dismissed EB-1A Case: Folk Music

u.s.Citizenship
and Immigration
Services
PUBLICCOPY
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
FILE:
EAC 05 209 52765
Office: VERMONT SERVICE CENTER Date: SEP 2 8 ,.
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section
203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(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.
~~~
,~ Administrative Appeals Office
www.uscis.gov
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service
Center, and 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)(1)(A) of the
Immigration and Nationality Act (the Act), 8 U.S.c. § 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.
On appeal, counsel argues that the director "ignored the extensive evidence of record which ... demonstrated that
[the petitioner] is indeed an 'alien of extraordinary ability' in her field of endeavor: traditional Albanian folk
music."
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 ofthe 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 into the United States will substantially benefit prospectively
the United States.
Citizenship and Immigration Services (CIS) 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. 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. § 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. § 204.5(h)(3). The relevant criteria will be addressed below. It should
be reiterated, however, that the petitioner must show that she has earned sustained national or international
acclaim at the very top level.
This petition, filed on July 19,2005, seeks to classify the petitioner as an alien with extraordinary ability as a
"professional singer and performer." 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
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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 criteria at 8 C.F.R.
§ 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). The petitioner has submitted evidence pertaining to the
following criteria.
Documentation ofthe alien sreceipt oflesser nationally or internationally recognized prizes or
awards for excellence in the field ofendeavor.
The petitioner submitted a "Third Class ~ward" from the "Popular Parliament of Popular
Socialist Republic of Albania" stating that she and three other individuals "gave an important help [sic] in the
development of folklore, by strengthening the outcome and improving the artistic level, in all stages of the
National Folklore Festival of Gjirokastra 1978." The petitioner also submitted a "First Class
Award with Third Class of Labor Award" presented to her and three other individuals by the "Popular
Parliament of Popular Socialist Republic of Albania" for "the help given on successful preparation and
performing in all stages of the National Folklore Festival of Gjirokastra 1983." Substantive information
regarding these awards was not provided. For example, the record includes no evidence indicating the criteria
for granting the awards, the level of expertise of those considered, the total number of individuals considered
for the awards at each festival, and the actual number of award recipients. The record includes no evidence
showing that these certificates were nationally or internationally recognized awards for excellence in music,
rather than simply an acknowledgment of the petitioner's participation in the festivals. Further, both of these
awards were received more than twenty years before the petition was filed and thus they are not indicative of
sustained national or international acclaim.
In light of the above, the petitioner has not established that she meets this criterion.
Documentation ofthe alien's membership in associations in the field for which classification
is sought, which require outstanding achievements oftheir members, as judged by recognized
national or international experts in their disciplines orfields.
The petitioner submitted two letters dated October 21,2002 and March 20,2006 confirming her membership
in the "Albanian Association of the Writers and the Artists" and the "Artistic Union Albanian National,"
respectively. There is no evidence (such as membership bylaws or official admission requirements)
demonstrating that admission to membership in these associations required outstanding achievements, as
judged by recognized national or international experts in the petitioner's or an allied field. As such, 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 swork in the field for which classification is sought. Such evidence
shall include the title, date, and author ofthe material, and any necessary translation.
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The petitioner submitted an article about her in The Country of the Artists, but the date and author of this
material were not provided as required by this criterion. The petitioner also submitted an interview of her in
the January 15 - 21, 2001 issue of Intervista and a February 1, 2003 article about her in RD (Rilndja
Demokratike).\ There is no evidence (such as circulation statistics) showing that these articles appeared in
professional or major trade publications or other major media.
In addressing the evidence submitted by the petitioner, the director's decision stated: "The circulation and
caliber of the publications cannot be determined from the evidence of record. Additionally, it has not been
established that these are major trade publications or major media." We concur with the director's
observations.
On appeal, the petitioner submits an August 22, 2006 interview of her appearing in SOT. This article was
published subsequent to the petition's filing date. A petitioner, however, must establish eligibility at the time
of filing. 8 C.F.R. § l03.2(b)(l2); see Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg!. Commr. 1971).
Accordingly, the AAO will not consider this article in this proceeding.
In light of the above, the petitioner has not establishedthat she meets this criterion.
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related
contributions of major significance in thefield.
The petitioner submitted several letters of support. We cite representative examples here.
An October 29,2002 letter from
and Folklore Ensemble, Tirane, states:
and ~fthe Republic of Albania Theater of Opera
We hereby certify that the folklore singer [the petitioner] is a great activist in a lot of premiers of the
Ensemble of Folklore Songs and dances in and out of the country. She has shown a high artistic level
interpreting the folk song in all of these concerts. She is welcomed and praised from the public for
her warm vocal and characteristic voice, especially the northemregion songs.
A December 19,2002 letter from~oderator of the Artistic Programs in RTV, Albanian
Television, Tirana, states:
I certify that the singer [the petitioner] is a very well known singer everywhere in Albania. Her fame
has been growing over the years with her presentation in folklore Festivals of Gjirokastra during 1978
\ These three articles indicate that the petitioner's primary occupation was that of a nurse rather than a "professional
singer and performer." For example, the article in The Country of the Artists states: "[The petitioner] was nurse from
Zalldardhe during 1976 -1978, and nurse in Infectious Department during 1978 -1984, nurse in pediatrician Department
.1984 -1987, and now nurse in Sanitarium Department." In the Intervista interview, the petitioner states: "I work as a
sanitary-nurse in Tirana, a hard job." Finally, the author of the article in RD states that he or she "met [the petitioner] at
the Cardiology Department in the Sanatorium in Tirana" where "she was working as a nurse."
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- 1983, in Folklore Festivals where she was awarded with honor medals. Also she performed in the
competitions of folk songs in stages of ARTV in Tirana.
An undated letter from_ who identifies himself or herself as an "Academic Professor," states:
[The petitioner] [is] a well-known singer of Folklore of the Northern Region of Albania, especially of
the Northeast. She has been a very successful singer in and out of Albania thank[s] to her
characteristic and melodious voice, colorful vocal[s] and special features of her interpretation.
Until 1990 she performed successfully in all festivals and fiestas, where she was praised with awards
and medals.
An April 24, 2006 letter from ~ho identifies himself or herself as a "folklore music singer,"
states:
[The petitioner] is one of my colleagues. I have performed in many concert, festivals, tourneys not
only in Albania, but outside the country too.
We had sung together in the one of the first concerts given in Albanian Communities in USA in 1992.
[The petitioner] was very successful and applauded from the public. She won their hearts with her
sweet voice and high level of performance.
I have debuted with her in many other concerts throughout Europe. With her warm interpretation and
vocal[s] she makes the public to love her [sic]. She brings to the Albanian Community their country
close to their soul, brings back their nostalgia, the language, tradition, [and] the mother's hand which
is thousands of miles away.
A March 21, 2006 letter from Director, Albanian Ministry of Culture, Youth and Sports,
Tirana, states: "I certify that [the petitioner] is an interpreter of the folklore song with a multiyear artistic
activity and performer in many national and international festivals where she showed her high artistic level
and giving [sic] a great help in the interpretation of the Albanian folklore song."
An undated letter from_, Director, National Center of Folklore Activity, Albania, states:
[The petitioner] ... is an extraordinary interpreter of the Albanian traditional song.
She has debuted in many National Festivals of Albanian arts and is awarded with many prizes.
She is an interpreter of the songs of many Regions of North and North-East parts of Albania and as
such she has won the sympathy of many art lover generations in and out of the country.
She has given and continues to demonstrate a high level of professionalism o'!tside the country,
especially in family events and parties.
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An undated letter from _Artistic Director, Center for Traditional Music and Dance, New York,
states:
The Center has been working with the New York Albanian community since the mid-1970s and, in
1977, produced the first major festival of Albanian arts at Hunter College in New York City.
* * *
I was first introduced to [the petitioner's] artistry through her recordings and through her stellar
reputation among many of the traditional artists in the Albanian community with whom we've
worked. She is regarded as one of the best exponents of traditional Albanian song, especially the
repertoire of Northern Albania. In a rich voice often tinged with melancholy, she sings of love, the
beauty of nature, and the longing experienced by those far from home in a manner that has been
appealing and deeply moving for both her countrymen and for foreign audiences.
Born in Diber in 1,957, [the petitioner] grew up in a musical environment. She began singing at an
early age and gained professional stature in the late 1970s. She was a soloist with the
and in 1984 became a member of the nationally acclaimed Dardania Ensemble with which she
performs to the present day. She has been awarded many national prizes in Albania, including the
coveted award from the National Folk Festival in Gjirokaster in 1978 and 1983 and is a recording
artist with many recorded tracks in the Phonoarchives at Radio Tirana. In 1999 she was selected to
perform with the Kuvendi group, a traditional music group held in the highest esteem and considered
a national treasure. [The petitioner] has performed throughout Albania and toured widely in Europe,
including Germany, Sweden, Denmark and Turkey and in 1992 she toured in the US.
In general, the opinions of experts in the field, while not without weight, cannot form the cornerstone of a
successful extraordinary ability claim. CIS may, in its discretion, use as advisory opinions statements
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Corom. 1988).
However, CIS 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; CIS may evaluate the content of those letters as to whether they support the alien's
eligibility. See id. at 795-796.
In this case, aside from confirming the petitioner's participation in the National Folk Festival in Gjirokaster in
1978 and 1983, none of the letters of support submitted by her specifically identify the dates of her
subsequent concerts and festivals and the names of these events as would indicate the petitioner's sustained
national or international acclaim.2 More importantly, the letters of support include no substantive discussion
as to which of the petitioner's specific achievements rise to the level of original artistic contributions of major
significance in her field.
2 For example, the December 19, 2002 letter £tom states that the petitioner "performed in the
competitions of folk songs in stages of ARTV in Tirana," but it does not name the specific competitions or
identify their exact dates.
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Apart from the support letters, the petitioner submitted no other evidence to establish that she has made
original artistic contributions of major significance to her field in a manner consistent with sustained national
or international acclaim. For example, the record does not indicate the extent of the petitioner's influence on
other singers nationally or internationally, nor does it show that the field has somehow changed as a result of
her work.
In light of the above, the petitioner has not established that she meets this criterion.
Evidence ofthe display ofthe alien's work in the field at artistic exhibitions or showcases.
The petitioner submitted evidence of her participation in the Gjirokastra Folk Festival in 1978 and 1983. The
record, however, includes no substantive evidence establishing the significance of this festival. Further, as
both festivals occurred more than twenty years before the petition was filed, the petitioner's participation is
not indicative of sustained national or international acclaim.
The article about the petitioner in The Country of the Artists states she participated In the following
"international tours":
1980 with the ensemble of Auto Tractors Factory in Sweden, Finland and Denmark
1981 with "Dibra" ensemble in Turkey
1989 with "Dardania" ensemble in Switzerland
1990 with "Dardania" ensemble in Germany
1992 with private group in USA
1997 with private group in Switzerland
The February 1, 2003 article in RD states: "Last year [the petitioner] had a tour performing in 4 recital
concerts in Peshkopi and Tropoja." The record, however, includes no information regarding the significance
of the concerts where the petitioner performed. Further, as there is no evidence that the petitioner has toured
since 2002, we cannot conclude that her national or international acclaim has been sustained.
In addressing the petitioner's evidence, the director's decision stated: "[T]he quality of the venues where [the
petitioner] has performed is not clearly documented in the record. Further, the evidence that [the petitioner]
provided does not persuasively show that [her] work has garnered her sustained national or international
acclaim."
On appeal, counsel states:
The documents show that the [petitioner] has performed in the Theater of Opera and Folklore
Ensemble, that she has performed in artistic Programs on the national RTV (Albania Radio-TV), that
she has performed at the Peshkopia Culture Center in Dibra, Albania, that she has performed on the
stages of the nationally broadcast Albanian Public Television, that she has performed on stages of the
nationally broadcast Albanian Public Radio Television, that she has performed on numerous stages in
national folklore music activities sponsored by the Artistic Union of Albanian National, that she has
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performed on countless sta[g]es in Europe and in the United States giving folk music presentations,
and that she has published CD's and albums, among other accomplishments.
"The documents" upon which counsel's claims are based consist mostly of letters of support issuedyears after the
petitioner's performances occurred. The absence of contemporaneous evidence of the petitioner's
performances (such as event programs from her concerts or videotapes of her televised performances) is a
significant omission from the record. The benefit sought in the present matter, however, is not the type for
which documentation is typically unavailable and the statute specifically requires "extensive documentation" to
establisheligibility. See section 203(b)(l)(A)(i) of the Act. Further, the commentary for the proposed regulations
implementing this statute provide that the "intent of Congress that a very high standard be set for aliens of
extraordinary ability is reflected in this regulation by requiring the petitioner to present more extensive
documentationthan that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991). Given
the statutory requirement for "extensive documentation" and the ten regulatory criteria requiring specific
objective evidence of achievements, we must conclude that evidence in existence prior to the preparation of
the petition is of greater weight than letters of support prepared especially for submission with the petition.
The October 29, 2002 letter from of the Theater of Opera and Folklore Ensemble states that
the petitioner was "a great activist in a lot of premiers of the Ensemble of Folklore Songs and dances in and
out of the country," but it does not identify the specific events where she performed and the dates of her
performances. The letter does not even include an address, telephone number, or any other contact
information for the Theater of Opera and Folklore Ensemble.
The petitioner submitted an October 16, 2002 letter from _Director, Tirana Radio Directory,
Albanian Radio Television, stating: "We certifYthat [the petitioner] is a great well known singer with a wide
rep[ertoire], which we in [sic] Phonoarchive of Radio Tirana." The petitioner also submitted an October 17,
2002 letter from _IDirector, Albanian Public Radio Television, stating: "We certify that [the
petitioner] is a very well known folk singer, a great artist attending artistic activities, in Albanian Public
Radio Television." The December 19,2002 letter from states that "[the petitioner] performed
in the competitions of folk songs in stages of ARTY in Tirana. She attended the live programs in ARTV."
None of the preceding letters specifically identify the programs, events, or activities in which the petitioner
participated or the dates of those broadcasts or performances. Further, none of the preceding letters include
an address, telephone number, or any other identifYing information for the aforementioned broadcast
organizations.
The March 20, 2006 letter from the President of the "Artistic Union Albanian National" states that the
petitioner "has been a part of many national folklore festivals" and that she "sings in all concerts that the
Artistic Union Albanian National organizes." The letter, however, does not specifically identifY the folklore
festivals and concerts in which the petitioner performed or the dates and significance of her participation.
Regarding the concert tours in which the petitioner allegedly participated and her musical recordings (such as
the songs on her compact disc), we find that such evidence is far more relevant to the "commercial successes
in the performing arts" criterion at 8 C.F.R. § 204.5(h)(3)(x). The plain language of the criterion at 8 C.F.R.
§ 204.5(h)(3)(vii)indicates that it is most applicable to visual artists (such as sculptors and painters), for whom
the significanceof the exhibition or showcase is indicative of their acclaim. Because performance is inherent to
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the occupation of a musician, not every musical performance is an artistic exhibition or showcase indicative of
national or international acclaim.
In light of the above, the petitioner has not established that she meets this criterion.
Evidence that the alien has peiformed in a leading or critical role for organizations or
establishments that have a distinguished reputation.
In order to establish that she performed a leading or critical role for an organization or establishment with a
distinguished.reputation, the petitioner must establish the nature of her role within the entire organization or
establishment and the reputation of the organization or establishment. The petitioner, however, has submitted
no evidence showing that the musical groups for which she has worked have distinguished reputations or that
she was responsible for their success or standing to a degree consistent with the meaning of "leading or critical
role" and indicative of sustained national or international acclaim.
In light of the above, the petitioner has not established that she meets this criterion.
Evidence that the alien has commanded a high salary or other significantly high remuneration
for services, in relation to others in thefield.
The petitioner submitted a March 22, 2006 letter from the Artistic Union of Albania National stating that
she is paid an "average of $4,000 a month." The record, however, includes no supporting evidence (such as
payroll records or income tax forms) showing the petitioner's actual past earrtings from her performances for
any specific period of time. Further, the plain language of this criterion requires the petitioner to submit
evidence of a high salary "in relation to others in the field." The petitioner offers no basis for comparison
showing that her compensation was significantly high in relation to others in her 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 office receipts or
record, cassette, compact disk, or video sales.
The petitioner submitted published material, letters of support, awards from more than two decades ago, and
unidentified photographs indicating that she has taken part in various musical performances. The petitioner also
submitted evidence of a compilation of her songs on a compact disc entitled _ This criterion calls for
evidence of commercial successes in the form of "sales" or "receipts;" simply submitting evidence indicating that
the petitioner participated in various stage performances or made recordings of her songs cannot meet the plain
language of this criterion. The record includes no evidence of documented "sales" or "receipts" showing that
the petitioner achieved commercial successes in the performing arts in a manner consistent with sustained
national or international acclaim. For example, there is no indication that the petitioner's performances drew
record crowds, were regular sell-out performances, or resulted in greater audiences than other similar
performances that did not feature the petitioner. Nor is there evidence showing, for example, that the
petitioner's compact disc had a high national or international sales volume.
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In light of the above, the petitioner has not established that she meets this criterion.
In this case, the petitioner has failed to demonstrate receipt of a major internationally recognized award, or
that she meets at least three of the criteria at 8 C.F.R. § 204.5(h)(3). Further, there is no objective evidence of
achievements or recognition (during the years immediately preceding the filing of the petition) showing that
the petitioner has sustained national or international acclaim as a folk singer in recent years.
Review of the record does not establish that the petitioner has distinguished herself 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 petitioner's achievements set her
significantly above almost all others in her field at a national or international level. Therefore, the petitioner
has not established eligibility pursuant to section 203(b)(1)(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 V.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.