dismissed EB-1A Case: Violinist

, 
identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac} 
PUBLIC COpy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and imllllgration Services 
Administrative Appeals Office (AAO) 
20 MassClchusetls Ave .. N.W" MS 2090 
Washington, DC 20529·1090 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: 
MAR 3 1 2011 
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. § II S3(b)(1 )(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 1-290B, 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, 
IJ()~ [i Ik :j( . . ./ ' 
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 October 23, 2009, and is now before the Administrative Appeals Office (AAO) 
on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § I 153(b)(l)(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 his 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 "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203(b)(l)(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 petitioner meets at lcast 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. 723 101" 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. [d. and 8 C.F.R. § 204.S(h)(2). 
The regulation at 8 C.F.R. § 204.S(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. lI1 
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. I 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 COUIt stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as pmt 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}." !d. 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 detelmines whether the 
evidence demonstrates both a "level of expeltise indicating that the individual is one 
of that small percentage who have risen to the very top of the[irl 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). 
1£1. 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), afN, 345 F.3d 683 (9th Cir. 2003); 
see also So/tane v. DO}, 381 FJd 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
I Specifically. the court stated that the AAO had unilaterally imposed novel, substantive, or evidentiary requirements 
beyond those set t(lrth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.ER. § 204.5(h)(3)(vi). 
Page S 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on April II, 2008, seeks to classify the pctItloner as an alien with 
extraordinary ability as a violinist. The petitioner has submitted evidence pertaining to the 
following criteria under the regulation at 8 C.F.R. § 204.5(h)(3). 2 
Documentation of the alien' s receipt o/, lesser nationally or internationally 
recognized prizes or awardsfor excellence in the field olendeavor. 
In the director's decision, he concluded that the petitioner failed to establish eligibility for this 
criterion. A review of the record of proceeding reflects that the petitioner claims eligibility for 
this criterion based on the following documentary evidence: 
1. 
sponsored by 
~rwon 
_2006; 
2. A certificate for the 
that the petitioner 
2006; and 
3. A letter, dated March 10, 2005, from of the 
Young Musical Scholar Foundation (YMSF) to the petitioner 
reflecting that "[t Ihe Board also understands I the petitioner's I 
financial needs. Therefore, [the petitioner] will be awarded a YMSF 
scholarship in the amount of_." 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[dlocumentation of 
the alien's receipt of lesser nationally or internationally recognized prizes or awards for 
excellence in the field of endeavor." Moreover, it is the petitioner's burden to establish 
eligibility for every element of this criterion. Not only must the petitioner demonstrate his 
receipt of prizes and awards, he must also demonstrate that those prizes and awards are 
nationally or internationally recognized for excellence. In other words, the petitioner must 
establish that his prizes and awards are recognized nationally or internationally beyond the 
awarding entities. 
Regarding items 1 and 2, the petitioner submitted screenshots from www.houstonsymphony.org 
that provides a brief background of the Houston . However, the screenshots do not 
provide any information regarding 
2 The petitioner docs not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 6 
so as to establish that the awards are 
nationally or internationally recognized for excellence in the petitioner's field. Similarly, the 
petitioner submitted screenshots from http://cn.wikipcdia.org As there are 
no assurances about the reliability of the content from this open, user-edited Internet site, we will 
not assign weight to information from Wikipedia. See Laamilem Badasa v. Michael Mukmcy, 
540 F.3d 909 (Slh Cir. 200S). J Nonetheless, the screenshots from Wikipedia reflect a biography 
of_and not the In fact, the only mention of the 
reflects that "[tlhe Houston . an annual 
for musicians between the ages of 16 and 29 who perform on orchestral instruments 
"""II V . the information from Wikipedia fails to demonstrate that the awards from 
are nationally or internationally recognized for 
excellence in the petitioner's Iy, the petitioner submitted a screens hot from 
http://appl.kuhLorg/ that merely reflected that the competition would be broad casted on the local 
public radio station in Houston, KUHF. We are not persuaded that a competition that is 
broad casted on a local radio station demonstrates that any derived awards are nationally or 
internationally recognized for excellence in the field and not just recognized by the awarding 
entity. 
Regarding item 3, the petitioner submitted screenshots that listed 
three individuals who won scholarships and indicated that the pelttlOner was the "first 
scholarship recipient." However, academic study is not a field of endeavor, but training for a 
future field of endeavor. As such, academic scholarships. student awards, and financial aid 
awards cannot be considered nationally or internationally recognized prizes or awards in the 
petitioner's field of endeavor. Moreover, financial aid awards are reserved for students in need 
of financial assistance to pay for tuition and not based on excellence in the field. Therefore, the 
petitioner failed to establish that his scholarship from _ is a nationally or internationally 
recognized prize or award for excellence in the field. 
We note here that the petitioner submitted several recommendation letters that referred to other 
awards won by the petitioner. For example, The lulliard 
J See also the online content from http://cn,wikipedia.orglv,/ikiM'ikipcdia: General disclaim!..:'f, accessed on March 
29,20 [ I, and copy incorporated into the record of proceeding is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO GURANTEE OF V ALlDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone 
with an Internet connection to alter its content. Please be advised that nothing found here has 
necessarily been reviewed by people with the expertise required to provide you with complete. 
accurate or reliable information. Wikipedia cannot guarantee the validity of the information 
found here. The content of any given article may recently have been changed, vandalized or 
altered by someone whose opinion does not correspond with the state of knowledge in the relevant 
fields. 
Page 7 
School, indicated that the petitioner "received the 
Walnut Hill School before coming to Juilliard." Moreover, 
England Conservatory, stated that the petitioner "was the recipient of 
~honor from the pre-college of the New England Conservatory." Further, 
_at the indicated that the petitioner 
first in [the I . and Second 
stated that the petitioner was granted 'The 
Most Outstanding Musician" by the According to the regulation at 
8 C.F.R. ~ 103.2(b)(2)(i), the non-existence or unavailability of required evidence creates a 
presumption of ineligibility. According to the same regulation, only where the petitioner 
demonstrates that primary evidence does not exist or cannot be obtained may the petitioner rely on 
secondary evidence and only where secondary evidence is demonstrated to be unavailable may the 
petitioner rely on affidavits. In this case, the petitioner failed to submit primary or secondary 
evidence of any of the awards referenced in the letters, and the petitioner failed to submit any 
evidence demonstrating that primary and secondary evidence do not exist. Accordingly, the 
evidence is not probative and will not be accorded any weight in this proceeding. The petitioner 
failed to establish that he received any of the prizes or awards, and they are nationally or 
internationally recognized for excellence in his field pursuant to the plain language of the 
regulation at 8 C.F.R. ~ 204.5(h)(3)(i). 
We also note that the petitioner submitted documentary evidence reflecting that he finished in 
third place at the in Allentown, PA. However, the petition was 
filed on April II, at the time of filing. Therefore, we will 
not consider the petitioner's third place finish as evidence to establish his eligibility. 8 C.F.R. 
§~ 103.2(b)(1), (12); Matter q{Katigbak, 141&N Dec. 45, 49 (Reg!. Commr. 1971). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter o{ [zummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). That decision further provides, citing 
Matter o{ Bardouille, 18 I&N Dec. 114 (BIA 1981), that we cannot "consider facts that come 
into heing only subsequent to the filing of a " [d. at 176. We further note that although 
the petitioner submitted a letter from of the Allentown 
Symphony, who indicated that the compe~estigious" and "attracts judges who are well 
known and respected across the nation:_ failed to indicate that the awards from the 
competition are nationally or internationally recognized for excellence in the field. 
We finally note that the petitioner submitted documentary evidence reflecting that he competed 
at the 2009 Queen Elizabeth Competition. Notwithstanding that the competition occurred after 
the filing of the petition, according to the screenshot from www.cmireh.he/en/ submitted by the 
petitioner, first place in violin was awarded to_ second place was awarded to _ 
_ , and third place was awarded to Illian Garnet. There is no indication that the petitioner 
won any prize or award from the 2009 Queen Elizabeth Competition. It is insufficient to 
establish eligibility for this criterion based simply on competing at a competition without 
documentary evidence establishing that the petitioner received nationally or internationally 
recognized prizes or awards for excellence in the field. 
• 
-Page 8 
As discussed, the plain language of this regulatory criterion specifically requires that the 
petitioner's prizes or awards be nationally or internationally recognized for excellence in his 
field. In this case, the petitioner failed to demonstrate that his prizes or awards are tantamount to 
nationally or internationally recognized prizes or awards for excellence in the field of endeavor. 
Accordingly, the petitioner failed to establish eligibility for this criterion. 
Puhlished 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. 
The director found that the petitioner failed to establish eligibility for this criterion. In counsel's 
brief, he did not contest the decision of the director or offer additional arguments. The AAO, 
therefore, considers this issue to be abandoned and will not further discuss this criterion on 
appeal. See Sepulveda v. u.s. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic. or business­
related contributions of major significance in thefie/d. 
A review of the record of proceeding fails to reflect that the petitioner claimed eligibility for this 
criterion at the time of the original filing of the petition or in response to the director's notice of 
intent to deny pursuant to the regulation at 8 C.F.R. § 103.2(b)(8). However, on appeal, the 
petitioner is now claiming eligibility for this criterion. As such, the director could not have erred 
in his decision as the petitioner is only claiming eligibility for this criterion for the first time on 
appeal. 
On appeal, counsel argues: 
[The petitioner] has made significant contributions to his field of endeavor 
through his performances in world renowned orchestras such as the Houston 
Symphony Orchestra, which is considered one of the leading orchestras in the 
U.S. He has also made significant impact through his solo and chamber music 
performances. [The has been the of awards and 
honors of the 
the 
the 
Page 9 
As it relates to counsel's references to the petitioner awards, the regulations contain a separate 
criterion regarding nationally or intemationally recognized prizes or awards for excellence. 8 
C.F.R. § 204.5(h)(3)(i). Furthermore, as it relates to counsel's reference to the petitioner's 
performances to meet this criterion, the regulations contain a separate criterion regarding leading or 
critical roles pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vi) and commercial successes 
pursuant to the regulation at 8 c.F.R. § 204.5(h)(3)(x). We will not presume that evidence relating 
to or even meeting the awards criterion, the leading or critical role criterion, and the commercial 
successes criterion are presumptive evidence that the petitioner also meets this criterion. To hold 
otherwise would render meaningless the regulatory requirement that a petitioner meet at least three 
separate criteria. Therefore, while the petitioner's awards and pelformances will not be considered 
under this criterion, the awards criterion has already been addressed above, and the leading or 
critical role criterion and the commercial successes criterion will be addressed later. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3 lev) requires "[ e Ividence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." In compliance with Kazarian, the AAO must focus on the plain 
language of the regulatory criteria. 596 F.3d at 1121. Here, the evidence must be reviewed to see 
whether it rises to the level of original artistic-related contributions "of major significance in the 
field." 
In counsel's brief, he also claims the petitioner's eligibility for this criterion based on 
recommendation letters. While the recommendation letters praise the petitioner for his work as a 
violinist, they fail to indicate that he has made original contributions of major significance in the 
field. The letters provide only general statements without offering any specific information to 
establish how the petitioner's work has been of major significance. In fact, as previously 
indicated, the letters summarize the petitioner's awards and performances but fail to explain how 
the petitioner's awards and performances are original contributions of major significance in the 
field. Again, the petitioner's awards have already been discussed under the awards criterion, and 
the petitioner's performances will be addressed under the leading or critical role criterion and the 
commercial successes criterion. 
Moreover, a review of the recommendation letters reflects that the authors admire and commend the 
petitioner for both his personal traits as well as his talent as a violinist and musician. For example, 
Dr the Foundation for Chinese Performing Arts, stated that the 
petitioner's "qualities are consistency of the highest integrity, honesty, caring, and intelligence." 
Further,_ stated that the petitioner's "intellectual depth, creativity, and extraordinary 
contributIons make him one of the top musicians in the field of classical music, in violin 
performances and program design." In addition, of Aspen Music 
Festival and School, stated that the petitioner a deep emotional 
maturity and an understanding of music and violin repertoire that is well beyond his years" and 
"[ t I hese rari fied abilities in someone so are most certainly prodigious both on human and 
artistic levels." Also, Faculty Member at The Julliard SchooL stated that the 
petitioner "excels in chamber . repertoire playing with musicians not onl of his own age but 
also with older colleagues who readily accept him as an equal." Finally, that 
Page 10 
the petitioner's "personal qualities are consistently of the highest integrity, honesty, caring, and 
intelligence," and __ tated that the petitioner "is confident, persevering, bright hard working, 
cooperative, and innovative." However, none of the letters indicated how the petitioner's skills or 
personal traits are original contributions of major significance to the field. Merely having a 
diverse skill set is not a contribution of major significance in and of itself. Rather, the record 
must be supported by evidence that the petitioner has already used those unique skills to impact 
the field at a significant level in an original way. Furthermore, assuming the petitioner's skills 
are unique, the classification sought was not designed merely to alleviate skill shortages in a 
given field. [n 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. 
o(Transp., 22 [&N Dec. 215, 221 (Commr. 1998). 
[n addition, while failing to describe the significance of the petitioner's work, the letters also fail 
to provide specific details to explain how his contributions have currently impacted his field so 
as to be considered contributions of major significance. For instance, _ stated that the 
petitioner "will contribute his immense talent to the American musical scene if allowed to reside 
permanently in this country" and "[h]is performances will be a wonderful addition to the m1istic 
richness of this country lemphasis added]." Further, _ stated that the petitioner's 
"continuing work in this important field will benefit the classical music world as well 
as the United States [emphasis added]." [n Conservatory, stated that 
"[ found [the petitioner] to be an outstanding talent, one which [ felt would make an 
important contribution to the music world [emphasis added[." Moreover, 
.II1II •••••••• stated that the petitioner "will contribute his immense talent to the American 
musical scene if allowed to reside permanently in this country" and the petitioner's pelformances 
wonderful addition to the artistic riches of this country [emphasis added]." Furthermore, 
stated that "[ w [hile [the petitioner] will be able to reach his full potelltial, he ('(Ill also 
significantly contribute to the country's music industry [emphasis added]." Finally,_stated 
that the petitioner "is set to further serve the music industry of the United States" and "[h[e is sure 
to he a treasured musician in years to come [emphasis added]." 
Given the descriptions in terms of future applicability and determinations that may occur at a 
later date, it appears that the impact or int1uence of the petitioner's work have yet to be 
determined. While the petitioner'S performances at several venues may be considered as 
original contributions, not one letter submitted on behalf of the petitioner indicates that his 
performances have been of major significance in the field and not limited to the venues in which 
he has performed. The petitioner's references appear to speculate about how the petitioner's 
contributions may affect the field at some point in the future. Eligibility must be established at 
the time of filing. 8 C.F.R. §§ I03.2(b)(1), (12); Matter of' Katighak, 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'lzummi, 22 [&N Dec. at 175. That decision further provides, citing Maller of' 
Bardouille, 18 I&N Dec. at 114, that we cannot "consider facts that come into being only 
subsequent to the filing of a petition." lei. at 176. Many of the letters proffered do in fact discuss 
far more persuasively the future promise of the petitioner's contributions and the impact that may 
result from his work, rather than how his past work already qualifies as a contribution of major 
-Page II 
significance in the field. A petitioner cannot file a petition under this classification based on the 
expectation of future eligibility. The assertion that the petitioner's contributions are likely to be 
influential is not adequate to establish that his work is already recognized as major contributions 
in the field. While the experts praise the petitioner's work as of great potential interest, the fact 
remains that any measurable impact that results from the petitioner's contributions will likely 
occur in the future. 
While those familiar with the petitioner's work generally describe it as "exemplary," 
"wonderful," and "unique," the letters contain general statements that lack specific details to 
demonstrate that the petitioner's work is of major significance. This regulatory criterion not only 
requires the petitioner to make original contributions, but also requires those contributions to be 
significant. We are not persuaded by vague, solicited letters that simply repeat the regulatory 
language but do not explain how the petitioner's 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 petitioner's present contributions. 
Further, USCIS may, in its discretion, use as advisory opinion statements submitted as expelt 
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 petitioner's 
personal contacts is not presumptive evidence of eligibility; uscrs may evaluate the content of 
those letters as to whether they support the alien's eligibility. See id. at 795. Thus, the content 
of the writers' statements and how they became aware of the petitioner'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. 
We must presume that the phrase "major significance" is not superfluous and, thus, that it has 
some meaning. Without additional, specific evidence showing that the petitioner's work has not 
only been original, but also unusually influential, or has otherwise risen to the level of 
contributions of major significance, we cannot conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish that he 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 established eligibility for this criterion 
based on the "petitioner's performances with the Houston Symphony Orchestra, the Quincy 
Symphony Orchestra, the Evergreen Symphony Orchestra, the La lolla Summer Fest, the Aspen 
, Fedin Bros. Co .. Ltd. v. SOl'a, 724 F. Supp. 1103. 1108 (ED.N.Y. 1989). affd. 905 F. 2e1 41 (2d. Cir. 1990): Avyr 
Associates. Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Page 12 
Music Festival, the New England Conservatory, and many solo performances." However, based 
on a review of the record of proceeding we must withdraw the findings of the director for this 
criterion for the reasons discussed below. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires "Ielvidence of the 
display of the alien's work in the field at artistic exhibitions or showcases." The petitioner is a 
violinist. When he is performing or playing his violin acts 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 petitioner is performing his work, he is not displaying his work. In 
addition, to the extent that the petitioner 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 we were to accept that a performance artist like the petitioner meets this criterion, it would 
render the regulatory requirement that the petitioner meet at least three criteria meaningless as 
this criterion would effectively be collapsed into the criterion at the regulation at 8 C.F.R. 
§ 204.5(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-CY-820-ECR-RJJ at 8-9 (D. Nev. Sept. 8, 
2008) (finding that the AAO did not abuse its discretion in finding that a performance artist 
should not be considered under the display criterion). While we acknowledge that a district 
court's decision is not binding, the court's reasoning indicates that the AAO's interpretation of 
the regulation is reasonable. 
Therefore, while the petitioner's performances have evidentiary value for other criteria, they 
cannot serve to meet this criterion. Instead, as the petitioner'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. As such, we withdraw the decision of the director for this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has performed in a leadin[i or critical role Fir orwmizations 
or establishments that have a distin[iuished reputation. 
The director found that the petitioner failed to establish eligibility for this criterion. In counsel's 
brief, he did not contest the decision of the director or offer additional arguments. However, as 
indicated above, we will evaluate the petitioner's documentary evidence regarding his roles in 
performances at various venues as evidence of eligibility for this criterion. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)( viii) requires "[ e lvidence that the 
alien has performed in a leadill[i or critical role for organizations or establishments that have a 
distinguished reputation [emphasis added]." 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. 
Page 13 
At the outset, regarding the petitioner's participation at SummerFest 2008 b~ 
_ the festival occurred in August 2008, after the filing of the petition. Eligibility must be 
established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter (!f Katighak, 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 ollzummi, 22 I&N Dec. at 175. That decision further provides. citing 
Malter of' Bardouille, 18 I&N Dec. at 114, that we cannot "consider facts that come into being 
only subsequent to the filing of a petition." Id. at 176. 
A review of the record of proceeding reflects that the petitioner submitted documentary evidence 
regarding his performances at several venues such as the Aspen Music Festival and School, 
Houston Chronicle Dollar Concert, The Walnut Hill School Department of Music. the Williams 
Memorial Residence, The John F. Kennedy Center for the Performing Arts, The Chamber Music 
Society of Lincoln Center, Taipei Economic & Cultural Office in New York, Benedict Music 
Tent, and Alice Tully Hall. However, there is no indication from a review of the documentary 
evidence that the petitioner performed in a leading or critical role. For example, the petitioner 
submitted a program from the simply listed him as a violinist 
with five other at the venue. the petitioner submitted a program for the 
that listed him as a performer along with five other 
hrn;ttp·,.j an announcement of the petitioner's performance at 
in New York with four other performers. The petitioner 
do·cum(~ntary evidence that demonstrates that the petitioner's roles 
were leading or critical. For example, the documentary evidence fails to reflect that the petitioner 
was featured or received top billing in any of the concerts consistent with the meaning of leading or 
critical pursuant to the regulation at 8 c.F.R. § 204.5(h)(3)(viii). The petitioner failed to submit 
evidence showing his position in relation to that of the other musicians. There is no evidence 
demonstrating how the petitioner's roles differentiated him from the other musicians. Without 
evidence establishing that the petitioner performed in a leading or critical role, it is insufficient to 
simply submit documentary evidence reflecting that he performed as a violinist in a concert setting. 
As the petitioner is a violinist, it is expected that the petitioner will perform the routine duties of a 
violinist to perform on stage or in front of an audience. However, merely peri'orming, even if the 
performance is considered noteworthy, does not equate to a leading or critical role. The petitioner 
failed to demonstrate that his roles in the performances were leading or critical. 
Notwithstanding the above, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) 
requires the petitioner's leading or critical roles "for organizations or establishments that have a 
distinguished reputation." Even if we were to conclude that a concert perfomlance equates to an 
organization or an establishment, which we do not, the petitioner only submitted documentary 
evidence regarding the reputation of the Aspen Music Festival and School, and failed to submit any 
documentary evidence regarding any of the other venues, so as to establish that they have a 
distinguished reputation. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
-Page 14 
Evidence of commercial successes in the per/orming arts, as shown by hox ofjice 
receipts or record, cassette, compact disk, or video sales. 
A review of the record of proceeding reflects that the petitioner never claimed eligibility for this 
criterion, including on appeal. However, in our discussion of the artistic display criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii), we indicated that we would discuss the 
petitioner's documentary evidence as it related to this criterion. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3 lex) requires "Ie ]vidence of 
commercial successes in the performing arts, as shown by hox (!fjice 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 fails to reflect that the petitioner submitted any documentary evidence 
regarding the box office receipts of his performances. For example, there is no evidence showing 
that the petitioner's performances consistently drew record crowds, were 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 petitioner, we cannot 
conclude that the petitioner meets the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(x). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (I) 
a "level of expertise indicating that the individual is one of that small percentage who have risen 
to the very top of thelirJ 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)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The 
petitioner failed to establish eligibility for 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 our preceding 
discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating our final merits determination, we must look at the totality of the evidence to 
conclude the petitioner's eligibility pursuant to section 203(b)(1 )(A) of the Act. In this case, the 
petitioner was admitted to the United States on an F-I nonimmigrant student visa, attended The 
lulliard School, has enjoyed some success at student and age-restricted competitions, and 
performed routine duties as a violinist at several venues. However, the accomplishments of the 
petitioner fall far Sh0l1 of establishing that he "is onc of that small percentage who have risen to 
Page 15 
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 "\a1 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 
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). 
While we found that the petitioner failed to establish the awards criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(i), we note that the petitioner based his eligibility on student 
and age-restricted competition. Awards won by the petitioner in competitions that were limited 
by his student level or age do not indicate that he "is one of that small percentage who have risen 
to the very top of the field of endeavor." See 8 C.F.R. § 204.5(h)(2). There is no indication that 
the petitioner faced significant competition from throughout his field, rather than mostly limited 
to a few individuals in student status, age-based, or other similarly limited competition. USCIS 
has long held that even athletes performing at the major league level do not automatically meet 
the "extraordinary ability" standard. Matter (!t. Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 
1994); 56 Fed. Reg. at 60899 5 Likewise, it does not follow that a violinist like the petitioner 
who has had success in a competition restricted by age, student, or non-professional status, 
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 
'While we acknowledge that a district court's decision is not binding precedent, we note that in Maller of 
Racine, 1995 WL 153319 at *4 (ND. Ill. Feb. 16, 1995), the court stated: 
ITlhe 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 16 
visa category be reserved for "that small percentage of individuals that have risen to the very top 
of their field of endeavor." 
Furthermore, regarding the petitioner's scholarship, academic study is not a field of endeavor, 
but training for a future field of endeavor. As such, academic scholarships, student awards, and 
fellowships cannot be considered prizes or awards in the petitioner's field of endeavor. 
Moreover. competition for scholarships is limited to other students. Experienced experts do not 
compete for scholarships. Thus, they cannot establish that a petitioner is one of the very few at 
the top of his field. Significantly, this office has held. in a precedent decision involving a lesser 
classification than the one sought in this matter. that academic performance, measured by such 
criteria as grade point average. is not a specific prior achievement that establishes the alien' s 
ability to benefit the national interest. Matter of New York State Dep't. of Tramp., 22 I&N Dec. 
at 219, n.6. Thus, academic performance is certainly not comparable to the awards criterion set 
forth at 8 C.F.R. § 204.S(h)(3)(i), designed to demonstrate an alien's eligibility for this more 
exclusive classification. 
Although we found that the petitioner failed to establish eligibility for the original contributions 
criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(v), the petitioner based his 
eligibility primarily on recommendation letters that praised the petitioner's skills but spoke of his 
future potential and speculated about his future contributions. USC IS may, in its discretion, use 
as advisory opinion statements submitted as expert testimony. See Matter ()r 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 ()r V-K-, 24 I&N Dec. SOO, n.2 (BIA 2008). Again. none of the letters 
submitted on behalf of the petitioner fail to reflect any original contributions of major 
significance made by the petitioner. 
Moreover, while we found that the petItIOner failed to establish eligibility for the display 
criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(vii), we also considered the 
petitioner'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 "lal 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 he 
performed at concerts and festivals, the petitioner failed to submit any documentation 
establishing that these venues are of such a caliber that the petitioner's performance there is 
consistent with or indicative of sustained national or international acclaim. For example, the 
petitioner failed to submit documentation demonstrating that his performances 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. 
Page 17 
Furthermore, we cannot ignore that the statute requires the pelitlOner to submit "extensive 
documentation" of the beneficiary's sustained national or international acclaim. See section 
203(b)(l)(A) of the Act. The commentary for the proposed regulations implementing section 
203(b)(l)(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 he "is one of that 
small percentage who have risen to the very top of the field." In addition, the petitioner has not 
demonstrated his "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. 
No. 101-723,59 (Sept. 19,1990). 
Finally, when compared to the accomplishments of individuals who submitted recommendation 
letters on the petitioner's behalf, it appears that the highest level of the petitioner's field is far 
above the level he has attained. For example, while the petitioner claimed eligibility based on 
his student and age-restricted won five Grammy Awards, two Gran Prix du 
Disque, two Edison Prizes, and the Deutsche Schallplattenpreis, and a Gramophone Award. 
Moreover, the petitioner claimed to at venues where 
with 
In addition, while the petitioner's roles have been 
limited to routinely performing as a violinist in orchestras and chamber music, the AAO notes 
was the music director for the Rochester Philharmonic Orchestra. Baltimore 
Symphony Orchestra, and Aspen Music Festival and School. When comparing the achievements 
of the petitioner to the above-mentioned individuals, the petitioner falls far short in establishing that 
he is that "small percentage who have risen to the very top of the field of endeavor." See 8 
C.F.R. § 204.5(h)(2). 
The conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the petitioner as one of the small percentage who has risen to the very top of the field of 
endeavor. 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. 
III. Conclusion 
Review of the record does not establish that the petitioner 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 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(I)(A) of the Act, and the petition may not be approved. 
-Page 18 
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, 
att'd, 345 F.3d at 683; see a/so So/fane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
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.