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Court: no extraordinary ability visa for world-champion dancer

In 2011, a young Moldovan woman came to the U.S. on a student visa to attend college. Last year, she decided to seek an adjustment to her immigration status and stay here long term. A competitive ballroom dancer since age 11, she had won a world championship in 2005 at age 15. She competed across Eastern Europe with a world-class ranking and had begun to teach. She wanted to continue her dance career in the U.S., so she petitioned to be considered an "alien of extraordinary ability."

There are two major benefits to being classified as an individual of extraordinary ability. First, such talented people are given high-priority status for employment-based visas. Second, unlike most applicants, they don't need a sponsoring employer.

To qualify as having an extraordinary ability for immigration purposes, the applicant typically must meet several of 10 established criteria, such as commercial success, winning recognized awards, or having served as a judge of others' work. Alternatively, the applicant can point to a one-time but significant award, such as an Olympic medal or a Pulitzer Prize.

Unfortunately, the young dancer’s petition did not succeed. On a final appeal before a federal court, she claimed the U.S. Citizenship and Immigration Services’ refusal had been “arbitrary and capricious.” The court could only rule in her favor if it found that “no rational adjudicator would have come to the same conclusion.”

The judge had little doubt she was “a very good ballroom dancer,” he said, but that isn’t enough. She had submitted what the judge called an “impressive” collection of evidence, including her awards, letters of support from coaches and students, press coverage of her achievements, and testimonials from other dancers.

Unfortunately for the dancer, however, the agency apparently did have reasons for the denial. Although her world championship was through an organization recognized by International Olympic Committee, the USCIS felt it wasn’t a “major award” since it was for a juvenile division. Her press coverage also wasn’t enough, and she hadn’t demonstrated any leading or critical role as a dance instructor. The agency didn’t give as much weight to her testimonials as it might have, but that wasn’t arbitrary or capricious.

While agreeing that the USCIS might have chosen to approve her petition, the judge couldn’t conclude the agency had denied it arbitrarily.

When applying for an extraordinary ability visa, the evidence you present is crucial.

Source: Courthouse News Service, “U.S. Has no Room on Its Dance Card for Moldovan,” Rose Bouboushian, Dec. 20, 2013

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