dismissed EB-1A Case: Science

identifying data de1eted to 
prevent clearly unwarranted 
invasion of personal privac}' 
PUBLIC copy 
DATE: OFFICE: TEXAS SERVICE CENTER 
JUN 01 2011 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 c.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
., f' I [ . ("'~ .f} ,I 1 { , 
,·,/C .I ~, (;\II~ 1[. I .•.. 
J Perry Rhew 
\ Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on December 23, 2009, and is now before the Administrative Appeals Office 
(AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), 
as an alien of extraordinary ability. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of 
the beneficiary's sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the beneficiary's "sustained national or international 
acclaim" and present "extensive documentation" of his or her achievements. See section 
203(b)(1)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. 
§ 204.5(h)(3) states that an alien can establish sustained national or international acclaim through 
evidence of a one-time achievement, specifically a major, internationally recognized award. 
Absent the receipt of such an award, the regulation outlines ten categories of specific evidence. 
8 C.F.R. §§ 204.5(h)(3)(i) through (x). The petitioner must submit qualifying evidence under at 
least three of the ten regulatory categories of evidence to establish the basic eligibility 
requirements. 
On appeal, counsel claims that the beneficiary meets at least three of the regulatory criteria at 8 
C.F.R. § 204.5(h)(3). 
I. Law 
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 
Page 3 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) 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 H.R. 723 1015t Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the 
field of endeavor. Id. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 c.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation; 
(iv) 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 allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, m 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
Page 4 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.! With respect to the criteria 
at 8 c.F.R. §§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." Id. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 c.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one 
of that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 c.F.R. § 204.5(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 c.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. § 1153(b)(1)(A)(i). 
/d. at 1119. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
1 Specifically, the court stated that the AAO had unilaterally imposed novel, substantive, or evidentiary requirements 
beyond those set forth in the regulations at 8 c.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 5 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on , seeks to classify the beneficiary as an alien with 
extraordinary ability as a violist. At the time of the original filing of the petition, the petitioner 
claimed the beneficiary's eligibility based on his 0-1 nonimmigrant status and submitted a copy 
of Form 1-129, Petition for a Nonimmigrant Visa, along with the supporting documentation. The 
AAO notes that the beneficiary was approved for 0-1 nonimmigrant status on 
with a validity period from Although the words "extraordinary 
ability" are used in the Act for clas of artists under the nonimmigrant 0-1 and the first 
preference employment-based immigrant categories, the statute and regulations define the term 
differently for each classification. Section 10 1 (a)(46) of the Act states that "[t]he term 
'extraordinary ability' means, for purposes of section 10 1 (a)(15)(0)(i), in the case of the arts, 
distinction." The 0-1 regulation reiterates that "[ e ]xtraordinary ability in the field of arts means 
distinction." 8 C.F.R. § 214.2(0)(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. § 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. § 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of 
nationally or internationally recognized awards or prizes. 8 c.F.R. § 204.5(h)(3)(i). Given the clear 
statutory and regulatory distinction between these two classifications, the beneficiary's receipt of 0-
1 nonimmigrant classification is not evidence of his eligibility for immigrant classification as an 
alien with extraordinary ability. Further, the AAO does not find that an approval of a nonimmigrant 
visa mandates the approval of a similar immigrant visa. Each case must decided on a case-by-case 
basis upon review of the evidence of record. 
It must be noted that many 1-140 immigrant petitions are denied after USC1S approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USC1S spends less time reviewing 1-
129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are 
simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 
Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004) (finding that 
prior approvals do not preclude USC1S from denying an extension of the original visa based on a 
reassessment of the alien's qualifications). 
The AAO is not required to approve applications or petItIons where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 191&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USC1S or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Page 6 
Furthermore, the AAO's authority over the service centers is comparable to the relationship 
between a court of appeals and a district court. Even if a service center director has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (B.D. La.), aifd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
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 at 1043, 
aifd, 345 F.3d at 683; see also Soltane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
Furthermore, as the petitioner failed to specifically identify the criteria under the regulation at 8 
C.F.R. § 204.5(h)(3) that the beneficiary claimed to meet, it was not apparent from the review of the 
evidence to which criteria, if any, the evidence pertained. As such, the director issued a request for 
additional evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8) describing some of the 
criteria under the regulation at 8 c.F.R. § 204.5(h)(3). The burden is on the petitioner to 
establish the beneficiary's eligibility and not on the director to infer or second-guess the intended 
criteria. In response to the director's request for additional evidence, counsel argued: 
Where the given standards do not readily apply to the alien's occupation, the 
regulations permit comparable evidence to establish eligibility. A Federal Court 
also held that a key member of a team or group is significant evidence of extra 
ability especially if said member is a front line player within that group effort or 
rendition. [The beneficiary] cited comparable evidence in his previous 
submission in support of his 0-1 status. [The beneficiary] also cites herein below 
evidence to his standing within the orchestra as a "key" member of the team. The 
three criteria in which [the beneficiary] clearly rises to the top of his field of 
endeavor are: 
a) Evidence that the alien has or is to be employed in a critical 
or essential capacity for an organization or establishment 
that has a distinguished reputation; 
b) Evidence that the alien has received significant recognition 
for achievements from organizations, critics, government 
agencies, or other recognized experts in which the alien is 
engaged. Such testimonials must be in a form that clearly 
indicates the author's authority, expertise, and knowledge 
of the achievements'; 
Page 7 
c) Other comparable evidence if the standards cited in the 
Service's regulations do not readily apply to the alien's 
occupation. 
Regarding item a, counsel referred to the critical or essential capacity criterion pursuant to the 
regulation at 8 C.F.R. § 214.2(0)(3)(iii)(B)(7), a regulatory criterion reserved for an alien of 
extraordinary ability as a nonimmigrant in the fields of science, education, business, or athletics. 
Regarding item b, counsel referred to the significant recognition criterion pursuant to the 
regulation at 8 C.F.R. § 214.2(0)(3)(iv)(B)(5), a regulatory criterion reserved for an alien of 
extraordinary ability as a nonimmigrant in the arts, or 8 C.F.R. § 214.2(0)(3)(v)(B)(5), a 
regulatory criterion reserved for an alien of extraordinary ability as a nonimmigrant in the motion 
picture or television industry. The petitioner is seeking to classify the beneficiary as an alien of 
extraordinary ability in the arts as an immigrant pursuant to section 203(b)(I)(A) of the Act and 
not as an alien of extraordinary ability as a nonimmigrant pursuant to section 101(a)(15)(0) of 
the Act. Therefore, the petitioner must demonstrate that the beneficiary meets the regulatory 
requirements pursuant to 8 c'P.R. § 204.5(h) and not 8 C.P.R. 214.2(0). Again, although the 
words "extraordinary ability" are used in the Act for classification of artists under both the 
nonimmigrant 0-1 and the first preference employment-based immigrant categories, given the clear 
distinction between these two classifications, the beneficiary's receipt of 0-1 nonimmigrant 
classification is not evidence of his eligibility for immigrant classification as an alien with 
extraordinary ability. Regarding item c, the beneficiary's eligibility for comparable evidence 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(4) will be addressed below. 
Based on the submitted documentation, the director denied the petition determining that the 
petitioner failed to establish eligibility for the original contributions criterion pursuant to the 
regulation at 8 c'P.R. § 204.5(h)(3)(v), the display criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(vii), and the leading or critical role criterion pursuant to the regulation at 8 
C.P.R. § 204.5(h)(3)(viii). If it was counsel's contention that the documentary evidence met 
different criteria, he never explained which criteria they were or how the evidence related to those 
criteria. On appeal, counsel submits additional documentary evidence and claimed the 
beneficiary'S eligibility for the published material criterion pursuant to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(iii), the original contributions criterion, the display criterion, and the leading or 
critical role criterion. 
Regarding the submission of comparable evidence, the regulation at 8 C.F.R. § 204.5(h)(3) 
provides that evidence of sustained national or international acclaim "shall" include evidence of a 
one-time achievement or evidence of at least three of the following regulation categories. The ten 
categories in the regulations are designed to cover different areas; not every criterion will apply 
to every occupation. Por example, the criterion at 8 C.F.R. § 204.5(h)(3)(vii) implicitly applies to 
the visual arts, and the criterion at 8 c.F.R. § 204.5(h)(3)(x) expressly applies to the performing 
arts. The AAO further acknowledges that the regulation at 8 C.F.R. § 204.5(h)(4) provides "[i]f the 
above standards do not readily apply to the beneficiary'S occupation, the petitioner may submit 
comparable evidence to establish the beneficiary's eligibility." It is clear from the use of the word 
"shall" in 8 C.F.R. § 204.5(h)(3) that the rule, not the exception, is that the petitioner must submit 
Page 11 
A violist of high cultivation and professionalism, [the beneficiary] has the 
exceptional ability to combine understanding of music with a profound and deep 
passion in his performances. His wide range of expertise in different styles and 
genres has made [the beneficiary] a violist of tremendous versatility. His talents 
have taken him around the world, traveling extensively with [the petitioner] 
throughout North America, Europe, Africa, Russia, Australia, and the Middle 
East. 
Several other examples of reference letters that discuss the beneficiary's talents but do not 
provide any evidence of original contributions include: 
1. who stated that "I myself have 
performed several recitals with him have been amazed at his talents" 
and "[h]is techniques are most formidable and his grasp of color, texture 
and the sound of the viola are truly outstanding"; 
2. who stated that "I could not ask to meet a young 
mUSICian with more talent or such rare working capacity that [the 
beneficiary] possesses" and "[a]ccepted for his distinguished and 
remarkable ability to share his professional experience with other 
musicians, he renders essential influence on increase of their professional 
skill in an instrumental ensemble and in an orchestra"; 
3. stated that the beneficiary's "musical ability, as 
sion to the [NOI], as well as his invitation to 
serve of [the petitioner], elevates him unequivocally to 
a musician of prominence"; 
4. who stated that the beneficiary's 
eVE~me~nts as a violist, his personal characteristics 
of reliability and hard work, and his being a person of extraordinary ability 
in conservatory music as well as a valued performer within an orchestral 
group are the reason that I support his application"; 
5. who stated that the beneficiary 
"stands out from his peers in the level of his technical brilliance, and has 
demonstrated over the years a clear and pronounced ability to lead other 
performers in musical renditions of the highest quality"; and 
6. that the 
beneficiary "is one most come across in my 
entire career and his performances are always of the highest quality." 
Page 12 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of 
major significance in the field." It is clear from the recommendation letters that the authors hold 
the beneficiary in high regard for both his musical talents and personal traits. However, none of 
the letters indicated how the beneficiary's skills or personal traits are original contributions of 
major significance to the field. Merely having a diverse skill set or being highly regarded for 
talent is not a contribution of major significance in and of itself. Rather, the record must be 
supported by evidence that the beneficiary has already used those unique skills to impact the 
field at a significant level in an original way. Furthermore, assuming the beneficiary's skills are 
unique, the classification sought was not designed merely to alleviate skill shortages in a given 
field. In fact, that issue properly falls under the jurisdiction of the Department of Labor through 
the alien employment labor certification process. See Matter of New York State Dep't. of 
Transp., 22 I&N Dec. 215, 221 (Commr. 1998). In addition, some of the reference letters briefly 
mention the beneficiary's performances both in the United States and abroad, such as the letter 
•••• However, none of the letters indicate that the beneficiary'S performances as 
part of ensembles and orchestras have impacted or influenced the field as a whole, so as to 
demonstrate original contributions of major significance in the field. As the beneficiary is a 
musician, he is expected to perform before audiences at venues. There is no evidence 
demonstrating that the beneficiary's performances, such as with the petitioner and .. have 
significantly influenced the field as a whole rather than being limited to the entities for whom he 
has performed. 
The petitioner also submitted a letter from 
for the petitioner, who stated: 
As far as his musical contributions to our orchestra, I have never seen anyone who 
can bring such richness and vitality to an entire musical group. He is the catalyst 
that makes our Ensemble sound like magic. In sum, he is irreplaceable in the 
Ensemble. His talent certainly separates him from other professional musicians 
without question. 
Again, discussed the beneficiary's talents but failed to indicate that he has made 
original contributions of major significance in the field. In fact, failed to 
~tributions made by the beneficiary that could be considered original. Regardless, 
~discussed the beneficiary's talents as they related to the petitioner and not to the 
field as a whole. There is no indication that the beneficiary has made any original contributions 
of major significance in the field. 
Finally, the petitioner submitted a letter from who stated that 
the beneficiary "is an outstanding violist can guarantee an asset to our 
country" and "I have been taken with the quality of his sound and his overarching musicianship." 
Again, refers to the beneficiary's talents without discussing or 
indicating any original contributions of major significance in the field made by the beneficiary. 
Furthermore, mentions that the beneficiary "will be an asset to our 
Page 13 
country [emphasis added]." A petitioner cannot file a petition under this classification based on 
the beneficiary's expectation of future eligibility. Given the description in terms of future 
applicability and a determination that may occur at a later date, it appears fro~ 
_ letter that the beneficiary has yet to make a significant impact on the field. Eligibility 
must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(I), (12); Matter of Katigbak, 14 
I&N Dec. 45, 49 (Regl. Commr. 1971). A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 
(Comm'r. 1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 
(BIA 1981), that we cannot "consider facts that come into being only subsequent to the filing of 
a petition." Id. at 176. The letter discusses far more persuasively the future promise of the 
beneficiary's assets and the impact that may result from his musical work, rather than how his 
past musical work already qualifies as a contribution of major significance in the field. A 
petitioner cannot file a petition under this classification based on the expectation of future 
eligibility. The assertion that the beneficiary will likely be an asset is not to establish 
that he has made original contributions of major significance in the field . 
•••• praises the beneficiary for his talents, the fact remains that any measurable impact that 
results from the beneficiary's musical work will likely occur in the future. 
While those familiar with the beneficiary generally describe him as "extraordinary," "talented," 
and "outstanding," the letters contain general statements that lack specific details to demonstrate 
that the beneficiary has made original contributions of major significance in the field. This 
regulatory criterion not only requires the beneficiary to make original contributions, but also 
requires those contributions to be significant. The AAO is not persuaded by vague, solicited 
letters that simply repeat the regulatory language but do not explain how the beneficiary has 
made original contributions and how those original contributions have already influenced the 
field. Merely repeating the language of the statute or regulations does not satisfy the petitioner's 
burden of proof.4 The lack of supporting documentary evidence gives the AAO no basis to 
gauge the significance of the beneficiary's present contributions. 
Further, USCIS may, in its discretion, use as advisory opinion statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). However, 
USCIS is ultimately responsible for making the final determination regarding an alien's 
eligibility for the benefit sought. Id. The submission of letters of support from the beneficiary's 
personal contacts is not presumptive evidence of eligibility; USCIS may evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795; see also Matter of 
V-K-, 24 I&N Dec. 500, n.2 (BIA 2008). Thus, the content of the writers' statements and how 
they became aware of the beneficiary's reputation are important considerations. Even when 
written by independent experts, letters solicited by an alien in support of an immigration petition 
are of less weight than preexisting, independent evidence of original contributions of major 
significance. 
4 Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Page 14 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) not only requires the 
petitioner to demonstrate original contributions, but the petitioner must demonstrate that the 
original contributions have been of major significance in the field. The AAO must presume that 
the phrase "major significance" is not superfluous and, thus, that it has some meaning. Without 
additional, specific evidence showing that the beneficiary's work has not only been original, but 
also unusually influential, or has otherwise risen to the level of contributions of major 
significance, the AAO cannot conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
In the director's decision, he concluded that the petitioner failed to establish the beneficiary's 
eligibility for this criterion because the documentary evidence failed to reflect "sustained 
national acclaim" of his performances. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3 )(vii) requires "( e ] vidence of the display of the alien's work in the field at artistic 
exhibitions or showcases." In accordance with Kazarian 596 F.3d at 1122, the beneficiary's 
national or international acclaim is not relevant to meeting the plain language of the regulation. 
Instead, the petitioner must submit evidence establishing that the beneficiary's work has been 
displayed at artistic exhibitions or showcases. While the AAO does not agree with the basis of 
the director's decision in requiring national or international acclaim within this criterion, the 
AAO ultimately concurs with the decision of the director that the petitioner failed to establish the 
beneficiary's eligibility for this criterion. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires "[e]vidence of 
the display of the alien's work in the field at artistic exhibitions or showcases." The beneficiary 
is a violist. When he is performing or playing his viola before an audience, he is not displaying 
his music in the same sense that a painter or sculptor displays his or her work in a gallery or 
museum. The beneficiary is performing his work, he is not displaying his work. In addition, to 
the extent that the beneficiary is a performing artist, it is inherent to his occupation to perform. 
Not every performance is an artistic exhibition designed to showcase the performer's art. If the 
AAO was to accept that a performance artist like the beneficiary meets this criterion, it would 
render the regulatory requirement that the beneficiary meet at least three criteria meaningless as 
this criterion would effectively be collapsed into the criterion at the regulation at 8 C.F.R. 
§ 204.S(h)(3)(viii). The ten criteria in the regulations are designed to cover different areas; not 
every criterion will apply to every occupation. This interpretation has been upheld by at least 
one district court. See Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 8-9 (finding that the 
AAO did not abuse its discretion in finding that a performance artist should not be considered 
under the display criterion). While the AAO acknowledges that a district court's decision is not 
binding, the court's reasoning indicates that the AAO's interpretation of the regulation is 
reasonable. 
Page 15 
Therefore, while the beneficiary's performances have evidentiary value for other criteria, they 
cannot serve to meet this criterion. Instead, as the beneficiary's performances are far more 
relevant to the aforementioned "leading or critical role" criterion set forth at the regulation at 8 
C.F.R. § 204.5(h)(3)(viii) and the "commercial successes in the performing arts" criterion at the 
regulation at 8 C.F.R. § 204.5(h)(3)(x), they will be discussed separately within the context of 
those criteria. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence that the alien has peiformed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The director found that the petitioner failed to establish the beneficiary's eligibility for this 
criterion. Specifically, the director stated in his denial: 
The support letters do not provide detail about how, exactly, this beneficiary has 
influenced others in his field at least on a national scale while serving in his role 
as violist for [the petitioner]. Neither does this information establish that his 
selection was the result of having gained significant recognition at least 
nationally. Therefore, it cannot be found that the petitioner's selection to this 
role, in and of itself, is indicative of, or consistent with, national or international 
acclaim. Thus, it cannot be concluded that the beneficiary's role is leading or 
critical to the extent that the duties he performed could be successfully carried out 
only by an individual having national or international acclaim. For this reason 
too, [the petitioner] cannot be deemed "distinguished" within the meaning of this 
regulatory element as having required an individual of national or international 
acclaim. 
In accordance with Kazarian 596 F.3d at 1122, the beneficiary'S national or international 
acclaim is not relevant to meeting the plain language of the regulation. The plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the alien has performed in a 
leading or critical role for organizations or establishments that have a distinguished reputation." 
In general, a leading role is evidenced from the role itself, and a critical role is one in which the 
alien was responsible for the success or standing of the organization or establishment. 
At the time of the original filing of the petition tated that "[s]ince May 1, 2008, 
[the beneficiary] has been working with [the petitioner] as Principal Violist." Therefore, the 
AAO will review the record of proceeding to determine if the beneficiary has performed in a 
leading or critical role as a principal violist from May 1,2008 to November 25,2008, the date of 
the filing of the petition. Eligibility must be established at the time of filing. 8 C.F.R. 
§§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at a 
future date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 
I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 
114, that USeIS cannot "consider facts that corne into being only subsequent to the filing of a 
Page 16 
petition." Id. at 176. The AAO notes that the petitioner submitted several previously discussed 
recommendation letters that discussed the beneficiary's offer or invitation to perform as principal 
violist for the petitioner. For instance, in a letter dated March 20, 2007,_ stated that 
"the position being offered him is one that requires a person of extraordinary ability"; in a letter 
dated May 17, 2007, stated that the "position of principal violist requires a 
musician of great skill and leadership, capable of carrying the orchestra through delicate and 
soulful as~ exuberant moments of music"; and in a letter dated January 
18,2007, _stated that "[b]eing offered the principal violist chair with the 
[petitioner] may be just the break that [the beneficiary] needs to catapult his career." Clearly, the 
letters were written prior to the beneficiary even serving as principal violist for the petitioner and 
do not demonstrate that that he has peiformed in a leading or critical role before the filing of the 
petition. 
The petitioner submitted another letter fro~ who stated: 
Viola is the crux of any orchestra. Without a viola section an orchestra section is 
incomplete in any of its relations. [The beneficiary] is an essential part of our 
orchestra. In my judgment he has no peers. He is uniquely one of a kind. He is 
recognized as such in all musical halls in which he has performed. 
failed to indicate why the beneficiary is an "essential part" of the ensemble . 
•••••• stated that the "[v ]iola is the crux of any orchestra," the AAO is not 
persuaded that every violist who files an alien of extraordinary petition automatically establishes 
eligibility for this criterion. The submission of self-serving letters that simply indicate the job 
title and generally claim that the beneficiary performed in a leading or critical role is insufficient 
to establish eligibility for this criterion. In other words, it cannot be determined from the 
beneficiary's job title alone that his role is leading or critical. The petitioner failed to submit, for 
example, documentary evidence comparing the roles of the beneficiary to the other principal 
musicians of various sections within the ensemble that would indicate the beneficiary's roles 
were leading or critical. In fact, the petitioner failed to submit a single event program that listed 
the beneficiary as the principal violist for the petitioner. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). Nor is there any evidence reflecting 
that the beneficiary was featured or received top billing in any musical event for the petitioner 
consistent with the meaning of leading or critical pursuant to the regulation at 8 c.F.R. 
§ 204.5(h)(3)(viii). There is no documentary evidence differentiating the beneficiary from the 
other musicians, so as to establish that he performed in a leading or critical role for the petitioner. 
In fact, it appears that the beneficiary is in a far less subordinate role than who 
IS • and_ for the petitioner. 
On appeal, the ~itted an additional letter who stated that she 
"agree[s] with ___ that the viola is the crux of an orchestra and that [the beneficiary] 
as a musician and as First Chair in the orchestra is irreplaceable." Again, fails to 
Page 17 
offer any evidence demonstrating that the beneficiary has performed in a leading or critical role 
for the petitioner. Merely stating that the beneficiary is First Chair without any details describing 
the performed roles of the beneficiary is insufficient to demonstrate that his position is leading or 
critical. 
Moreover, a review of the record of proceeding reflects that the petitioner submitted several 
event programs of the beneficiary's performances with other orchestras, ensembles, and events 
such as _ the the the 
home of and Although the programs 
demonstrate that the beneficiary performed, they fail to reflect any evidence of leading or critical 
roles for any of the entities or at the events. For example, regarding" the beneficiary is 
listed as a member of the viola section along with 11 other violists. There is no evidence 
distinguishing the beneficiary from the other violists, as well as evidence distinguishing the 
beneficiary from all of the other musicians, reflecting that he performed in a leading or critical 
role for _ Furthermore, the petitioner failed to establish that they have distinguished 
reputations. 
Without evidence establishing that the beneficiary performed in a leading or critical role, it is 
insufficient to simply submit documentary evidence reflecting that he performed as a violist in a 
concert setting. As the beneficiary is a violist, it is expected that the petitioner will perform the 
routine duties of a violist to perform on stage or in front of an audience. However, merely 
performing, even if the performance is considered noteworthy, does not equate to a leading or 
critical role. The petitioner failed to demonstrate that the beneficiary's roles in the performances 
were leading or critical. 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
Evidence of commercial successes in the peiforming arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
A review of the record of proceeding reflects that the petitioner never claimed the beneficiary's 
eligibility for this criterion, including on appeal. However, in the AAO's discussion of the 
artistic display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii), the AAO 
indicated that the petitioner's documentary evidence would be discussed as it related to this 
criterion. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) requires "[e]vidence of 
commercial successes in the performing arts, as shown by box office receipts or record, cassette, 
compact disk, or video sales (emphasis added)." In other words, this regulatory criterion requires 
evidence of commercial successes in the form of "box office receipts" or "sales." However, the 
record of proceeding reflects that the petitioner failed to submit any documentary evidence 
regarding the box office receipts of the beneficiary's performances. For example, there is no 
evidence showing that the beneficiary'S performances consistently drew record crowds, were 
Page 18 
regular sell-out performances, or resulted in greater audiences than other similar performances 
that did not feature him. 
Without documentary evidence reflecting the commercial successes of the beneficiary, the AAO 
cannot conclude that the beneficiary meets the plain language of the regulation at 8 c.F.R. 
§ 204.5(h)(3)(x). 
Accordingly, the petitioner failed to establish that the beneficiary meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opmIOn, the AAO must next conduct a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); 
and (2) "that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." See section 203(b)(l)(A)(i) of the 
Act, 8 U.S.c. § 1153(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1115. The petitioner failed to establish that the beneficiary met any of the criteria, in which at 
least three are required under the regulation at 8 C.F.R. § 204.5(h)(3). In this case, many of the 
deficiencies in the documentation submitted by the petitioner have already been addressed in the 
preceding discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating the final merits determination, the AAO must look at the totality of the evidence to 
conclude the beneficiary's eligibility pursuant to section 203(b)(1)(A) of the Act. In this case, 
the petitioner demonstrated that the beneficiary has recently been appointed as principal violist 
for the petitioner, that the beneficiary is a talented violist as reflected by the recommendation 
letters, and that the beneficiary has performed at some noteworthy venues such as at the" 
and However, the personal accomplishments of 
the beneficiary fall far short of establishing that he "is one of that small percentage who have risen 
to the very top of the field of endeavor" and that he "has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." See 
8 C.F.R. § 204.5(h)(2), section 203(b)(l)(A)(i) of the Act, 8 U.S.C. § 1153(b)(l)(A)(i), and 
8 C.F.R. § 204.5(h)(3). 
The regulation at 8 c.F.R. § 204.5(h)(3) provides that "[a] petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 C.F.R. § 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "a 
Page 19 
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. § 204.S(h)(2). 
While the AAO found that the beneficiary did not meet the published material criterion pursuant 
to the regulation at 8 C.F.R. § 204.S(h)(3)(iii), the two articles that were submitted to 
demonstrate eligibility did not even mention the beneficiary, let alone published material about 
the beneficiary relating to his work. Notwithstanding, the submission of two articles, dated July 
2, 2007 and June 30, 2008, between one and two years prior to the filing of the petition is 
insufficient to demonstrate the sustained national or international acclaim required for this highly 
restrictive classification. 
Although the AAO found that the beneficiary did not meet the original contributions criterion 
pursuant to the regulation at 8 c.F.R. § 204.S(h)(3)(v), the petitioner based the beneficiary's 
eligibility primarily on recommendation letters that praised his skills but spoke of his future 
potential and speculated about his future contributions. USCIS may, in its discretion, use as 
advisory opinion statements submitted as expert testimony. See Matter of Caron International, 
19 I&N Dec. at 79S. However, USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. Id. The submission of 
letters from individuals supporting the petition is not presumptive evidence of eligibility; USCIS 
may evaluate the content of those letters as to whether they support the alien's eligibility. See id. 
at 79S-796; see also Matter of V-K-, 24 I&N Dec. SOO, n.2 (BIA 2008). Again, none of the 
letters submitted on behalf of the benficiary reflected any original contributions of major 
significance made by him. 
Moreover, while the beneficiary did not meet the display criterion pursuant to the regulation at 8 
C.F.R. § 204.S(h)(3)(vii), the AAO considered the beneficiary's performances under the leading 
or critical role criterion pursuant to the regulation at 8 c.F.R. § 204.S(h)(3)(viii) and the 
commercial successes criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(x). The 
regulation at 8 c.F.R. 204.S(h)(3) requires "[a] petition for an alien of extraordinary ability must 
be accompanied by evidence that the alien has sustained national or international acclaim and 
this his or her achievements have been recognized in the field of expertise." While the 
petitioner submitted documentation demonstrating that the beneficiary has performed at concerts 
and at various venues, the petitioner failed to submit any documentation establishing that the 
beneficiary performed as a principal violist, much less that his performances for approximately 
four months garnered any critical acclaim or favorable press reviews or otherwise drew a 
significant level of attendance compared to other concerts in a manner consistent with sustained 
national or international acclaim. The lack of any supporting documentary evidence and the 
reliance on self-serving support letters from the petitioner do not indicate that the beneficiary is 
at 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." 
Furthermore, the AAO cannot ignore that the statute requires the petitioner to submit "extensive 
documentation" of the beneficiary's sustained national or international acclaim. See section 
203(b)(1)(A) of the Act. The commentary for the proposed regulations implementing section 
Page 20 
203(b)(1)(A)(i) of the Act provide that the "intent of Congress that a very high standard be set for 
aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to present 
more extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 
30704 (July 5, 1991). The petitioner failed to submit evidence demonstrating that the beneficiary 
"is one of that small percentage who have risen to the very top of the field." In addition, the 
petitioner has not demonstrated the beneficiary's "career of acclaimed work in the field" as 
contemplated by Congress. H.R. Rep. No. 101-723,59 (Sept. 19, 1990). 
In this matter, the evidence of record falls short of demonstrating the beneficiary's sustained 
national or international acclaim as a violist. The conclusion the AAO reaches by considering 
the evidence to meet each category of evidence at 8 C.F.R. § 204.5(h)(3) separately is consistent 
with a review of the evidence in the aggregate. Ultimately, the evidence in the aggregate does not 
distinguish the beneficiary as one of the small percentage who has risen to the very top of the field 
of endeavor. 8 c.F.R. § 204.5(h)(2). 
The AAO notes that the beneficiary's references' credentials are far more impressive. For example, 
stated: 
In contrast, the beneficiary relies on his position within the petitioner's ensemble as well as his 
acceptance into the as evidence of his recognition and acclaim. However, both the 
petitioning organization as well as the" appear to be limited to youths. The record contains 
numerous references to the petitioning organization as the in 
articles and supporting material including a biography submitted with letter. 
Similarly, information about the _ indicates that it is only open to "young musicians" and 
describes the_ as a program that "aspires to provide students with all the tools necessary to 
take up an active and fulfilling role in the unfolding future of American orchestras and their 
repertoire [emphasis added]." The beneficiary's involvement and performances with age­
restricted organizations do not reflect that "small percentage who have risen to the very top of 
the field of endeavor." See 8 C.F.R. § 204.5(h)(2). USCIS has long held that even athletes 
performing at the major league level do not automatically meet the "extraordinary ability" 
standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 1994); 56 Fed. Reg. at 
Page 21 
60899.5 Likewise, it does not follow that a violist like the beneficiary, who has performed with 
youth-related and student level organizations, should necessarily qualify for an extraordinary 
ability employment-based immigrant visa. To find otherwise would contravene the regulatory 
requirement at 8 c.F.R. § 204.5(h)(2) that this visa category be reserved for "that small 
percentage of individuals that have risen to the very top of their field of endeavor." 
While the petitioner need not demonstrate that there is no one more accomplished than the 
beneficiary to qualify for the classification sought, it appears that the very top of his field of 
endeavor is far above the level he has attained. The petitioner seeks a highly restrictive visa 
classification for the beneficiary, intended for individuals already at the top of their respective 
fields, rather than for individuals progressing toward the top at some unspecified future time. In 
this case, the petitioner has not established that the beneficiary's achievements at the time of filing 
the petition were commensurate with sustained national or international acclaim as a violist, or that 
he was among that small percentage at the very top of the field of endeavor. 
III. Conclusion 
Review of the record does not establish that the beneficiary has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
beneficiary's achievements set him significantly above almost all others in his field at a national 
or international level. Therefore, the petitioner has not established the beneficiary's eligibility 
pursuant to section 203(b)(1)(A) of the Act, and the petition may not be approved. 
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 at 1043, 
affd, 345 F.3d at 683; see also Soltane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
5 While the AAO acknowledge that a district court's decision is not binding precedent, the AAO notes that in Matter 
of Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[TJhe plain reading of the statute suggests that the appropriate field of comparison is not a 
comparison of Racine's ability with that of all the hockey players at all levels of play; but rather, 
Racine's ability as a professional hockey player within the NHL. This interpretation is consistent 
with at least one other court in this district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 
9, 1993), and the definition of the term 8 c.F.R. § 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, the court's 
reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. § 204.5(h)(2) is reasonable. 
Page 22 
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. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.