dismissed EB-1A Case: Music

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
PUBLIC COPY 
/3Z 
OFFICE: NEBRASKA SERVICE CENTER 
 Date: FEB 0 9 2009 
LIN 06 256 51548 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 firther inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
\I 
$ John F. Grissom, Acting Chief 
Administrative Appeals Office 
Page 2 
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 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 necessary to qualify for classification as an alien of 
extraordinary ability. 
On appeal, the petitioner argues that he meets at least three of the regulatory criteria at 8 C.F.R. 
$ 204.5(h)(3). 
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 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. 8 204.5(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 August 16,2006, seeks to classify the petitioner as an alien with extraordinary 
ability as a pianist. The petitioner submitted a November 10, 2007 letter from-~ 
President, Queens New York School of Music (QNYSM), stating that the petitioner has worked 
there as a teacher since June 2007.' The petitioner's employment with the QNYSM post-dates the 
filing of the petition, A petitioner, however, must establish eligibility at the time of filing. 8 C.F.R. 
$6 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). Subsequent 
developments in the petitioner's career cannot retroactively establish that he was eligible as of the 
petition's filing date. Accordingly, the AAO will not consider the petitioner's work for the QNYSM 
in this proceeding. 
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. 
§ 204.5@)(3). In determining whether the petitioner meets a specific criterion, the evidence itself 
must be evaluated in terms of whether it is indicative of or consistent with sustained national or 
international acclaim. A lower evidentiary standard would not be consistent with the regulatory 
definition of "extraordinary ability" as "a level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. 
$ 204.5(h)(2). The petitioner has submitted evidence pertaining to the following   rite ria.^ 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
The petitioner submitted a diploma and a medal reflecting that he received 4th Prize at the 5th Annual 
Konzerteum International Piano Competition in Markopoulon, Greece (1999). In response to the 
director's request for evidence, the petitioner submitted an internet listing of Greek piano 
competitions reflecting that participation in the 1 2th Konzerteurn International Piano Competition is 
limited to entrants age 35 and younger. On appeal, the petitioner submits regulations for the 6th 
Konzerteum International Piano Competition which indicate that the competition "is open to pianists 
. . . not above the 36" year of age." The petitioner also submits a letter from Professor Emanuel 
Krasovsky, Piano Faculty, Tel Aviv University, and jury member of the 5fi Annual Konzerteum 
International Piano Competition, stating: "In the adult category (till 32 years of age), the 
international jury awarded [the petitioner] of Georgia the fourth prize." The petitioner's appellate 
submission also includes a November 7, 2007 letter from another jury member of the competition, 
Professor Tengiz Amiredjibi, Piano Department Chair, Tbilisi State Conservatory. Professor 
Arniredjibi's letter states: "The competition consisted of three rounds, in which high level 
participants from 10 different countries (aged 24-32) took part." 
' We note that the petitioner is not listed among the faculty in the QNYSM brochure submitted by him. Further, the 
petitioner is not listed among the faculty on the QNYSM's internet site. See ht~:Nwww.anvs.or,dfacult~.htm, accessed 
on January 26,2009, copy incorporated into the record of proceeding. 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
We note that the age limit specified in the internet listing of Greek piano competitions and the 
regulations for the 6" Konzerteum International Piano Competition contradict the age limit specified 
in the preceding letters fiom jury members. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). 
With regard to prizes won by the petitioner in age-restricted competition, we do not find that such 
prizes indicate that he "is one of that small percentage who have risen to the very top of the field of 
endeavor." See 8 C.F.R. § 204.5(h)(2). There is no indication that the petitioner faced competition 
fiom throughout his field, rather than limited to his approximate age group within the field. USCIS 
has long held that even athletes performing at the major league level do not automatically meet the 
"extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Cornrnr. 1994); 56 
Fed. Reg. at 60899.~ Likewise, it does not follow that a musician who has had success in competition 
restricted to pianists age 35 and under should necessarily qualify for an extraordinary ability 
employment-based immigrant visa. To find otherwise would contravene the regulatory requirement at 
8 C.F.R. 8 204.5@)(2) that this visa category be reserved for "that small percentage of individuals that 
have risen to the very top of their field of endeavor." Further, the petitioner has not submitted 
evidence showing that his fourth prize constitutes a nationally or internationally recognized prize for 
excellence in his field of endeavor. The plain language of the regulatory criterion at 8 C.F.R. 
§ 204.5@)(3)(i) specifically requires that the petitioner's award be nationally or internationally 
recognized and it is his burden to establish every element of this criterion. 
In an August 4, 2007 letter responding to the director's request for evidence, the petitioner asserts that 
he won "second prize" at the 2nd International Piano Competition in Tbilisi, Georgia in October 2001. 
On appeal, the petitioner submits the brochure for the "Second Tbilisi International Piano competition 
2001 .'" While this brochure reflects that the petitioner was a participant in the competition, there is no 
evidence showing that he received "second prize" or that his prize was nationally or internationally 
recognized. Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Matter of SoBci, 22 I&N Dec. 158, 165 
While we acknowledge that a district court's decision is not binding precedent, we note that in Matter of Racine, 1995 
WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[Tlhe plain reading of the statute suggests that the appropriate field of comparison is not a comparison of 
Racine's ability with that of all the hockey players at all levels of play; but rather, Racine's ability as a 
professional hockey player within the NHL. This interpretation is consistent with at least one other court in this 
district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the defrnition of the term 8 C.F.R. 
4 204.5(hM2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose wihn the jurisdiction of another federal judicial district and circuit, the court's 
reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. 9 204,5(h)(2) is reasonable. 
4 
 On page 13 of the brochure, the competition rules state: "The Competition is open to pianists of all nationalities born 
between October 19, 1970 and October 8, 1985." Thus, the competition was limited to young participants age 16 to 31. 
Page 5 
(Cornm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). A petition must be filed with any initial evidence required by the regulation. 8 C.F.R. 
9 103.2(b)(l). The nonexistence or other unavailability of primary evidence creates a presumption 
of ineligibility. 8 C.F.R. 9 103.2(b)(2)(i). In this instance, there is no evidence from the competition 
organizers demonstrating that the petitioner received a prize at the Second Tbilisi International Piano 
competition in 200 1. 
The petitioner's August 4, 2007 letter states that he "was the recipient of President's scholarship." 
In support of his statement, the petitioner submitted a 2001 certificate stating: "[The petitioner] is an 
Exhibitioner of the President of Georgia." The record does not include information regarding the 
significance of the "President's scholarship" or being an "Exhibitioner of the President." There is no 
evidence showing that the petitioner's certificate is a nationally or internationally recognized prize or 
award for excellence in his field of endeavor. 
In light of the above, the petitioner has not established that he meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classzjication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or$elds. 
In order to demonstrate that membership in an association meets this criterion, the petitioner must 
show that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, minimum 
education or experience, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues, do not satisfy this criterion as such requirements 
do not constitute outstanding achievements. Further, the overall prestige of a given association is 
not determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
The petitioner submitted a February 12,2007 letter from the Chairman of the Georgian Composers' 
Union stating that the petitioner was a member of the organization from 1999 to 2006. The record, 
however, does not include evidence (such as membership bylaws or official admission requirements) 
showing that this organization requires outstanding achievements of its members, as judged by 
recognized national or international experts in the petitioner's field or an allied one. As such, the 
petitioner has not established that he meets this criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the$eld for which classzj?cation is sought. 
Such evidence shall include the title, date, and author of the 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. 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 papers.5 
The petitioner submitted a 1999 article in Musika entitled "Yesterday, Today, Tomorrow. . ." The 
English language translation of this article was incomplete. Pursuant to 8 C.F.R. 9 103.2(b)(3), any 
document containing foreign language submitted to USCIS shall be accompanied by a full English 
language translation that 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. Without 
a full English language translation of the article, it cannot be determined that the article was about 
the petitioner. The plain language of this regulatory criterion requires that the published material be 
"about the alien" relating to his work in the field. An article that only mentions the petitioner's name in 
passing does not meet this requirement. The petitioner also submitted an English language translation 
for a March 31, 1988 article in Sakhalkho Ganatleba, but a copy of the original article was not 
submitted. There is no indication that the English language translation of the article was complete as 
required by the regulation at 8 C.F.R. § 103.20>)(3). Nevertheless, according to the English language 
translation submitted by the petitioner, the article was about a "Music Week of Children and Youth" 
held by his school rather than being primarily about him. The petitioner also submitted an article about 
him in Duo entitled "Discovery. . ." The date of this article was not provided as required by the plain 
language of this regulatory criterion. Further, there is no evidence (such as circulation statistics) 
showing that Mwika, Sakhalkho Ganatleba, and Dro qualify as professional or major trade publications 
or some other form of major media. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien 3 original scientiJic, scholarly, artistic, athletic, or business- 
related contributions of major signijkance in the field. 
The petitioner submitted several letters of recommendation praising his talent as a pianist. Talent in 
one's field, however, 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 
petitioner] is a pianist of romantic type, his sound is tender, his spirits volcanic, his technique 
virtuoso. His unique scenic attractiveness charms the audience, his performance is always sincere, 
deliberate and perfect." 
. Paliashvili 2nd Music College, states: "[The petitioner] is richly and notably 
talented young musician-performer. His piano playing was distinguished by virtuoso technique and 
5 
 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. 
range, matchless taste, dynamism and bright artistry which was attracting audience and made them 
remember him for a long time." 
Professor of Piano, DePaul University School of Music, states: 
 "[The 
petitioner's] talent is truly outstanding and his extraordinary music abilities impress audiences and 
music experts alike. He is an exceptional musician of the highest caliber and will be a valuable asset 
to the musical community of our country." 
Piano Professor, College of Music, Michigan State University, states: "[The 
petitioner] is without a doubt an artist of the highest caliber. He possesses an extremely large active 
repertoire and has maintained a regular roster of concert engagements." 
Chairman of the Georgian Composers' Union, states: "Members of the Georgian 
Composers' Union and its Management are pretty sure of his creative potential and hope that thanks 
to his activity as a pianist he will lead his way in any country and be a successful artist." Similarly, 
, Faculty Member, Manhattan School of Music, states: "As a person who comes in 
contact with many outstanding pianists, I can confidently state that [the petitioner] has tremendous 
potential in this field." Such statements indicate that the very top of the petitioner's field is a level 
above his present level of achievement. The petitioner seeks a highly restrictive visa classification, 
intended for individuals already at the top of their respective fields, rather than for individuals 
progressing toward the top at some unspecified future time. See 8 C.F.R. $204.5(h)(2). 
The letters of recommendation submitted by the petitioner discuss his talent as a pianist, musical 
performances, and educational training, but they fail to demonstrate that he has made original 
contributions of major significance in the field. These letters do not include a substantive discussion 
as to which of the petitioner's specific achievements constitute original artistic contributions of 
major significance in his field of endeavor. According to the regulation at 8 C.F.R. $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 respect and admiration of those offering letters of support, there is no 
evidence demonstrating that his work has had major significance in the field. For example, the 
record does not indicate the extent of the petitioner's influence on other pianists nationally or 
internationally, nor does it show that 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. The opinions of experts in the field, 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 
(Comrnr. 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 pianist 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. 
Evidence of the display of the alien's work in the Jield at artistic exhibitions or 
showcases. 
The petitioner submitted music programs and promotional material reflecting that he has performed 
at venues such as the Millennium Theater in Brooklyn, Cathedral of the Holy Virgin Protection in 
New York, and the Armenian Church of the Holy Ascension in Trumbull, Connecticut. There is no 
evidence showing that these performances were consistent with sustained national or international 
acclaim at the very top of his field. Nevertheless, the plain language of this regulatory criterion 
indicates that it is intended for visual artists (such as sculptors and painters) rather than for pianists 
such as the petitioner. In the performing arts, national or international acclaim is generally not 
established by the mere act of appearing in public, but rather by attracting a substantial national or 
international audience. For this reason, the regulations establish separate criteria, especially for 
those whose work is in the performing arts. The petitioner's musical performances are far more 
relevant to the "commercial successes in the performing arts" criterion at 8 C.F.R. $204,5@1)(3)(x). 
Evidence that the alien has pet$omed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
In order to establish that he performed a leading or critical role for an organization or establishment 
with a distinguished reputation, the petitioner must establish the nature of his role within the entire 
organization or establishment and the reputation of the organization or establishment. 
The petitioner submitted a letter fiom the QNYSM stating that he has worked there as a piano 
teacher since June 2007. As discussed, the petitioner's employment with the QNYSM post-dates the 
filing of the petition. A petitioner, however, must establish eligibility at the time of filing. 8 C.F.R. 
$9 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, the AAO will not 
consider the petitioner's role for the QNYSM in this proceeding. 
The petitioner submitted a letter fiom 
 Artistic Manager, Tbilisi Centre of Music 
and Culture, stating: 
This is given to a young Georgian pianist [the petitioner] to certify that in 2001-2006 he was 
a soloist of the Tbilisi Centre of Music and Culture. He was delivering concerts together 
with the Tbilisi symphony orchestra under leadership of a prominent Georgian conductor 
-and was performing famous works of the world piano classical music in 
both the symphonic and solo programs. 
Page 9 
The staff of the Tbilisi Centre of Music and Culture strongly believes in his creative 
potential. . . . 
The record does not include supporting evidence showing that the Tbilisi Centre of Music and 
Culture and the music schools for which the petitioner has worked (such as the Z. Paliashvili 2" 
Music College) have a distinguished reputation. As stated previously, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Sofici, 22 I&N Dec. at 158, 165 (citing Matter of Treasure Craft of 
California, 14 I&N at 190). Nor is there evidence demonstrating how the petitioner's role 
differentiated him fiom the other musicians and faculty members employed by the preceding 
organizations. The petitioner has not established that he was responsible for his employers' success or 
standing to a degree consistent with the meaning of "leading or critical role" and indicative of sustained 
national or international acclaim. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box ofice 
receipts or record, cassette, compact disk, or video sales. 
On appeal, the petitioner submits a November 10,2007 letter President, Amirani 
International Inc., stating: "We arranged piano solo recital of Merab Ebralidze in May 2008 at 
Carnegie Hall." This solo recital post-dates the filing of the petition. A petitioner, however, must 
establish eligibility at the time of filing. 8 C.F.R. $9 103.2(b)(l), (12); Matter ofKatigbak, 14 I&N 
Dec. at 49. Accordingly, the AAO will not consider the recital in this proceeding.6 
This regulatory criterion calls for evidence of commercial successes in the form of "sales" or "receipts;" 
simply submitting evidence indicating that the petitioner participated in various concerts or 
competitions 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 indication that the 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 the petitioner. Nor is there evidence showing, for example, 
that the petitioner's musical recordings generated substantial national or international sales. 
In this case, the petitioner has failed to demonstrate receipt of a major, internationally recognized 
award, or that he meets at least three of the criteria at 8 C.F.R. § 204.5(h)(3). 
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 
Nevertheless, the petitioner's solo recital is not listed among the performances in Carnegie Hall's May 2008 schedule. 
See http:llwww.carnegiehall.org~textSite/box oficeieventslcal 2007-2008 5.htm1, accessed on January 28, 2009, copy 
incorporated into the record of proceeding. 
Page 10 
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 pwsuant to section 203(b)(l)(A) of the 
Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. 8 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed.