dismissed EB-1A Case: Pianist

U.S. Department of Homeland Security 
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 U. S. Citizenship 
and Immigration 
mt'Ic cow 
FILE: - Office: TEXAS SERVICE CENTER Date: MAR 0 3 2109 
SRC 07 123 51576 
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. 5 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
§ 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
8 103.5(a)(l)(i). 
U 
%hn F. Grissom, Acting Chief 
Administrative ~~~eals-~ffice 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center. The petition 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. 5 1 1 53(b)(l)(A), as an 
alien of extraordinary ability in the arts. 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. 
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 has 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 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. 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. 
The documentation submitted with the petition did not specie the specific job title or position 
for which the petitioner sought entry into the United States. In a request for evidence (RFE) 
dated July 19, 2007, the director indicated that the position sought was presumably that of a 
pianist, and noted that the petitioner had failed to submit sufficient evidence to meet at least three 
of the regulatory criteria. The petitioner did not contest or clarify the position in his response to 
the WE. 
In response to the RFE, the petitioner alleges that he was the recipient of a major, internationally 
recognized award based on his winning first prize in the 1998 18th Bartok -Kabalevsky 
International Piano Competition. The petitioner submitted a copy of a certificate of recognition 
from the Radford University College of Visual and Performing Arts indicating that he 
participated in the 1 8th Bartok-Kabalevsky International Piano Competition and a partial copy of 
the list of winners at the competition. The list, which does not rank the winners and appears to 
be in alphabetical order, indicates that the petitioner was one of three winners at the collegiate 
level. Five other levels of winners were identified, including two winners at the "adult level" 
and a single winner at the grade "K-3 level." The evidence does not reflect that the petitioner 
won "first prize" at the competition. 
The petitioner also submitted a copy of his evaluation fiom one of the judges of the competition. 
The petitioner indicates that the judge was who "was considered one of the 
greatest pianists of our time" and that "[flrom his critique, one can see was very 
imoressed with [the oetitioner'sl internretation of Bartok's music." The ~etitioner submitted 
copies of 
 2005 obhary ;hat he states is evidence of 
 standing as a 
and the value of his evaluation of the petitioner's performance. However, the signature 
on the judge's evaluation form is illegible and it is unclear who signed the form. Additionally, 
regardless om reputation, the petitioner submitted no evidence that he actually won 
first prize at the competition or that the first prize award is considered a major, internationally 
recognized award. 
In the RFE and hs decision, the director considered the evidence of this award under the first 
criterion listed below. Additionally, appellate counsel also discussed this award as evidence of 
the petitioner's receipt of a lesser nationally or internationally recognized prize or award. The 
AAO will also consider whether this award is evidence of the petitioner's eligibility under this 
criterion. 
The petitioner also submitted evidence that he claims meets the following criteria. 
1 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
As discussed above, the petitioner alleged that he won first prize in the 18th Bart6k-Kabalevsky 
International Piano Competition but submitted no evidence that the competition awarded such a 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
prize. Additionally, the petitioner has submitted no evidence that any award by the Bart6k- 
Kabalevsky International Piano Competition is a nationally or internationally recognized prize or 
award of excellence in the field. 
The petitioner also alleges that he meets this criterion based on his performance in the Music 
Teachers National Association's (MTNA) Young Chang America Collegiate Artist Competition 
in 1999. The petitioner submitted a copy of a January 29, 1999 certificate of recognition 
indicating that he received "honorable mention" at the competition and a February 7, 1999 letter 
of congratulation from the chair of the Southern Division Collegiate Artist Chair noting his 
selection as an honorable mention at the competition. The petitioner alleged that he won first 
prize at the state competition but submitted no documentation to confirm this. 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)). The petitioner 
also submitted no documentation to establish that any award by the MTNA is a nationally or 
internationally recognized prize or award. 
The petitioner alleges that he also meets this criterion based on winning first prize at the 2003 
Sidney Wright "Accompanying" Competition and Award, a 2002 "Austin Pre-emptive 
Recruitment Fellowship," a 2002 University of Texas "Pre-emptive Recruitment Fellowship," a 
Phi Kappa Phi Artist Award in 2002, a Tallahassee Music Guild Award in 2001, the 1999 Byrd 
Piano Competition, and the 1997 Tallahassee Winter Festival Competition. The petitioner 
submitted no documentation regarding the "pre-emptive" recruitment fellowships, the Byrd 
Piano Competition or the Tallahassee Winter Festival Competition. Further, the petitioner 
submitted no documentation that any of these awards or prizes is a nationally or internationally 
recognized award or prize. If participation in these competitions was limited to individuals 
within to those living within a certain region or students within a certain school system, then 
these could not be considered nationally or internationally recognized prizes or awards. 
The petitioner's evidence did not establish 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 classiJication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
In order to meet this criterion, published materials must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
The petitioner submitted a copy of a newspaper article written in Portuguese and summarizes the 
document. However, because the petitioner failed to submit a certified translation of the 
document, the AAO cannot determine whether the evidence supports the petitioner's claims. See 
8 C.F.R. 8 103.2(b)(3). Accordingly, the evidence is not probative and will not be accorded any 
weight in this proceeding. 
The petitioner also submits a copy of an article from the August 1999 Florida Music Director 
that named the winners of the Byrd Piano Ensemble Competition and included a brief biography 
of the petitioner. Although the article may be considered about the petitioner, the petitioner 
submitted no documentation to establish that the Florida Music Director is major media or a 
major trade publication. On appeal, counsel asserts that the Florida Music Director "is the 
leading music journal in the state of Florida for more than 50 years," and states that the magazine 
is distributed to 5,000 educators, students and other subscribers. This does not establish the 
publication as a major trade publication. Not only does it have a limited state distribution, it also 
appears to be directed primarily to educators and students, and therefore does not establish it as a 
major trade publication in the music industry. 
The petitioner also submits a copy of a November 17, 2006 Austin Chronicle article announcing 
his sonata performance at a local church. This announcement, however, is a simple notice of a 
performance and is not about the petitioner. The petitioner provides a copy of another notice 
announcing his performance at Ouachita Baptist University. However, the document, dated April 
29, 2002, does not include the name of the publication in which it appeared, and is, again, a 
notice of an upcoming performance and is not about the petitioner. While the petitioner stated 
that the announcement appeared in The Daily Siftings Herald, he submitted no documentation to 
corroborate this. 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. at 
165. Further, the petitioner submitted no documentation to establish that any of these 
publications is major media or a major trade publication. 
The evidence does not establish that the petitioner meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that he performed a leading or critical role for an 
organization or establishment and that the organization or establishment has a distinguished 
reputation. 
The petitioner claims to meet this criterion based on recital appearances with - 
on the double bass and on the saxophone, as well as performing at an international 
double bass festival. The petitioner also claims to meet this criterion based on his position as 
artistic director of the Chinese Society of Austin and co-founder and artistic director for the 
Northwest Hills Chamber Music Festival for the summer of 2002. 
Page 6 
The petitioner submitted a March 4,2005 program for the recital by at Bates Recital 
Hall at the Universit of Texas at Austin, which shows the petitioner as the pianist. The program 
extols abilities but makes no mention of the petitioner. Another program for a 
recital during February 26 to March 1, 2007 at the University of Texas at Austin also lists the 
petitioner as a pianist accompanying other musicians. 
The petitioner submitted no evidence that he played a critical or leading role for an organization 
or establishment with a distinguished reputation. The petitioner submitted no documentation 
about the Chinese Society of Austin or the Northwest Hills Chamber Music Festival. While the 
University of Texas at Austin may enjoy some distinction, the petitioner submitted no 
documentation that its music department also enjoyed that reputation. The petitioner provided 
evidence that he served as a piano accompanist for other musicians; however, these individuals 
are not organizations or establishments. Further, the petitioner has not submitted evidence that he 
played a critical role for the performance of any of these artists or for the music department at the 
University of Texas at Austin. While he performed as accompanist at recitals for the musicians, 
the petitioner submitted no documentation to establish that his performance was critical to the 
success of their recitals. 
The evidence does not establish that the petitioner meets this criterion. 
Counsel alleges for the first time on appeal that the petitioner also meets the following 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 speciJication for which classijication is 
sought. 
The petitioner submitted a November 5, 2001 letter fiom the Division of Music of Ouachita 
Baptist University, signed by inviting the petitioner to judge its annual piano 
competition on April 28, 2002. The petitioner also submits an undated letter fiom - who 
now-identifies herself as an assistant~rofessor of piano at Ouachita Baptist University, and states 
that the petitioner "was invited to judge the [Virginia Queen Piano Competition] recently." 
described the competition as "an important academic event held at the" university. 
However, the letter does not specify when the competition was held. Events that occurred after 
the filing date of the petition cannot be used to establish eligibility for the immigration benefit 
sought. A petitioner must establish eligibility at the time of filing; a petition cannot be approved 
at a future date after the petitioner or beneficiary becomes eligible under a new set of facts. 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). Furthermore, neither letter specifies 
whether or not the petitioner actually acted as a judge in the competition. 
Counsel also alleges that the petitioner "has been asked to judge piano events for the MTNA" 
and that "[iln 2005 he began to judge for the American College of MusicianshJational Guild of 
Piano Teachers." However, no evidence in the record supports counsel's assertions. Without 
documentary evidence to support the claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Page 7 
Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 
(BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
The evidence does not establish that the petitioner meets this criterion. 
Other comparable evidence. 
The regulation at 8 C.F.R. fj 204.5(h)(4) states: "lfthe above standards do not readily apply to 
the beneficiary's occupation, the petitioner may submit comparable evidence to establish the 
beneficiary's eligibility." [emphasis added]. The regulatory language precludes the consideration 
of comparable evidence in this case, as there is no indication that eligibility for visa preference in 
the petitioner's occupation cannot be established by the ten criteria specified by the regulation. 
However, we will briefly address counsel's argument in support of this provision. 
The petitioner submits a copy of a magazine article by 
 from a November 1, 1999 
edition of La Scena Musicale "describing the importance and challenges of being an 
accompanist." The article argues that an accompanist often has studied longer than the musician 
he or she accompanies but it is the musician who gets all of the credit. Counsel asserts that the 
petitioner has performed as an accompanist with some of the best musicians in the world, and 
that he could not have done so unless he was equally as talented as these performers. 
Nonetheless, even if he is considered their equal, the petitioner has not established that these 
performers are among that small percentage who has risen to the very top of their field. Their 
status does not serve to prove his eligibility for this visa preference petition. 
The petitioner submits several letters of recommendation from artists with whom he has 
performed and from his professors. They attest to his skills and ability on the piano and as an 
accompanist. M states that the petitioner's performance with him is without peer. \ 
The petitioner also submits a July 15, 2008 letter from the Chair of the Department of Music at 
University of Texas at San Antonio, and a December 15, 2008 letter from the Director of the 
School of Music at Stephen F. Austin State University. Both writers indicate that the petitioner 
is an applicant for a position at their respective institutions and is the most qualified candidate for 
the proffered position. Neither letter discusses the pool of applicants for the proffered position or 
the qualifications that render the petitioner the most suitable candidate. 
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 his field of endeavor. The petitioner's 
evidence shows that while he has some recognition, it appears to be based on his appearances in 
state, regional, or youth-restricted competitions. 
Review of the record, however, does not establish that the petitioner has distinguished himself as 
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 
Page 8 
that the petitioner is a talented opera performer, but is not persuasive that the petitioner's 
achievements set him significantly above almost all others in her 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 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.