dismissed EB-1A Case: Music

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
PUBLIC 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: OCT : 2M5 
5 
IN RE: Petitioner: 
Beneficiary: 
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. $ 1153(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. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Srnmigration and Nationality Act (the Act), 8 U.S.C. 9 1 153(b)(l)(A), as an alien of extraordinary ability in the 
arts. The director determined that the petitioner had not established the sustained national or international 
acclaim requisite to classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(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 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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 8 C.F.R. 5 204.5(h)(3). An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish .the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight given to evidence submitted to fulfill the criteria 
at 8 C.F.R. 5 204.5(h)(3), or under 8 C.F.R. 5 204.5(h)(4), must depend on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained nationql or international acclaim at the very top of the 
alien's field of endeavor. A lower evidentiary standard wo~ld~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. 5 204.5(h)(2). 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the arts as a singer. The 
petitioner submitted initial supporting 0-1 visa consultation letter frofn the American 
Federation of Musicians, her contract with Incorporated, her resume and three letters of 
recommendation. In response to the director's Request for Evidence (RFE), the petitioner submitted additional 
materials related to her awards, professional association membership, her compact disc recordings, three media 
articles, printed advertisements for various performances, her designation as honorary cultural delegate for the 
City of Sant' Angelo in Vado, and photographs of her childhood performances. On appeal, counsel submits an 
eight-sentence statement. Counsel's contentions do not overcome the deficiencies of the petition and the appeal 
will be dismissed. We address the evidence submitted and counsel's claims in the following discussion of the 
regulatory criteria relevant to the petitioner's case. The petitioner does not claim eligibility under any criteria 
not addressed below. 
A one-time achievement (that is, a major, internationally recognized award). 
Counsel claims the petitioner meets this criterion because she won the '"Gaviota de Plata' (Silver Seagull) as 
the Best Female Vocalist at the Twenty-Seventh International Song Festival at Viiia del Mar in 1986" In her 
RFE response, the petitioner submitted two photographs of the petitioner and other individuals from an 
unidentified source with the caption, "XXVII International Festival of Song Viiia del Mar 5 - 10 February 
1986." The record contains no photographs of her actual award, documentation fiom the Festival, or any other 
independent evidence of the alleged international significance of the Festival and the petitioner's award. The 
director correctly determined that the submitted photographs were insufficient to demonstrate the petitioner's 
eligibility under this criterion. 
On appeal, counsel claims the director did not consider that both a letter from Thomas Muiioz and an article 
fiom El Atlantico attest to the prestige and prominence bf the Viiia del Mar award. Thomas Muiioz, an 
executive in the Latin music recording industry, states that the petitioner was "bestowed with one of the most 
prized awards internationally, the 'Gaviota de Plata,' awarded to the best singer in the 'Festival International 
de la Cancidn de ViEa del Mar7 (The International Song Festival of Viiia del Mar) Chile, the highly prestigious 
song festival." The article from the October 19, 1987 edition of El Atlantico contains an interview of the 
petitioner. The article does not identify the Viiia del Mar award by name, but quotes the petitioner as stating 
that "[alfter 1986 I decided to dedicate myself to singing and doing it professionally. And that is what sparked 
my trip to Chile and once there am [sic] surprisid to be awarded the prize." These two brief and uncorroborated 
statements do not establish the major significance or international recognition of the Viiia del Mar award. 
Moreover, the award was allegedly presented to the petitioner in 1986, seventeen years before her petition was 
filed, and does not demonstrate the requisite sustained acclaim. Accordingly, the petitioner does not meet this 
criterion. 
(i) Documentation of the alien 's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in the field of endeavoi: 
In his RFE response, counsel states the petitioner meets this criterion because she received "the Golden Anchor, 
The Star of The Sea, and the Golden Dolphin in Argentinq. These are artistic prizes in Argentina." The 
petitioner's resume states that she received the following awirds: "Star of The Sea (1989)' Golden Dolfin [sic] 
(1989), Gold Ligthouse [sic] (1995), Star of the Sea (1997):' but the record contains no primary evidence of 
these awards or their significance. Simply going on record without supporting documentary evidence is not 
sufficient to meet the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). On appeal, 
counsel contends that the director "failed to consider' that the Article Showing that she received a 'Golden 
Anchor' included a list of other prominent entertainers from Latin America. It was an award as an artist." The 
record does not support this claim. An article from the January 20, 1987 edition of La Capital is entitled "The 
Golden Anchor is Handed Out." The article reports that "various members of the artistic community who are 
presently participating in shows in Mar De Plata were recognized with a luncheon, during which was announced 
the handing out of the distinction called the 'Golden Anchor."' The petitioner is included along with 17 other 
individuals "among others" that received this distinction. The article does not further discuss the significance of 
the award or demonstrate that the listed individuals are all "prominent entertainers from Latin America," as 
claimed by counsel. Rather, the article indicates that the "Golden Anchor" is a distinction limited to the Mar 
Del Plata region and that the petitioner's receipt of this local distinction~occurred 16 years prior to the filing of 
this petition. 
The petitioner also submitted a copy of a document that attests to the petitioner's appointment as "Honorary 
Cultural Delegate of Mayor's Office for the Promotion of Culture" by the City of Sant' Angelo in Vado on 
January 21, 2005, but no evidence of the significance of this appointment. Regardless, we cannot consider this 
designation because it arose after the petition was filed. The petitioner must establish eligibility at the time of 
filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of 
facts. See 8 C.F.R. 5 103.2(b)(12), Matter of Katigbak, 14 f&~ Dec. 45, 49 (Comm. 1971). Accordingly, the 
petitioner does not meet this criterion. 
(ii) Documentation of the alien's membership in associations in theJield for which classiJcation is sought, 
which require outstanding achievements-ojtheir members, as judged by recognized national or international 
experts in their disciplines or3elds. 
The petitioner submitted a copy of her Latin Recording Academy membership card and a form letter discussing 
the benefits of Academy membership. The,record is devoid of any evidence that outstanding achievements are 
prerequisite to membership in the Academy. 'Accordingly, the petitioner does not meet this criterion. 
(iii) Published material about the alien in.professiona1 or major trade publications or other major media, 
relating to the alien's work in'the field for which classiJication is sought. Such evidence shall include the 
title, date, and author of the maierial, and any necessary translation. 
The record contains three media articles printed in 1987. As discussed above under the first criterion, one 
article simply includes the petitioner's nime in a list of 17 other artists who received the Golden Anchor 
distinction. A second article contains a one-paragraph review of one of her recordings. The third article is the 
interview with the petitioner discussed above under the one-time achievement criterion. The record is devoid of 
any evidence that the sources of these articles are professional, major trade publications or other major media. 
Moreover, the articles all date from 1987, sixteen years before this petition was filed, and do not reflect the 
requisite sustained acclaim. ~ccordih~l~, the petitioner does not meet this criterion. 
(v) Evidence of the alien's original scientzjic, scholarly, artistic, athletic, or business-related contributions of 
major signijkance in theJield. 
The petitioner did not specifically claim eligibility under this criterion, but the record contains relevant evidence 
that merits brief disc ontains four recommendation letters from three individuals involved in 
the music industry. a pianist and musical director, states that he has worked with the 
petitioner and that h g for which she won the Viiia del Mar award. Mr. Moreno further 
explains that he worked with the petitioner on the "Song of Mar del Plata," which is used to promote that city 
"both nationally and internationally." Finally, Mr. Moreno states that the petitioner "is characterized by her 
interpretative work and her professionalism. She has been chosen by prestigious directors and corn osers for 
exclusive presentations. She has sung duets with internationally recognized artists . . . . " nd 
D'Aldo Romano, of LatinIWE Latin World Entertainment, make similar comments in their letters. While the 
letters indicate that the petitioner is considered a successful singer by these three individuals, none of their 
letters substantively discuss any specific, original contributions of major significance that the petitioner has 
made to her field. 
Other relevant evidence fails to establish that the petitioner's work as a singer has made original, major 
petitioner submitted copies of two recordings dated 1986 and 1988, 
Corraoma A Amarnos," but no evidence that these recordings receive bb wi e 
significant recognition by her field. The three media articles (discussed above 
under the third criterion) also do nit demonstrate that any of the petitioner's work has been recognized for its 
original, major contributions to her field. The El Atlantico article quotes the petitioner as saying that she has 
signed with CBS, which gives her "important backing since it is an international label," but the record contains 
no evidence of a contract between the petitioner and CBS. The petitioner's self-titled compact disc contains the 
copyright of "Discos CBS SAICF," but the record contains no evidence that this album was distributed, sold or 
critically acclaimed internationally. The petitioner also submitted copie s for her performances 
at the Michelangelo in 
I. 
nd the Tio Curzio Restaurant in Argentina from 1987 to 
1988, but the record con ains no evl ence that these performances rece laim or other significant 
recognition in her field. The record indicates that the petitioner won t award in 1986, but does 
not establish the international recognition or professional significance of that award. None of the submitted 
evidence indicates, for example, that the petitioner has a unique style, technique or other qualities that have 
significantly influenced other Latin singers or musicians or that her work has otherwise made a notable impact 
in her field. In sum, the record indicates that the petitioner enjoyed limited success as a signer from 1986 to 
1988, but the evidence does not demonstrate that she made any original, major contributions to her field during 
that time or in the five subsequent years preceding the filing of this petition. Accordingly, the petitioner does 
not meet this criterion. 
(vii) Evidence of the display of the alien's work in thejield at artistic exhibitions or showcases. 
This criterion generally applies to the visual, not performing, arts. However, relevant evidence in the record 
merits brief consideration under the comparable evidence provision of 8 C.F.R. 3 204.5(h)(4). As noted under 
the fifth criterion, the record contains advertisements for the petitioier's performances at the Michelangelo in 
Buenos Aires and the Tio Curzio Restaurant i- Argentina from 1987 to 1988. Yet p&formances 
are inherent to the singing profession and duties or activities which nominally fall under a given regulatory 
criterion at 8 C.F.R. 8 204.5(h)(3) do not demonstrate national or international acclaim if they are inherent or 
routine in the occupation itself, or in a substantial proportion of positions within that occupation. The record 
contains no evidence that the venues where the petitioner performed,are prestigious or that the petitioner's 
performances received critical acclaim or other significant recognition in her field. On appeal, counsel claims 
these advertisements show "the level of entertainers'who performed with Ms. Dupetit, Olga Guillot (the Cuban 
singer of boleros) and Armando Manzanero (Mexico)." Even if; the record documented the reputation of these 
performers, it fails to show that such renown is alio attributable to the petitioner. On appeal, counsel also 
contends that the director did not consider "the range of places in Latin ~merica and Italy" where the petitioner 
performed. The record documents the petitioner's performances in Argentina and Chile, but not Italy. 
Moreover, the record contains no evidence that the petitioner received critical acclaim for any of her 
performances except at the ViAa del Mar festival. That single performance, made 17 years before her petition 
was filed, does not demonstrate the requisite sustained acclaim. Accordingly, the petitioner does not meet this 
criterion. 
(x) Evidence of commercial successes in the performing arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
In his RFE response, counsel claims the petitioner meets this criterion because "[fjifty years of performing as a 
vocalist is an extraordinary achievement. Its highlight, so far, wa3 winning at Viiia del Mar in 1986." The 
record is devoid of any evidence that the petitioner's Viiia del Mar award brought her commercial success. The 
petitioner submitted no evidence of box office receipts or sales of her recordings, as required by the regulation 
to establish eligibility under this category. Accordingly, the petiiioner does not meet this criterion. 
On appeal, counsel also contends that the petitioner has previously been recognized as an alien with 
extraordinary ability because Citizenship and Immigration Services (CIS) approved her petition for 0-1 
nonimmigrant status. Although the words "extraordinary ability" are used in the Act for both the nonimmigrant 
0-1 classification and the first preference employment-based immigrant classification, the applicable regulations 
define the terms differently for each classification. The 0-1 regulation explicitly states that "[elxtraordinary 
ability in the field of arts means distinction." 8 C.F.R. § 214,2(0)(3)(ii). "Distinction" is a lower standard than 
that required for the immigrant classification, which 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." 8 C.F.R. 204.5(h)(2). The evidentiary criteria for these two classifications also differ in several 
respects. Given the clear regulatory distinction between these two classifications, the beneficiary's prior receipt 
of 0-1 nonimmigrant classification is not evidence of her eligibility for immigrant classification as an alien with 
extraordinary ability. Hence, counsel's citation to the 0-1 advisory opinion of the American Federation of 
Musicians that the petitioner is a "vocalist of extraordinary ability" is misguided. 
On appeal, counsel also contends, "Exceptional Ability is established in part under 8 C.F.R. 204.5 in part with 
ten years of experience in a field. Fifty years of work as a vocalist is a factor to be considered in rising to the 
level of sustained extraordinary ability." The regulation at 8 C.F.R. $ 204.5(h) make no reference to years of 
experience in a field. It is not the length of an alien's career, but the alien's recognized achievements and 
sustained acclaim that will evidence his or her eligibility for classification as an alien with extraordinary ability. 
See 8 C.F.R. 204.5(h)(3). 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The evidence in 
this case indicates that the petitioner is a singer who made two recordings and received limited recognition in 
her field between 1986 and 1988. However, the record does not establish that the petitioner achieved sustained 
national or international acclaim as a singer placing her at the very top of her field. She is thus ineligible for 
classification as an alien with extraordinary ability pursuant to section 203(b)(l)(A) of the Act, 8 U.S.C. 
$ 1 153(b)(l)(A), and her 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. fj 1361. The petitioner here has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.