dismissed EB-1A Case: Music

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Office: VERMONT SERVICE CENTER 
 Date: FEE 0 5 2007 
EAC 05 140 51384 
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. 9 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. 
kf 
3 Robert P. Wiernann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A). The director 
determined 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 submits a statement and additional evidence. In general, the petitioner notes 
that he is in the United States pursuant to a nonimmigrant 0-1 visa, a similar classification to the 
immigrant classification now sought. The regulatory requirements for an immigrant and non- 
immigrant alien of extraordinary ability in the arts, however, are dramatically different. The regulation 
at 8 C.F.R. 5 214.2(0)(3)(ii) defines extraordinary ability in the arts (including the performing arts) as 
simply "distinction," which is further defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation relating to the immigrant classification, 8 C.F.R. 5 204.5(h)(2), however, defines 
extraordinary ability in any field 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." The criteria for 
nonimmigrant aliens of extraordinary ability in the arts, set forth in the regulation at 8 C.F.R. 
3 214.2(0)(3)(iv), are significantly different than those for immigrant aliens of extraordinary ability, set 
forth at 8 C.F.R. 5 204.5(h)(3). As such, the petitioner's approval for a non-immigrant visa under the 
lesser standard of "distinction" is not evidence of his eligibility for the similarly titled immigrant visa. 
In addition, the petitioner asserts that the agent who filed the 0-1 nonimmigrant visa petition has failed 
to properly promote the petitioner in this case. The petitioner further asserts that two attorneys 
specializing in immigration law advised him of the strength of his documentation. Finally, the 
petitioner requests oral argument to provide evidence of the failure of his nonimmigrant visa sponsor to 
properly promote him. The regulations provide that the requesting party must explain in writing why 
oral argument is necessary. Furthermore, Citizenship and Immigration Services (CIS) has the sole 
authority to grant or deny a request for oral argument and will grant argument only in cases involving 
unique factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. $ 103.3(b). 
In this instance, the petitioner identified no unique factors or issues of law to be resolved. Specifically, 
the petitioner filed the instant petition on April 19, 2005, only a few months after entering the United 
States pursuant to his nonimmigrant visa. Thus, assuming the petitioner's nonimmigrant sponsor has 
failed to properly promote the petitioner as claimed, the petitioner can still rely on his accomplishments 
prior to entering the United States as evidence of sustained national or international acclaim outside the 
Page 3 
United States. Regardless, even if the petitioner's claims about hs sponsor are true, we cannot 
speculate as to the petitioner's possible reception in the United States had he been better promoted. 
Finally, the petitioner's assertion that two attorneys who specialized in immigration law advised him 
that his evidence was stronger than the evidence they have seen for other aliens who were approved is 
not persuasive evidence in this matter. Each case must be decided on its own facts. 
We will consider the petitioner's more specific assertions and the new evidence below. We note at the 
outset, however, that CIS does not make subjective determinations of talent. At issue is whether the 
petitioner, through objective evidence, can demonstrate sustained national or international acclaim in 
his field. 
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 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 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 docun~ents 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. 4 204.5(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 seeks to classifL the petitioner as an alien with extraordinary ability as a pianist. The 
regulation at 8 C.F.R. 5 204.5(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 
Page 4 
least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualifL 
as an alien of extraordinary ability. The petitioner has submitted evidence that, he claims, meets the 
following criteria. ' 
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 orfields. 
While the petitioner does not explicitly claim to meet this criterion, on appeal he submits evidence that 
he was registered as a delegate as of May 3 1, 2005 for the 2005 National Conference of the American 
Symphony Orchestra League, which he characterizes as a membership. The record lacks evidence that 
serving as a delegate is comparable to election to membership. The petitioner also failed to submit the 
official criteria for selection as a delegate. Finally, the record lacks evidence of any memberships prior 
to the date of filing, April 14, 2005. The petitioner must establish his eligibility as of that date. See 
8 C.F.R. $ 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). Thus, the 
petitioner has not established that he meets this criterion. 
Published materials 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. 
Initially, the petitioner characterized his three compact discs as "published material." The petitioner's 
own compact discs are not the type of independent journalistic coverage appearing in major media 
contemplated by this criterion. The petitioner also submitted newspaper reviews, including a March 
29, 2003 review of the petitioner's perfo 
 st in Rachmaninoff s Third Piano 
Concerto with the Siemens Ensemble in 
 an April 12, 1989 review of the 
petitioner's piano performance in the Salemo edition of 
 a 1989 promotion of an 
upcoming performance by the petitioner in 
 e director's request for 
additional evidence, counsel noted the March 2 
The director concluded that a single article was not persuasive evidence of sustained acclaim and that 
the petitioner had failed to established that -s major media. On appeal, the 
petitioner asserts that the paper is one of Munich's daily papers. The petitioner concedes that while one 
&icle is insufficient to establish eligibility as a whole,~it should be considered in the context of the 
remaining evidence. 
We are satisfied that the article i 
 is sufficiently about the petitioner. It is 
performance reviewed in local papers. 
evidence that the petitioner 
has been covered in 
 we cannot conclude that the 
I 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Page 5 
petitioner meets this criterion. While we acknowledge that the evidence submitted to meet a given 
criterion need not establish eligibility by itself, the evidence must be evaluated as to whether it is 
indicative of or consistent with national or international acclaim if that statutory standard is to have any 
meaning. In its report, the House of Representatives indicated that in the absence of a one-time 
achievement such as a Nobel Prize, an alien could demonstrate eligibility through a "career of 
acclaimed work in the field." H.R. Rep. No. 101-723, 59 (September 19, 1990). Minor reviews and 
promotional materials that do not appear to be independent journalistic coverage in 1989 and a single 
review in 2003 are not indicative of a career of acclaimed work. 
In light of the above, the petitioner has not established that he meets this 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 alliedfield of specification for which classification is sought. 
The petitioner has never claimed to meet this criterion. Nevertheless, we acknowledge the submission 
of evidence that in 1996 he was appointed Commissioner to oversee aptitude tests of students who had 
applied for placement in a first year introduction to music class at an Italian junior high school. On 
appeal, the petitioner submits a letter from a current student. 
Evaluating the aptitude of junior high school students who have yet to begin studying music is not 
judging the work of others in the field. Moreover, it is an inherent responsibility of teachers to evaluate 
their students. Not every piano teacher enjoys national or international acclaim. 
Without evidence that the petitioner has judged nationally recognized piano competitions or 
comparable responsibilities, the petitioner cannot establish that he meets this criterion. 
Evidence of the alien's original scient@c, scholarly, artistic, athletic, or business-related 
contributions of major signz$cance in the field. 
The petitioner relies on reference letters to meet this criterion. The director concluded that the letters 
did not "go to great lengths to describe" the petitioner as an alien of extraordinary ability, that they were 
not indicative of the petitioner's recognition beyond other pianists and that an alien of the caliber 
contemplated by the statute should be able to produce more than "a handfkl of reference letters." 
On appeal, the petitioner quotes from several of the letters submitted, asserting that they "demonstrate 
sustained international acclaim, since they come from extremely qualified people from every comer of 
the world." 
The opinions of experts in the field, while not without weight, cannot form the cornerstone of a 
successful claim of sustained national or international acclaim. Citizenship and Immigration 
Services (CIS) may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm. 1988). However, CIS 
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; CIS may evaluate the content of those letters as to whether they support the 
alien's eligibility. See id. at 795-796. CIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. Id. at 795; See also 
Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
In evaluating the reference letters, we note that letters containing mere assertions of widespread 
acclaim and vague claims of contributions are less persuasive than letters that specifically identify 
contributions and provide specific examples of how those contributions have influenced the field. 
In addition, letters from independent references who were previously aware of the petitioner through 
his reputation are the most persuasive. Ultimately, however, evidence in existence prior to the 
preparation of the petition carries greater weight than new materials prepared especially for 
submission with the petition. An individual with sustained national or international acclaim should 
be able to produce unsolicited materials reflecting that acclaim. 
According to the regulation at 8 C.F.R. 4 204.5(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. To be considered a contribution of major 
significance in the field of music, it can be expected that the contribution will have had a 
demonstrable impact on how music is taught, played or appreciated. 
Vice President and Co-Chair of the Artistic Direction of the Siemens Orchestra 
that the petitioner toured with the orchestra in 2003. 
 Mr. - 
characterizes the petitioner's performance as "flawless and enchanting." 
explain how this tour has influenced the field of music in any way. Talent 
of major significance to the field. Mr. 
 assertioni regarding the nature of one of the 
performance halls and the sales of 
 the concert will be discussed below as they 
relate to the criteria set forth at 8 C.F.R. 4 204.5(h)(3)(vii) and (x). 
a member of the piano faculty at Montclair University and the Manhattan School of 
Music, asserts that he attended-the 
 performance with-a German orchestra and was 
impressed with the petitioner's rendition of Rachrnaninoff s Piano Concerto Number 3, a piece 
known as one of the most challenging piano concertos. We do not question that the concerto is 
challenging. The record, however, does not establish that successfully playing this piece is so 
unusual and attracts so much attention as to constitute a contribution that adds to or significantly 
impacts the field of concert piano. 
a composer residing in New York, indicates that he hired the petitioner to record one 
of his compositions, which he plans to publish and use as a soundtrack. ~r professes 
satisfaction with the petitioner's performance and expresses an interest in hiring the petitioner again. 
~r.does not indicate that the recording has been published or accepted as a soundtrack. 
Moreover, not every published recording or soundtrack is a contribution of major significance. The 
record lacks evidence that this work has been recognized as influential in the field. 
a pianist who consistently tows worldwide and has recorded with the London 
Symphony Orchestra, expresses his admiration for the petitioner's "rich, unique, variety of tone color 
in his performances as well as the powerful and constructive formal logic." The record includes 
similar letters from other pianists who have observed or taught the petitioner. Such general praise is 
insufficient evidence that the petitioner has significantly impacted his field. 
In resvonse to the director's request for additional evidence, the ~etitioner submitted two new letters. 
a member of the music faculty at ~aiah Lawrence College and President of a 
classical music artist management agency, praises the petitioner's talent but does not characterize 
him as influential. 
 He dies not indicate-that he had ever heard of the etitioner through his 
reputation prior to meeting him. In a letter addressed to the petitioner, bomposer in 
Residence with the Israel Stage Orchestra, thanks the petitioner for introducing Mr. to Mr. 
d expresses interest in inviting the petitioner to play Rachmaninoff s Piano Concerto 
the Israel Stage Orchestra. 
While the evidence demonstrates that the petitioner is a talented pianist, it falls short of establishing 
that the petitioner had already made contributions of major significance. Thus, the petitioner has not 
established that he meets this criterion. 
Evidence of the display of the alien's work in theJieM at artistic exhibitions or showcases. 
As discussed above, the petitioner towed with the Siemens Orchestra, including as the solo pianist for 
Rachmaninoffs Piano Concerto Number 3 at the Hwkulessaal der Residenz, described by Mr. 
as "one of the most famous concert halls in the world." As the petitioner was the solo 
pianist, we are satisfied that the concerts showcased his work. While the director questioned the 
significance of this venue, we are satisfied that the petitioner meets this criterion. For the reasons 
discussed above and below, however, the evidence falls far short of meeting any other criterion. 
Evidence of commercial successes in the performing arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
Mr.asserts that the petitioner sold out the Hurkulessaal der Residenz and other venues and 
that the compact discs of the concert sold out and will be reissued. Mr. oes not indicate 
how many discs were originally manufactured and sold. The petitioner submitted three compact discs 
that were purportedly "published." None of them appear professionally manufactured for widespread 
commercial distribution; the packaging does not identify any record company as the manufacturer or 
distributor, nor does it show catalog numbers, bar codes, or other typical indicia of retail distribution. 
The only disc to identify a copyright holder is a recordable disc, or CD-R, which the petitioner admits 
Page 8 
he produced at his own expense. The director concluded that the petitioner had not demonstrated any 
commercial success. 
On appeal, the petitioner references ~r. letter and asserts that in response to the request 
for additional evidence, he submitted materials from the Siemens Orchestra's website demonstrating 
that the compact disc is now only available to members of the orchestra. 
In order to demonstrate commercial success through ticket sales, the regulation at 8 C.F.R. 
§ 204.5(h)(3)(x) is explicit that a petitioner ~qust submit "box office receipts." The regulation at 
8 C.F.R. 8 103.2(b)(2) provides that a petitioner may not rely on affidavits without demonstrating that 
primarily evidence and secondary evidence are both unavailable. The record does not contain the 
primary evidence required, box office receipts for the petitioner's 2003 performances or official ticket 
sale numbers provided by the Hurkulessaal der Residenz, or secondary evidence, such as reviews 
referencing the show as sold out. The petitioner has not established that such evidence is unavailable. 
Thus, while we do not question Mr. - credibility, his unsupported attestation of ticket sales 
is insufficient. 
Similarly, without actual sales numbers for the compact discs, we cannot conclude whether those 
numbers are indicative of commercial success. Selling out a small number of discs prepared by the 
orchestra itself for limited release is not evidence of commercial success. 
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. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
pianist 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 indicates that the 
petitioner shows talent as a pianist, but is not persuasive that the petitioner's achievements set him 
significantly above almost all others in his field. 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. 8 136 1. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.