dismissed EB-1A Case: Musical Instrument Making

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: 2 10~5 
SRC 05 01 1 51581 
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 1 153(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. 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 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. 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. 
9 204.5(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. 5 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, that 
the petitioner must show that he has earned sustained national or international acclaim at the very top level. 
This petition, filed on October 15, 2004, seeks to classify the petitioner as an alien with extraordinary ability 
as a "Chinese Dizi Maker." 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 October 1999. 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 musical instrument maker in this country. 
In support of the petition, the petitioner submitted several photographs, but he did not explain who and what 
were shown in the photographs. The petitioner also submitted an article posted on www.,szzwch.co~~z, but the 
article was not accompanied by an English language translation. Pursuant to 8 C.F.R. 5 103.2(b)(3), 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. The preceding evidence was not sufficient to demonstrate the petitioner's sustained national or 
international acclaim, or that his achievements have been recognized in his field of expertise. On 
November 10, 2004, the director denied petition, finding that the petitioner's evidence did not satisfy any of 
the criteria at 8 C.F.R. 5 204.5(h)(3). 
The regulation at 8 C.F.R. 8 204.5(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 acclaim necessary to qualify as an alien of 
extraordinary ability. On appeal, the petitioner has submitted evidence pertaining to the following criteria. 
Evidence of the alien's authorship of scholarly articles in thejield, in professional or major trade 
publications or other major media. 
The petitioner re-submits the article posted on www..szm)ch.com, but once again it was not accompanied by an 
English language translation as required by 8 C.F.R. 5 103.2(b)(3). The record contains no evidence of this 
article's significant national or international distribution. Nor is there supporting evidence showing that the 
petitioner's article is viewed throughout his field as significantly influential. 
Evidence of the displrry of the alien's work in thejield at artistic exhibitions or showcases. 
The petitioner re-submits several photographs that he alleges represent the display of his work. These 
photographs show various unidentified musical performers holding or playing the dizi. We note, however, 
that this particular criterion is more appropriate for visual artists (such as sculptors and painters) rather than 
the petitioner's occupation. Nevertheless, there is no evidence that identifies the names of these performers or 
which indicates that they utilize the petitioner's musical instruments. Furthermore, the names and dates of the 
exhibitions and showcases at which the petitioner's instruments were featured have not been provided. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. 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)). 
Evidence that the alien has commanded a high salary or other signiJicantly high remuneration 
for services, in relation to others in thejield 
The petitioner re-submits a photograph of what is alleged to be one of his musical instruments. On appeal, 
the petitioner asserts that the musical instrument in the photograph sold for $4,000. The record, however, 
contains no evidence showing that the petitioner actually earned this amount. As noted above, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. See Matter of SofJici at 158, 165. There is no evidence showing that the petitioner's 
compensation is significantly higher than that of other musical instrument makers. 
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Evidence of commercial successes in the performing arts, as shown by box ofJice receipts or 
record, cassette, compact disk, or video sales. 
The petitioner claims that the photograph of what is alleged to be his $4,000 dizi constitutes evidence of his 
b< 
commercial success." The plain wording of this criterion, however, indicates that it is intended for "performing" 
artists such as musicians and actors rather than musical instrument makers. Nevertheless, the regulation calls for 
commercial success in the form of "sales" or "receipts"; simply submitting alleged photographs of one's work 
cannot satisfy criterion. The record contains no evidence of documented "sales" or "receipts" showing 
significant national distribution of the petitioner's musical instruments or their widespread commercial 
success. 
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." Subsequent to his arrival in 
October 1999, there is no evidence showing that the petitioner's primary occupation in the United States 
involves designing and making musical instruments. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate that the 
alien has achieved sustained national or international acclaim, is one of the small percentage who has risen to 
the very top of the field of endeavor, and that the alien's entry into the United States will substantially benefit 
prospectively the United States. The petitioner in this case has failed to demonstrate that he 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 himself 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 is not persuasive that the petitioner's achievements set him significantly above 
almost all others in his field at the 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.