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U.S. Department of Homeland Security U S C~t~zensh~pand Imm~grat~on Semces dnade\ed to OfficeofAdmznrstratzve Appeals MS 2090 Wash~ngton,DC 20529-2090 U1n'd%fl"Qnted prevent c\~a ,*A piivacy U. S. Citizenship invail~gof F~~"' and Immigration Services FILE: Office: NEBRASKA SERVICE CENTER Date: JUN 1 6 2009 -LIN 08 028 53573 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. 8 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. 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. 8 103.5 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. 5 103.5(a)(l)(i). /- Acting Chief, Administrative Appeals Office Page 2 DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service Center. The petition 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. 6 1153(b)(l)(A), as an alien of extraordinary ability in the arts. The director determined the petitioner had not established the sustained national or international acclaim necessary to qualify for classification as an alien of extraordinary ability. 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 to the United States will substantially benefit prospectively the United States. The 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, 60898-9 (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 has risen to the very top of the field of endeavor. 8 C.F.R. $ 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. 8 204.5(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 October 9, 2007, seeks to classify the petitioner as an alien with extraordinary ability as a musician and producer. 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, 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. The record reflects that the petitioner is the beneficiary of an approved nonimmigrant petition as an alien with extraordinary ability under section 101(a)(15)(0)(i) of the Act, 8 U.S.C. 9 1101 (a)(15)(0)(i). mleUSCIS has approved an 0-1 nonimmigrant visa petition filed on behalf of the petitioner, that 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 nonimmigrant petitions. Although the words "extraordinary ability" are used in the Act for both the nonimmigrant 0-1 classification and the first preference employment-based immigrant classification, the applicable regulations define the terms differently for each classification. The 0-1 regulation explicitly states that "[elxtraordinary ability in the field of arts means distinction." 8 C.F.R. 5 214.2(0)(3)(ii). "Distinction" is a lower standard than that required for the immigrant classification, which defines 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. $204.5(h)(2). The evidentiary criteria for these two classifications also differ in several respects, for example, nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 8 C.F.R. 5 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of awards or prizes. 8 C.F.R. 5 204.5(h)(3)(i). Given the clear regulatory distinction between these two classifications, the beneficiary's receipt of 0-1 nonirnmigrant classification is not evidence of his eligibility for immigrant classification as an alien with extraordinary ability. The petitioner has submitted evidence that, he claims, meets the following criteria.' A petitioner, however, cannot establish eligibility for this classification merely by submitting evidence that simply relates to at least three of the criteria outlined in 8 C.F.R. 5 204.5(h)(3). In determining whether the 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. tj 204.5(h)(2). Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in theFeld of endeavor. The petitioner submitted a May 8, 2007 affidavit from,president of Associaq60 Brasileira de Documentaristas (ABD), certifying that the petitioner received an award for Best Soundtrack for the movie Mente Capto during the Competitive ABD Cine Goias Show, held 1 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. Page 4 during the IV International Film and Environmental Video Festival (IV FICA) from June 5-9, 2002. Counsel asserted: According to the statistics provided by the staff of the IV FICA, held between 05 and 09 of June of 2002, 429 films from 63 countries registered to participate in this international event. 49 films from 24 countries were selected to be present at the event and compete for the awards. Other 100 films from 19 Brazilian states also participated in the festival, as well as musicians, actors, and entertainers. This is a major international event in Brazil and [the petitioner] was recognized and awarded for his distinguished work (best soundtrack) in the movie Mente Capto. The petitioner submitted copies of pages from the website of FICA, which appear to indicate that the film Mente Capto won the award for best soundtrack. However, these documents are in Portuguese and not accompanied by English translations. Because the petitioner failed to submit certified translations of the documents, the AAO cannot determine whether the evidence supports the petitioner's claims. See 8 C.F.R. tj 103.2(b)(3). Accordingly, the evidence is not probative and will not be accorded any weight in this proceeding. In a request for evidence (WE) dated February 13,2008, the director advised the petitioner: You claim that you received an award for Best Soundtrack during the Competitive AJ3D Cine Goias Show in June of 2002. Please provide a copy of the actual award that clearly identifies the recipient. You must also provide official documentary evidence that establishes the service you provided for the movie Mente Capto. Finally, you must provide evidence that establishes the significance of the award, its scope, the requirements necessary to compete for the award, and the criteria utilized to select the recipient. In response, the petitioner submitted a photograph of the ABD Cine Goias award for Best soundtrack. The award does not indicate to who& it was given. The petitioner also submitted a February 28, 2008 letter from who stated that she was the creator, producer and director of the movie Mente Capto, and that she shared all of the credits with her team members. She hrther stated- that she supervised the petitioner's work as he created all of the tracks, and produced and recorded the soundtrack for the film.