dismissed EB-1A Case: Music

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service. 
Administrative Appeal s Office (AAO) 
20 Massachusetts Ave.; N.\V., MS 2()()0 · 
Washineton . DC 20529 -2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: 
JAN 0 9 Z013 
Office: NEBRASKA SERVICE CENTER Fll . .E: 
INRE: 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)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision Of the Administrative Appeals Office in your case . All of the 
documents related to this matter have been returned to the office that orig.inally decided your case . Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or. you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
with the field office or service center that originally decided 
your case by filing a Form I-290B, Notice of 
Appeal or Motion, with a fee of $6?0 . · The specific requirements for filing such a motion can be found at 
8 C.F.R. § 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. 
§ l03.5(a)(l)(i) requires any motion to be filed within 30 days of the decision that the motion seeks to 
reconsider or reopen. 
Thank you, 
)).OfJ)tin~ 
· ~on Rosenberg · 
r Acting Chief, Administrative Appeals Office 
www .uscis.gov 
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Page2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska 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)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an 
alien of extraordinary ability as a violinist. The direCtor determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of her 
sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the 
Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the reeeipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. · 
On appeal, counsel asserts that the petitioner meets the categories of evidence at 8 C.F.R. 
§ 204.5(h)(3)(iv), (vii), and (viii). For the reasons discussed below, the AAO will uphold the 
director's decision. 
I. LAW 
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 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 benefi(prospectively the United States. 
(b)(6)
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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 H.R. 723,101
51 
Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very _top of the field of 
endeavor. /d.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) 
or through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Cir~uit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009) aff'd in 
part 596 F.3d 1115 (9th Cir. 2010). · Although the court upheld the AAO's decision to deny the 
petition, the court took issue with the AAO's evaluation of evidence submitted to meet a given 
evidentiary criterion.1 With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the com1 
concluded that while USCIS may have raised legitimate concerns about the significance of the 
evidence submitted to meet those two criteria, those concerns should have been raised in a 
subsequent "final merits determination." /d. at 1121-22. 
The court stated that the AAO's evaluation rested on an i~proper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is.that the applicant has failed to 
satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." /d. at 1122 
'· (citing to 8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a fmal merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of eachcriterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy 
the regulatory requirement of three types of evidence. /d. 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
(b)(6)Page4 
II. ANALYSIS 
A. Evidentiary Criteria2 · 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish her eligibi~ity. On appeal, the petitioner does not contest the 
director's findings for this criterion or offer additional arguments. The AAO, ·therefore, 
considers· this issue to be abandoned. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 
(11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 
(E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned as he failed to 
raise them on appeal to the AAO). Accordingly, the petitioner has not established that she meets 
this regulatory 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 classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish her eligibility. On appeal, the petitioner does not contest the 
director's findings for this criterion or offer additional arguments. The AAO, therefore, 
considers this issue to be abandoned. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 
4711885, at *9. Accordingly, the petitioner has not established that she meets this regulatory 
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 · allied field of specification for which 
classification is sought. 
The petitioner initially submitted multiple "PRIVATE LESSON STUDENT/PARENT 
CONTRACT(S)" reflecting agreements for her to teach music lessons at students' respective 
schools at a cost of $16- $32 per lesson. The petitioner also submitted multiple 
PRIVATE LESSON STUDENT/PARENT 
CONTRACT(S)" reflecting agreements in which students and parents 
requested the petitioner as a 
music lesson teacher at a cost of $17 per lesson. In addition, the petitioner submitted various 
contracts she executed with the to perform services as an 
"Orchestra/violin clinician" and "Workshop Clinician." The petitioner's initial evidence also 
included her performance contracts with the 
and the ; the 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
(b)(6)Page 5 
and the The 
petitioner also submitted an e-mail from the informing the 
petitioner that she was approved to teach private music lessons, an. e-mail froin the 
informing the petitioner that her volunteer application was approved, 
and various e-mails requesting the petitioner's services as a violin teacher. None of the language in 
the preceding contracts and e-mails indicates that the petitioner has participated, either 
individually or on a panel, as a judge of the work. of others in the same or an allied field of 
specification. 
The evidence initially submitted by the petitioner also included a December 9, 2010 letter from 
Orchestra Director, stating: 
[The petitioner] is knowledgeable , dependable and relates well. to our students. We are 
certainly grateful to have someone of her expertise and knowledge teaching our students. 
No student can be successful without continuity. [The petitioner] has been dedicated to 
many students, and has helped them achieve great success in their violin/yiola playing, 
through numerous contests and auditions. For example, all of her students received 
Exemplary, Superior, or Excellent Ratings at · the Solo Contest held last February in 
In addition, I have noticed that [the petitioner] prepares her students well for 
any of the playing exams and musical events during the year. 
In addition, the petitioner submitted a December 18. 2010 letter from 
and Texas, stating: 
From the first time I met [the petitioner] at the _ 
I was immediately impressed. She facilitated the learning of the 
music in the class setting and maintained amazing rapport with the students. All of the 
students came away empowered by their new understanding of the music and how to 
practice it for successful performances. Throughout · the past year, I have had numerous 
occasions to observe [the petitioner] teaching string students in one-on-one a group 
settings arid I can state without hesitation that her talents in this regard are ·second to 
none. She is a wonderful teacher, who commands the highest respect from all of those 
around her, students and peers alike. In addition to her music abilities which allows [sic] 
her to demonstrate for her students in each setting, she is dependable, always on time, 
organized, communicates regularly with parents and students, and passionate about 
ensuring the success of her students. 
Neither of the preceding letters from states that the petitioner has 
participated, either individually or on a panel, as a judge of the work of others in the same or an 
allied field of specification. 
The director issued a request for evidence (RFE) notice indicating that the petitioner had failed to 
establish eligibility for this regulatory criterion. The director's RFE noted that "students 3fe not 
considered in the same or an allied field" with that of the petitioner. In response, the petitioner 
submitted a February 18, 2012letter from stating: 
(b)(6)
Page 6 
It is my understanding that USCIS wants clarification about the importance of master 
classes and clarification on how it is an allied field of a professional musician. In my 
professional opinion, the duties of a professional musician are many and varied. They 
include: performance as a symphony member, performance as a chamber musician, 
performance as a soloist, instructor/conductor of symphony orchestras, 
instructor/conductor of chambet ensembles, instructor/conductor of soloists, adjudicators 
of symphony orchestras, adjudicators of chamber music ensembles, and ·adjudicators of 
soloists. . . . A professional musician is expected to do more than just perform at the 
highest level, but also to prepare those who hope to attain musical mastery and musical 
proficiency. 
* * * 
I have engaged [the petitioner] for a series of ,sessions to work 
with/coach/teach/demonstrate/perform with/my students in These sessions 
are master .classes and as such are an important component of my ·curricuh.im. The duties 
of a MASTER TEACHER are to work with select students in front of a larger body of 
students on select occasions. A master teacher is chosen as the instructor for these 
instrument ·specific special classes because they "are a master in their field." [The 
petitioner] is one such Master teacher as well as a violin virtuoso, and pedagogue. Only a 
master teacher can make pertinent, incisive and construct· remarks as well as 
demonstrations from which the all performers and the audience will benefit. She 
addresses specific violin and chamber music performance topics with these young artists: 
elements of style, articulation, vibrato, and various bowing and interpretation techniques. 
She encourages, she gives helpful tips and the pacing and sequence of her comments is 
invaluable to the students as they prepare advanced musical literature. 
This spring, she conducted a series of violin clinics and master classes in preparation for 
the rigorous . _ and 
competitions. . 
. . Again, I have hired [the petitioner] to work on my 
campuses with 
students in previous years and this year because of her mastery of the her instrument, her 
commitment to excellence, her caring attitude, her professional demeanor and her ability 
to connect with my students. [The petitioner] is able to help students of all levels set and 
achieve goals; master complex musical forms and teach them advanced repertoire for 
college admissions . 
. The petitioner's response also included a February 5, 2012 letter from a pianist and 
teacher residing in stating: · 
It is my understanding that USCIS needs further· proof that judging master classes, or 
helping students improve their performance level is "in the same or allied field" as [the 
petitioner's] specialization as a violinist. I am. writing this letter as a colleague who is 
simultaneously a performer and a teach~r. I wish to confirm that the endeavors are one in 
(b)(6)
Page 7 
the same. Teaching and judging classes are but a small part of a violinist's duties and . . 
responsibilities. 
As a piano instructor, performer and accompanist, I have often participated in master 
classes offered by world class artists, such as William Preucil, Concertma~ter of the 
Cleveland Orchestra, Gil Shaham, international violin virtuoso, Elly Ameling famous 
singer and recording artist, the Emerson Quartet, one of the foremost groups of its kind, 
etc. They are outstanding artists, who travel all over the world, wherever their career · 
engagements take them. Yet, they all teach on the side, as well as judge master classes. 
A lot of students learn and are guided. by the example of their teachers. Who better than a 
performer can teach a promising, upcoming student how to perforin on an instrument, be 
that violin, piano, voice, or any other? It is mostly through their p~rformance experience · 
that artists enhance their knowledge, perfect their skills, learn how to promote their work, 
etc., which in tum they pass on to their students. 
It is quite common in our field for young students to share the stage with their master 
teachers, as professionals. To illustrate, one of the greatest 20th century violinists, Yehudi 
Menuhin, took up the violin at age four, learned his first classical concerto at seven, was 
admitted at ten into the studio of the great George Enescu, who was then at the height of 
his fame as violinist, composer, teacher, and conductor, and at, fifteen, his level of 
performance was so remarkable that even if still a student, he performed in Paris the Bach 
Double Concerto, alongside Enescu, causing such excitement, that the work was soon 
recorded. That was 1931. Since then, the recording has been remastered, and it remains a 
bestseller. 
* * * 
[The petitioner] judges ensemble clinics and individual sessions for violin students. 
These clinics aim at polishing Students' performance, in order to make them competitive 
for major showcases and competitions. In particular, [the petitioner] addresses topics 
with these young artists especially related to her field, Violin Performance. 
I would like to add that even if some of [the petitioner's] students have yet to earn a . 
college degree, they are nevertheless very advanced violinists, able to perform technically 
and musically challenging repertoire, composed by and for masters of the instrument. 
Her students have consistently won highest scores in various competitions, and hold 
leading positions in their respective orchestras. 
states that "[i]t is quite common in our field for young students to share the stage 
with ·their master teachers, as professionals," but he does not specifically identify any of the 
petitioner's students who have performed on stage as "professionals.'~ Regardless, the regulation 
at 8 C.F.R. § 204.5(h)(3)(iv) requires evidence that the petitioner has served as "a judge of the 
work of others in the same or an allied field of specification.'' The AAO cannot conclude that 
being contracted to provide services as a private lessons teacher or a master class instructor 
equates to participation as "a judge" of the work of others in the field. The phrase "a judge" 
(b)(6)
Page 8 
implies a formal designation in a judging capacity, either on a panel or individually as sp'ecified 
at 8 C.F.R. § 204.5(h)(3)(iv). The regulation cannot be read to incltJde informal instances of 
student music instruction, interaction, and ;evaluation in a middle or high school educational 
setting. On appeal, counsel points to the example of "serving as a member of a Ph.D. 
dissertation committee that makes the final judgment as to whether an individual candidate's 
body of work satisfies the requirements for a doctoral degree" as meeting the plain language 
requirements of 8 C.F.R. § 204.5(h)(3)(iv), but counsel fails to provide speCific examples of any 
equivalent committees on which the petitioner has formally participated in judging the work of 
others in the field. While the documentation submitted for this criterion indicates that the 
petitioner is a capable violin teacher for middle and high school students in the and 
school districts in there is no documentary evidence demonstrating her 
participation as "a judge" of the work of others in the same or an allied field of specification. 
Accordingly, the petitioner has not es~ablished that she meets t.Qis regulatory criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
' 
The AAO withdraws the director's finding that the petitioner meets this regulatory criterion. The 
petitioner submitted documentary evidence of her various music performances as evidence for 
this criterion. Neither the petitioner nor counsel has explained how music performances equate to 
visual art exhibits. For instance, the petitioner's work as one of multiple violinists that perform for 
an orchestra is enjoyed for its sound, not its visual aspects. Such performances do not satisfy the 
regulatory requirements under 8 C.F.R. § 204.5(h)(3)(vii). The plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(vii) requires "[e]vidence of the display of the alien's work in the field at 
artistic exhibitions or showcases." · The petitioner is a violinist. When she is playing with an 
orchestra in concert, she is not displaying her music in the same sense that a painter or sculptor 
displays his or her work in a gallery or museum. The petitioner is performing her work as part of 
a large instrumental ensemble, she is not displaying her work. In addition, to the extent that the 
petitioner is a performing artist, it is inherent to her occupation to perform. The AAO notes that 
the ten criteria in the regulations are designed to cover different areas; not every criterion will 
apply to every occupation. 
The interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and 
has been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, 
*7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing 3I1ist 
do not fall under 8 C.F.R. § 204.5(h)(3)(vii)). As the petitioner is not a visual artist and has not 
created tangible pieces of art that were on display at exhibitions or showcases, the petitioner has 
not submitted qualifying evidence that meets the plain language requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(vii). Accordingly, the petitioner has not established that she meets this 
regulatory criterion. 
Evidence that the alien has perfonned in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
(b)(6)
Page 9 
In general, a leading role is evidenced from the role itself, and a critical role is one in which the 
alien was responsible for the success or standing of the organization or establishment. The AAO 
withdraws the director's finding that the petitioner meets this regulatory criterion. The petitioner 
submitted documentary evidence of her solo performances in a university setting. For instance, the 
petitioner performed violin solos at the the the 
the and the In 
addition to her solo performances in an · academic settine. the oetitioner submitted event Qrograms 
indicating that she was a violinist with the the 
that performed m local theatrical productions such as 
the the 
The petitioner. also submitted an 
event program indicating that she was a principal second violinist with the 
While the petitioner has performed violin solos at the 
_} there is no documentary evidence demonstrating that her specific role for those institutions 
was leading or critical. Further, there is no evidence showing that the petitioner's roles as a violinist 
with the 
and as a priricipal second violinist for 
the were leading or critical to those orchestras. 
Moreover, there is no documentary evidence demonstrating that the preceding orchestras have a 
distinguished reputation relative to other.-successful orchestras. 3 It is the petitioner's burden to 
demonstrate that the organizations or establishments claimed under this criterion ate marked by 
eminence, distinction, excellence, or a similar reputation. The AAO acknowledges that the 
petitioner submitted general information about the 
from their internet websites, but the 
self-serving nature of the online material IS not sutltcient to demonstrate that the orchestras have 
earned a. distinguished reputation. USCIS need not rely on self-promotional materiaL See Braga 
v. Poulos, No. CV 06 5105 SJO, a.ff'd 317 Fed. Appx. 680 (C.A9) (concluding that the AAO did 
not have to rely on self-serving assertions on the cover of a magazine as to the magazine's status as 
major media). 
The petitioner's. initial evidence also included a December 9, 2010 letter from stating: 
3 For comparison, some examples of orchestras with distinguished reputations include the Berlin Philharmonic, the 
London Symphony Orchestra, the Vienna Philharmonic, the Chicago Symphony Orchestra, the Cleveland Orchestra, 
the Los Angeles Philharmonic, the Boston Symphony Orchestra, and the New York Philharmonic. See article 
entitled "Chicago Symphony Tops U.S. Orchestras" at http://www.npr.org/templates/story/story.php?%20storyld= 
97291390, accessed on November 28, 2012, copy incorporated into the record of proceeding~ 
(b)(6)·Page 10 
I would first like to emphasize [the petitioner's] numerous leading roles for organizations of 
distinguished reputation. [The petitioner] has participated as a soloist or principal for scores 
of performances over the last decade. She is currently involved w:ith several symphonies 
including the 
Symphonies and the 
asserts that the petitioner has performed in "numerous leading roles for organizations 
of distinguished reputation," but merely repeating the language of the statute or regulations does 
not satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), a.ff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates. Inc. v. Meissner, No. 
95 civ 10729, 1997 WL 188942 at *1, *5 (S.D.N.Y.). Moreover, does not explain 
his affiliation with any of the symphonies mentioned in his letter. The regulation at 8 C.F.R. 
§ 204.5(g)(l) requires that evidence of experience "shall" consist of letters from employers. 
Therefore, the AAO will not consider letters written by anyone other than the petitioner's current 
and former employers with regard to this criterion. Further, despite assertion that 
the petitioner "has participated as a soloist or principal for scores of performances over the last 
decade," none of the event programs submitted by the petitioner from the 
specifically identify the petitioner as a "soloist or principal" violinist. 
The petitioner also submitted an unsigned December 16, 2010 letter from 
Music Director, stating: ,• / 
I am the Founder of Symphony 
I have served as Music Director of the 
currently serVe as Music Director of the 
* * * 
It is a pleasure for me to recommend violinist [the petitioner], who has been a member of 
the for two and a half years. As· Music Director of the 
and a guest c<:>nductor of ·orchestras in some fifteen countries, I can state with 
confidence that [the petitioner] is a player of exceptional virtuosity and rare 
musicianship. Her solid technical skills make her one of the most capable violinists with 
whom it has been· my good fortune to. work. She is an experienced ensemble player with 
a thorough knowledge of the many musical styles and periods that a symphonic musician 
must master, from Baroque to contemporary. 
As Music Director of the 
_ I audition and select for engagement all the 
musicians needed for concert services. [The petitioner], who has demonstrated a unique 
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Page II 
and extraordinary ability in the field of music, is one of the finest musicians that I have 
hired. 
* * * 
Her ability to combine music and her technique make her uniquely qualified to keep 
sharing her craft with audiences around the world, especially in the United States. 
Particularly valuable are [the petitioner's] European training and international performing 
credentials, which enable her to serve as mentor and coach for· many young Americans in 
the orchestra. Her contribution in the is unique and i~eplaceable. 
In his initial letter dated December 16, 2010, identifies the petitioner as "a member of 
the also refers the petitioner as "an experienced 
ensemble player." notes that the petitioner's European 
training and international 
performing credentials have enabled her to serve as mentor and coach for younger members in 
the orchestra, but there is no documentary evidence demonstrating that her role was leading or 
critical to the orchestra as a whole. The initial letter from fails to specify how the 
petitioner's role was leading or critical relative to that of the _ 
other violinists, let alone the orchestra's principal musicians, concert master, and conductor. 
lri resoonse to the director's RFE, the petitioner submitted a February 23, 2012 letter from 
stating: 
[The petitioner] is Assistant Concertmaster of the 
of which I ani Music Director -
and Conductor. 
* * * 
The is a professional ensemble of 93 classical musicians. It is, by both budget size 
and number of performances, one of the top one hundred orchestras in the United States. 
The position of the Assistant Concertmaster is a key leadership post in any symphony 
orchestra. The Assistant Concertmaster sits on the first of the fifteen stands of the violins, 
directly on the conductor's left. While the conductor signals the overall tempo and style 
of the music being played, it is the first desk of the violins - i.e., the Concertmaster and 
Assistant Concertmaster - who communicate to the other 28 violinists just how the 
conductor' s· wishes are to be executed. They make such crucial d~cisions as which notes 
are to be played up bow and which down bow, whether· the bow stroke is long or short, 
whether a note is played at the tip of the bow or at the frog, whether the bow is placed 
near the bridge or on the fingerboard, and soon. All of these choices profoundly affect the 
sound of the entire string section, the shape of the phrase, and the flow of the music. 
Were the orchestra a corporation, the conductor would be the CEO, the Concertmaster 
the COO, and the Assistant 
Concertmaster the Executive Vice President 
(b)(6)Page 12 
The Assistant Concertmaster must have a masterful technical command of the violin. 
[The petitioner] is an outstanding virtuoso; her playing commands the respect not only of 
the violin section, but of the entire orchestra. This enables her to excel in this leadership 
role by quickly offering alternatives and recommendations need~d to solve musical 
problems in rehearsal. [The petitioner's] technical prowess is augmented by an 
outstanding musical sensitivity. Musicians are an independent lot, and it requires a 
powerful artistic personality to mold two and a half dozen cantankerous fiddlers into a 
unified whole. This amalgam of talent, skill, and leadership has taken. [the petitioner] in a 
few short seasons from the back stands of the orchestra to center stage. Her unique 
contribution is vitally necessary to maintain the level of 
excellence. 
In his second letter dated February 23, 2012, 
"Assistant Concertmaster" of the 
indicates that the petitioner is now an 
does not specify the date that the petitioner was 
appointed to the new position. The AAO notes that the petitioner's "INDIVIDUAL 
CONTRACT" for the 2010-2011 season with 
Orchestras states · that she "shall play Section Violin" and does not mention the "Assistant 
Concertmaster" position or its duties. There is no evidence showing that the petitioner had been 
appointed to the position of the Assistant Concertmaster at the time of filing the petition on 
February 13, 2011. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), 
(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of 
/zummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter of 
Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into 
being only subsequent to the filing of a petition." /d. at 176. the founder and music 
director of the also comments that his orchestra is "one of the 
top one hundred orchestras in the United States," but the record does not include documentary 
evidence to support his self-serving assertion. As previously discussed, USCIS need not rely on 
self-promotional material. See Braga v. Poulos, at 680. Further, USCIS need not accept primarily 
conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 
15 (D.C. Dist. 1990). . 
The petitioner also submitted a February 20, 2012 letter from Associate 
. of the Professor of and J 
stating: -~---
[The petitioner] currently holds the position of Assistant Concertmaster with the 
the largest arts group in She holds this same 
position with the 
amidst the top five cultural attractions in both 
which are 
She has also 
appeared as concertmaster of the 
gained immediate international 
Additionally, she was a featured 
Orchestra, a group which 
acclaim, subsequently touring all of Europe . 
concertmaster and soloist with the 
(b)(6)Page 13 
Orchestra, Solo Violin with the 
concertmaster with the newly-founded 
and Asst.-
A concertmaster is the leader of an entire orchestra, subordinate only to· the conductor. 
The assistant concertmaster supports the concertmaster, or leads the ensemble in his/her 
absence. The choice of these two leaders is the most important an orchestra's music 
director can make, as the position requires not only superb playing ability and 
musicianship, but also grace and optimism under pressure, and the finesse of a diplomat. 
The violin leader sets the tone in more ways than one for an orchestra. The very sound 
that the concertmaster creates, be that rich, pensive or lyrical, is representative of the 
orchestra at large. The leaders can have a profound and complex effect on the orchestra. 
The concertmaster represents the orchestra - the conductor, the musicians and the 
management - in the community. Then, within the organization, he/she mediates 
between the board of directors and the management or the players. Oftentimes the 
' ' 
concertmaster helps the conductor lead the orchestra by providing clarity through 
exaggerated shoulder movements and bowings. 
As previously discussed, there is no evidence showing that the petitioner had been appointed to 
the position of Assistant Concertmaster with the 
and the "newly-founded ' at the 
time of filing the petition on February 13, 2011. Eligibility must be established· at the time of 
filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. Further, as 
previously noted. the self-serving information submitted bv the petitioner from the internet 
websites of the 
_ . is not sufficient to demonstrate that the orchestras 
have a distinguished reputation relative to other U.S. orchestras. USCIS need not rely on self­
promotional material. See Braga v. Poulos, at 680. Dr. Osadchy states that the petitioner 
"appeared as concertmaster of the Young Virtuosi of Tirana Orchestra," "was a featured 
concertmaster and soloist with the played "Solo Violin with the 
" and served as "Asst.-concertmaster with the newly­
founded There is no documentary evidence showing that the preceding 
ensembles have earned a distinguished reputation when compared to similar music groups. Further, 
the record lacks documentary evidence (such a contractual agreements or letters of employment) to 
support assertions that the petitioner was appointed to the roles of concertmaster with 
the Orchestra (Uld assistant concertmaster with the 
Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). The documentation submitted by the petitioner does not establish that she performed in a 
leading role or that she was responsible for the preceding ensembles' success or standing to a degree 
consistent with the meaning of "critical role." 
In light of the above, the petitioner has not established that she meets, this regulatory criterion. 
' 
(b)(6)Page 14 
Evidence that the aiien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the .field. 
The director discussed the evidence submitted for this regulatory criterion and found . that . the 
petitioner failed to establish her eligibility. On appeal, the petitioner does ~ot contest the 
director's findings for this criterion or offer additional. arguments. The AAO, therefore, 
considers this issue to be abandoned. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 
4711885, at *9. Accordingly, the petitioner has not established that she meets this regulatory 
criterion. 
B. Summary 
The ·petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
C. Prior 0-1 Nonimmigrant Visa Status 
The record reflects that the petitioner is the beneficiary of an approved 0-1 nonimmigrant visa 
petition for an alien of extraordinary ability in the arts. Although the words· "extraordinary 
ability" are used in the Act for classif1cation of artists under both the nonimmigrant 0-1 and the first 
preference employment -based immigrant categories, the statute and regulations define the term 
differently for each classification. Section 10l(a)(46) of the Act states, "The term 'extraordinary 
ability' means, for purposes of section 10l(a)(15)(0)(i), in the case of the arts, distinction." The 
0-1 regulation reiterates that "[ e ]xtraordinary ability in the field of arts means distinction." 8 C.P.R. 
§ 214.2(o)(3)(ii). "Distinction" is a lower standard than that required for the immigrant 
classification, which defmes 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, for example, nominations for awards or prizes are acceptable' evidence of 0-1 eligibility, 
8 C.P.R. § 214.2(o)(3)(iv)(A), but the immigrant classification requires actual receipt of nationally 
or internationillly recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear statutory 
and regulatory distinction between these two classifications, the petitioner's receipt of 0-1 
nonimmigrant classification is not evidence of her eligibility for immigrant classification as an alien 
with extraordinary ability. Further, the AAO does not fmd that an approval of a nonimmigrant visa 
mandates the 'approval of a similar immigrant visa. Each petition must be decided on a case-by-case 
basis upon review of the evidence of record. 
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 (5th Cir. 2004) (finding that prior approvals do 
(b)(6)Page 15 
not preclude USCIS from denying an extension of the original visa based on a reassessment of 
the alien's qualifications). 
The AAO is not required to approve applications or petitions whe~e 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, 59? (Comm'r 1988). It would be absurd to 
suggest that US CIS or . any agency must treat acknowledged errors as binding precedent. Sussex 
Eng'g 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 has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 
2000 WL 282785, *1, *3 (E .. D. La.); affd, 248 F.3d 1139 (5th Cir. 2001); cert. denied, 122 S.Ct. 51 
(2001). 
III. CONCLUSION 
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. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individualis one of that small percentage 
who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has su~tained 
national or international acclaim and that his or her achievements have been recognized in the field 
of expertise." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
not explain that-conclusion in a fmal merits determination.4 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence. 
/d. at 1122. · 
The petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the 
petition may riot be approved. 
4 The AAO maintains de novo review of all questions of fact.and law. See Soltane v. DOJ, 381 F. 3d 143, 145 (3d Cir. 
. 2004): In any future proceeding, the AAO maintains the jurisdiction to conduct a fmal merits determination as the office 
that made the last decision in this matter. 8 C.F.R § 103.5(a)(l)(ii). See also section 103(a)(l) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150 .1 (effective March I, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.1 (t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions). 
(b)(6)Page 16 
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.