dismissed EB-1A Case: Violinist

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUL 1 8 2013 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be 
filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
)v[O.Ud11~ 
(\ Ron Rosenberg 
<r Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center. The Administrative Appeals Office (AAO) rejected and, in the alternative, dismissed a 
subsequent appeal. The matter is now before the AAO on motion to reopen and reconsider. The 
motion will be dismissed pursuant to 8 C.F.R. § 103.5(a)(1)(iii)(C), 103.5(a)(2), 103.5(a)(3), and 
103.5(a)(4). 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien 
of extraordinary ability as a professional violinist. 1 The director determined that the petitioner had not 
met the requisite criteria for classification as an alien of extraordinary ability. On appeal, the AAO 
found that because the underlying petition was not properly filed with the petitioner's signature as 
required by the regulation at 8 C.F.R. § 103.2(a)(2), further action on the petition could not be 
pursued, and the appeal was rejected. In the alternative, the AAO dismissed the petitioner's appeal 
finding that the petitioner had failed to establish that she meets at least three of the regulatory 
categories of evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). In addition, the AAO 
determined that the petitioner had failed to submit "clear evidence" demonstrating 
that she will 
continue to work in her area of expertise as claimed on the I-140 petition as required by the 
regulation at 8 C.F.R. § 204.5(h)(5). 
According to 8 C.F.R. § 103.5(a)(2), a motion to reopen must state the new facts to be proved in the 
reopened proceeding and be supported by affidavits or other documentary evidence. Motions for the 
reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing 
and motions for a new trial on the basis of newly discovered evidence. INS v. Doherty, 502 U.S. 314, 
323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a 
"heavy burden." INS v. Abudu, 485 U.S. at 110. A motion to reconsider must state the reasons for 
reconsideration and be supported by any pertinent precedent decisions to establish that the decision 
was based on an inconect application of law or Service policy . A motion to reconsider a decision on 
an application or petition must, when filed, also establish that the decision was inconect based on the 
evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider 
contests the correctness of the original decision based on the previous factual record, as opposed to a 
motion to reopen which seeks a new hearing based on new or previously unavailable evidence. See 
Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991). A motion that does not meet applicable 
requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in 
the proceedings. Rather, the "additional legal arguments" that may be raised in a motion to 
reconsider should flow from new law or a de novo legal determination reached in its decision that 
may not have been addressed by the party. Further, a motion to reconsider is not a process by which 
a party may submit, in essence, the same brief presented on appeal and seek reconsideration by 
generally alleging error in the prior decision. Instead, the moving party must specify the factual and 
legal issues raised on appeal that were decided in error or overlooked in the initial decision or must 
1 According to her Form 1-94, Arrival/Departure Record , the petitioner was last admitted to the United States on January 
9, 2010 as an F-1 nonimmigrant student. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
show how a change in law materially affects the prior decision . See Matter of Medrano, 20 I&N 
Dec. 216, 219 (BIA 1990, 1991). 
In the April 30, 2013 decision 
dismissing the petitioner's appeal, the AAO stated: 
Form I-140, Immigrant Petition for Alien Worker, was electronically submitted to U.S. 
Citizenship and Immigration Services on September 22, 2011. Part 1 of the Form I-140 
identifies as the petitioner. In Part 8 of Form I-140, under 
"Petitioner's Signature," counsel signed and certified the petition electronically. Form I-140 
was not signed by the petitioner, as required by regulation, but instead by the petitioner ' s 
attorney. The only signatures on the form are those of counsel. The AAO notes that the 
regulations do not permit an individual who is not the petitioner to sign Form I-140. 
The regulation at 8 C.F.R. § 103.2(a) provides: 
Filing. (1) Preparation and submission. Every benefit request or other document 
submitted to DHS must be executed and filed in accordance with the form 
instructions, notwith standing any provision of 8 CFR chapter 1 to the contrary, and 
such instructions are incorporated into the regulations requiring its submission .... 
(2) Signature. An applicant or petitioner must sign his or her benefit request. However, a 
parent or legal guardian may sign for a person who is less than 14 years old. A legal guardian 
may sign for a mentally incompetent person. By signing the benefit request, the applicant or 
petitioner, or parent or guardian certifies under penalty of perjury that the benefit request, and 
all evidence submitted with it, either at the time of filing or thereafter, is true and correct. 
Unless otherwise specified in this chapter, an acceptable signature on a benefit request that is 
being filed with the USCIS is one that is either handwritten or, for applications or petitions 
filed electronically as permitted by the instructions to the form, in electronic format. 
Form I-140 Instructions state: 
If the petitioner is an individual , then that individual, or that individual's legal 
guardian if he or she is incompetent or under 14 years of age, must personally sign 
the petition. If the petitioner is a corporation or other legal entity, only an individual 
who is an officer or employee of the entity who has knowledge of the facts alleged in 
the petition , and who has authority to sign documents on behalf of the entity, may 
sign the petition. 
There is no regulatory provision that waives the signature requirement for a petitioner to 
designate an attorney or accredited representative to sign the petition on behalf of the 
petitioner. 
On motion, counsel states: 
The appeal should not have been rejected due to counsel's signature in the Petitioner 's box 
on thee-filed I-140. [The petitioner] signed the paper copy of the I-140 two days in advance 
(b)(6)
NON-PRECEDENT DECISION 
Page4 
of the on-line application. The paper copy, with the original signatures of counsel and 
Petitioner is enclosed with this submission. Counsel would have provided this evidence with 
the re-submitted petition, had [U.S. Citizenship and Immigration Services] rejected the 
petition when it was file [sic] originally in 2011. We submit that providing this signed and 
dated petition, even at this date, cures the signing defect the AAO alleges wananted rejection 
in the alternative. 
In this instance, the petition was not properly filed on September 22, 2011 because the petitioner had 
not signed the petition. Instead, counsel signed and certified the petition electronically on September 
22, 2011. Form I-140 was not signed by the petitioner, as required by regulation, but instead by the 
petitioner's attorney. Pursuant to the regulation at 8 C.P.R. § 103.2(a)(7)(i), a benefit request which 
is not signed must be rejected. In addition, a benefit request which is rejected will not retain a filing 
date. 8 C.P.R. § 103.2(a)(7)(iii). While the service center did not reject the initial filing as required 
by the regulation at 8 C.F.R. § 103.2(a)(7)(i), the AAO is not bound to follow the contradictory 
decision of a service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 
282785, *1, *3 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
The regulation at 8 C.F.R. § 103.2(a)(7)(i) is binding on U.S. Citizenship and Immigration Services 
(USCIS) employees in their administration of the Act, and USCIS employees do not have the 
authority to ignore it. An agency is not entitled to deference if it fails to follow its own regulations. 
See, e.g. Morton v. Ruiz, 415 U.S. 199 (1974) (Where the rights of individuals are affected, it is 
incumbent upon agencies to follow their own procedures); U.S. v. Heffner, 420 F.2d 809, (CA 4 
1969) (Government agency must scrupulously observe rules or procedures which it has established 
and when it fails to do so its action cannot stand and courts will strike it down); Panhandle Eastern 
Pipe Line Co. v. Federal Energy Regulatory Commission, 613 F.2d 1120 (C.A.D.C.,1979) (An 
agency is bound by its own regulations); Reuters Ltd. v. F. C. C., 781 F.2d 946, (C.A.D.C.,1986) (An 
agency must adhere to its own rules and regulations; ad hoc depmtures from those rules, even to 
achieve laudable aims, cannot be sanctioned). 
In support of the motion, the petitioner submits a "signed and dated" I-140 petition that counsel 
alleges is "the paper copy of the I-140" that the petitioner purportedly signed "two days in advance 
of the on-line application." The signed Form I-140 (Rev. 04/08/11) now submitted to the AAO on 
motion, however, differs significantly from the electronically-filed (e-filed) Form I-140 (Rev. 
04116/04) submitted to USCIS on September 22, 2011. For instance, thee-filed Form I-140 has a 
revision date of April 16, 2004, while "the paper copy" signed by the petitioner and submitted on 
motion has a revision date of April 8, 2011. In addition, thee-filed Form I-140 (Rev. 04/16/04) is 
three pages in length and "the paper copy" of Form I-140 (Rev. 04/08/11) signed by the petitioner is 
five pages in length. The following additional differences in thee-filed Form I-140 (Rev. 04/16/04) 
and the signed Form I-140 (Rev. 04/08/11) are noted: 
1. In Part 3, the signed Form I-140 (Rev. 04/08/11) lists "Federal District" as 
"State/Province of Birth," while thee-filed Form I-140 (Rev. 04/16/04) was left blank; 
2. In Part 3, the signed Form I-140 (Rev. 04/08/11) lists "DIS" as "Date Status Expires," 
while thee-filed Form I-140 (Rev. 04/16/04) was left blank; 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
3. In Part 4, the signed Form I-140 (Rev. 04/08/11) lists "Venezuela" as "Alien's country of 
current residence or, if now in the United States, last permanent residence abroad," while 
the e~filed Form I-140 (Rev. 04116/04) lists "United States"; 
4. In Part 5, the signed Form I-140 (Rev. 04/08/11) lists "Professional Violinist/Violin 
Teacher" as "Occupation," while the e-filed Form I-140 (Rev. 04/16/04) lists 
"Professional Violinist"; 
5. In Part 6, the signed Form I-140 (Rev. 04/08/11) lists "Professional Violinist/Violin 
Teacher" as "Job Title," while the e-filed Form I-140 (Rev. 04/16/04) lists "125 -
Musician, Singer, Composer"; and 
6. In Part 6, the signed Form I-140 (Rev. 04/08111) lists "Violinist: Performs in professional 
orchestra as soloist or in section, teaches violin, accompanies major music artists on tour" 
as "Nontechnical Description of Job," while thee-filed Form I-140 (Rev. 04/16/04) lists 
"Professional violinist." 
As the signed Form I -140 (Rev. 04/08/11) now submitted on motion differs significant! y from the e­
filed Form I-140 (Rev. 04/16/04) submitted on September 22, 2011, the petitioner has not 
established that the latest submission is "the paper copy of the I-140" as claimed by counsel. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Regardless, the submission of a signed Form I-140 
(Rev. 04/08/11) at this stage of the proceedings does not overcome the signature deficiency in the 
original e-filed Form I-140 petition submitted at the time of filing. Eligibility must be established at 
the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. Matter of lzummi, 22 I&N Dec. 169, 175 (Comm'r 1998). Further, a 
petitioner may not make material changes to a petition in an effort to make a deficient petition 
conform to USCIS requirements. !d. at 176. That decision further provides, citing Matter of 
Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being 
only subsequent to the filing of a petition." !d. Because the underlying petition was not submitted 
with the petitioner's signature at the time of filing and should have been rejected by the director 
without retaining a filing date, further action on the petition could not be pursued. Therefore, the 
AAO was correct in rejecting the appeal based on the evidence of record at the time of the appellate 
decision. 
In addition, the AAO affirms its alternate finding that the petitioner has failed to establish that she 
meets at least three of the regulatory categories of evidence pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3). Congress set a very high benchmark for aliens of extraordinary ability by requiring 
through the statute that the petitioner demonstrate the alien's "sustained national or international 
acclaim" and present "extensive documentation" of the alien's achievements. See section 
203(b)(1)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). 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 st 
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. § 204.5(h)(2). The implementing regulation at 8 C.F.R. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
§ 204.5(h)(3) states that an alien can establish sustained national or international acclaim through 
evidence of a one-time achievement of a major, internationally recognized award. Absent the receipt of 
such an award, the regulation outlines ten categories of specific objective evidence. 8 C.P.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. 
The AAO specifically and thoroughly discussed the petitioner's evidence and determined that she 
failed to establish eligibility for the nationally or internationally recognized prizes or awards 
criterion pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(i), the membership in associations 
which require outstanding achievements criterion pursuant to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(ii), the original contributions of major significance criterion pursuant to the regulation 
at 8 C.P.R. § 204.5(h)(3)(v), the display of work at artistic exhibitions or showcases criterion 
pursuant to the regulation at 8 C.P.R. § 204.5(h)(3)(vii), and the leading or critical role criterion 
pursuant to the regulation at 8 C .P.R. § 204.5(h)(3)(viii). The AAO therefore concluded that the 
petitioner had failed to satisfy the antecedent regulatory requirement of three categories of evidence. 
On motion, counsel states: 
[The petitioner] submitted several letters from colleagues who consider her to be a violinist of 
extraordinary ability. The additional expert letter we submit with this Motion, analyzes her ast 
experience, as it existed at the time of the original application. The writer, Mr. 
for the renowned feels strongly that [the petitioner] is well-qualified for 
the EB-1 visa category. He has authored several expe1t opinion letters in the past and is familiar 
with the USCIS standards. 
The April 30, 2013 appellate decision specifically addressed the letters from the petitioner's colleagues 
submitted in support of her petition for classification as an alien extraordinary ability. Counsel fails to 
provide any persuasive legal argument, precedent decisions, or other comparable evidence to 
establish that the AAO's analysis of the reference letters or findings pertaining to the regulatory 
categories of evidence at 8 C.P.R. § 204.5(h)(3) were based on an incorrect application of law or 
USCIS policy. Moreover, with regard to Mr. letter, counsel does not indicate the specific 
category of evidence at 8 C.P.R. § 204.5(h)(3 ) ro wmcn nis letter applies. 
The petitioner submits a May 22, 2013 letter from 
stating: 
Minnesota Orchestra, 
In reviewing [the petitioner's] application, I was immediately impressed to see that she 
appears to have been actively pursued as a prospective student by some of America's most 
prestigious institutions of higher education. In particular, the _ at 
is on every musician's short list of the very top schools for musical 
performance . . . . [The petitioner] ... was enthusiastically accepted and offered a full 
scholarship to pursue her master's degree at _ I cannot overstate how competitive 
the admissions process at America's top music schools can be- some music schools accept 
as few as 10% of their applicants. [The petitioner's] musical abilities must be extremely high 
if she was able to clear that admissions bar and be offered a tuition-free education at such a 
(b)(6)
NON -PRECEDENT DECISION 
Page 7 
prestigious school. In the classical music world , many top-tier performers choose to continue 
their education even as their professional career as a performer has already begun. Any 
student accepted to 's graduate school should already rank among the top tier of 
musicians in the world. 
The petitioner, however, has failed to establish that her admission to music schools, academic 
awards, scholarships, and success in student competitions are indicative of or consistent with 
sustained national acclaim or a level of expertise indicating that she is one of that small percentage 
who have risen to the very top of her field. See 8 C.P.R. § 204.5(h)(2). USCIS has long held that 
even athletes performing at the major league level do not automatically meet the statutory standards for 
immigrant classification as an alien of "extraordinary ability." Cf Matter of Price, 20 I&N Dec. 953, 
954 (Assoc. Comm'r 1994); 56 Fed. Reg. at 60899. Likewise, it does not follow that demonstrating 
success as a student in a university setting should necessarily qualify for approval of an extraordinary 
ability employment-based immigrant visa petition. In Matter of Racine, 1995 WL 153319 at *4 (N.D. 
Ill. Feb. 16, 1995), the court stated: 
[T]he 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, Crimson v. INS, No. 93 C 3354, 
(N.D. Ill. September 9, 1993), and the definition of the term 8 C.P.R. § 204.5(h)(2), and the 
· discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
The court's reasoning indicates that USC IS' interpretation of the regulation at 8 C.P.R. § 204.5(h)(2) 
is reasonable. To find otherwise would contravene the regulatory requirement at 8 C.P.R. 
§ 204.5(h)(2) that this visa category be reserved for "that small percentage of individuals that have 
risen to the very top of their field of endeavor." 
Mr. further states: 
It is also notable that [the petitioner] has already been offered employment with the _ 
The audition process for America's professional symphony orchestras 
is intensely competitive - it is not unusual for more than a hundred candidates to audition for 
a single open position. That [the petitioner] has achieved success in such a competitive field 
at such a young age is a further indication of her skills. 
The AAO acknowledges the petitioner's submission on appeal of the December 4, 2012 letter from 
Orchestra Personnel Manager, discussing 
the petitioner's occasional work since September 2012 "as a substitute musician" for the 
"when the Symphony needs additional violinists," but this evidence post-dates the September 22, 
2011 filing of the petition and cannot be considered in this proceeding. As previously discussed, 
eligibility must be established at the time of filing. 8 C.P.R. §§ 103.2(b)(1), (12); Matter of 
Katigbak, 14 I&N Dec. at 49. 
Mr continues: 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
I would also make special note of [the petitioner's] musical background in her home country 
of Venezuela. This is of particular interest in establishing her continuing value to America's 
musical profession, because Venezuela has been intemationally celebrated in recent years for 
producing countless world-class musicians through its state-funded music 
education 
program. As an alumna of the program, [the petitioner] grew up on the 
cutting edge of global initiative in music education, and she had the opportunity to work 
directly with s most celebrated alumnus, who today is making 
history as the youngest-ever music director of the mighty . As a 
direct result of El Sistema's success in training and educating young musicians, alumni of the 
program are being highly sought after across America to help recreate Venezuela's successes 
in American cities. [The petitioner], I am confident, will be in a strong position to help 
revitalize and reinvent our country's sadly flagging music education infrastructure if she is 
granted the continued legal residence she seeks. 
Mr. comments on the petitioner's musical background as a foreign-hom musician and her 
music education program training, but assuming the petitioner's music skills are unique, 
the classification sought was not designed merely to alleviate skill shortages in a given field. In fact, 
that issue properly falls under the jurisdiction of the Department of Labor through the alien 
employment labor certification process. See Matter of New York State Dep't. of Transp., 22 I&N 
Dec. 215, 221 (Comm'r 1998). 
Mr. further states: 
It is clear to me from [the petitioner's] documentation that she possesses extraordinary and 
sustained proficiency in music, and it is further clear from her extensive performing and 
teaching experience that her continued residence in the U.S. would substantially benefit our 
country's musical profession, which is always in need of a fresh supply of new and energetic 
talent. 
Mr. asse1ts that the petitioner "possesses extraordinary and sustained proficiency in music" 
and that "her extensive performing and teaching experience ... would substantially benefit" the 
United States, but merely repeating the language of the statute does not satisfy the petitioner's 
burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 
F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, No. 95 civ 10729, 1997 WL 188942 at 
*1, *5 (S.D.N .Y.). While Mr. speaks favorably of the petitioner, his opinions fail to 
demonstrate that the petitioner satisfies any of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. !d. The submission of reference letters 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 795-796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"). Accordingly, the 
(b)(6) NON-PRECEDENT DECISION 
Page 9 
AAO affirms its appellate finding that the petitioner has failed to satisfy the antecedent regulatory 
requirement of three categories of evidence. 
As previously discussed, a motion to reopen must state the new facts to be provided and be 
supported by affidavits or other documentary evidence. 8 C.P.R. § 103.5(a)(2). Based on the plain 
meaning of "new," a new fact is found to be evidence that was not available and could not have been 
discovered or presented in the previous proceeding? The petitioner has failed to explain why Mr. 
's letter was previously unavailable and could not have been submitted earlier. The 
petitioner has been afforded three different opportunities to submit evidence demonstrating her 
eligibility: at the time of the original filing of the petition, in response to the director's request for 
additional evidence, and at the time of the filing of the appeal. A review of the evidence that the 
petitioner submits · on motion reveals no fact that could be considered "new" under 8 C.P.R. 
§ 103.5(a)(2) and, therefore, cannot be considered a proper basis for a motion to reopen. 
Furthermore, the AAO affirms its alternate finding that the petitioner failed to submit "clear evidence" 
demonstrating that she will continue to work in her area of expertise as required by the regulation at 
8 C.P.R. § 204.5(h)(5). In the April 30, 2013 decision dismissing the petitioner's appeal, the AAO 
stated: 
Beyond the decision of the director, the statute and regulations require that the petitioner 
seeks to continue work in her area of expertise in the United States. See section 
203(b)(l)(A)(ii) of the Act, 8 U.S.C. § 1153(b)(l)(A)(ii); 8 C.P.R. § 204.5(h)(5). Such 
evidence may include letter(s) from prospective employer(s), evidence of prearranged 
commitments such as contracts, or a statement from the petitioner detailing plans on how she 
intends to continue her work in the United States. /d. On the Form I-140, in Part 5, the 
petitioner listed her "Occupation" as "Professional Violinist." In addition, under Part 6, 
"Basic information about the proposed employment," the petitioner listed the "Nontechnical 
Description of Job" as "Professional Violinist." Moreover, the documentary evidence 
submitted by the petitioner focused primarily on her achievements and expertise as a violin 
player. 3 
As evidence that she intends to continue work in her area of expertise, the petitioner initially 
submitted the following: 
1. An April 4, 2011 letter from Ms. Piano Instructor, 
, stating that the petitioner is employed by the 
"as a 'and 
2 The word "new" is defmed as " 1. having existed or been made for only a short time .. . 3. Just discovered , found, or learned 
<new evidence> .... " WEBSTER 'S II NEW RivERSIDE UNNERSITY DICfiONARY 792 (1984)(emphasis in original). 
3 There is no documentary evidence showing, for example , that the petitioner meets any of the regulatory criteria at 8 
C.F.R. § 204.5(h)(3) based solely on her achievements as a music teacher , or that any of the young students under her 
direct tutelage have performed at a level demonstrating the petitioner's sustained national or international acclaim as a 
music educator at the very top of her field. 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
that the etitioner "teaches Suzuki Violin for grades Pre-kindergarten through second" at 
2. An April 16, 2011 letter from Principal, 
employed at 
Suzuki Violin"; 
stating that the petitiOner "has been 
as a Music Teacher with a specialty in 
3. Photos of the petitioner with her elementary school students; 
4. A "Texas Educator Certificate" with an effective date of August 19, 2010 stating that the 
petitioner "has fulfilled all the requirements of the State of Texas and is authorized to 
practice as a certified educator"; and 
5. employee contract signed and dated by the 
petitioner on October 22, 2010. 
On appeal, the petitioner submits a November 13, 2012 "offer of employment as a 
CLASSROOM TEACHER-SECONDARY ... at 
The petitioner also submits her November 13. 2012 
"Contract of Employment" with the Board of Education of the The 
AAO is not persuaded, however, that a "Professional Violinist" and an elementary or junior 
high school music teacher are the same area of expertise. 4 In Lee v. I.N.S., 237 F. Supp. 2d 
914 (N.D. Ill. 2002), the court stated: 
It is reasonable to interpret continuing to work in one's "area of extraordinary ability" 
as working in the same profession in which one has extraordinary ability, not 
necessarily in any profession in that field. For example, Lee's extraordinary ability as 
a baseball player does not imply that he also has extraordinary ability in all positions 
or professions in the baseball industry such as a manager, umpire or coach. 
!d. at 918. The court noted a consistent history in this area. Likewise, it does not follow that 
a primary or secondary public school music teacher and a professional violinist are the same 
area of expertise. The AAO acknowledges the petitioner's submission of the December 4, 
2012 letter from Ms. discussing 
the petitioner's occasional work since September 
2012 "as a substitute musician" for the "when the Symphony needs additional 
4 According to the U.S. Department of Labor 's O*NET program, Instrumental Musicians (including violinists) are not 
the same occupation as Elementary School Teacher or Secondary School Teacher. These occupations have entirely 
different Standard Occupational Classification codes and tasks. See Summary Reports for "Musicians, Instrumental," 
"Elementary School Teachers," and "Secondary School Teachers" at http://www.onetonline.org/link/summ ary/27-
2042.02, http://www .onetonline.org/link/summarv/25 -2021.00, and http://www.onetonline.org/link/summary/25-
2031.00, accessed on April 23, 2013, copies incorporated into the record of proceeding . The O*NET program is the 
nation's primary source of occupational information developed under the sponsorship of the U.S. Department of 
Labor/Employment and Training Administration. See http://www .onetcenter.org/overview.htrnl, accessed on April 23, 
2013, copy incorporated into the record of proceeding . The 2010 Standard Occupational Classification system is used by 
Federal statistical agencies to classify workers into occupational categories for the purpose of collecting, calculating , or 
disseminating data. See http://www.bls.gov/soc/, accessed on April 23, 2013, copy incorporated into the record of 
proceeding. 
(b)(6)
NON-PRECEDENT DECISION 
Page 11 
violinists," but this evidence post-dates the September 22, 2011 filing of the petition and 
cannot be considered in this proceeding. As previously discussed, eligibility must be 
established at the time of filing. 8 C.P.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N 
Dec. at 49. Regardless, as the petitioner has submitted extensive evidence of her pursuit of a 
teaching career and full-time employment as an elementary or junior high school music 
teacher, the petitioner has failed to submit "clear evidence" demonstrating that she will 
continue to work in her area of expertise as claimed on the I-140 petition as required by the 
regulation at 8 C.P.R. § 204.5(h)(5). 
On motion, counsel states: 
[The petitioner] submitted a job offer to teach music to inner-city children. This is the same 
position she held in We submitted this as evidence of her intent to pursue work in 
her field of expettise. The AAO disagreed that teaching music is with the field of expertise 
of a professional violinist. Even so, at the time the petition was filed, [the petitioner] 
supplied evidence that she also worked as a profe ssional violinist in orchestras, concerts, 
recording, and on tour. She did provide ample evidence that she plans to continue work in 
her field of expertise, including teaching American children. 
While the AAO concurs with counsel that the petitioner "supplied evidence that she ... worked as a 
professional violinist in orchestras, concerts, recording, and on tour" in the months and years 
preceding the petition's filing date, that evidence did not specifically address how the petitioner 
sought to continue work in her area of expertise in the United States after the Form 1-140 petition 
was filed. In that regard, rather than submitting "clear evidence" demonstrating that she intended to 
continue work as a professional violinist, 
the petitioner submitted extensive evidence of her pursuit 
of a teaching career and full-time employment as an elementary or junior high school music teacher. 
As noted in the appellate decision, the plain language of the regulation at 8 C.P.R. § 204.5(h)(5) 
requires "clear evidence that the alien is coming to the United States to continue work in the area of 
expertise. Such evidence may include letter(s) from prospective employer(s), evidence of 
prearranged commitments such as contracts, or a statement from the beneficiary detailing plans on 
how he or she intends to continue his or her work in the United States ." In this matter, the petitioner 
failed to submit letter(s) from prospective employer(s), evidence of prearranged commitments such 
as contracts, or a statement detailing plans on how she intended to continue working in the United 
States as a "professional violinist" (as indicated in Parts 5 and 6 of the original Form 1-140 petition 
e-filed on September 22, 2011). Once again, the AAO acknowledges the petitioner's submission of 
the December 4, 2012 letter from Ms. discussing the petitioner's occasional work since 
September 2012 "as a substitute musician" for the MSO "when the Symphony needs additional 
violinists," but this evidence post-dates the September 22, 2011 filing of the petition and cannot be 
considered in this proceeding. As previously discussed, eligibility must be established at the time of 
filing. 8 C.P.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. Counsel fails to 
provide any persuasive legal argument, precedent decisions, or other comparable evidence to 
establish that the AAO's analysis of the evidence submitted for the regulation at 8 C.P.R. § 
204.5(h)(5) was based on an incorrect application of law or USCIS policy. 
Counsel further states: 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
[The petitioner] continues to assert that the standard of review applied to her petition 
originally, her response to the RFE, and her appeal, are inconsistent with Congress' intent 
and the spirit of the legislation. She argues that the standard applied to her petition is much 
higher and interpreted more narrowly than other similarly situated applications. 
Counsel, however, fails to specifically identify the parts the appellate decision where the AAO applied 
an incorrect standard of review. The AAO concurs with counsel that the standard of proof in this 
proceeding is preponderance of the evidence, as noted by counsel on appeal. The "preponderance of 
the evidence" standard, however, does not relieve the petitioner from satisfying the basic evidentiary 
requirements required by the statute and regulations. Therefore, if the statute and regulations require 
specific evidence, the petitioner is required to submit that evidence. See section 203(b)(1)(A)(i) and 
(ii) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i) and (ii), and 8 C.F.R. §§ 204.5(h)(2), (3), and (5). The 
documentation submitted by the petitioner fails to demonstrate by a preponderance of the evidence that 
she meets at least three of the ten regulatory categories of evidence at 8 C.F.R. § 204.5(h)(3), that she 
has achieved sustained national or international acclaim, that she is one of the small percentage who has 
risen to the very top of the field of endeavor, and that she submitted evidence demonstrating that she 
will continue to work in her area of expertise as claimed on the original e-filed I -140 petition as 
required by the regulation at 8 C.F.R. § 204.5(h)(5). In most administrative immigration proceedings, 
the petitioner must prove by a preponderance of the evidence that he or she is eligible for the benefit 
sought. Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). The truth is to be determined not by the 
quantity of evidence alone but by its quality. !d. at 376. 
In this matter, the petitioner has failed to support her motion with any persuasive legal argument, 
precedent decisions, or other comparable evidence to establish that the AAO's April 30, 2013 
decision was based on an incorrect application of law or users policy. In addition, the petitioner 
has not established that the appellate decision was incorrect based on the evidence of record at the 
time of the decision. Furthermore, the petitioner's motion fails to identify any new facts and is 
unsupported by documentary evidence to overcome the grounds underlying the AAO's decision. The 
petitioner bears the burden of establishing that the AAO's rejection and, in the alternative, dismissal 
of her appeal were in error. If the petitioner can demonstrate that the AAO erred by rejecting and 
dismissing the appeal, then there would be grounds to reopen the proceeding. The petitioner has not 
done so in this proceeding. Moreover, the instant motion does not contain the statement about 
whether or not the validity of the unfavorable decision has been or is the subject of any judicial 
proceeding as required by the regulation at 8 C.F.R. § 103.5(a)(1)(iii)(C). For this additional reason, 
the motion must be dismissed. 
The regulation at 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable 
requirements shall be dismissed." Accordingly, the motion will be dismissed, and the previous 
decisions of the director and the AAO will not be disturbed. 
ORDER: The motion to reopen and reconsider is dismissed, the decision of the AAO dated April 
30, 2013 is affirmed, and the petition remains denied.