Jclb~D~CL, F John F

identifying data deleted to U.S. Department of Ilomeland Security U.S. Citizenship and Immigration Services prevent clear\y unwarranrcd Of>ce ofAdministrative Appeals MS 2090 . invasion of personal privacy Washington, DC 20529-2090 %W& U.S. Citizenship and Immigration p Services -J & Office: NEBRASKA SERVICE CENTER Date: s~p0 3 20~ LIN 08 005 54548 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 1 153(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. 5 103.5 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 103S(a)(l)(i). Jclb~d~CL, f John F. Grissom 1' Acting Chief, Administrative Appeals Office 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. 5 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. More specifically, the director found that the petitioner had failed to demonstrate receipt of a major, internationally recognized award, or that she meets at least three of the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). On appeal, counsel for the petitioner argues that the petitioner meets the statutory requirements and at least three of the regulatory criteria at 8 C.F.R. 9 204.5(h)(3). 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. U.S. Citizenship and Immigration Services (USCIS) and the 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 ability7' 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. 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. 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. This petition, filed on August 17, 2007, seeks to classify the petitioner as an alien with extraordinary ability as a "performing artist - dancer." The regulation at 8 C.F.R. $ 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. 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. $ 204.5(h)(2). We note that although the record contains evidence of the petitioner's prior approval as an 0-1 nonimmigrant, the 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. See, e.g., Q Data Consulting, 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). Because USCIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude USCIS from denying an extension of the original visa based on a reassessment of petitioner's qualifications). The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Cornrn. 1988). It would be absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court of appeals and a district court. Even if a service center director has approved a nonirnmigrant petition on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). Page 4 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 "[e]xtraordinary 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. 5 204.5(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 petitioner's receipt of 0-1 nonimmigrant classification is not evidence of her eligibility for immigrant classification as an alien with extraordinary ability. The petitioner has submitted evidence that, she claims, meets the following criteria under 8 C.F.R. 5 204.5(h)(3).' Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor. The petitioner provided a list of awards that she stated she had won and submitted documentation regarding the following: 1. Showstopper Awards. The petitioner submitted documentation indicating that she won first place and the top solo award at the 1996 Showstopper American Dance Championship (Showstopper) finals held in Myrtle Beach, South Carolina and was awarded the Top Senior Solo Overall at the 2001 National Championships. In a September 13, 2006 letter, , the national director of Showstopper, stated that the competition "has for many years been the largest dance competition in the world" and "has been nationally televised for over 10 years and was nominated for Emmy Awards in 1996 and 1997." The petitioner submitted a copy of a television schedule showing when the finals of the 2001 competition was scheduled to air in various cities in the United States.

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