dismissed EB-1A Case: Arts

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministratrve Appeals, MS 2090 
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 Washington, DC 20529-2090 
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 U.S. Citizenship 
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PUBLBC C014 and Immigration 
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. 5 103.5(a)(l)(i). 
vn F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The director subsequently concluded that the appeal, filed after 31 days,' was untimely and 
considered it as a motion pursuant to 8 C.F.R. 5 103.3(a)(2)(v)(B)(2). On July 30, 2008, the director 
reconsidered, concluding that the appeal was timely, and forwarded the appeal to the Administrative 
Appeals Office (AAO). The matter is now before the AAO on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A). 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. 
On appeal, counsel submits a brief and resubmits evidence that is already part of the record of 
proceeding. In his brief, counsel relies on regulations that do not relate to the immigrant classification 
sought, precedent decisions that predate the Act and non-precedent decisions by this office, which are 
not binding on the director or this office. See 8 C.F.R. 5 103.4(c). 
Counsel has cited Muni v. INS, 891 F. Supp. 440 (N.D. Ill. E. Div. 1995) for the proposition that all 
evidence must be considered. In contrast to the broad precedential authority of the case law of a 
United States circuit court, the AAO is not bound to follow the published decision of a United States 
district court in matters arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 
1993). Although the reasoning underlying a district judge's decision will be given due consideration 
when it is properly before the AAO, the analysis does not have to be followed as a matter of law. Id. 
at 719. Regardless, we will carefully consider all of the evidence submitted below. For the reasons 
discussed below, however, we uphold the director's ultimate conclusion that the petitioner has not 
established her eligibility for the immigrant classification sought. Specifically, the evidence submitted 
cannot meet any of the regulatory criteria, of which the petitioner must meet at least three. As 
discussed below, even if we considered the evidence in the petitioner's two strongest categories, display 
of her work and leading or critical role for a distinguished entity, sufficient to meet the criteria at 
8 C.F.R. 5 204.5(h)(3)(vii) and (viii), the petitioner falls far short of meeting any other criterion. 
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 ths subparagraph if -- 
1 
An appeal must be filed within 30 days of the decision. 8 C.F.R. 5 103.3(a)(2)(i). The regulation at 
8 C.F.R. 5 103.5a(b) provides that where the decision is mailed, an additional three days shall be added to the 
period in which an appeal may be filed. The alternative means of service in this regulation, however, is 
personal service by a government agent. The decision in this matter was sent by facsimile. While not 
identical to mailing, it is not personal service. Thus, we consider the period in which an appeal must be filed 
to be 33 days. Thus, the appeal in this matter was timely filed. 
(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. 
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 have risen to the very top of the field of 
endeavor. 8 C.F.R. 5 204.5(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. 
While U.S. Citizenship and Immigration Services (USCIS) has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the petitioner, 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 (Comm'r. 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 had approved the 
nonimmigrant petitions 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). 
Assuming that the approval of the petitioner's nonimmigrant petition was appropriate, that approval 
does not create a presumption that the instant immigrant petition is approvable. Counsel acknowledges 
that the regulatory criteria for nonimmigrant aliens of extraordinary ability in the arts are different from 
those relating to the similarly named immigrant classification. While counsel asserts that the different 
criteria represent different reasonable interpretations of extraordinary ability, it is significant that not 
only are the regulatory requirements for an immigrant and non-immigrant alien of extraordinary ability 
in the arts dramatically different, the statutory and regulatory standards for the classifications are 
dramatically different. Section 101 (a)(46) of the Act and the regulation at 8 C.F.R. 5 214.2(0)(3)(ii) 
define extraordinary ability in the arts (including the performing arts) for non-immigrants as simply 
"distinction," which is further defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
8 C.F.R. 5 214.2(0)(3)(ii). The regulation relating to the immigrant classification, 8 C.F.R. 
5 204.5(h)(2), however, defines extraordinary ability in any field 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." 
See also H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). As such, the petitioner's approval for a non- 
immigrant visa under the lesser standard of "distinction" is not evidence of her eligibility for the 
similarly titled immigrant visa. Regardless, each petition must be adjudicated on its own merits under 
the regulations which apply to the benefit sought. Thus, the petitioner's eligibility will be evaluated 
under the ten regulatory criteria relating to the immigrant classification, discussed below. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a violinist. The 
regulation at 8 C.F.R. 5 204.5(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). Initially, counsel asserted that the petitioner's early and continued success in her 
field serves as evidence of a one-time achievement. The director acknowledged counsel's assertion that 
the petitioner has a qualifying one-time achievement but concluded that the petitioner did not submit 
any evidence of such an achievement. Counsel does not challenge this assertion on appeal. 
We concur with the director. Congress' example of a one-time achievement is a Nobel Prize. H.R. 
Rep. No. 101 -723, 59 (Sept. 19, 1990). The regulation is consistent with this legislative history, stating 
that a one-time achievement must be a major, internationally recognized award. 8 C.F.R. 
5 204.5(h)(3). Significantly, even a lesser internationally recognized award could serve to meet only 
Page 5 
one of the ten regulatory criteria, of which an alien must meet at least three. 8 C.F.R. 5 204.5(h)(3)(i). 
The selection of Nobel Laureates, the example provided by Congress, is reported in the top media 
internationally regardless of the nationality of the awardees, is a familiar name to the public at large and 
includes a large cash prize. While an internationally recognized award could conceivably constitute a 
one-time achievement without meeting all of those elements, it is clear fiom the example provided by 
Congress that the award must be internationally recognized in the alien's field as one of the top awards 
in that field. Significantly, Congress stated that in the absence of such an award, an alien could qualify 
based on "a career of acclaimed work in the field," which is what the ten alternative regulatory criteria 
are designed to demonstrate. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990); 8 C.F.R. 5 204.5(h)(3). 
Thus, counsel's assertion that the petitioner's successful career is evidence of a one-time achievement 
is not persuasive. Notably, the regulation at 8 C.F.R. fj 204.5(h)(4), which allows the submission of 
"comparable" evidence where the regulatory criteria are not readily applicable does not apply to the 
one-time achievement, which can only be met by 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 petitioner has submitted evidence that, she claims, meets the following 
 riter ria.^ 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
Counsel initially asserted that following accomplishments, all accomplished by a young age, serve to 
meet this criterion: 
1. The petitioner's selection to study at the Sapporo Academy Salon, 
2. The petitioner's selection to join the Sapporo Academy String Orchestra and 
3. The petitioner's selection as concertmaster in the Kyoto Symphony, the Civic Orchestra 
of Chicago and the New World Symphony. 
Counsel explains: "Each and every selection occurred only after an extensive selectionltesting process 
and is to be considered as nationally recognized awards of excellence and accomplishments." The only 
"award or prize" actually referenced by counsel is first prize at the Hokkaido Young People's 
Competition. 
The petitioner submitted a 1988 certificate of merit from the 13'~ Hokkaido Young People's Music 
Competition. The petitioner did not submit any information about this competition. The petitioner was 
in sixth grade at the time. The petitioner also submitted a letter from Stephen Squires, former faculty 
2 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Page 6 
member of the Northern Illinois University (NIU), asserting that the petitioner won the university's 
concerto competition while studying there for her Master of Music degree. 
On May 16, 2007, the director issued a request for additional evidence (RFE). In that notice, he 
concluded that orchestral positions were not prizes or awards and requested copies of any awards the 
petitioner claimed to have won as well as evidence re ardin the significance of the awards. In 
response, the petitioner submits a letter from 
 Assistant Director and Coordinator 
of Graduate Studies at Northern Illinois University asserting that the concerto competition at the 
university begins with approximately 50 applicants and that the winners perform a movement from or a 
full concerto with the university's philharmonic. The petitioner also submitted materials about the 
competition that indicate that the competition is limited to current full-time music majors studying with 
Northern Illinois University faculty at the upper or graduate level. 
The director concluded that the Northern Illinois University competition was limited to students at that 
competition and could not serve to meet this criterion, that the petitioner had failed to submit evidence 
regarding the significance of the Hokkaido Young People's Music Competition and that the petitioner's 
selection for positions within various orchestras were not prizes or awards. 
On appeal, counsel asserts that in the petitioner's field, each professional accomplishment is the result 
of an intense, highly scrutinized audition process and that selection under these circumstances "is 
tantamount to the winning of an award or prize." 
The plain language of the regulation at 8 C.F.R. 5 204.5(h)(3)(i) requires evidence of prizes or awards. 
Acceptance to academic or training programs, even prestigious ones, are not prizes or awards. 
Similarly, job offers, even for prestigious positions, are not prizes or awards. Rather, they are best 
considered under 8 C.F.R. 5 204.5(h)(3)(viii), a criterion the petitioner also claims to meet with ths 
evidence. While the regulation at 8 C.F.R. 5 204.5(h)(4) permits the submission of "comparable" 
evidence where the criteria are not "readily applicable" the petitioner has not documented that this 
criterion is not readily applicable to her field. Notably, one of her references was nominated for a 
Grarnrny, one won the Koussevitsky Prize, one won the Tchaikovsky Competition and another won a 
prize at the Queen Elizabeth International Music ~om~etition.~ Thus, it appears that prizes and awards 
do exist in the petitioner's field. 
Regardless, we do not find that selection for competitive fellowships or positions within orchestras are 
"tantamount" or comparable to prizes or awards. Counsel concedes that every professional 
accomplishment in the field results from an audition. Thus, according to counsel, every orchestra 
member in the 1,200 U.S. adult orchestras referenced by one of the petitioner's references obtained his 
or her position as a result of an audition. We are not persuaded that every orchestra performer able to 
secure employment in the music field meets this criterion. While we acknowledge that the petitioner's 
As the record contains no evidence regarding the significance of these awards, we note them merely as 
evidence that awards exist in the petitioner's field rather than as examples of awards that presumptively meet 
this criterion. 
selection as concertmaster and principal second violin carry more weight than selection to perform in a 
non-principal role with an orchestra, we reiterate that these roles are directly related to, and thus must 
be considered under, the leading or critical role criterion set forth at 8 C.F.R. 5 204.5(h)(3)(viii). To 
consider evidence directly relating to that criterion as comparable evidence under this criterion 
undermines the statutory requirement for extensive evidence and the regulatory requirement that an 
alien meet three separate criteria. 
The only actual awards referenced in the record are the Hokkaido Young People's Music Competition 
and the Northern Illinois University Concerto Competition. Despite the director's request, the 
petitioner has never submitted evidence regarding the significance of the Hokkaido competition, which 
appears to be limited to young performers on the island of Hokkaido. As stated above, the concerto 
competition was limited to current graduate students at a single university. Thus, the petitioner has not 
established that either award is nationally or internationally recognized. 
In light of the above, the petitioner has not established that the petitioner meets this criterion. 
Documentation of the alien S membership in associations in the field for which classiJication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or3elds. 
Initially, counsel asserted that the petitioner's selection to perform at certain festivals and selection as 
concertmaster and principal second violin serve to meet this criterion. The petitioner submitted 
evidence that she is an elected member of the Society of Pi Kappa Lambda. In the director's RFE, he 
concluded that festivals and orchestras are not associations and requested evidence of the membership 
criterion for Pi Kappa Lambda. The petitioner's response did not address the membership criteria for 
Pi Kappa Lambda. The director concluded that the petitioner had not submitted the necessary evidence 
regarding Pi Kappa Lambda and that symphony and orchestra "membership" could not serve to meet 
this criterion. 
On appeal, the petitioner submits evidence indicating that Pi Kappa Lambda has a local State of Illinois 
Charter and that members are judged by faculty at the local chapter institution. The petitioner was put 
on notice of required evidence and given a reasonable opportunity to provide it for the record before 
the visa petition was adjudicated. The petitioner failed to submit the requested evidence and now 
submits it on appeal. The AAO, however, will not consider this evidence for any purpose. See 
Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 
(BIA 1988). 
We concur with the director that the festivals where the petitioner hds performed and the orchestras 
of which she has been a member are not associations. We further concur with the director that the 
petitioner had not established that membership in Pi Kappa Lambda requires outstanding 
achievements or that membership is judged by nationally or internationally recognized experts. 
Page 8 
In light of the above, the petitioner has not established that she meets this criterion. 
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 classifzcation is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner submitted her biography as it appears in a printed concert program. While "printed," a 
program is not "published material" in professional or major trade publications or other major media. 
The petitioner also submitted a 1996 article in Asahi about five Hokkaido residents selected to 
participate in the Pacific Music Festival, three of whom (including the petitioner) had never participated 
in this concert previously. A 1999 article in Hokkaido reports on the petitioner's performance at the 
Sapporo Luther Hall. A 2002 article in Hokkaido reports on the Tanglewood Music Festival and the 
petitioner's participation in this festival. A 2006 advertisement in Asahi promotes the petitioner's guest 
performance at the Asahi Culture Center in Sapporo. A 2005 article in the Birmingham News discusses 
the addition of the petitioner as principal second violinist to the Alabama Symphony Orchestra. In his 
RFE, the director requested evidence of the significance of the publications covering the petitioner, 
such as their distribution or circulation. The petitioner did not provide the requested evidence and, 
thus, the director concluded that she had not established that she meets this criterion. 
On appeal, the petitioner submits no new evidence. Thus, the petitioner has still not established the 
circulation or distribution of the publications mentioned above or submitted other evidence indicative 
of their status as professional or major trade journals or other major media. Instead, counsel simply 
reiterates and resubmits the evidence discussed above. Without evidence of the circulation or 
distribution of the above publications or other evidence of their significance, we cannot conclude that 
the petitioner meets the plain language of this criterion. We note that based on the names of at least 
two of the publications, they appear to be local to the island of Hokkaido or Birmingham, Alabama. 
In light of the above, the petitioner has not submitted the necessary required initial evidence to meet 
this criterion. 
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 alliedfield of speciJication for which classifzcation is sought. 
In response to the director's RFE, the petitioner submitted evidence that the principal second violin 
participates as part of the violin and viola audition committees for the Alabama Symphony Orchestra. 
The director concluded that this participation was not evidence indicative of or consistent with national 
or international recognition. 
On appeal, counsel merely reiterates and resubmits evidence already in the record of proceeding. The 
evidence submitted to meet this or any criterion must be indicative of or consistent with national or 
international acclaim if that statutory standard is to have any meaning. Accord Yasar v. DHS, 2006 
WL 778623 *9 (S.D. Tex. March 24, 2006); All Pro Cleaning Services v. DOL et al., 2005 WL 
Page 9 
4045866 * 11 (S.D. Tex. Aug. 26, 2005). We are not persuaded that the petitioner's collateral job duty 
of auditioning new violin and viola players for her employer is indicative of or consistent with national 
or international acclaim. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major signlJicance in the field. 
In his WE, the director acknowledged the submission of letters from the petitioner's teachers and 
colleagues but concluded that the record contained no objective evidence to meet this criterion. The 
director ultimately concluded that the evidence did not establish that "the petitioner has developed new 
techniques, styles, methods, etc. that have been recognized and adopted by others and which have 
impacted the field." In response to the RFE and again on appeal, counsel cites two precedent decisions 
that predate the Act discussing the significance of expert testimony. As these cases predate the Act, 
which requires extensive documentation of acclaim, and the designation in the regulations of specific 
objective evidence, these cases have no value. 
Counsel then cited non-precedent decisions discussing expert testimony as persuasive authority. While 
8 C.F.R. $ 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees in 
the administration of the Act, unpublished decisions are not similarly binding. 
Regardless, it is not our position that expert letters have no value. Rather, while such letters are 
useful in putting the remaining evidence in context, they cannot form the cornerstone of a successful 
claim of sustained national or international acclaim. USCIS, in its discretion, uses as advisory 
opinions statements submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 
791, 795 (Comm'r. 1988). However, USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of letters 
from experts supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate 
the content of those letters as to whether they support the alien's eligibility. See id. at 795. USCIS 
may even give less weight to an opinion that is not corroborated, in accord with other information or 
is in any way questionable. Id. at 795; see also Matter of SofJici, 22 I&N Dec. 158, 165 (Comm'r. 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l. Comrn'r. 1972)). 
In evaluating the reference letters under this criterion, we note that letters containing mere assertions 
of widespread acclaim and vague claims of contributions are less persuasive than letters that 
specifically identify contributions and provide specific examples of how those contributions have 
influenced the field. Ultimately, evidence in existence prior to the preparation of the petition carries 
greater weight than new materials prepared especially for submission with the petition. An 
individual with sustained national or international acclaim should be able to produce unsolicited 
materials reflecting that acclaim. 
Page 10 
According to the regulation at 8 C.F.R. 5 204.5(h)(3)(v), an alien's contributions must be both 
original and of major significance. None of the reference letters explain how the petitioner's talent 
and skill have resulted in an "original" contribution. Moreover, we must presume that the phrase 
"major significance" is not superfluous and, thus, that it has some meaning. None of the reference 
letters provide specific examples of how the petitioner's work has influenced the field at a national 
level such that her work can be considered a contribution of major significance. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
petitioner "was one of a select few who played principal violin in the New World 
2002 through 2005. The materials about NWS indicate that it was founded in 1987 by 
that it is a "national orchestral academy for the most gifted graduates of America's music 
conservatories." The materials further indicate that 1,000 musicians compete for "about 35 available 
fellowships." The record also includes several NWS programs confirming her status as a fellow. A 
2002 article in Hokkaido, notes the petitioner's participation in the Tanglewood Music Festival. = 
-, Principal Second Violinist with the Saint Paul Chamber Orchestra, asserts that the 
Tanglewood Music Center is "the country's premiere summer music fellowship program and festival 
run by and in partnership with the Boston Symphony Orchestra" offering summer fellowship positions 
"to 150 exce~tional musicians from around the world." The ~etitioner submitted a Droe;ram from the 
1996 pacific Music Festival listing the petitioner as one of several violinists. , Conductor 
and Music Director of the National Repertory Orchestra, asserts that the petitioner success~lly 
competed against 60 other violinists for a position at the summer festival in Breckenridge, Colorado. 
The petitioner also submitted several programs for solo and orchestral performances. The orchestral 
performances include a performance at Carnegie Hall as part of the-~ew York String Orchestra. 
a faculty member of the ~eb England conservatory, asserts that th; New York 
String Orchestra is "the orchestra for the most talented young musicians at the Carnegie Hall." The 
solo performances occurred at Japanese venues with undocumented significance. 
The director requested evidence of the significance of the venues other than Carnegie Hall and 
petitioner's role in those performances. In response, the petitioner submits a letter from the 
a violinist with the Buffalo Philharmonic Orchestra who has performed at Tanglewood. He 
asserts that thousands from around the world audition for this festival and only about 80 are invited to 
perform. This information is inconsistent with that provided by m, who asserts that 
approximately 1,500 compete for 150 fellowships. The record contains no information ftom the 
festival's sponsor, the Boston Symphony Orchestra. The petitioner also submitted an invitation from 
the Alabama Symphony Orchestra to perform solo after the date of filing. This invitation is not 
relevant to the petitioner's eligibility as of the date of filing, the date as of which she must establish her 
eligibility. See 8 C.F.R. $5 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l. Cornm'r. 
1971). 
The director concluded that the petitioner was not the featured performer at Cmegie Hall or any other 
prestigious venue and that she had not established the significance of the venues where she performed 
solo. On appeal, counsel asserts that the petitioner has performed at prestigious venues, is featured on a 
compact disc of unknown sales volume and had a solo with the Alabama Symphony Orchestra after the 
date of filing. 
This criterion applies to the visual arts. As performing is inherent to the performing arts, merely 
appearing on stage cannot, by itself, serve as comparable evidence to meet this criterion. Rather, the 
petitioner must demonstrate the significance of the venues and that the events constituted an exhibit or 
showcase of her work. 
As stated by the director, the petitioner performed as a member of a large ensemble at Carnegie Hall 
and other significant venues. The record contains no evidence that the events were promoted in whole 
or in part as an exhibition or showcase of her work. Moreover, the record contains no evidence 
regarding the significance of the venues where her work was the focus of the event. 
In light of the above, we concur with the director that the evidence submitted to meet this criterion is 
not indicative of or consistent with national or international acclaim. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
Counsel asserted that the petitioner's roles as concertmaster and principal second violinist as well as the 
festivals with which she has been "associated" serve to meet this criterion. The petitioner submitted 
her contract for Principal Second Violinist with the Alabama Symphony Orchestra. - 
one of the petitioner's professors at the New England Conservatory of Music, asserts that 
this is a "principal position." asserts that the principal second violinist is "vital to an 
orchestra because it requires a musician who can combine superior artistry with strong leadership and 
interpersonal skills." 
 The petitioner submits a program for a 2002 Northern Illinois University 
Philharmonic concert listing the petitioner as the concertmaster. affirms that the petitioner 
performed as concertmaster with the NWS from 2002 through 2005. Resident 
Conductor of the Civic Orchestra of Chicago, confirms that the petitioner was the co-concertmaster for 
that orchestra during the 2000-2001 season. He explains: 
The concertmaster's responsibilities are varied including meeting with the conductor to 
go over the style and technique, demonstrating in front of the entire orchestra any 
passage from the music being prepared, assuming the position of "assistant conductor," 
and in general, being the second most important person in the entire group. 
asserts that the Civic Orchestra of Chicago is "the training orchestra of [the] Chicago 
Symphony." 
The director requested evidence such as organizational charts to establish the relation of the petitioner's 
role within the above entities. In response, the petitioner submitted materials from National Public 
Radio's website indicating that the concertmaster is the first chair violinist, plays the solo compositions 
in an orchestral composition, decides on the bowing of the violin section, leads that section and 
presides over the tuning of the orchestra. 
The petitioner also submitted a 
 Director of Artistic Administration of the 
Alabama Symphony Orchestra. 
 the symphony ranks 45th in size among the 
1,200 adult orchestras in the United States and is Alabama's sole full-time orchestra. The orchestra 
performs over 150 concerts per year with total attendance of more than 100,000. further 
asserts that the principal second violin presides over the second violin section and leads that section in 
fitting in with the orchestra. notes that of the 54 musicians in the orchestra, only 16 are 
designated "principals." 
The director concluded that the petitioner had not established that the Alabama Symphony Orchestra 
was a sufficiently distinguished entity or that the role of second principal violin, vacant for two years 
before the petitioner was hired, was sufficiently leading or critical. On appeal, counsel asserts that the 
petitioner's role as concertmaster serves to meet this criterion. 
The petitioner served as concertmaster for university and training orchestras. NWS is a summer 
fellowship. While competitive among recent graduates, we cannot ignore that the most established and 
renowned violinists do not compete for training fellowships. The record contains little evidence 
regarding the Civic Orchestra of Chicago other than that it is the "training orchestra" for the Chicago 
Symphony. Without evidence of its distinguished reputation nationally, we cannot conclude that the 
petitioner's role with this orchestra serves to meet this criterion. 
We are persuaded that principal second violin is a critical role for the Alabama Symphony Orchestra. 
That said, the petitioner has not established the reputation of this orchestra nationally. We are not 
persuaded that its rank by size or its status in the State of Alabama sufficiently document its reputation 
nationally. Thus, the petitioner has not established that she meets this criterion. 
Evidence that the alien has commanded a high salary or other signlJicantly high remuneration for 
services, in relation to others in the field. 
The petitioner's contract with the Alabama Symphony Orchestra reflects annual wages of $41,392.94. 
In response to the director's RFE, asserted that the base salary for a member of the 
Alabama Symphony Orchestra is $34,494.12. The director concluded that the petitioner had not 
demonstrated that she earns significantly high remuneration in relation to others in the field nationally. 
On appeal, counsel asserts that the petitioner's wages are based on union contracts and that she is paid a 
premium salary 20 percent above the base string salary. We have already acknowledged that the 
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petitioner performs a critical role for the Alabama Symphony Orchestra, which appears to be the basis 
of her premium wage. In order to meet this criterion, the petitioner must demonstrate that her 
remuneration is "significantly" high independent of union wage scale requirements if we are to 
distinguish this criterion from the leading or critical role criterion at 8 C.F.R. 9 204.5(h)(3)(viii). 
Moreover, her wages should compare with the most experienced and renowned violinists nationally. 
While meeting this criterion may be difficult in an industry with union wage scales, the purpose of the 
regulatory criteria is to demonstrate that the alien is one of the small percentage at the top of the field. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box oflce receipts or record, 
cassette, compact disk, or video sales. 
The record contains no box office receipts or record, cassette, compact disc or video sales data. On 
appeal, counsel provides a chart comparing the regulatory criteria at 8 C.F.R. 8 214.2(0)(3)(iv) relating 
to non-immigrants. On this chart, counsel compares the criterion at 8 C.F.R. 5 214.2(0)(3)(iv)(B)(5) 
with the commercial success criterion at 8 C.F.R. 8 204.5(h)(3)(x). The regulation at 8 C.F.R. 
5 21 4.2(0)(3)(iv)(B)(5) states: 
Evidence that the alien has received significant recognition for achievements from 
organizations, critics, government agencies, or other recognized experts in the field in 
which the alien is engaged. Such testimony must be in a form which clearly indicates 
the author's authority, expertise, and knowledge of the alien's achievements. 
Thus, counsel appears to be asserting that the reference letters should be considered as meeting the 
commercial success criterion set forth at 8 C.F.R. 5 204.5(h)(3)(x). The regulation at 8 C.F.R. 
8 204.5(h)(3)(x) is very specific, requiring box office receipts or record, cassette, compact disc or video 
sales data. Nothing in that regulation suggests that reference letters attesting to general talent fiom the 
petitioner's teachers and colleagues can serve to meet this criterion. 
Moreover, this criterion specifically relates to the performing arts. Thus, the petitioner cannot assert 
that this criterion is not readily applicable to her field. As such, the regulation at 8 C.F.R. 
5 204.5(h)(4), which permits the submission of comparable evidence where the criteria at 8 C.F.R. 
5 204.5(h)(3) are not readily applicable, does not require us to consider comparable evidence under this 
criterion. Regardless, it cannot be credibly asserted that the subjective opinions of experts chosen by 
the petitioner attesting to her talent are remotely comparable with the objective evidence of commercial 
success mandated under 8 C.F.R. fj 204.5(h)(3)(x). 
In light of the above, the petitioner has not established that she meets this criterion. 
Comparable evidence pursuant to 8 C.F.R. $204.5@)(4). 
Initially, counsel asserted that the evidence submitted as evidence of the petitioner's eligibility for her 
non-immigrant visa in a similar classification and education and fellowships are comparable evidence 
of the petitioner's eligibility for the immigrant visa pursuant to 8 C.F.R. 5 204.5(h)(4). The regulation 
at 8 C.F.R. $204.5(h)(4) permits the submission of comparable evidence where the regulatory criteria 
are not "readily applicable" to the petitioner's field. Counsel asserts that the petitioner meets several of 
the regulatory criteria and has not demonstrated that they are not "readily applicable" to the petitioner's 
field. Regardless, as stated above, the statutory standard for the petitioner's non-immigrant visa is far 
different than the standard for the immigrant visa classification now sought. Thus, even assuming that 
petition was not approved in error, the evidence supporting that petition is not necessarily comparable 
to the evidence required to meet the above criteria. Moreover, academic success and selection for 
prestigious training fellowships are not comparable to the above criteria, which require evidence 
relating to acclaim in the occupation, not academic success or eligibility for prestigious training 
programs for the occupation. 
In light of the above, we are not persuaded that the petitioner has submitted comparable evidence to 
meet any of the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished herself as a 
violinist 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 indicates that the 
petitioner shows talent as a violinist, but is not persuasive that the petitioner's achievements set her 
significantly above almost all others in her field. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.