dismissed EB-1A Case: Traditional Thai Music

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Auueals, MS 2090 
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 Washington, DC 20529-i090 
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 U. S. Citizenship 
and Immigration 
PUBLIC COPY 
MAY I e 2009 
Office: NEBRASKA SERVICE CENTER Date: 
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. 5 103.5 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. 5 103.5(a)(l)(i). 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary 
to qualify for classification as an alien of extraordinary ability. The director also questioned the 
petitioner's intention to continue working in her field. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, the 
petitioner has not overcome the director's valid concerns. Significantly, the record does not contain 
evidence of the petitioner's sustained acclaim in June 2007 when she filed the petition. Rather, any 
national recognition she may have enjoyed as a child in Thailand ended in the 1990's. While the 
petitioner entered the United States as a student of human resources management in 2005,' the record 
contains no evidence of national-level recognition of her musical ability after that date. 
Section 203(b) of the Act states, in pertinent part, that: 
(I) 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. 
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 56 Fed. Reg. 60897,60898-9 (Nov. 29, 
1991). As used in this section, the term "extraordinary ability" means a level of expertise indicating 
1 
According to her Form G-325A Biographic Information submitted in support of her Form 1-485 Application 
to Register Permanent Residence or Adjust Status, the petitioner has been working in this field since 
September 2005. 
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@)(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. $204.5(h)(3). The relevant criteria will be addressed below. 
It should be reiterated, however, that the petitioner must show that she has sustained national or 
international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a Sor DuanglSor 
Au Preng Thai Derm (Thai musical instruments) performer. The regulation at 8 C.F.R. 5 204.5@)(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). 
In response to the director's request for additional evidence, counsel asserted that the petitioner's 
performances for the King and Queen of Thailand constitute a one-time achievement. The director 
concluded that the petitioner had not submitted any evidence of lesser awards, implying a conclusion 
that the petitioner had also not demonstrated a major internationally recognized award. On appeal, 
counsel does not affirmatively assert that the petitioner has a one-time achievement, but asserts in his 
final conclusion that the director erred in concluding that the petitioner had not demonstrated a one- 
time achievement or met the alternative requirements for eligibility. 
Congress' example of a one-time achievement is a Nobel Prize. H.R. Rep. No. 101-723, 59 (Sept. 19, 
1990). The regulation is consistent with this legislative history, stating that a one-time achievement 
must be a major, internationally recognized award. 8 C.F.R. 8 204.5(h)(3). Significantly, even a lesser 
internationally recognized award could serve to meet only one of the ten regulatory criteria, of which an 
alien must meet at least three. 8 C.F.R. 8 204.5@)(3)(i). The selection of Nobel Laureates, the example 
provided by Congress, is reported in the top media internationally regardless of the nationality of the 
awardees, is a familiar name to the public at large and includes a very large cash prize. While an 
internationally recognized award could conceivably constitute a one-time achievement without meeting 
all of those elements, it is clear from the example provided by Congress that the award must be 
internationally recognized in the alien's field as one of the top awards in that field. 
An invitation to perform before the Thai King and Queen is not an award. Rather, the performance 
appears to fall under the display criterion set forth at 8 C.F.R. § 204.5@)(3)(vii), which the director 
concluded that the petitioner meets. The record contains no evidence documenting that performances 
before the Thai King and Queen are internationally recognized as one of the top awards in the field of 
traditional music. While we recognize that the petitioner plays traditional Thai instruments, neither the 
statute nor the regulation suggests that every field has a major internationally recognized award. The 
petitioner cannot rely on what is claimed to be a nationally recognized performance (which is not an 
award) to demonstrate a major internationally recognized award simply because there is no such award 
in her field. Significantly, the regulation at 8 C.F.R. 5 204.5(h)(4) only permits the submission of 
comparable evidence for the alternative 10 regulatory criteria, of which, as will be explained below, an 
alien must meet at least three. 
Page 4 
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 qualifl as an alien of 
extraordinary ability. The petitioner has submitted evidence that, she claims, meets the following 
 riter ria.^ 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in thejeld of endeavor. 
The petitioner submitted several foreign language certificates accompanied by the petitioner's own 
explanation of the content. The petitioner did not provide certified translations as required under 
8 C.F.R. 5 103.2@)(3). According to the petitioner's summary of these certificates, the petitioner was 
selected as one of 12 Thai "juvenile representatives," and the only traditional musician, to attend a 
Chinese cultural exchange. While the summary of the foreign language document does not provide a 
date, letters in the record confirm that the cultural exchange took place in 1995. The petitioner was also 
the second runner up of the National High School Thai traditional music contest for the Royal Highness 
Princess Sirintorn's Trophy in 1995. She received a certificate at the same competition in 1994, but the 
certificate appears to recognize the petitioner's participation rather than an award or prize. Finally, the 
petitioner received a "Certificate of Honor" from the local Wat Buddhavas of Houston, Texas, in 
recognition of donating her time as a volunteer teacher in Thai language, culture, traditional music and 
traditional dance for one year in a foreign country. 
In response to the director's request for additional evidence, counsel asserts that the petitioner was not 
merely selected for participation in the cultural exchange, but won an award and was featured in an 
advertisement based on her award. Responding to the director's concerns that youth awards cannot 
serve to meet this criterion, counsel asserted that the award was sponsored and advertised by the 
national Thai government and that the petitioner was selected from over 1,000 competitors. Counsel 
then notes the submission of letters attesting to the significance of the "award." 
representative of the Exchange Program, asserts that the program involves "a 
very selective process in choosing only 12 students out of [the] entire country to represent Thailand in 
an exchange program with the Republic of China." explains that in October 1995, the 
petitioner "won this very prestigious award and was selected to represent the country of Thailand during 
her visit to the Republic of China." , a professor at Chulalongkorn University 
and one of the exchange program judges, confirms that the petitioner was selected as the best in her 
field and that the remaining 11 champions were the best in their own fields. 
-1 former member of the Thai Parliament and a current Thai minister, 
asserts that the petitioner "won the contest for the Exchange Culture Promam to represent Thailand in 
the Republic of china." 
 permaneit Secretary ofthe Thai Ministry of Energy, 
2 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
asserts that he invited the petitioner to perform at the ministry in 2002 based on her "national award of 
Thai Traditional Music in the Exchange Culture Program" from seven years earlier. The petitioner 
submits a similar letter fiom the Assistant Director of the Youth Promotion Project at the Thai Ministry 
of Social Development and Social Security. 
The petitioner submitted her own certified translation of an advertisement for the cultural exchange 
program that features her photograph and identifies her as one of those selected for the exchange. 
The director concluded that the cultural exchange, while national, was limited to students and could not 
serve to meet hs criterion. On appeal, counsel asserts that the petitioner submitted five awards and 
discusses the national sponsors and competitors for the cultural exchange. Counsel further asserts that 
that the second place finish for the Royal Highness Princess Sirintom's Trophy was also the result of a 
national competition. Counsel continues to assert that the petitioner's performances constitute awards. 
Finally, counsel asserts that the "Certificate of Honor" from the Wat Buddhavas of Houston was based 
on a competition of thousands of individuals in Thailand. Counsel attempts to broaden the actual 
regulation at 8 C.F.R. § 204.5(h)(3)(i) by referring repeatedly to awards and "distinctions." The 
regulation at 8 C.F.R. $204.5(h)(3)(i), however, references only awards and prizes. 
The petitioner submits a letter from fi an associate professor at 
Chulalongkom University where the petitioner obtained her baccalaureate in education. Professor 
explains that each year the Gversity sends volunteer teachers to Thai temples in the United 
States to teach Thai and that the petitioner was selected to teach in Texas "in the year of 2001-2002." 
He concludes that the petitioner "won the first place of selection process of that year which means she 
was the best outstanding candidate for the year." does not suggest that the petitioner was 
selected fiom a national pool of candidates as opposed to graduates of the university. 
The fact that some of the petitioner's references characterize the petitioner's selection for participation 
in the cultural exchange and a volunteer one-year teaching position as awards cannot transform 
something that is not an award into an award. An award or prize for excellence is issued to recognize 
past achievement. Selection for participation in a future event, such as a cultural exchange, or for 
employment as a teacher, is not an award or prize. Similarly, performing for high level officials or 
royalty falls under the display criterion at 8 C.F.R. 204.5(h)(3)(vii) and will not also be considered 
"awards" or "prizes." To hold otherwise would render meaningless the statutory requirement for 
extensive evidence and the regulatory requirement that an alien meet at least three separate criteria. 
Even if we accepted that the cultural exchange selection constituted an award, we concur with the 
director that awards limited to student competitors cannot serve to meet this criterion. While the fact 
that the petitioner was only 14 when selected for the cultural exchange and as the second runner up for 
the trophy competition is not determinative, the fact that she only competed against other high school 
students is problematic. As she did not compete against the most experienced and renowned members 
of her field, we cannot conclude that the selection for the cultural exchange or as second runner up for 
the trophy can serve to meet this criterion. Similarly, the petitioner has not established that the most 
Page 6 
experienced and renowned musicians compete for volunteer one-year teaching positions at U.S. Thai 
temples. As stated above, does not even suggest that the pool of candidates for these 
positions extended beyond recent graduates of his university. 
Finally none of the above evidence postdates 2001. Thus, none of the above evidence demonstrates 
that the petitioner enjoyed sustained national or international acclaim nearly six years later when the 
petition was filed. 
In light of the above, the petitioner has not demonstrated that she meets this criterion. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the jeld for which classijication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
Initially, the petitioner submitted a March 2007 article entitled "Thai Traditional Music Always has its 
Successor" published in the Thai Texas News. While the petitioner submitted a translation for the 
article, it is not certified as required under 8 C.F.R. 5 103.2(b)(3). In response to the director's request 
for evidence that this publication is major media, counsel refers to a September 12,2006 memorandum 
by USCIS Acting Associate Director for Domestic Operations, Michael Aytes, AFM Update: Chapter 
22: Employment-based Petitions (AD03-01). The memorandum states: "Regional publications or 
publications aimed at a particular ethnic or language group generally will be sufficient only if the 
publications are considered the top publications in the field, or the publications enjoy national or 
international circulation and reputation beyond that of the publications' intended audience." Counsel 
asserts that the Thai Texas News "is considered the top Thai publication in Texas." The petitioner 
submits a letter from Anuchit Chareonto, Editor of the Thai Texas News, stating that although the 
newspaper is local to Houston, it is "a center of communication among Thai people'' and distributes 
around 3,000 copies to other large cities in Texas. 
The petitioner also submitted an article about the petitioner's teaching in Houston in the Matichon 
Newspaper and a certified translation by the petitioner. The article postdates the filing of the petition 
and, in fact, the director's request for additional evidence. The petitioner submitted materials about the 
company that owns Matichon Newspaper revealing that it also owns the Khao-sod Daily, which ranks 
third in Thailand in terms of circulation. The record does not establish, however, that the article about 
the petitioner appeared in the Khao-sod Daily. The circulation of Matichon Newspaper is not 
documented in the record. 
The director concluded that the petitioner had not established that the Thai Texas News was major 
media and that the article in the Matichon Newspaper was a human interest story that was not indicative 
of national or international acclaim. 
On appeal, counsel asserts that the Thai Texas News should be considered major media because it 
reaches 40 percent of the Thai population in Texas. Counsel fhther asserts that the article in the 
Matichon Newspaper focuses on the petitioner's accomplishments and should serve to meet this 
criterion. 
We are not persuaded that a newspaper aimed at the Thai population of a single state published in a 
language the majority of the population cannot comprehend with a distribution of only 3,000 outside of 
Houston and no significant circulation outside of Texas can serve to meet this criterion. Counsel's 
reliance on the memorandum is not persuasive. The AAO is bound by the Act, agency regulations, 
precedent decisions of the agency and published decisions from the circuit court of appeals from 
whatever circuit that the action arose. See N.L.R.B. v. Ashkenazy Property Management Corp., 81 7 
F.2d 74, 75 (9th Cir. 1987) (administrative agencies are not free to refuse to follow precedent in cases 
originating within the circuit); R.L. Inv. Ltd. Partners v. INS, 86 F. Supp. 2d 1014, 1022 (D. Haw. 
2000), aff'd 273 F.3d 874 (9th Cir. 2001) (unpublished agency decisions and agency legal 
memoranda are not binding under the APA, even when they are published in private publications or 
widely circulated). Even USCIS internal memoranda do not establish judicially enforceable rights. 
See Lou-Herrera v. Trominski, 231 F.3d 984, 989 (5~ Cir. 2000) (an agency's internal guidelines 
"neither confer upon [plaintiffs] substantive rights nor provide procedures upon which [they] may 
rely.") 
Regardless, the memorandum does not support counsel's assertion. First, a Houston publication with 
some distribution in other cities in Texas is more local than "regional." Moreover, the memorandum 
strongly implies that most regional or ethnic publications cannot serve to meet this criterion. 
Regardless of its reputation among the Thai population in Texas, the record does not reflect that the 
Thai Texas News is considered the top publication "in the field," the exception provided in the 
memorandum. "In the field" implies recognition beyond the Thai population of the State of Texas. 
Significantly, the criteria are designed to demonstrate national or international acclaim. Counsel has 
never explained how the article in this publication, with its minimal circulation in Texas, is 
indicative of or consistent with national or international acclaim in the United States or Thailand. 
As stated above, the article in the Matichon Newspaper postdates the filing of the petition. The 
petitioner must establish her eligibility as of that date. See 8 C.F.R. $8 103.2(b)(l), (12); Matter of 
Katigbak, 14 I&N Dec. 45,49 (Reg'l. Comm'r. 1971). Thus, we cannot consider any achievements 
after that date. Moreover, the petitioner has not established the circulation of this newspaper. 
Finally, in relation to the evidence in the aggregate, while the article itself is recent, it begins by 
mentioning two University of Houston medical students studying traditional Thai music under the 
petitioner and concludes with a retrospective of her accomplishments in the early 1990's. The article 
does not suggest any recent accomplishments or sustained acclaim in 2007 when the petition was 
filed. 
In light of the above, the petitioner has not demonstrated that she meets this criterion. 
Evidence of the alien's original scientijc, scholarly, artistic, athletic, or business-related 
contributions of major signijcance in thejield. 
The initial submission and the response to the director's request for additional evidence do not address 
this criterion. The director acknowledged the submission of reference letters but concludes that they do 
not discuss any original contributions by the petitioner. On appeal, counsel asserts that this conclusion 
was in error: 
Many of the letters came fiom members of the Thai government detailing events to 
whch the petitioner was invited to perform. Otha reference letters came fiom 
prominent figures who participated in the selection and judging of the competitions that 
the petitioner competed in. It is not expected that these reference letters will form the 
basis and foundation of the petitioner's request for classification as an individual of 
extraordinary ability, but it is requested that these reference letters at a minimum be 
considered supporting evidence to the petitioner's filing. 
This decision considers the letters insofar as they address the regulatory criteria. Counsel does not, 
however, identifL a specific original contribution attested to in any of these letters and we concur with 
the director that while the letters praise the petitioner and affirm her performances for the Thai 
government and royalty, none of the letters affirm any original contributions to traditional Thai music. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence of the alien's authorship of scholarly articles in thejield, in profesional or major trade 
publications or other major media. 
The petitioner submitted an article entitled "The Sweet Sounds of Thai Sor" published in June 2007 in 
the Buriram Navs. In response to the director's request for additional evidence, the petitioner 
submitted the identical article published in Pirap News shortly after the director issued the request. 
, Editor-in-Chief of the Buriram News, asserts that it was established in 2002 
and is the main newspaper of Buriram Province. - the editor of Pirap News asserts 
that it is the main newspaper of Roy-Et Province. Significantly, both provinces are in the east and 
northeast of Thailand. 
The article itself, authored by the petitioner, describes the look and make-up of Sor Duang and Sor Au 
and the petitioner's general approach to teaching students to play these instruments by making the 
students feel comfortable with the instruments by comparing them to the violin. The article does not 
provide any scholarly information about the instruments other than the most basic description of them 
or teaching methods beyond the very broad concept of making students feel comfortable with the 
instrument. 
Page 9 
The director concluded that the publications were not national publications. On appeal, counsel asserts 
that the publications, while not national, are still major media. Counsel is not persuasive. The statute 
requires national or international acclaim. Publication in regional publications with no circulation in 
the center or west of the country, cannot establish that the petitioner has any national recognition. 
Regardless, as stated above, the article is not scholarly. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence of the display of the alien's work in thejeld at artistic exhibitions or showcases. 
The director concluded that the petitioner meets this criterion and we will not withdraw that conclusion. 
We note, however, that the petitioner's performances after 2002 do not appear to be at the national 
level. Thus, even this evidence is not indicative of sustained national acclaim as of the date of filing in 
2007. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
Initially, the petitioner submitted a letter from 
 President of the Thai Texas 
Association. 
 asserts that the association participates in several events showcasing 
Thai culture and that the petitioner "always plays a critical role as a participant and musical artists for 
the Thai Texas Association during these events," including serving as Master of Ceremonies. In 
response to the director's request for additional evidence, the petitioner submitted a new letter from Mr. 
-, attesting to the association's distinguished reputation in the United States and Thailand, 
noting that the association hosted the Thai King and Queen during their U.S. visit. - 
further asserts that the petitioner "has played a leading role wihn our organization by implementing 
her musical talents with the Sor Duang and Sor Au into our many cultural events," including a Tsunami 
relief event. The petitioner submits a certificate of participation in the Youth Cultural Exchange Project 
from the Mayor of Houston, an appointment of the association as a cultural ambassador for Houston 
from the Mayor, a Certificate of Special Congressional Recognition from a member of congress 
recognizing the association's relief efforts and a letter of appreciation from former presidents George H. 
W. Bush and Bill Clinton for tsunami relief funds raised. 
The director concluded that the petitioner had not established that the Thai Texas Association enjoys a 
distinguished reputation nationally. On appeal, counsel once again references the memorandum by Mr. 
Aytes for the proposition that the association need only have hosted a distinguished production. 
Counsel asserts that the tsunami relief event and hosting the King and Queen of Thailand were both 
distinguished productions. 
The record contains no evidence that the tsunami relief event was a distinguished production. The fact 
that the association donated the funds to the efforts coordinated by fonner Presidents Bush and Clinton 
does not suggest that the event itself had a distinguished reputation. The record also lacks evidence that 
the Thai Texas Association managed the entire U.S. visit for the Thai King and Queen or just the Texas 
portion of the visit. Moreover, the record does not suggest that the association managed the visit 
because of its national prestige rather than its ties to the Texas Thai community that would take an 
interest in the visit. 
It remains, we are not persuaded that the petitioner's participation in the Thai Texas Association's 
cultural events, even as a master of ceremonies, is indicative of or consistent with national or 
international acclaim as a musician rather than recognition in the Texas Thai community. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished herself as a 
traditional Thai musician to such an extent that she may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of er field. The evidence 
indicates that the petitioner, at a young age, showed talent as a traditional Thai musician, but is not 
persuasive that the petitioner's achievements currently set her 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. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.