dismissed EB-1A Case: Music

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
FILE: Office: VERMONT SERVICE CENTER 
EAC 03 172 50325 
Date: OCI 2 6 m@ 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. $ 1 153(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. 
7 Robert P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant yisa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based-immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 3 1153(b)(l)(A), as an alien of extraordinary ability in 
the arts. The director determined the petitioner had got established that she qualifies for classification as an alien 
of extraordinary ability, 
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 subpara'graph (A) through (C): 
(A) Aliens with Extraordinary Abibty. -- 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 to the United States will substantially benefit prospectively the 
United States. -- 
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 havk risen to the very tbp of the field of endeavor. 8 C.F.R. 
3 204.5(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. 3 204.5(h)(3). The relevant criter'ia will be addressed below. It should be reiterated, however, that 
the petitioner must show that she has earned sustained national or international acclaim at the very top level. 
This petition, filed on May 17, 2003, seeks to classify the petitioner as an alien with extraordinary ability as 
ecifically, the petitioner plays "a plucked string instrument that 
"a Chinese Hammered dulcimer with a trapezoidal soundboard 
quire the petitioner's acclaim to be sustained. The record ref1 
petitioner has been residing in the United States since September 2000. Given the length of time between the 
petitioner's arrival in the United States and the petition's filing date (more than 32 months), it is reasonable to 
expect the petitioner to have earned national acclaim in the United States during that time. The petitioner has 
had ample time to establish a reputation as a musician in this country. 
The regulation at 8 C.F.R. 3 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international 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 accl2im necessary lto qualify as an alien of 
extraordinary ability. The petitioner has submitted evidence pertaiding to the following criteria. 
Documentation of the alien's receipt of lesser pationally or internationflly recognized prizes 
or awards for excellence in theJield of endeavor. 
The petitioner submitted the following: 
1. Certificate from the Chinese Folk Music Association stating that the petitioner "won 
First Prize' in the loth Anniversary Folk Music Competition" (1998) - 
2. Certificate from the Chinese Musician Association and the Chinese Folk Music Association stating 
that the petitioner "won the Second Award in the Chinese Harp Solo Performance of 'The 31d 
Anniversary of the National Folk Music Performance"' (1996) 
3. Certificate from the "Committee of Chinese Folk Musical Instrument of Chinese Folk Music 
Association" stating that the petitioner "won the First Award in the Chinese harp performance in the 
1" Anniversary of 'Fragrant of Peach and Prune,' Teenagers Folk Music Concert" (1994) 
4. Certificate from the Chinese Musician Association stating: "[The petitioner] is 'chosen as the 
outstanding national instrumental music educationist by the Chinese Musician Association. [The 
petitioner] makes great contribution in her teaching of the traditional Chinese musical instrument 
Chinese Harp, and Hammered Dulcimer." (1998) 
5. Certificate from the Chinese Music Concert Committee stating that the petitioner was honored "for 
her great contribution in the 2nd Chinese Music Concert" (1990) 
6. Certificate from the Beijing Cultural Bureau presented to the Beijing Quju Opera Troupe stating that 
it "won the First Award in the 86-89 Year of New Dramas cornfietition Performance in Beijing 
City" (1989) b 
7. Student Award from the Chinese Music Inktution (1982) 
There is no evidence of media publicity surrounding the petitioner's awards or evidence showing that they 
enjoy a significant level of recognition. Because the statute requires "extensive documentation" of sustained 
national or international acclaim, the petitioner- must submit contemporaneous evidence showing that her 
awards enjoy significant national or international stature.' In this case, the record contains no documentation 
from the print media or from officials of the awarding entities to establish that the petitioner's awards are 
nationally recognized performing arts awards. In regard to item 5, there is no evidence showing that this 
certificate is a nationally or internationally recognized award for excellence, rather than simply an 
acknowledgment of the petitioner's participation in the concert. Aside from being a local award (rather than a 
national award), item 6 is a group award making the petitioner's level of contribution difficult to ascertain. 
Finally, in regard to item 7, the student award, we note that such an award is institutional in scope and that 
experienced professionals in the petitioner's field of endeavor were excluded from consideration. 
' For example, large-scale competitions typically issue event programs listing the order of events and the names of the 
participating performers. At a competition's conclusion, results are usually provided indicating how each participant 
performed in relation to the other competitors in his or her events. The petitioner, however, has provided no evidence of 
the official comprehensive results for the competitions in which she received awards. 
In addition to the above deficiencies, the record contains no evidence showing that the petitioner has won any 
significant performing arts awards subsequent to 1998. The absence of such awards indicates that the 
petitioner has not sustained whatever acclaim she may have earned in China during the 1990's. 
Documentation of the alien's membership in associations in the field for which classification 
is sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 
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. In addition, it is clear from the regulatory language that members must be selected at the 
national or international level, rather than the local or regional level. Therefore, membership in an association 
that evaluates its membership applications at the local or regional chapter level would not qualify. Finally, 
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 evidence of her membership in organizations such as the Chinese Folk Orchestral 
Association, the Chinese Folk Music Association, and the Chinese Musician Association. The record, 
however, contains no evidence of the bylaws or official comprehensive membership requirements for these 
associations. 
The petitioner submitted two undated and unsigned letters bearing the seal of the Chinese Musician 
Association and the Chinese Folk Orchestral Association, but these letters have no address, phone number, or 
any other information through which these associations miy be contacted. For this reason, the letters are of 
limited probative value. 
The letter from the Chinese Musician Association states that those who apply for membership "must have 
outstanding achievement in the art performing flied [sic] and high performing technique. Moreover, they 
should have at least two recommendation letters from two directors of the association." 
The letter from the Chinese Folk Orchestral Association states: 
The standards for the association to admitted new members are as the follow: First, this performer must 
also qualify for the professional post; Second, this performer must the first level musical instrument 
performer; Third, great contribution in the area of musical performing; In additional, two 
recommendation letters from members of the association is a must. [sic] 
Neither of these brief letters specifically identifies what constitutes "outstanding achievement" or a "great 
contribution in the area of musical performing," nor do they establish that membership applicants are 
evaluated by recognized national or international music experts. In this case, there is no substantive evidence 
showing that admission to membership in the preceding associations required outstanding achievement or that 
the petitioner was evaluated by national or international experts in consideration of her admission to . 
membership. 
Published materials about the alien in professional or major trade publications or other major 
media, relating to the alien's work in theJield for which classiJication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
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 or international level from a local publication or from a publication in a language that most 
of the 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 papers.2 
The petitioner submitted articles appearing in Chinese-language newspapers published in New York and New 
Jersey, such as World Journal, Singtao Daily, and Duowei Times. Local media coverage of this kind is not 
evidence of national acclaim. There is no evidence showing that these newspapers have a substantial national 
readership beyond Chinese language readership in New York and New Jersey. Because the overwhelming 
majority of the U.S. population does not read or comprehend Chinese, it has not been shown that articles 
appearing in such publications constitute published material in "major media." Furthermore, we note that the 
majority of the articles submitted by the petitioner were accompanied by incomplete or summary translations. 
Pursuant to 8 C.F.R. 5 103.2(b)(3), however, any document containing foreign language submitted to 
Citizenship and Immigration Services (CIS) 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. In several instances, there is no indication that 
the petitioner is the primary subject of the published material. If the petitioner's musical talent is not the main 
subject of an article, then it fails to demonstrate her individual acclaim. In this case, there is no evidence 
showing that the petitioner has earned sustained acclaim in the national media of the United States or China. 
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 alliedfield of speciJication for which classiJication is sought. 
The regulation at 8 C.F.R. 5 204.5(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 tenns of these requirements. For example, serving as a judge for a national 
competition involving professional performers is of far greater probative value than serving as a judge for a local 
competition involving amateurs. 
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, cannot 
serve to spread an individual's reputation outside of that county. 
The petitioner submitted two brief letters (five sentences or less) from July 1997 inviting the petitioner to 
serve as a judge at the "31d Anniversary of the Chinese National ~rchestral<kusic Festival.'' There is no 
evidence showing that the petitioner actually accepted this invitation to serve as a judge, nor any information 
regarding the level of expertise of the individuals to be evaluated by. the petitioner (i.e.- novice, amateur, or 
professional). Further, we note the absence of published material or natidnal publicity surrounding the 
petitioner's involvement in the festival. We cannot ignore that the statute and regulations require "extensive 
documentation" of sustained national or international acclaim. Without evidence showing that the petitioner's 
activities at this festival involved evaluating professional performers at the national level, we cannot conclude 
she meets this criterion. 
The petitioner also submitted a certificate dated May .I998 allegedly issued by- the "Chinese Musician 
Association." The certificate states: "This is to certify that [the petitioner] is employed as a judge of Classic 
Chinese Musical Instrument Inspection Committee." The petitioner also submitted two unsigned letters 
bearing the seal of the Chinese Musician Association, but these letters have no address, phone number, or any 
other information through which this association may be contacted. The first of these letters (petitioner's 
exhibit 23) states that the petitioner "is qualified for the judge positidn of Classic Chinese Musical 
Instmment." 
The second letter (petitioner's exhibit 24)'states that the petitioner was "appointed as the professional judge" 
of the "Classic Chinese Musical Instrument Inspection Committee." 
The record, however, includes no evidence of the petitioner's activities as a judge for this committee. For 
example, the record lacks information regarding the nature of her duties in this capacity, the events at which 
she served as a judge, the names of individuals she evaluated, a~d their level of expertise. 
In response to the director's request for evidence, the petitioner submitted another unsigned letter bearing the 
seal of the Chinese Musician Association. The letter, datid September 2003, states that the petitioner was 
"appointed as judge of National Folk Music Panel of Chinese Musician Association." 
The petitioner also submitted an unsigned letter bearing the seal of the "Art Department of Culture Bureau of 
the People's Republic of China." This letter, also dated September 2003, invites the petitioner "to be a judge 
of National Folk Music Judge Penal [sic] in Chinese Art Anniversary." 
The two invitation letters submitted in response to the director's request for evidence came into existence 
subsequent to the petition's filing date.3 A petitioner, however, must establish eligibility at the time of filing. 
8 C.F.R. 3 103.2(b)(12); see Matter of Katigbak, 14 I&N Dec. 45 (Cornm. 1971). Subsequent developments in 
the petitioner's career cannot retroactively establish that she was already eligible for the classification sought as of 
the filing date. Aside from the issue of the date that these invitatfons came into existence, there is no evidence 
These letters have no address, phone number, or any other information through which the issuing entities may be 
contacted. 
of the petitioner's participation as a judge at any .events in 2003.~ An invitation is not tantamount to 
participation. 
In addition to the above deficiencies, we note that the statute and regulations require the petitioner's acclaim 
to be sustained. Subsequent to her entry into the United States in 2000, there is no evidence showing that the 
petitioner has actually served as a performing ar€s judge. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media 
The petitioner submitted evidence of her authorship of one of what is alleged to be a series of publications 
entitled Guide Book For Youth Learning Music. The petitioner also submitted evidence of her authorship of 
an article entitled "The Performing Art of Yang Qin" in Huayue Music. There is no evidence of the field's 
reaction to these published works, nor any indication that they -are. widely viewed as significantly influential. 
Furthermore, there is no evidence showing that these publications enjoy substantial national or international 
readership. 
Evidence of the display of the. alien's work in the field at artistic exhibitions or showcases. 
The petitioner submitted evidence of her various musical performances. This particular criterion, however, is 
more appropriate for visual artists (such as sculptors and painters) rather than for performing artists such as 
the petitioner. Virtually every muskian "displays" her work in the sense of performing in front of an 
audience. 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. The petitioner's performances are far more relevant 
to the "commercial successes in the perfor&n< arts" criterion. - 
Evidence that the alien has pellformed in a. leading or critical role for organizations or 
establishments that have a distinguished rep~tation. 
In order to establish that she performed a leading or critical role for an organization or establishment with a 
distinguished reputation, the petitioner must establish- the nature of her role within the entire organization or 
establishment and the reputation of the organization 01: establishment. 
The petitioner asserts that she 'played leading roles in more than on hundred . . . shows." 
There is no indication that a show constitutes an "organization or establishment" for purposes of this criterion. 
Nevertheless, it has not been shown that that the petitioner's shows have earned a distinguished reputation at 
the national or international level. The evidence is /not adequate to demonstrate that the petitioner has performed 
in a leading or critical role for a distinguished organization, or that her involvement has earned her sustained 
national or international acclaim 
The plain language of this criterion requires "evidence of the alien's participation . . . as a judge of the work of others." 
Page 8 
Evidence that the alien has commanded a high salary or other signiJicantly high remuneration 
for services, in relation to others in thejeld. 
In response to the director's request for evidence, the petitioner submitted an August 20,2003 letter bearing 
the seal of the Beijing Qu Opera ~rou~e? The letter states that the petitioner earns a monthly salary of "RMB 
6000 Yuan" and that she has the potential to earn an additional "RMB 1000 Yuan per performance." The 
petitioner also claims that she received "20 thousands [sic] RMB Yuan as a reward" from the Culture Bureau 
of Beijing City and "250 thousands [sic] RMB Yuan per year" in royalties from the sale of two of her 
recordings compilations. The record, however, includes no financial documentation (such as payroll records 
or income tax forms) showing the petitioner's actual earnings for any given period of time prior to the 
petition's filing date. As noted previously, a petitioner must establish eligibility at the time of filing. 8 C.F.R. 
8 103.2(b)(12); see Matter of Katigbak at 45. 
In this case, the petitioner has failed to provide adequate documentation of her compensation prior to May 
2003. Furthermore, the plain wording of this criterion requires the petitioner to submit evidence of a high 
salary "in relation to others in the field." The petitioner offers no basis for comparison showing that her 
compensation was significantly high in relation to others in her field. Finally, subsequent to her arrival in the 
United States in 2000, there is no indication that the petitioner earns a level of compensation that places her 
among the highest paid musicians in thiscountry. 
Evidence of commercial successes in the-pe$orming arts, as shown by box ofice receipts or 
record, cassette, compact disk, or video sales. 
The petitioner submitted program booklets, correspondence, and-photographs relating to her performances. 
While this evidence shows that the performances took place, it does not establish commercial success. The 
plain wording of this criterion requires the petitioner to submit evidence of her commercial success in the 
form of "sales" or "receipts." As noted previously, acclaim is generally not established by the mere act of 
appearing in public, but rather by attracting a substantial audiente. To satisfy this criterion, the petitioner 
must establish that her performances and recordings have consistently drawn larger audiences andfor greater 
sales than most others in her field at the national or international level. In this case, there is no evidence 
showing that the petitioner's performances as a leading or prin~ipal music performer drew record crowds, 
were regular sell-out performances, or resulted in greater audiences than other similar performances that did 
not feature the petitioner. 
The petitioner also submitted evidence showing that her music was included in a compilation of recordings on 
a cassette entitled Urban Background Music and on a compact disc entitled An Autumn Moony Night in the 
Hun Palace. In response to the director's request for evipence, the petitioner references a certification from 
the "Guang Zhou Audio-Video Press" indicating that her music has sold "more than twelve thousands [sic] 
volumes." The record, however, does not include a copy of this certification. Nevertheless, it is noted that 
the petitioner was not the only musician featured on these compilations making her level of contribution to 
their sales volume difficult to ascertain. Furthermore, it has not been shown that 12,000 copies sold is a 
substantial quantity given the immense size of China's,population. We find no evidence showing that the 
This letter has no address, phone number, or any other information through which this troupe may be contacted. 
petitioner's musical recordings have generated greater sales than most other professionals in her field at the 
national or international level. 
In this case, the petitioner has failed to demonstrate that she meets at least three of the criteria that must be 
satisfied to establish the sustained national or international acclaim necessary to qualify as an alien of 
extraordinary ability. 
Beyond the regulatory criteria, the petitioner submitted several letters of support. These letters of support 
indicate that the petitioner is a talented Gu Zheng performer, but they fall short of demonstrating her sustained 
national or international acclaim in the United States or China. 
Review of the record does not establish that the petitioner has distinguished herself as a musician to such an 
extent that she may be said to have achieved sustained national or international acclaim or to be within the small 
percentage at the very top of her field. The evidence is not persuasive that the petitioner's achievements set her 
significantly above almost all others in her field at a national or international level. Therefore, the petitioner has 
not established eligibility pursuant to section 203(b)(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. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.