dismissed EB-1A Case: Music And Composition

U.S. Department of Homeland Security 
20 Mass. Ave.. N.W.. Rm. A3042 
FILE: EAC 02 262 50740 Office: VERMONT SERVICE CENTER Date: 
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) 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
/Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 02 262 50740 
Page 2 
DISCUSSION: The employment-based immigrant visa 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. 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 requisite to classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
The applicable regulation defines the statutory term "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(h)(2). Specific supporting evidence must accompany the petition to document the "sustained 
national or international acclaim" that the statute requires. 8 C.F.R. fj 204.5(h)(3). An alien can establish 
sustained national or international acclaim through evidence of a "one-time achievement (that is, a major, 
international recognized award)." Id. Absent such an award, an alien can establish the necessary sustained 
acclaim by meeting at least three of ten other regulatory criteria. Id. 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the arts as a musician and 
composer. Documents submitted with the petition include copies of the beneficiary's awards and nomination 
for an award, sixteen letters from individuals who have worked with the beneficiary and the beneficiary's 
resume and biography. The director determined that the record indicated that the beneficiary had made notable 
achievements as a young musician and composer, but that the evidence was insufficient to demonstrate that he 
had garnered the sustained national or international acclaim requisite to classification as an alien with 
extraordinary ability. On appeal, counsel submits a brief and additional evidence including documents 
concerning films that the beneficiary has worked on, another nomination of the beneficiary for an award, a 
statement listing the beneficiary's recording projects and his estimated annual income and two additional letters. 
EAC 02 262 50740 
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We first address three of counsel's concerns. First, counsel contends that the director contradicted the 
regulation by stating that the list of evidentiary criteria at 8 C.F.R. 5 204.5(h)(3) is "only a representative 
selection and does not replace the statutory requirement of extensive documentation to demonstrate sustained 
national or international acclaim." We do not read the director's statement as exceeding the regulation. Rather, 
the director has correctly noted that the weight given to evidence submitted to fulfill the criteria at 8 C.F.R. 
2j 204.5(h)(3), as well as comparable evidence submitted pursuant to 8 C.F.R. 5 204.5(h)(4), must depend on the 
extent to which such evidence demonstrates, contributes to, or is consistent with sustained national or 
international acclaim at the very top of the 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. 
5 204.5(h)(2). 
Second, counsel claims that the director's failure to issue a Request for Evidence (RFE) was egregious. 
Although 8 C.F.R. 5 103.2(b)(8) requires the director to request additional evidence in instances "where there is 
no evidence of ineligibility, and initial evidence or eligibility information is missing," the director is not required 
to issue a request for further information in every potentially deniable case. If the director determines that the 
initial evidence supports a decision of denial, the cited regulation does not require solicitation of further 
documentation. In this case, the director did not deny the petition based on insufficient evidence of eligibility. 
Rather, she determined that the evidence submitted did not establish that the beneficiary had garnered the 
sustained national or international acclaim requisite to classification as an alien of extraordinary ability. 
Furthermore, even if the director had committed a procedural error by failing to solicit further evidence, it is not 
clear what remedy would be appropriate beyond the appeal process itself. The petitioner has in fact 
supplemented the record on appeal, and therefore it would serve no useful purpose to remand the case simply to 
afford the petitioner the opportunity to supplement the record with new evidence. 
Third, counsel repeatedly claims that the beneficiary has been recognized as an alien with extraordinary ability 
by the approval of several 0-1 visa petitions. Although the words "extraordinary ability" are used in the Act for 
both the nonimmigrant 0-1 classification and the first preference employment-based immigrant classification, 
the applicable regulations define the terms differently for each classification. The 0-1 regulation explicitly 
states that "[e]xtraordinary ability in the field of arts means distinction." 8 C.F.R. 2j 214.2(3)(ii). "Distinction" 
is a lower standard than that required for the immigrant classification, which defines 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(h)(2). The evidentiary criteria for these two classifications also differ 
in several respects, for example, nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 8 
C.F.R. 5 214.2 (3)(iv)(A), but the immigrant classification requires actual awards or prizes. 8 C.F.R. 
2j 204.5(h)(3)(i). Given the clear regulatory distinction between these two classifications, the beneficiary's 
receipt of 0-1 nonimmigrant classification is not sufficient evidence of his eligibility for immigrant 
classification as an alien with extraordinary ability. 
Counsel's remaining contentions, the evidence submitted and the director's decision are addressed in the 
following discussion of the regulatory criteria relevant to the petitioner's case. 
(9 Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in theJield of endeavor. 
EAC 02 262 50740 
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The petitioner submitted copies of four awards and one nomination that he received for his musical 
compositions. The record contains a copy of a certificate stating that the beneficiary was nominated for the 
"BOSE Award for Best Original Music Score" for the film "15 Amore" in the Emirates 2000 Australian Film 
Institute Awards, but the petitioner submits no evidence of the significance of this nomination or why it should 
be considered a nationally or internationally recognized prize or award rather than a nomination for an award 
that the beneficiary apparently did not win. The record also contains a copy of a document or object with 
several stamps that indicate that the beneficiary received "The D & AD Silver Award for the Most Outstanding 
Special Effects" in 1999 from British Design & Art Direction. The beneficiary's resume states that this award 
was granted for "NRMA 'Ladybird,"' a commercial, but the record contains no evidence to explain this work or 
the significance of the award. Similarly incomplete are the printouts of scanned hotographs of an object with 
the inscription: "1998 Sound Track/Music(,] micro cosmos[,]^ The record contains no 
explanation of this purported award. It is not listed on the beneficiary's resume or included in the list of awards 
in counse17s original brief. In 1998, the beneficiary also received the "Marienberg Sydney Spring Award" for 
outstanding Australian composition for "Entity" at the Sydney Spring International Festival of New Music. The 
beneficiary's resume states that "Entity" is an octet composed by the beneficiary that premiered at the same 
festival, but the record contains no documentation of the festival or explanation of the award's significance. 
Finally, in 1997 the beneficiary received a musical score achievement award for "Nightride" at the Exposure 
International Short Film Festival. A letter from-that he worked with the beneficiary on this 
film and that the beneficiary won "the award for 'Best Musical Score' at the Exposure International Film 
Festival," but the record contains no evidence of the significance of this film festival or the petitioner's award. 
Although the evidence indicates that the beneficiary has won recognition for his musical compositions, it fails to 
sufficiently identify the awards or document their significance in a manner consistent with the requisite 
sustained national or international acclaim. Accordingly, the beneficiary does not meet this criterion. 
On appeal, the petitioner submitted evidence that the beneficiary received two nominations for the 2004 APRA 
- AGSC Screen Music Awards in the category of Best Television Theme and Best Music for an ~dvertisement.' 
These nominations occurred after the petition was filed and consequently cannot be considered. The 
beneficiary's eligibility must be established at the time of filing. See 8 C.F.R. fj 103.2(b)(12), Matter of 
Katigbak, 14 I&N Dec. 45,49 (Comm. 197 1 ). 
(ii) Documentution ofthe alien's nzembership in associations in the field for which classrJicution is sought, 
which require outstanding achievements of their members, us judged by recognized national or international 
experts in their disciplines or fields. 
The director incorrectly stated that the record contained "verification of [the beneficiary's] membership in 
various entertainment industry associations." In fact, the petitioner claimed that the beneficiary met this 
criterion through his purported membership in a single organization, the Australian Music Centre. The record 
contains a printout from the organization's website that contains a photograph and short biography of the 
beneficiary. The printout does not state that the beneficiary is a member of the Australian Music Centre and his 
biography is listed under the heading "Resources: Biographies." The printout also does not state the 
organization's membership criteria and the record contains no evidence that outstanding achievements are 
prerequisite to membership in the Australian Music Centre. Accordingly, the beneficiary does not meet this 
criterion. 
I The record does not name the associations or organizations identified by the acronyms "APRA" and 
"AGSC." 
EAC 02 262 50740 
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(iii) Published material about the alien in professional or major trade ptrblications or other major media, 
relating to the alien's work in theJield for which classzJication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
The petitioner did not claim that the beneficiary met this criterion. However, the director stated that "it would 
seem reasonable to expect that this El 1 petition would contain feature articles or published material written 
about the beneficiary and his specific recognition as having reached the very top of the profession . . . ." On 
appeal, counsel claims that the lack of media articles about the beneficiary should not detract from other 
evidence that the beneficiary has been recognized for his talents. We agree that the beneficiary should not be 
penalized for the absence of evidence relating to a criterion under which he did not claim eligibility, but we do 
not read the director's decision as having done so in a manner prejudicial to the petitioner. 
(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
The petitioner originally submitted 16 letters from professionals with whom he has worked. The director stated 
that "[tlhe letters provide general praise for the petitioner's work without the objective specificity one might 
expect from a musician/composer at the top of the field." We phrase our concerns differently. While such 
letters provide relevant information about an alien's experience and accomplishments, they cannot by 
themselves establish the alien's eligibility under this criterion because recommendation letters solicited by an 
alien in support of an immigration petition cany less weight than preexisting, independent evidence that one 
would expect of an alien who has garnered sustained national or international acclaim. Accordingly, we review 
the letters in conjunction with other relevant evidence. 
The record contains a total of 18 one-page letters (including two letters submitted on appeal). Only three of 
the letters are dated and most appear to have been written in support of the beneficiary's 0-1 visa petition. 
The letters indicate that the beneficiary has composed music for advertisements and television programs for 
companies including National Geographic Channels International, Qantas Airways, Chrysler, Channel Seven 
Sydney and SBS Television in Australia. A printout from the National Geographic website submitted on 
appeal credits the beneficiary for the original music for the documentary "True Originals: 
Harvey." As discussed above under the first criterion, the beneficiary received an award for 
NRMA "Ladybird" commercial. 
The beneficiary has also composed music for films including "The Gatekeeper," "15 Amore," and the short 
film "~ight~ide." As discussed above under the first criterion, the beneficiary was nominated for an.. 
Australian Film Institute Award for best original music score for "I 5 Amore. 
and Director of "15 Amore," confirms that the beneficiary "composed the score and orchestrated, produced 
and conducted the whole project." A list of the 2000 ~ustra1ian'~ilm Institute Awards submitted on appeal 
states that "15 Amore" was also nominated for awards in the categories of Best Cinematography and Best 
Costume Design, but the record contains no evidence that the film won those awards or received any other - 
recognition as a distinguished production. On appeal, copies of six 
submitted as attached to a thank you letter addressed to the the director of 
the film, who describes the beneficiary's musical score as "such an 
A " 
However, the awards won by "The Gatekeepern were apparently granted after the petition was filed and 
EAC 02 262 50740 
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consequently cannot be considered as evidence of the film's reputation. The petitioner must establish the 
beneficiary's eligibility at the time of filing. See 8 C.F.R. tj 103.2(b)(I 2), Matter of Kutigbrzk, 14 I&N Dec. at 
49. On appeal, the petitioner submits evidence that the beneficiary composed music for two other notable 
films, but because this work occurred after the petition was filed it cannot be considered. Again, the 
petitioner must establish the beneficiary's eligibility at the time of filing. See 8 C.F.R. 9 103.2(b)(12), Matter 
of Katigbak, 14 I&N Dec. at 49. Although the beneficiary won an award for his work on the short film 
"Nightride," the record contains no evidence that this film has a distinguished reputation. 
Almost all of the letters praise the beneficiary's talent and ability to work under tight deadlines. 
music for the film, but also conducted, orchestrated 
dh director of the documentary "Spirits of the Carnival," also notes that the beneficiary not only compose t e 
who has worked with the beneficiary for five years, an 
employed the beneficiary, also praise these versatile 
commercials. Many of the letters offer glowing recommendations such as that o 
who has worked with the beneficiary for eight years-opines that the 
artist whose work is both prolific and of the hi hest standard. He is an utter professional and one of the most 
focused creative talents I have ever met." similarly describes the beneficiary as "a gifted and 
dedicated artist of high repute both within Australia and internationally." 
On appeal, counsel claims that the beneficiary's work on the soundtrack for the film "The Lord of the Rings" . - 
iterion. Counsel states that the beneficiary "was hired by Academy-Award winning composer 
work on the soundtrack for the Lord of the Rings. This collaboration ultimately resulted in an 
academv award for its musical score." Counsel inflates the beneficiaw's role. The onlv evidence of the 
h 
beneficiary's work on this film is a letter from Music Co-Producer, thanking the beneficiary 
for his work "as Lead Music Conformation Editor on t e recent recording for The Lord of The Rings: 
Fellowship of The Ring extended-cut DVD." escribes the project as "the task of adding new 
music to an existing film score." The letter in did not work on the original film score, 
but on a post-production DVD of the film. Nothing in the record supports counsel's claim that the beneficiary 
worked on the score that won the Academy Award. 
The record indicates that the beneficiary has successfully composed music for notable advertisements for 
numerous companies and several films. Although the letters attest to the value of the beneficiary's musical 
contributions to these various productions, the record contains no evidence that the beneficiary held a leading or 
critical role in any of the production or advertising companies outside of his work on discrete projects. While 
the beneficiary may have performed a critical role for the films "1 5 Amore," "The Gatekeeper" and "Nightride," 
the record contains insufficient evidence that these films have distinguished reputations. Accordingly, the 
beneficiary does not meet this criterion. 
(ix) Evidence that the alien has commanded a high sulary or other sign$cuntly high remuneration for 
services, in relation to others in the$eld 
The beneficiary did not originally claim eligibility under this criterion. However, the director stated that "it 
would seem reasonable to expect that this El 1 petition would contain . . . evidence that he has commanded a 
significantly high salary or remuneration, compared to others in the industry." On appeal, counsel claims that 
[tlhe fact that the beneficiary may not receive a significantly high remuneration should not be considered as a 
negative factor in demonstrating extraordinary ability." Yet counsel submits on appeal a list of the beneficiary's 
EAC 02 262 50740 
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recording projects from April 2, 2003 to February 10, 2005 that states the beneficiary's estimated gross annual 
income as $75,000. It is unclear what purpose this list serves if counsel does not claim that the beneficiary 
meets this criterion. Regardless, the list states income earned after the petition was filed and consequently 
cannot be considered. The petitioner must establish the beneficiary's eligibility at the time of filing. See 8 
C.F.R. fj 103.2(b)(12), Matter ofKatigbak, 14 I&N Dec. at 49. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 5 11 53(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The petitioner 
bears this substantial burden of proof. Section 291 of the Act, 8 U.S.C. fj 1361. The petitioner in this case has 
not sustained that burden. The evidence indicates that the beneficiary is a talented musician and composer who 
has received some recognition for his work, but the record does not establish that he was an artist of 
extraordinary ability at the time of filing. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.