I picked up a NSC response (intent to deny) to a I-140 petition from another forum. Check this one out (I mean, imagine how much time it took officer to write this). You will get an idea why NSC is so slow.
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VLADIMIR GALCHENKO
C/O EDWARD С BESHARA
1850 LEE ROAD STE 300
WINTER PARK FL 32789
Dear Sir or Madam:
Case Type: Immigrant Petition for Alien Worker
Beneficiary: Vladimir V Galchenko
DECISION
This petition, filed on June 24, 2005, seeks to classify the beneficiary as an immigrant under Section 203(b)(l)(A) of the Immigration and Nationality Act, as amended. An alien qualifies for this classification 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.
The Service notes that Part 5 of the instant petition in the record indicates that the alien petitioner desires to enter the United States to engage in the occupation of Student. However, the contents of the supporting statements and documents appear to indicate that the 18-year-old alien is claiming to be an extraordinary juggler.
Therefore, the intent of the petitioner to pursue an entertainment career or an education in the United States is unclear. Furthermore, if in the entertainment field of juggling, the petitioner has not explained where he would work. Thus the jurisdiction of the Service cannot be determined. The beneficiary has not submitted an offer of employment.
In the initial submission, the petitioner submitted testimonial letters that indicate the beneficiary and his sister are outstanding young jugglers who have made substantial contributions to the juggling community.
The petitioner submitted evidence that the beneficiary and his sister won the first prize award on the World Juggling Federation 2004 Competition on televised on ESPN, and have set 3 world records for clubs passed. However, no evidence was submitted suggesting that the beneficiary has received any monetary awards for performances.
On July 25, 2005 this office requested additional evidence to enable the Service to determine if the beneficiary qualified for the classification requested.
On October 14, 2005 the petitioner submitted a response to the request for additional evidence.
The issue in this proceeding is whether the beneficiary meets the regulatory definition of and criteria for the restrictive immigrant visa category sought. Title 8, Code of Federal Regulations, Part 204.5(h)(2) 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."
Title 8, Code of Federal Regulations, Part 204.5(h) states:
(3) A petition for an alien of extraordinary ability must be accompanied by evidence that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award) or at least three of the following:
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
The petitioner submitted evidence that the alien and his sister have set three world records in passing clubs at the World Juggling Federation 2004 competition, and won first prize.
(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;
No evidence of memberships was submitted.
(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 must include the title, date, and author of the material, and any necessary translation;
Several articles in the magazine "Juggle" were submitted that highlighted alien's juggling careers. One article states that the team is among, if not actually the best club passers in the history of juggling. As these are trade magazines, the articles appear to showcase jugglers in different classifications within the International Juggler's Association. A letter from the editor, Alan Howard, of "Juggle" magazine was submitted that states the duo have worked the past several years throughout the U.S. and abroad as invited guests at many regional and national juggling festivals. "Juggle" magazine appears to be published exclusively for the International Jugglers' Association.
(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 specialization for which classification is sought;
Exhibit О is in the Japanese language. The petitioner asserts that it is a brochure for the Japan Juggling Festival 2004 which includes an interview of the beneficiary, and that the alien was invited to the festival as a judge and guest of honor. However, no translation was provided for the Service to consider.
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
The petitioner has not submitted evidence of significant original artistic contributions of major significance in the field of endeavor. It is indicative to the entertainment field that all performers present different routines in their juggling performances.
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
No evidence was submitted for this criteria.
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases;
No evidence was submitted for this criteria.
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
No evidence was submitted for this criteria.
(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
No evidence was submitted for this criteria.
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
No evidence was submitted for this criteria.
(4) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
Title 8, Code of Federal Regulations, Part 204.5(h)(S) states:
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.
The petitioner has not submitted letters from prospective employers, evidence of prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on how he intends to continue his work in the United States. As previously stated, Part 5 of the instant petition clearly indicates that the alien's occupation is Student.
In conclusion, the record reflects that the beneficiary is an accomplished juggler individually, as well a partner with his sister. The testimony offered in several letters are unquestionably sincere in estimates of the beneficiary's juggling standing, but cannot overcome the lack of extensive documentation of sustained national or international acclaim as defined by regulation. Considerable evidentiary weight is given to the quality of venues in which the beneficiary has performed, but this factor is not sufficient to establish “extraordinary ability” under the regulation. Relating to performance at top tier levels, Service supplementary information promulgated at 56 Fed. Reg. 60899 (November 29, 1991) states:
The Service disagrees that all athletes performing at the major league level should automatically meet the “extraordinary ability” standard... A blanket rule for all major league athletes would contravene Congress’ intent to reserve this category to that small percentage of individuals who have risen to the very top of the field of juggling.
Review of the initial and additional evidence does not establish the beneficiary has sustained national or international acclaim in at least three of the regulatory criteria or support a conclusion that the beneficiary is recognized as one of that small percentage who have risen to the very top of the field of juggling.
Furthermore, as previously mentioned, the evidence of record does not clearly indicate the intent of the petitioner to seek employment as a juggler, or attend an educational institute in the United States. No evidence of offered employment has been submitted.
The burden of proof in these proceedings rests solely with the petitioner. See Matter of Treasure Craft of California, 14 I&N Dec. 190. In this case the alien petitioner has not sustained that burden.
In view of the above, the petition is denied.
RIGHT TO APPEAL: If you wish to appeal this decision, you may do so. Your Notice of Appeal to the Administrative Appeals Office (AAO), Form I-290B, must be filed with the Nebraska Service Center, P. O. Box 82521, Lincoln, NE 68501-2521. Your Form I-290B must be filed within 30 days from the date of this notice (33 days if this notice was received by mail) and be accompanied by a fee of $385 and a brief or other written statement in support of your appeal. If no appeal is filed within the time allowed, this decision is final. Do not send your appeal directly to the Administrative Appeals Office.
Sincerely,
Gregory W. Christian
Acting Director
NSC/mlsw329
Enclosure: Form I-290B”
