dismissed EB-1A Case: Performing Arts

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
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 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. 
U 
Sobert P. Wiemann, Chief 
Administrative Appeals Office 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) 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 qualifL for classification as an alien of extraordinary ability. 
On appeal, the petitioner submits a personal statement and new evidence. 
 In his statement, the 
petitioner raises certain humanitarian concerns relating to a separate immigration proceeding. Such 
concerns, however, are not relevant to a determination of the petitioner's eligibility for the classification 
sought in this matter. For the reasons discussed below, while we withdraw the director's finding that 
the petitioner has not played a critical role in a distinguished production, we uphold the director's 
overall conclusion that the petitioner has not established his eligibility for the classification sought. 
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 into the United States will substantially benefit 
prospectively the United States. 
Citizenship and Immigration Services (CIS) and legacy Immigration and Naturalization Service (INS) 
have consistently recognized that Congress intended to set a very high standard for individuals seeking 
immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 60898-9 (Nov. 29, 1991). 
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 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 
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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 classify the petitioner as an alien with extraordinary ability as an actor and singer. 
In his decision, the director cited Matter of Price, 20 I&N Dec. 953,955 (Assoc. Comrn. 1994), for the 
proposition that while participation in the major leagues may be relevant in considering an athlete's 
eligibility, a blanket rule for all major league athletes would contravene congressional intent. This 
reasoning is also reflected in the supplementary information at 56 Fed. Reg. 60899 (Nov. 29, 1991). 
The director concluded that the reasoning could be applied to "individuals employed in prominent 
capacities in other fields of endeavor." 
On appeal, the petitioner asserts that performing artists, who can have lengthy careers, cannot be 
compared with athletes, who typically have short careers. While we acknowledge that the field of 
athletics is, in many ways, not a useful analogy for the performing arts, it can be reasonably 
extrapolated from the supplementary information about athletics cited above that participation at the 
top professional level of another competitive field, performing arts, is also insufficient. Thus, while it 
is a favorable factor that the petitioner has performed both on and off Broadway and with national 
touring companies of a major show, these performances alone are insufficient. A Broadway performer 
must still meet the regulatory requirements discussed below. 
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 must be satisfied for an alien to establish the sustained acclaim necessary to qualify 
as an alien of extraordinary ability. On appeal, the petitioner notes that not every acclaimed actor has 
won an award or prize. We concur that the petitioner need not meet any one criterion provided that he 
meets three criteria. The petitioner has submitted evidence that, he claims, meets the following 
criteria.' 
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 class2Jication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner submitted several newspaper reviews of shows in which he has appeared. In these 
reviews, however, the petitioner is mentioned only briefly in a single sentence. The director concluded 
that these reviews were not primarily "about" the petitioner. On appeal, the petitioner no longer claims 
to meet this criterion. We concur with the director that the reviews that mention the petitioner only in 
passing cannot be considered to be "about" him. 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Evidence of the alien's original scientflc, scholarly, artistic, athletic, or business-related 
contributions of major signiJicance in thejeld. 
Initially, the petitioner asserted that his role as Ubaldo Piangi in "The Phantom of the Opera" serves to 
meet this criterion. He noted that he has performed in more than 2,000 performances of the production 
worldwide. He asserted that the "repeated emphasis of this performance record in critical reviews and 
the attached testimonial letters clearly establishes that I have gained international recognition for my 
work." In addition, the petitioner asserted that his "skills as a tenor, character versatility and 
performance stamina have given the musical and stage acting industry an artist with extraordinary 
combination of strengths." The petitioner then discussed the reference letters supporting the petition. 
The director's request for additional evidence included the following: 
Please document how your contributions to the field have been original and submit 
objective evidence of the importance of such contributions to the field. Evidence that 
those outside the alien's circle of colleagues and acquaintances consider the work 
especially valuable. Explain how your performances have had a significant impact on 
the field as a whole and submit evidence to support your claim. 
In response, counsel asserted that the petitioner's original contributions "are recognized by two of the 
most revered names in musical theatre: 
 and -1 Counsel cited two non- 
precedent decisions from this office for the proposition that the "prestige of a testimonial from a 
- 
luminary such as !or 
 must be given due consideration when assessing 
the significance of the testimonial." 
 Counsel concluded that the evidence "clearly establishes a 
substantial demand for [the petitioner's] services in the field of musical theatre, and directors, 
producers and actors alike acknowledge [the petitioner's] contributions to musical theatre." 
While 8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all CIS employees in 
the administration of the Act, unpublished decisions are not similarly binding. Moreover, in one of the 
non-precedent decisions on which counsel relies, the alien had authored several original articles and 
books. In the second case, the petitioner was a sound designer of original sound tracks. 
The AAO is bound by the Act, agency regulations, precedent decisions of the agency and published 
decisions from the circuit court of appeals from whatever circuit that the action arose. See N L. R. B. v. 
Ashkenazy Property Management Corp. 817 F. 2d 74, 75 (9th Cir. 1987)(administrative agencies are 
not free to rehse to follow precedent in cases originating within the circuit); R.L. Inv. Ltd. Partners v. 
INS, 86 F. Supp. 2d 1014,1022 (D. Haw. 2000), ard 273 F.3d 874 (9th Cir. 2001)(unpublished agency 
decisions and agency legal memoranda are not binding under the APA, even when they are published in 
private publications or widely circulated). 
According to the regulation at 8 C.F.R. 
 204.5(h)(3)(v), an alien's contributions must be both original 
and of major significance. We must presume that both the word "original" and the phrase "major 
significance" are not superfluous and, thus, that they have some meaning. To be considered an original 
contribution of major significance in the field of performing arts, the contribution must be novel and 
influential. We concur with the director that talent alone cannot serve to meet this criterion. 
We do not contest the prestige of the individuals who have written letters in support of the petition. 
The opinions of experts in the field, however, while not without weight, cannot form the cornerstone 
of a successful claim of sustained national or international acclaim. 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 (Commr. 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. 
In evaluating the reference letters, we note that letters containing mere assertions of widespread acclaim 
and talent are less persuasive than letters that specifically identify contributions and provide specific 
examples of how those contributions have influenced the field. 
confirms that the petitioner's assigned role in the U.S. touring company of "The 
Phantom of the Opera," Buquet, required a "complete physical transformation into a menacing old 
man" and that the role that the 
 performed in Canada and understudied in the 
United States, Ubaldo Pian i is "an extremely difficult part as it requires the actor to hit a high 'C' 
several times." & does not assert that the petitioner's ability to hit the high "C" several 
times is a novel talent that is unique even among renowned opera singers. 
n, who played the Phantom in the Canadian production of "The Phantom of the Opera," 
reiterates that Ubaldo Piangi is a difficult role and asserts that while he has seen other productions of 
the show and has been "intimately familiar with it from its very creation," the petitioner is the best artist 
to fill this role. 
director of the original Canadian cast of "The Phantom of the Opera,', reiterates that the 
petitioner performed the "highly demanding" role of Ubaldo Piangi in that cast and concludes that his 
"top tenor voice is among the best in the musical theater, and he continues to prove it by his frequent 
engagements with prominent theater companies here and around the world." 
We are not persuaded that performing in a role that was created by Andrew Lloyd Weber and was 
performed by others actors previously, who also presumably hit the high "C" several times, is an 
original contribution. 
, formerly an associate producer at the Paper Mill Playhouse in New Jersey, explains that the 
petitioner is the only actor to whom the theater offered a resident artist contract but that the petitioner 
had to turn down the contract to accept a role in the Broadway revival of Stephen Sondheim's 
"Follies." P-, an artistic associate at the Paper Mill Playhouse, asserts that the petitioner is 
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the best singer in his age range, "eminently employable" and a "valuable quantity that is necessary and 
needed." 
, who performed with the petitioner in the Broadway revival of Stephen Sondheim's 
Follies, asserts that the very fact that the petitioner is always working in the field "would put him in a 
class beyond most performers." The petitioner, however, must compare with the top small percentage 
of those who are able to work in the field; we will not broaden the petitioner's field to include those 
who only aspire to make their living exclusively by working in the field simply because it is a 
competitive field. 
, a director of children's animated programming in New York City, asserts that the 
petitioner excelled in the technical aspects of dubbing voices, is a great actor and a master of dialects 
and voices. 
, the Artistic Director for the Irish Repertory Theatre, asserts that the Wall Street 
Journal has characterized the theater as "one of the finest" in America and that the petitioner "has made 
an invaluable contribution to the success of our company." does not cite any statistics 
suggesting that the theater's success increased while the petitioner was performing in prominent roles 
there. 
As stated above, the petitioner erformed in the Broadway revival of Sondheim's "Follies" as well as 
other Sondheim musicals. authored a letter supporting the petition, asserting that the 
petitioner "is an excellent tenor and a serious artist and any production would be fortunate to have him 
in its cast." 
The record demonstrates that the petitioner is respected by major names in his field. While these letters 
are important evidence, they reflect more on the nature of the petitioner's various roles than the 
originality or influential nature of his career. Thus, these letters cannot demonstrate that the petitioner 
meets this criterion. 
Evidence of the display of the alien's work in theJield at artistic exhibitions or showcases. 
The petitioner claims to meet this criterion through his performances. This criterion, however, relates 
to the visual arts. The petitioner is a performing artist. It is inherent to the field of performing arts to 
perform on stage. Not every stage performance is an artistic exhibition or showcase. We find that the 
petitioner's performances are best considered under the leading or critical role criterion set forth at 
8 C.F.R. $204.5(h)(3)(viii) and discussed below. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
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From 1989 through 1992, the petitioner performed the role of Ubaldo Piangi in the original Canadian 
production of Andrew Lloyd Weber's "The Phantom of the Opera" and sings this role on the cast 
recording from 1990. In 1996, the petitioner played the same part in West End London. According to 
his contract, from 2003 through 2005 he was a "SingeriDancern in the U.S. national touring company's 
version of the same show, also serving as understudy for Ubaldo Piangi. The various programs for the 
tour list the petitioner as playing Joseph Buquet and serving as understudy for Ubaldo Piangi. Peter 
von Mayrhauser, Production Supervisor for "The Phantom of the Opera" USA confirms that the 
petitioner played the role of Ubaldo Piangi on the tour "on many occasions." In 2001, the petitioner 
played Sam Deems in the original Broadway cast for the revival of Stephen Sondheim's "Follies," 
nominated for a 2001 Tony Award in the Best Revival of a Musical category. The petitioner also played 
one of the Liebeslieder singers in Mr. Sondheim's "A Little Night Music" at the Kennedy Center for 
the Performing Arts in 2002. Finally, the petitioner was featured in "The Irish . . . And How They Got 
That Way" at the Off-Broadway Irish Repertory Theatre, although the contract for the national tour 
indicates he was only an understudy. 
The director concluded that Ubaldo Piangi is not "one of the two lead male roles" and, more generally, 
that the petitioner had not demonstrated that his roles were leading or critical for the specific 
production. On appeal, the petitioner notes that he was "prominently featured on the Marquee Poster 
and billed as such." 
Significantly, the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires evidence a leading or critical role. 
Thus, by definition, the role need not be leading. While the role of Ubaldo Piangi is not one of the two 
male leading roles, the petitioner is correct that he is featured on the promotional materials for the 
show. In addition, he is specifically mentioned by name in the review of the soundtrack for the 
Canadian production. Moreover, the petitioner's contract for the national tour in the United States 
identifies Ubaldo Piangi as a "principal role." We concur with the director that every role, while 
necessary to the story, is not necessarily "critical" as contemplated by the regulation at 8 C.F.R. 
5 204.5(h)(3)(viii). Nevertheless, we are satisfied that the role of Ubaldo Piangi is sufficiently critical 
to meet this criterion. As outlined above, the petitioner has also performed in several other roles both 
on and off Broadway, at least some of which can also be considered "critical." 
In light of the above, we find that the petitioner does, in fact, meet this criterion. 
 Significantly, 
however, the petitioner's most critical roles were years before the petition was filed. Thus, while we 
find that the petitioner meets this criterion, the evidence is not entirely consistent with the type of 
sustained national or international acclaim contemplated by the statute. 
Evidence that the alien has commanded a high salary or other signifcantly high remuneration for 
services, in relation to others in the field. 
The petitioner submitted his tax return for 2004 reflecting total wages of $74,953. The record also 
contains several contracts. For the touring production of "Phantom of the Opera," the petitioner was 
paid "minimum rehearsal scale" and $1,422 per week. He was also paid an additional $777 per week 
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for out of town costs. 
 The petitioner also submitted materials from the Department of Labor's 
Occupational Outlook Handbook (OOH) reflecting that "the minimum weekly salary for actors in 
Broadway productions as of June 30, 2005 was $1,422." In addition, OOH reflects that $777 is the 
Equity compensation for touring companies. Thus, the petitioner's base salary for the touring 
production of "Phantom of the Opera" was the minimum allowed by the Equity union. We 
acknowledge that the petitioner was also compensated an additional 118 of his weekly salary for 
performing in the role for which he was the understudy. 
The petitioner also submitted evidence that in 2000, his weekly salary for "The Irish . . . and How They 
Got That Way," was $828 plus an additional $700 for out-of-town costs. The OOH reflects that off 
Broadway productions have "minimums ranging from $493 to $857 a week as of October 23, 2005." 
Thus, the petitioner's wage fell within the minimum required by Equity. The petitioner also submitted 
data from Actor's Equity. This data reveals that of the 39,443 members in 2004-2005, only four 
percent earned more than $75,000. 
The director did not specifically address this criterion and the petitioner simply reaffirms his claim to 
meet this criterion on appeal. 
As stated above, however, the petitioner must compare with the top small percentage of those who are 
able to work in the field; we will not broaden the petitioner's field to include those who only aspire to 
make their living exclusively by working in the field simply because it is a competitive field. We 
cannot ignore that the Actor's Equity data for annual wages includes many aspiring actors who are not 
yet able to make a living exclusively as an actor. Without evidence that the petitioner's compensation 
is comparable with the most renowned stage actors, including Tony winners, we cannot conclude that 
the petitioner meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
The petitioner claims to meet this criterion for the first time on appeal. The petitioner notes the 
overall commercial success of "The Phantom of the Opera" in all its incarnations and asserts that 
"Man of La Mancha," in which he recently appeared, sold 98 percent of its available seats. 
It is not enough that the petitioner has been associated with a show that, in all its incarnations, has 
been commercially successful. The petitioner has not demonstrated that he is responsible for the 
commercial success of "The Phantom of the Opera," which was a commercially successful show 
before the petitioner was cast in the Canadian original cast in 1989. Even if we concluded that the 
petitioner was responsible for the commercial success of the Canadian version given the prominent 
placement of his name on the promotional materials, and the record contains no evidence regarding 
the ticket sales for this tour, the petitioner left that show in 1993. Thus, his association with that 
production cannot be considered evidence of sustained national or international acclaim in 2006, 
when the petition was filed. We note that the petitioner played a far smaller role with the U.S. tour 
and cannot reasonably be found to have contributed to the commercial success of that tour. 
Finally, the petitioner must also establish eligibility as of the date of filing. 
 See 8 C.F.R. $5 
103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). Thus, we cannot 
consider the petitioner's performances after that date, such as his role of the innkeeper in "Man of La 
Mancha." 
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 an 
actor and singer 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 and a consistent career as an actor and singer, 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. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.