dismissed EB-1A Case: Musical Drama

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: - Office: VERMONT SERVICE CENTER Date: 1 6 2005 
EAC 05 076 50144 
IN RE: 
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. 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 further inquiry must be made to that office. 
h~obert P. Wiernann. Director 
Administrative Appeals Office 
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 (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. 3 1153(b)(l)(A), as an alien of extraordinary ability. 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. 
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. 
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 criteria 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 January 10, 2005, seeks to classify the petitioner as an alien with extraordinary ability 
as a "Musical Drama Performing Artist." The statute and regulations require the petitioner's acclaim to be 
sustained. The record reflects that the petitioner has been residing in the United States since 2001. Given the 
length of time between the petitioner's arrival in the United States and the petition's filing date, 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 performing artist in this country. 
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 least three of which 
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must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of 
extraordinary ability. The petitioner has submitted evidence pertaining to the following criteria. 
Documentation of the alien's membership in associations in the field for which class$cation 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. 
On appeal, the petitioner submits copies of her membership cards for "Friends of Lincoln Center," "Friends of 
BAM" (Brooklyn Academy of Music), and the "Green Light Drama Troupe." The record, however, includes 
no evidence of the membership bylaws or the official admission requirements for these associations. There is 
no indication that these organizations require outstanding achievement in the performing arts or that 
individuals are evaluated by national or international experts in consideration of their admission to 
membership. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The petitioner submitted various photographs of what are alleged to be her stage 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 actress "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 stage 
performances are far more relevant to the "commercial successes in the performing arts" criterion. 
Even if we were to address the petitioner's performances under this criterion, she has not demonstrated that 
her performances have consistently been the centerpiece of major productions at prestigious venues. Such a 
standard must be set for the petitioner to establish that she enjoys sustained acclaim near the top of her field. 
Evidence that the alien has commanded a high salary or other signijicantly high remuneration 
for services, in relation to others in the field. 
On appeal, the petitioner submits her Form 1040, U.S. Individual Income Tax Return, for 2004 reflecting a 
total income of $9,800. The plain wording of this criterion, however, requires the petitioner to submit 
evidence of a high salary "in relation to others in the field." In this instance, the petitioner has offered no basis 
for comparison showing that her compensation was significantly high in relation to that of other performing 
artists. 
Evidence of commercial successes in the performing arts, as shown by box ofice receipts or 
record, cassette, compact disk, or video sales. 
This criterion calls for commercial success in the form of "sales" or "receipts"; simply submitting what are 
alleged to be photographs of one's performances cannot meet the plain wording of the regulation. The record 
includes no evidence of documented "sales" or "receipts" showing that the petitioner's performances 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 her educational credentials from National Chengchi University and the Associated 
Board of the Royal Schools of Music, but these items do no satisfy any of the regulatory criteria at 8 C.F.R. 
5 204.5(h)(3). 
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. 
Review of the record does not establish that the petitioner has distinguished herself as a performer 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. 
Beyond the decision of the director, the regulation at 8 C.F.R. 5 204.5(h)(5) requires "clear evidence that the 
alien is coming to the United States to continue work in the area of expertise. Such evidence may include 
letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a 
statement from the beneficiary detailing plans on how he or she intends to continue his or her work in the 
United States." On appeal, the petitioner claims that her 2004 income tax return and membership cards for 
Friends of Lincoln Center and Friends of BAM are evidence that she will continue work in her area of 
expertise.' These items, however, are not "clear evidence" that the petitioner will be employed in the 
performing arts. The plain wording of this regulation requires the petitioner to submit letter(s) from 
prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the 
alien detailing plans on how he or she intends to continue his or her work in the United States. The record 
includes no such evidence. 
1 There is no evidence showing that the income listed on the petitioner's 2004 income tax return was the result of her 
work as a performing artist. For example, there is no evidence of the petitioner's involvement in stage performances in 
this country in 2004. 
An application or petition that fails to comply with the technical requirements of the law may be denied by 
the AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.