dismissed EB-1A Case: Music

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
SRC 07 800 22482 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(I)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 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. 
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. 4 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing 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). 
/clp@hcl, /\ Perry Rhew 
r Chief, Administrative Appeals Office 
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. 5 1153(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 necessary to qualify for classification as an alien of 
extraordinary ability. More specifically, the director found that the petitioner had failed to demonstrate 
receipt of a major, internationally recognized award, or that he meets at least three of the regulatory 
criteria at 8 C.F.R. 5 204.5(h)(3). 
On appeal, counsel argues that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. 
5 204.5(h)(3). 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall lirst 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. 
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, 
60898-99 (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 
he has sustained national or international acclaim at the very top level. 
This petition, filed on July 25, 2007, seeks to classify the petitioner as an alien with extraordinary 
ability as a musician (opera singer). 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 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. 5 204.5(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. 5 204.5(11)(2). The petitioner has submitted evidence pertaining to the 
following criteria under 8 C.F.R. 5 204.5(h)(3).' 
Documentation of the alien's receipt qf lesser nationally or internationally recognized prizes 
or awardsfor excellence in the field of endeavor. 
At the time of original filing, counsel claimed that the petitioner was eligible for this criterion based on - - 
the petitioner's "standing and leading reputation in this field as well as recognition of his 
achievements." In addition, the petitioner submitted a document fromthanking the 
petitioner for his musical contribution. However, the accompanied English translation failed to comply 
with 8 C.F.R. 5 103.2(b)(3), which requires that "[alny document containing foreign language 
submitted to USCIS shall be accompanied by a full English language translation which the translator 
has certified as complete and accurate, and by the translator's certification that he or she is 
competent to translate from the foreign language into English." The English translation failed to 
contain the name of the translator, was not certified as complete and accurate, and failed to indicate 
that the translator was competent to translate from the foreign language into English. 
Because the petitioner failed to comply with 8 C.F.R. $ 103.2(b)(3), the AAO cannot determine 
whether the evidence supports the petitioner's claims. Accordingly, the evidence is not probative 
and will not be accorded any weight in this proceeding. 
The petitioner also submitted a letter from praising the Yonsei 
University Alumni Chorus Festival and the Yonsei Alumni Association of Southern California in 
celebration of Chusok (Korean Thanksgiving Day). The letter is not addressed to a specific person, let 
alone the petitioner, and reflects a letter of appreciation rather than an award or prize. We do not find 
that this appreciation letter is indicative or consistent with a lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
Notwithstanding the above, it is noted that the director requested additional information from the 
petitioner regarding the above documents. In response, the petitioner did not submit any additional 
I The petitioner does not claim to meet or subrnit evidence relating to the criteria not discussed in this decision. 
Page 4 
documentation, nor did he continue to claim eligibility for this criterion. The petitioner did not contest 
the decision of the director for this criterion on appeal. 
Accordingly, the petitioner has not established that he meets this criterion. 
Documentution of the alien's membership in associations in the field for which 
classzfication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
At the time of original filing, counsel claimed that the petitioner was eligible for this criterion based on 
the following: 
1998; 
2. The petitioner's membership in the German Art Song Society; and 
3. The petitioner's membership as a soloist in the Yonsei Alumni Chorus of Southern 
California. 
Regarding Items 1 and 2, the petitioner failed to submit English translations that comply with 8 
C.F.R. 5 103.2(b)(3). In addition to not submitting full English translations of the documents, the 
translations failed to contain the name of the translators, were not certified as complete and accurate, 
and failed to indicate that the translators were competent to translate from the foreign language into 
English. 
Regarding Item 3, the petitioner submitted a photograph with a handwritten caption indicating 
c 
In order to demonstrate that membership in an association meets this criterion, a petitioner must 
show that association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, minimum 
education or experience, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues do not satisfy this criterion as such requirements 
do not constitute outstanding achievements. Further, the overall prestige of a given association is 
not determinative; the issue here is membership requirements rather than the association's overall 
reputation. The petitioner failed to establish that membership in the Yonsei Alumni Chorus of 
Southern California requires outstanding achievement as an essential condition for admission to 
membership. 
Notwithstanding the above, it is noted that the director requested additional information from the 
petitioner regarding this criterion. In response, the petitioner submitted a copy of an e-mail, which 
indicates that he paid dues to the American Guild of Musical Artists (AGMA) on November 26, 2007. 
In addition, the petitioner submitted a copy of the petitioner's AGMA membership card for January 1, 
2008, to December 31, 2008, along with AGMA's Constitution and By-Laws. However, the petition 
was filed on July 25,2007. Since the petitioner's membership occurred after the filing of the petition, 
we will not consider the evidence to establish the petitioner's eligibility. Eligibility must be 
established at the time of filing. 8 C.F.R. $5 103.2(b)(l), (12); Mutter of Katigbak, 14 I&N Dec. 45, 
49 (Regl. Commr. 1971). A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter of lzummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). That 
decision further provides, citing Matter of Bardouille. 18 I&N Dec. 114 (BIA 198 I), that we cannot 
"consider facts that come into being only subsequent to the filing of a petition." Id. at 176. 
Regardless, according to AGMA's Constitution and By-Laws, membership is available to "[alny 
person who has performed, now performs or intends to perform within the jurisdiction of the Guild 
as set forth in the Articles of Agreement, and as defined by its Board of Governors, shall be eligible 
for membership." The petitioner failed to establish that membership in AGMA requires outstanding 
achievement as an essential condition for admission to membership. 
The petitioner did not contest the decision of the director for this criterion on appeal. 
Accordingly, the petitioner has not established that he 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 jeld for which classijkation is sought. 
Such evidence shall include the title, date, and author ofthe material, and any necessary 
translation. 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner 
and, as stated in the regulations, be printed in professional or major trade publications or other major 
media. To qualify as major media, the publication should have significant national or international 
distribution. An alien would not earn acclaim at the national level from a local publication or from a 
publication printed in a language that the vast majority of the country's population cannot comprehend. 
Some newspapers, such as the New York Times, nominally serve a particular locality but would qualify 
as major media because of significant national distribution, unlike small local community 
At the time of original filing, the petitioner submitted seven foreign language articles. Four articles 
were accompanied by insufficient English translations, while the other three articles were 
unaccompanied by any translations. In the director's request for additional evidence, the petitioner was 
informed of the requirement to submit full certified English translations in compliance with the 
regulation at 8 C.F.R. 5 103.2(b)(3). In response, the petitioner submitted two translation certifications, 
one for the Korean language and one for German language, for all seven documents. 
Although the record contains two certified translations, it is unclear which of these documents, if 
any, to which the certifications pertain. The submission of two translation certifications that do not 
2 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
identify the specific documents they purportedly accompany does not meet the requirements of the 
regulation at 8 C.F.R. 9 103.2(b)(3). 
As we can not determine whether the evidence supports the petitioner's claims, the petitioner failed to 
establish that the submitted material may be considered published material about him in professional or 
major trade publications or other major media, relating to his work in the field for which classification is 
sought. 
Accordingly, the petitioner has not established that he meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as ujudge of the 
work of others in the same or an alliedfield of specializution.for which cla.ssification is 
sought. 
The regulation at 8 C.F.R. tj 204.5(h)(3) provides that "a petition for an alien of extraordinary ability 
must be accompanied by evidence that the alien has sustained national or international acclaim and 
that his or her achievements have been recognized in the field of expertise." Evidence of the 
petitioner's participation as a judge must be evaluated in terms of these requirements. The weight 
given to evidence submitted to fulfill the criterion at 8 C.F.R. tj 204.5(h)(3)(iv), therefore, depends 
on the extent to which such evidence demonstrates, reflects, or is consistent with sustained national 
or international acclaim at the very top of the alien's field of endeavor. 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. tj 204.5(h)(2). 
At the time of original filing, counsel claimed that the petitioner was eligible for this criterion based on 
the petitioner's selection as a judge in the Sports Today & Bethesda Music Corporation. The petitioner 
submitted a foreign language document that was accompanied by an English translation. However, the 
accompanied English translation failed to comply with 8 C.F.R. 5 103.2(b)(3). The translation failed 
to contain the name of the translator, was not certified as complete and accurate, and failed to 
indicate that the translator was competent to translate from the foreign language into English. 
It is noted that in response to the director's request for additional evidence, counsel briefly 
mentioned at the beginning of her cover letter that the petitioner was eligible under this criterion but 
did not further elaborate later on in her brief. It is further noted that the petitioner did not contest the 
decision of the director for this criterion on appeal. 
Accordingly, the petitioner has not established that he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business- 
related contributions of major significance in the,field. 
Counsel argues on appeal that the submitted recommendation letters praising the petitioner's talent 
as a vocalist is evidence of the petitioner's eligibility for this criterion. As indicated by counsel, 
many of the recommendation letters praise the petitioner, noting that "his talent has been recognized 
as one of the top few in his area," that he is "exceptionally unique and rare as compared to many 
musicians out there," and "[hlas established his fame as a fame top tier vocalist in the world." 
However, talent in one's field is not necessarily indicative of artistic contributions of major 
significance. The record lacks evidence showing that the petitioner has made original artistic 
contributions that have significantly influenced or impacted his field. The letters of recommendation do 
not provide any evidence of the petitioner's original artistic contribution of major significance in his 
field. 
Counsel also argues: 
[The petitioner's] work has been widely acclaimed and performed in many venues. 
However, in general, contributions of a vocalist, especially in operatic singing, derive 
from the music, presence, and the inherent beauty of the voice itself that he or she 
imparts on the audience through his performances, and not necessarily through a new 
revolutionary technique of singing or by creating a new musical piece (which is more 
applicable to composers). A standard of review that requires a "widely adopted" 
contribution can reasonably be applicable to scientific research, but not to operatic 
singing. 
With regard to the petitioner's achievements as a vocalist, the letters of recommendation do not 
specify exactly what his original contributions in opera have been, nor is there an explanation 
indicating how any such contributions were of major significance in his field. According to the 
regulation at 8 C.F.R. fj 204.5(h)(3)(v), an alien's contributions must be not only original but of 
major significance. We must presume that the phrase "major significance" is not superfluous and, 
thus, that it has some meaning. While the petitioner has earned the admiration of those with whom 
he has worked and performed, there is no evidence demonstrating that he has made original artistic 
contributions of major significance in the field. For example, the record does not indicate the extent 
of the petitioner's influence on other vocalists nationally or internationally, nor does it show the field 
has somehow changed as a result of his work. 
In this case, the letters of recommendation submitted by the petitioner are not sufficient to meet this 
criterion. These letters, while not without weight, cannot form the cornerstone of a successful 
extraordinary ability claim. USCIS may, in its discretion, use as advisory opinions statements 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 
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. Thus, the content of the experts' 
statements and how they became aware of the petitioner's reputation are important considerations. 
Even when written by independent experts, letters solicited by an alien in support of an immigration 
petition are of less weight than preexisting, independent evidence of original contributions of major 
significance that one would expect of a vocalist who has sustained national or international acclaim. 
Without extensive documentation showing that the petitioner's work has been unusually influential, 
highly acclaimed throughout his field, or has otherwise risen to the level of original contributions of 
major significance, we cannot conclude that he meets this criterion. 
Accordingly, the petitioner has not established that he meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the .field, in profissional or 
major trade publications or other major media. 
At the time of original filing, counsel claimed that the petitioner was eligible for this criterion based on 
the petitioner's authorship of an article entitled, "What is a Professional?'for the book Educlassic, and 
another article entitled, "Do You Like Brahms?'for the magazine Classic Youngsan. 
The petitioner submitted foreign language documents that were accompanied by brief English 
translations, which only contained the title and date of the articles. The accompanied English 
translations failed to comply with 8 C.F.R. 5 103.2(b)(3). 
Nonetheless, the petitioner failed to establish that his articles were scholarly or academic as required 
by 8 C.F.R. 5 204.5(h)(3)(vi) rather than journalistic or informative. The record lacks evidence such 
as that the petitioner's articles garnered attention from scholars. The petitioner did not contest the 
decision of the director for this criterion on appeal. 
Accordingly, the petitioner has not established that he meets this criterion. 
Evidence of the display of the alien's work in the .field at artistic exhibitions or 
sho wcuses. 
On appeal, counsel argues that the petitioner is eligible for this criterion based on "his numerous 
worldwide performances" and his "select[ion] in principal roles for several leading operas." This 
criterion, however, relates to the visual arts. The petitioner is an opera singer. It is inherent to the field 
of opera singing to perform on stage. Not every stage performance is an artistic exhibition or showcase. 
In the performing arts, acclaim is generally not established by the mere act of appearing in public, 
but rather by attracting a substantial audience. For this reason, the regulations establish separate 
criteria, especially for those whose work is in the performing arts. We find that the petitioner's 
selection in principal roles for several operas is best considered under the leading or critical role 
criterion set forth at 8 C.F.R. 5 204.5(h)(3)(viii) and discussed below. In addition, the petitioner's 
worldwide performances are far more relevant to the "commercial successes in the performing arts" 
criterion at 8 C.F.R. 8 204.5(h)(3)(x) and discussed later. 
Accordingly, the petitioner has not established that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role .for organizations or 
establishments that have a distinguished reputation. 
The petitioner never specifically claimed eligibility for this criterion, either at time of original filing 
or on appeal. However, as cited above, we will consider counsel's claim of the petitioner's selection 
for principal roles in several leading operas for this criterion. The AAO maintains plenary power to 
review each appeal on a de novo basis. 5 U.S.C. $ 557(b) ("On appeal from or review of the initial 
decision, the agency has all the powers which it would have in making the initial decision except as 
it may limit the issues on notice or by rule."); see also Janka v. US. Dept. of Transp., NTSB, 925 
F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority has been long recognized by the 
federal courts. See, e.g.. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
At issue for this criterion are the position the petitioner was selected to fill and the reputation of the 
entity that selected him. In other words, the position must be of such significance that the alien's 
selection to fill the position, in and of itself, is indicative of or consistent with national or international 
acclaim. 
On appeal, counsel states that the petitioner has served in the following principal roles for several 
leading operas: 
The petitioner submitted a multitude of event programs. While these programs include photographs of 
the petitioner, the programs are in various foreign languages without the English translations required 
by 8 C.F.R. $ 103.2(b)(3). 
Without the proper translation, we are unable to determine whether these programs establish that the 
petitioner served in principal roles in leading operas. Further, even if we were to conclude that an opera 
production equates to an organization or an establishment, which we do not, there is no evidence 
showing that these venues have a distinguished reputation. There is no documentary evidence showing 
that his productions had a distinguished national reputation or evidence differentiating his role from 
that of the other performers. We note that the petitioner's performances for the L.A. Opera refer to 
the petitioner as a "chorister." The record contains no evidence such as that the petitioner's name 
frequently received top billing or that the productions' popularity increased when he was known to 
be performing. Accordingly, the petitioner has not established that he was responsible for the success 
or standing of the productions in which he participated to a degree consistent with the meaning of 
"leading or critical role" and indicative of sustained national or international acclaim at the very top of 
his field. 
Accordingly, the petitioner has not established that he meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box qfice 
receipts or record, cassette, compact disk, or video sales. 
As cited in the previous criterion, the petitioner submitted a multitude of event programs in foreign 
languages without the English translation required by 8 C.F.R. 9 103.2(b)(3). 
Notwithstanding the above, counsel argues on appeal that as evidenced by the previously mentioned 
recommendation letters, the petitioner's "performances have garnered mass audience attendance at 
various venues." This regulatory criterion requires evidence of commercial successes in the form of 
"sales" or "receipts;" simply submitting letters indicating that the petitioner participated in various 
opera productions, recitals, concerts, and workshop performances cannot meet the plain language of 
this criterion. The record does not include 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 at the very top of his field. For example, there is no 
evidence showing that petitioner's performances consistently drew record crowds, were regular sell- 
out performances, or resulted in greater audiences than other similar performances that did not 
feature him. Further, there is no evidence showing, for instance, that the petitioner's musical 
recordings have generated substantial national or international sales. 
Accordingly, the petitioner has not established that he meets this criterion. 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate his 
receipt of a major, internationally recognized award, or that he meets at least three of the criteria that 
must be satisfied to establish the national or international acclaim necessary to qualify as an alien of 
extraordinary ability. 8 C.F.R. fj 204.5(h)(3). The conclusion we reach by considering the evidence 
to meet each criterion separately is consistent with a review of the evidence in the aggregate. Even 
in the aggregate, the evidence does not distinguish the petitioner as one of the small percentage who 
has risen to the very top of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). While the petitioner has 
earned the respect and admiration of the individuals offering recommendation letters, the petitioner 
failed to establish that he has amassed a record of accomplishment which places him among that 
small percentage at the very top of his field. We agree with the experts' assertions that the petitioner 
possesses great talent as a vocalist, but the evidence of record does not establish that he has sustained 
national or international acclaim. 
Review of the record does not establish that the petitioner has distinguished himself to such an extent 
that he may be said to have achieved sustained national or international acclaim or to be within the 
small percentage at the very top of his field. The evidence is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field at a national or international 
level. 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 petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. Here, 
that burden has not been met. 
ORDER: The appeal is dismissed.