Case Study: AAO dismissed an EB1-A Appeal of a Petition for an Alien Choreographer

by Victoria Chen, Esq., J.D.

Background: The petitioner is involved in the performing arts. It seeks to classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act as an alien of extraordinary ability in the arts. Specifically, the petitioner seeks to classify the beneficiary as an alien with extraordinary ability as a choreographer.

USCIS Decision: The director determined the petitioner had not established that the beneficiary qualifies for classification as an alien of extraordinary ability.

USCIS’s Reasons of Denial: The director denied the petition, stating that the evidence submitted did not establish that the beneficiary had enjoyed sustained national or international acclaim at the top of her field.

AAO’s Decision: THe AAO analyzed the case evidence by evidence and concluded that the petitioner only satisfied one, instread of at least three, of the regulatory types of evidence.

1. Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

The AAO found that the beneficiary has satisfied this criterion. She has won numerous national competitions in China as well as international awards in Moscow, Bulgaria, and Czechoslovakia.

2. 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.

The AAO did not find that the petitioner has met this criterion. The beneficiary is a member of the China Association of Professional Dancers, the China Opera Ballet, and the Beijing Professional Dancer Association. The record, however, does not establish that outstanding achievement is a requirement for membership in these associations.

3. Published materials 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.

The AAO did not find the petitioner satisfied this criterion. The petitioner submits copies of newspaper articles about the beneficiary. Identified publications include Dance Spirit and the Beijing Evening News. Judging from the content, the articles appear to derive from local newspapers rather than nationally circulated publications. The purpose of this criterion, and all of the criteria, is to establish sustained acclaim at the national or international level. Local newspaper coverage cannot meet this very strict threshold.

4. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.

The AAO did not find the petitioner submitted sufficient evidence to satisfy this criterion. The beneficiary has authored five articles about ballet. The translations provided are only brief summaries of the articles, rather than complete translations. Counsel states that the petitioner insisted on filing the forms in their present state. By regulation, however, any document containing foreign language submitted to the Service shall be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator’s certification that he or she is competent to translate from the foreign language into English.

5.Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases.

The AAO did not find the evidence supported this prong of criterion. Although the petitioner citeed the beneficiary’s performances in various ballets as satisfying this criterion, such appearances are covered by a separate criterion pertaining to commercial success in the performing arts. Otherwise, every dancer who has performed live could be said to satisfy this criterion. This criterion, as written, applies more to visual artists than to performing or recording artists.

The AAO therefore concluded that after reviewing the record, the petitioner does not establish that the beneficiary has distinguished herself as a choreographer to such an extent that she may be said to have achieved sustained national or international acclaim or to be within the small percentage at the very top of her field. The evidence is not persuasive that the beneficiary’s achievements set her significantly above almost all others in her field. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition may not be approved.

from Chen Immigration Law Associates

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