing the beneficiary's work over the last ten years as a dancer, 
choreographer and instructor. Based upon the employment letters, the beneficiary cannot be found to 
have ten years of full-time experience as a choreographer, the occupation for which he is being sought. 
Moreover, the petitioner has not explained how experience in a related but distinct occupation is 
"comparable" to ten years of experience in the occupation. See Lee v. I.N.S., 237 F. Supp. 2d 914 
(N.D. Ill. 2002) (upholding 
a finding that athletics and coaching are not the same occupation). Thus, 
the petitioner has not submitted evidence that meets the plain language requirements of the criterion. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability 
The director discussed the submitted evidence and found that the petitioner failed to establish that the 
evidence was qualifying. In response to the director's RFE, counsel asserts that the beneficiary meets 
this criterion because he "is the highest paid employee in the petitioning company" and that the 
"wage offered to the [b]eneficiary (ie, $56,000) is at the very top end of the DOL's prevailing wage 
survey." The record contains a copy of the beneficiary's 2012 W-2, which indicates that the beneficiary 
was paid $47,510, and a 2012 Form 1099, which indicates an additional $2,725, for a total of $50,235, 
which is approximately ten percent less than the prevailing wage of $55,661. The plain language of the 
regulation requires that "the alien has commanded a salary ... which demonstrates exceptional ability." 
The submitted evidence does not establish that the beneficiary received the referenced remuneration , 
prior to the June 26, 2012 filing date. Eligibility must be established at the time of filing. 8 C.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). In addition, being 
the petitioner's highest paid employee is not demonstrative evidence of exceptional ability. 
Furthermore, the petitioner has not demonstrated how a salary below the prevailing wage is evidence of 
exceptional ability. Thus, the petitioner has not submitted evidence that meets the plain language 
requirements of the criterion. 
1 
The petitioner does not claim to meet or submit evidence relating to the re.gulatory categories of evidence 
not discussed in this decision. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
Evidence of memb ership in professional association s 
The director 's RPE requested the petitioner to provide evidence that the beneficiary is a member of 
more than one professional association, as required by the plain language of the regulation. 
Significantly, not all of the criteria at 8 C.P.R. § 204.5(k)(3)(ii) are worded in the plural. Specifically, 
the regulations at 8 C.P.R. §§ 204.5(k)(3)(ii)(A) , (C) and (D) only require one academic record, a single 
license and a single high salary. When a regulatory criterion wishes to include the singular within the 
plural, it expressly does so as when it states at 8 C.P.R. § 204.5(k)(3)(ii)(B) that evidence of experience 
must be in the form of "letter(s)." Thus, the AAO can infer that the plural in the remaining regulatory 
criteria has meaning. In a different context, federal courts have upheld USCIS ' a bility to interpret 
significance from whether the singular or plural is used in a regulation.2 
In response to the director's RFE, the petitioner submitted a letter from Executive 
Director of which states that "it is not the standard practice that all exceptional 
choreographers participate in industry associations ... and membership is not determined on merit or 
artistic quality." On appeal, the petitioner submitted a letter which states that "membership is in no 
way an indication of exceptional skill as a choreographer." However, the plain langu age of the 
regulation only requires membership in professional associations , not that it be demon strative of 
exceptional ability. As previously stated, Kazarian, 596 P.3d at 1122, sets forth a two-part approach 
where the evidence is first counted and then considered in the context of a final merits determination , 
where it would be determined whether the evidence demonstrates "a degree of expertise significantly 
above that ordinarily encountered." 
In light of the above , as the petitioner only submitted evidence of one qualif ying membership , the 
petitioner has not submitted qualifying evidence that meets the plain language requirem ents of the 
criterion. 
Evidence of recognition for achievements and significant contributions to th e industry o r 
field by p eers, governmental entities, or professional or business organizations 
The director found that the petitioner submitted sufficient evidence to satisfy this criterion and the AAO 
affirms the director's finding. 
In summary, the petitioner has not submitted the initial required evidence under at least three of the 
criteria at 8 C.P,R. § 204.5(k)(3)(ii). 
Had the petitioner submitted the requisite evidence under at least three evidenti ary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determin ation that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated that the 
2 See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26, 2008); Snapname s.com 
Inc. v. Chertojj; 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholdin g an interpretation that the 
regulatory requirement for "a" bachelor's degree or "a" foreign equiv alent degree at 8 C.F.R. § 204.5(1)(2) 
requires a singl e degree rather than a combination of academic credenti als). 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
beneficiary has a degree of expertise significantly above that ordinary encountered. 8 C.P.R. 
§§ 204.5(k)(2) and (3); see also Kazarian, 596 P.3d at 1119-20. While the AAO concludes that the 
evidence is not indicative of such expertise, the AAO need not explain that conclusion in a final merits 
determination? Rather, the proper conclusion is that the petitioner has failed to satisfy the antecedent 
regulatory requirement of three types of evidence. !d. at 1122. 
Therefore, the documentation submitted has not shown that the beneficiary has a degree of expertise 
significantly above that ordinarily encountered and the petitioner failed to establish the beneficiary is 
qualified for classification as an alien of exceptional ability under section 203(b )(2) of the Act. 
Thus, the petitioner has not established that the beneficiary is qualified for the benefit sought. On 
that basis alone the petition cannot be approved. 
C. The Offered Position 
The regulation at 8 C.P.R.§ 204.5(k)(4) provides the following information regarding labor certification 
and Schedule A designation for classification as aliens who are members of the professions holding 
advanced degrees or aliens of exceptional ability: 
(i) General. Every petition under this classification must be accompanied by an 
individual labor certification from the Department of Labor, by an application for 
Schedule A designation (if applicable), or by documentation to establish that the alien 
qualifies for one of the shortage occupations in the Department of Labor's Labor 
Market Information Pilot Program. To apply for Schedule A designation or to 
establish that the alien's occupation is within the Labor Market Information Program, 
a fully executed uncertified Form ETA-750 in duplicate must accompany the petition. 
The job offer portion of the individual labor certification, Schedule A application, or 
Pilot Program application must demonstrate that the job requires a professional 
holding an advanced degree or the equivalent or an alien of exceptional ability. 
(Emphasis added.) As required by statute, an uncertified ETA Form 9089 , Application for 
Permanent Employment Certification, in duplicate accompanied the petition. The job offer portion 
of the ETA 9089 in this matter indicates that the proffered position require s either 120 months of 
experience in the job offered or 120 months of experience as a profession al dancer/choreogr apher. 
No other requirements are listed. 
U.S. Citizenship and Immigration 
Services (USCIS) may not ignore a term of the labor certification, 
nor may it impose additional requirements. See Matter of Silver Dragon Chinese Restaurant, 
3 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 P.3d at 145. In 
any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.P.R.§ 103.5(a)(l)(ii). See also section 103(a)(1) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.P.R. § 2.1 (2003); 8 C.P.R. 
§ 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions). 
(b)(6) NON-PRECEDENT DECISION 
Page 8 
19 I&N Dec. 401, 406 (Comm.l986). See also, Madany , 696 F.2d at 1008; K.R.K. Irvine, Inc., 699 
F.2d at 1006; Stewart Infra-Red Commissary of Massachusett s, Inc. v. Coom ey, 661 F.2d 1 (1st Cir. 
1981). users must examine "the language of the labor certification job requirements " in order to 
determine what the job requires. See generally Madany, 696 F.2d at 1015. The only rational 
manner by which users can be expected to interpret the meaning of terms used to describe the 
requirements of a job in a labor certification is to "examine the certified job offer exactly as it is 
completed by the prospective employer." Rosedale Linden Park Company v. Smith, 595 F. Supp. 
829, 833 (D.D.C. 1984)(emph asis added). USCIS's interpretation of the job 's requirements , as 
stated on the labor certification must involve "reading and applying the plain language of the [labor 
certification application form]. " !d. at 834 (emphasis added). 
The director's decision states that "[a ]t issue is whether the job requirements indicate that the position 
itself requires an alien of exceptional ability" and found that the position did not require an individual of 
exceptional ability. Counsel does not address this finding on appeal. As counsel does not specifically 
explain how the director erred in his conclusion, counsel has abandoned this claim. Sepulv eda v. U.S. 
Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 
1343, 1344 (11th Cir. 1998); see also Hristov v. Roark, No. 09-CV-27312011 , 2011 WL 4711885 at 
*1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandoned as he failed to raise them on 
appeal to the AAO). 
D. Prior 0-1 
While USCIS has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the 
petitioner, the prior approval does not preclude users from denying an immigrant visa petition 
based on a different classification. It must be noted that many I-140 immigr ant petitions are denied 
after USCIS approves prior nonimmigrant petitions. See, e.g., Q Data Consultin g, 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. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
III. CONCLUSION 
The documentation submitted has not established that the beneficiary is qualified for classification as 
an alien of exceptional ability under section 203(b )(2) of the Act. In addition, the job offer portion 
of the ETA Form 9089 does not demonstrate that the job requires an individual of exceptional ability 
as required by the regulation at 8C.F.R. § 204.5(k)(4). As a result the determin ation as to whether the 
beneficiary qualifies for Schedule A, Group II classification under 20 C.F.R. § 656.15( d)(2) is moot. 
The appeal will be dismissed for the above stated reasons, with each considered as an independ ent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner 's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiend e, 26 I&N Dec. 127, 128 (BIA 2013) . Here, that burden has not been met. 
ORDER: The appeal is dismissed.