dismissed EB-1A Case: Sound Engineering

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 0 3 
IN RE: Petitioner: 
Beneficia 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the lmmigration 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. 
8' 
;Z Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, California Service 
Center. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before 
the AAO on a motion to reconsider. The motion will be granted, the previous decision of the AAO will be 
affirmed and the petition will be denied. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(I)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien of extraordinary ability in the 
arts. The director determined that the petitioner had not established the sustained national or international 
acclaim requisite to classification as an alien of extraordinary ability. The AAO concurred, finding that the 
petitioner met none of the applicable regulatory criteria and that the evidence regarding the petitioner's 
purported receipt of a Daytime Emmy Award did not establish his eligibility under the one-time achievement 
criterion. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
The applicable regulation defines the statutory term "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. 8 204.5(h)(2). Specific supporting evidence must accompany the petition to document the "sustained 
national or international acclaim" that the statute requires. 8 C.F.R. $ 204.5(h)(3). An alien can establish 
sustained national or international acclaim through evidence of a "one-time achievement (that is, a major. 
international recognized award)." Id. Absent such an award, an alien can establish the necessary sustained 
acclaim by meeting at least three of ten other regulatory criteria. Id. 
111 this case, the petitioner seeks classification as an alien with extraordinary ability in the arts as a sound re- 
recording engineer. Counsel claims that the petitioner's involvement with the children's television program 
"Arthur" which received a Daytime Emmy Award for Outstanding Children's Animated Program proves his 
eligibility by virtue of a one-time achievement (major, internationally recognized award) under 8 C.F.R. 
5 204.5(h)(3). The record contains a certificate from The National Academy of Television Arts & Sciences and 
The Academy of Television Arts & Sciences that honors the petitioner "for contributing to the Emmy Award- 
winning program ARTHUR, PBS" and a letter from he Daytime Emmy Awards Manager stating 
that the petitioner's "contribution as a re-recording sound mixer was crucial to winning the award. This award 
confirms that he is clearly at the very top of the sound mixing field." In the previous decision, the AAO noted 
that the letter did not state - nor did any other evidence establish - that the petitioner was one of the named 
recipients of the Daytime Emmy Award. In addition, the AAO determined that even if the petitioner had been a 
named recipient of the award, it would not meet this criterion because the Emmy Awards are not internationally 
recognized. On motion, counsel contends that the AAO's determination was erroneous because the Emmy 
Awards are "awarded internationally . . . [and] foreigners win U.S. Emmy's [sic] if their shows appear on U.S. 
television.. .winning an Emmy signals to the television industry worldwide that such an extraordinary event puts 
the winner at the top of his peer group." Counsel's claim is unsupported by the record. On motion, counsel 
submits a printout from the website of The Academy of Television Arts & Sciences. The printout states that the 
Emmy Awards are administered by "three sister organizations; the Academy of Television Arts & Sciences, the 
National Academy of Television Arts & Sciences, and the International Academy of Television Arts & 
Sciences." Counsel has apparently underlined "International" in the title of the last organization. Yet the 
printout clearly states that the "Daytime Emmy Awards are under the jurisdiction of the National Academy of 
Television Arts & Sciences." Even if the printout supported counsel's position, it could not be considered 
because a motion to reconsider must "establish that the decision was incorrect based on the evidence of record at 
the time of the initial decision." 8 C.F.R. $ 103.5(a)(3). 
The remaining evidence submitted, counsel's contentions and the AAO's previous decision are addressed in the 
following discussion of the regulatory criteria relevant to the petitioner's case. 
(i) Documentution of the alien's receipt of lesser nationally or internationally recognizedprizes or awards 
for excellence in theJield of endeavor. 
In addition to the evidence regarding the Daytime Emmy Award to "Arthur" as an outstanding children's 
program, the petitioner submitted a certificate and a letter showing his individual nomination for a 1997-1998 
Daytime Emmy Award in the category of "Sound Mixing - Special Class" for his work on "Arthur." As noted 
by both the service center director and the AAO, the record contains no evidence that the petitioner actually won 
this award. The AAO nevertheless considered this evidence, but found that because the petitioner was 
nominated in 1997, six years prior to the date his petition was filed, his nomination did not reflect the sustained 
acclaim requisite to classification as an alien with extraordinary ability. On motion, counsel contends that this 
determination "is inconsistent with AAO's earlier positions on this subject" and submits an excerpt from an 
unidentified source that appears to be an immigration law treatise. The document states that the "AAO held that 
an alien qualified for EB-1 status despite the fact that the documentation submitted showed the alien's standing 
in his or her profession several years earlier, but had not shown the alien's present standing in his sport," but 
provides no citation for the case referenced. Pursuant to 8 C.F.R. $ 103.4(c), designated and published decisions 
of the AAO are binding precedent on all Service employees in the administration of the Act. In contrast, 
unpublished decisions have no such precedential value. Here, counsel cites an unidentified source citing an 
unidentified case. We cannot give credence to such an unsubstantiated claim. 
The petitioner also submitted evidence that the "Arthur" program, a collaboration between Cinar Films and 
WGBH Boston, won Best Sound Overall at the Canadian Cinema and Television Academy's Seventh Gemini 
Awards and a letter from Cinar confirming that the petitioner worked with the company on "Arthur." Both the 
director and the AAO determined that the record contained no evidence that the petitioner was a named 
recipient of the Gemini award. On motion, counsel repeats his contention that the award is attributable to the 
petitioner and submits a printout from the Academy of Canadian Cinema and Television that lists awards 
granted to various productions that the petitioner has purportedly worked on. The printout lists "Arthur" as 
having received an award in 1998 (apparently for sound, although the category is listed in French and is not 
accompanied by a certified translation as required by 8 C.F.R. 5 103.2(b)(3)) and "The Sleep Room" as having 
received an award for Best Sound in a Dramatic Program or Series in 1998. The first award names five 
individuals and the second names eight. The petitioner is not included in the listing for either award. Even if 
his name was listed, we could not consider the printout because it was not submitted with the petition or on 
appeal. 8 C.F.R. 8 103.5(a)(3). For the same reason, we cannot consider evidence submitted on motion that the 
petitioner is listed on the poster for the film "The Discovery of Love" which purportedly won an award at the 
World Film Festival in Montreal. Id. 
(ii) Documentation of the alien's membership in associations in the field for which class$cation is sought, 
which require outstanding achievements oftheir members, as judged by recognized national or international 
experts in their disciplines or fields. 
The petitioner submitted evidence of his active membership in the Cinema Audio Society (CAS) and the Motion 
Pictures Editors Guild. The director and the AAO both determined that the evidence was insufficient to 
establish that outstanding achievements are a prerequisite to membership in either of these associations. 
Counsel does not contest that determination on motion. 
(iv) Evidence of the alien 's participation, either individually or on a panel, as a judge of the work of others 
in the sume or an alliedJield of speczjkution for which classiJication is sought. 
The petitioner initially submitted no evidence relevant to this criterion. On appeal, he claimed eligibility under 
this criterion by virtue of being a voting member of CAS and the Academy of Television Arts and Sciences and 
submitted a January 26, 2004 letter containing his ballot for the CAS sound mixing awards and a February 17, 
2004 letter stating that he is a voting member of the Academy of Television Arts and Sciences allowing him to 
vote for Primetime and Daytime Emmy competitions. The AAO determined that the record contained no 
evidence that the petitioner had participated in judging Emmy or CAS awards prior to the date of filing. On 
motion, counsel contends that AAO has made an "ERROR OF FACT" and refers to the previously submitted 
evidence. Counsel is either unaware of or disregards the requirement that evidence of eligibility must be 
established at the time of filing. See 8 C.F.R. 5 103.2(b)(12), Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 
1971). The documents submitted were dated six and seven months after the petition was filed and do not 
demonstrate that the petitioner had judged the work of others at the time of filing. 
In the previous decision, the AAO noted that for the Emrny Awards "it appears that the petitioner is eligible only 
to take part in the balloting after the nominees are already selected. This eligibility is conferred on all members. 
More persuasive would be participation in the elite group that selects the nominees." On motion, counsel 
contends that this statement is also an "ERROR OF FACT" because there is "no Emmy nomination committee 
at the Academy." Counsel asserts that television broadcasters themselves mail nominations to the Academy 
which then presents all the nominees to Academy members to vote on. On motion, counsel submits a copy of 
the 2004 Primetime Emmy Awards ballot mailed to the petitioner. This ballot says nothing about the 
nomination process. In addition, the ballot cannot be considered both because it was not in the record at the 
time the previous AAO decision was made, 8 C.F.R. 9 103.5(a)(3), and because it is dated one year after the 
petition was filed. See 8 C.F.R. 5 103.2(b)(12), Matter of Katigbak, 14 I&N Dec. at 49. 
(v) Evidence ofthe alien's original scientific, scholarly, artistic, athletic, or business-related contributions of 
major significance in the jield. 
The petitioner submitted numerous letters from colleagues, supervisors, clients and other individuals who have 
worked with him on various projects. In the previous decision, the AAO affirmed the director's decision that 
the letters were insufficient to meet this criterion. The AAO noted that the letters praised the petitioner's talents, 
skills and qualifications, but provided "little discussion of substantive and identifiable contributions to the 
field." The AAO acknowledged that one letter credited the petitioner with "creating a new form of music" for 
the film Le regard the Delphine, but that the record contained no evidence that this "new form of music" had 
made an impact in the petitioner's field. On motion counsel contends that the AAO "gave a cursory look at 
these letters" and singles out the letter of previously discussed above under the first criterion). 
The letter states that the petitioner's contr~bution as a re-recording sound mixer was crucial to the Daytime 
Emmy Award to "Arthur" as Outstanding Children's Animated Program in 1997 and that "[tlhis award confirms 
that he is clearly at the very top of the sound mixing field." The significance of the Daytime Emmy Award 
granted to "Arthur" was discussed above under the first criterion. The letter itself does not mention any 
specific, original contribution that the petitioner has made to his field. 
Counsel's motion quotes eight other letters that praise the petitioner's talents, skills and accomplishments, but 
identifies only one purportedly original contribution of the petitioner to his field: "his musical ears." Two of 
the petitioner's recommendation letters specifically praise the petitioner's musical abilities and one letter 
references his training in classical music. Yet the record contains no evidence that the petitioner is one of only a 
few sound re-recording engineers with musical aptitude and training or that the petitioner's "musical ears" have 
had a significant impact on his field outside of the limited number of individuals with whom he has worked 
directly. 
(vii) Evidence of the displq of the alien's work in thejield at artistic exhibitions or showcases. 
The petitioner did not originally claim eligibility under this criterion. On appeal, counsel claimed that the 
petitioner met this criterion through his work on various television programs and films. In the previous decision, 
the AAO noted that this criterion applies to visual artists and even if found applicable to the petitioner's field, 
the mere broadcast of television programs or films would be insufficient. The AAO acknowledged a letter from 
Producer and ~irector-egarding the petitioner's work on the film "Discovery of Love," but 
found no evidence in the record to support counsel's claim that the film was shown and nominated for an award 
at the World Film Festival in Montreal in 2000. On motion, counsel submits a printout from the film festival's 
website, but we cannot consider this evidence because it was not before the AAO at the time of the previous 
decision. See 8 C.F.R. $ 103.5(a)(3). 
(viii) Evidence that the alien has performed in a Iea~ling or critic01 role for organizations or establishments 
thar have a distinguished reputation. 
The petitioner did not originally claim eligibility under this criterion. On appeal, counsel claimed that the 
petitioner met this criterion by virtue of his work as described in the recommendation letters. In the previous 
decision, the AAO found that the letters praised the petitioner's skills, talents and contributions to various 
projects, but did not demonstrate that he had played a leading or critical role for any organization or 
establishment with a distinguished reputation. On motion, counsel merely refers to two letters discussing the 
petitioner's current employment for Ascent Media Creative Sound Services (ToddAO). These letters attest to 
Page 6 
the petitioner's skills and qualifications and indicate that he is a valued employee. The letters do not describe 
the nature of the petitioner's exact role within the company or how his position distinguishes him from other 
sound re-recording engineers employed by the company. In addition, the record contains no independent 
evidence that Ascent Media has a distinguished reputation. 
(ix) Evidence that the alien has commanded a high salary or other significant1.y high remuneration for 
services, in relation to others in the$eld 
The petitioner did not originally claim eligibility under this criterion. On appeal, counsel claimed the petitioner 
met this criterion because a letter from the petitioner's employer confirms a job offer to the petitioner at a rate in 
conformation with the existing guild agreements for his guild job classification. The AAO determined that this 
letter merely indicated that the petitioner was offered a job at the standard wage and was insufficient evidence 
that the alien had actually earned a high salary or other significantly high remuneration for his services. Counsel 
does not contest this determination on motion. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act only if the alien can 
establish extraordinary ability through extensive documentation of sustained national or international acclaim 
demonstrating that the alien has risen to the very top of his or her field. The petitioner bears this substantial 
burden of proof. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner in this case has not sustained that 
burden. The evidence indicates that the petitioner is a talented sound re-recording engineer who is well 
respected and valued by his employer, colleagues and clients. However, the record does not establish that he is 
an alien of extraordinary ability in the arts. Accordingly, the previous decision of the AAO will be affirmed and 
the petition will be denied. 
ORDER: The AAO's decision of June 1, 2004 is affirmed. The petition is denied.