dismissed EB-1A Case: Violinist

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: SEP 1 8 2009 
LIN 08 008 54394 
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. tj 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. tj 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 9 103.5(a)(l)(i). 
,44&,dt7 k/ 
f! Jo F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska 
Service Center, 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. tj 1 153(b)(l)(A), as an alien 
of extraordinary ability in the arts. The director determined the petitioner had not established the 
sustained national or international acclaim necessary to qualify for classification as an alien of 
extraordinary ability. Specifically, in reaching this conclusion, the director concluded that the petitioner 
failed to meet three of the ten regulatory criteria. 
On appeal, the petitioner argues that she meets at least three of the regulatory criteria at 8 C.F.R. 
tj 204.5(h)(3). 
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 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means a level of 
expertise indicating that the individual is one of that small percentage who have risen to the very top 
of the field of endeavor. 
 8 C.F.R. $204.5(h)(2). 
 The specific requirements for supporting 
documents to establish that an alien has sustained national or international acclaim and recognition 
in his or her field of expertise are set forth in the regulation at 8 C.F.R. tj 204.5(h)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
she has sustained national or international acclaim at the very top level. 
This petition, filed on August 17,2007, seeks to classify the petitioner as an alien with extraordinary 
ability as a violinist. 
The regulation at 8 C.F.R. $ 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time ,achievement (that is, a major, internationally 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, 
at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to 
qualify as an alien of extraordinary ability. A petitioner, however, cannot establish eligibility for this 
classification merely by submitting evidence that simply relates to at least three criteria at 8 C.F.R. 
$ 204.5(h)(3). In determining whether the petitioner meets a specific criterion, the evidence itself 
must be evaluated in terms of whether it is indicative of or consistent with sustained national or 
international acclaim. 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). 
We note that although the record contains evidence of the petitioner's prior approval as an 0-1 non- 
immigrant, the prior approval does not preclude USCIS from denying an immigrant visa petition 
based on a different, if similarly phrased, standard. It must be noted that many 1-140 immigrant 
petitions are denied after USCIS approves prior nonimmigrant petitions. See e.g. Q Data 
Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 48 F. 
Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Because USCIS spends less time reviewing 1-129 nonimmigrant petitions than 1-140 immigrant 
petitions, some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d at 29-30; see also Texas AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 
WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude USCIS from denying an 
extension of the original visa based on a reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See e.g. Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimrnigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
As aforementioned, each petition must be adjudicated on its own merits under the statutory provisions 
and regulations whlch apply. Thus, the petitioner's eligibility will be evaluated under the regulatory 
criteria relating to the immigrant classification as claimed by the petitioner. The petitioner has 
submitted evidence pertaining to the following criteria under 8 C.F.R. $ 204.5(h)(3). 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
To fulfill this criterion, the petitioner initially submitted the following evidence: 
1. A First Prize for a solo competition and a Grand Prize in chamber music at the Young 
Talents of Russia Festival in 1992 (Awards not in record); 
2. A Laureate Diploma of the Evgeny Mravinsky Festival "Gifted Youth" in St. Petersburg, 
Russia in 1996; 
3. A Third Prize at the Virtuosi 2000 International Youth Music Competition in St. Petersburg 
in 1997; 
4. A Grand Prize as a soloist and a First Prize in the chamber duo competition at the Coast of 
Hope Music Competition in Albena-Dobrich, Bulgaria in 1998 (Award partially in English 
but translation not provided for the document); 
5. A Second Prize in Category 3 (18-21 years old) at the International Spohr Competition for 
Young Violinists in Weimar, Germany in 1998 (accompanied by the rules indicating the 
competition is open to the public); 
6. A First Prize in the Negeve Competition in Israel in 1998; and 
7. A Baerenreiter specialprize in the Young Concert Artitst International Auditions in Leipzig, 
Germany in 1999 (accompanied by a letter from - 
In Response to the Request for Information ("RFE), the petitioner provided a letter from = 
Faculty at the Curtis School of Music at the Peabody Conservatory in New Jersey. In her 
letter, she claimed that, "musical competitions are almost entirely limited to young musicians" and 
that "winning a prestigious youth competition is a strong sign to the musical community that the 
performer is a star player." Further, her letter stated that the "only competitions that do not limit the 
age of the performer are symphony orchestra auditions." She argued that the fact that the petitioner 
was chosen to be in the Boston and San Francisco Symphonies evidences she is an outstanding 
violinist. In addition, the petitioner submitted letters inviting the petitioner to audition for the 
Boston Symphony Orchestra ("BSO") and its auditioning procedures. In addition, a letter from the 
BSO to the Vermont Service Center regarding her 0-1 Visa Application was submitted. This letter 
stated that the petitioner was chosen among 1,268 competitors for the BSO position. Similarly, the 
petitioner submitted a letter from the San Francisco Symphony stating that the petitioner was chosen 
to be a member of the Symphony from 177 musicians who auditioned. Moreover, an internet 
printout from www.vca.org was provided regarding the competition in item 7. 
In his decision, the director found that the petitioner did not meet this criterion, and we concur with the 
director's finding. Specifically, he indicated that the awards provided were all youth awards, and that 
although such awards "may be used to discover and develop persons who may have the potential to rise 
to the top of their field, the awards are not themselves necessarily indicative of a person having already 
done so." On appeal, the petitioner submitted a sample listing of the first fifteen violin competitions 
that are members of the World Federation of Music Competitions. Additionally, the petitioner 
submitted a story from Time's website, dated May 19, 1958, regarding an American musician who won 
a competition in Moscow at age 23 that made him famous. 
The petitioner failed to submit any additional evidence for items 1-5, other than the award, to 
demonstrate that these awards represent nationally or internationally recognized prizes, such as 
supporting evidence showing the prestige associated with receiving the awards or some other 
evidence consistent with national or international acclaim at the very top of the field. The plain 
language of the regulatory criterion at 8 C.F.R. 8 204.5(h)(3)(i) specifically requires that the petitioner's 
awards be nationally or internationally recognized in the field of endeavor and it is her burden to 
establish every element of this criterion. Moreover, the record even lacks general information about 
the competitions (such as the award criteria, the area from where participants were drawn, the 
number of entrants, or the percentage of entrants who earned some type of recognition). With regard 
to item 1, the award was claimed in the petitioner's briefs, but the actual award was never submitted. 
Moreover, although the petitioner provided some additional information for items 6, this evidence 
merely addressed the procedures for competing in the competitions, rather than demonstrating that 
the award is consistent with national or international awards consistent with excellence in the 
petitioner's field. Furthermore, the petitioner failed to provide a translation for item 4 as required by 
8 C.F.R. § 103.2(b)(3). Without a translation, the actual content of the award cannot be ascertained. 
Moreover, the evidence regarding the petitioner's auditions, including item 7 and the various letters 
discussing the petitioner's selection as a member of the Boston and San Francisco Symphony, 
cannot be utilized to hlfill this category. We agree with the director, who held that "winning" an 
audition would not qualifL as receipt of an award under this criterion. 
In addition, the petitioner's counsel argues that the fact that all the awards relate to youth competitions 
is irrelevant. 
 The petitioner provided a letter fiom 
 as well as a list of various 
competitions that are limited to youth competitors, in an attempt to indicate that youth competitions are 
the only available prizes or awards, aside from auditions, to win as a musician. However, - 
who also wrote a recommendation for the petitioner, is a well known Gramrny winner, as he mentioned 
in hs letter, as well as an Avery Fisher Prize winner, which are both awards for musicians that are not 
limited by age. Additional awards were mentioned by. in another support letter 
written on the petitioner's behalf. Moreover, even if those arguments were merited, the petitioner still 
failed to meet her burden to prove that the awards that she won represented prizes or awards for 
excellence in her field of endeavor, as no additional evidence regarding these competitions was 
provided. Further, the most recent award was given to the petitioner was in 2000, 7 years prior to her 
filing this application. As such, these awards would not exemplify sustained acclaim as required by 
Section 203(b)(l)(A)(i) of the Act, 8 U.S.C. 5 1153(b)(l)(A)(i) and 8 C.F.R. 5 204.5(h)(3). 
In light of the above, the petitioner has not established that she meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classzfication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
In order to demonstrate that membership in an association meets this criterion, the petitioner must 
show that the association requires outstanding achievement as an essential condition for admission to 
membership. Membership requirements based on employment or activity in a given field, minimum 
education or experience, standardized test scores, grade point average, recommendations by 
colleagues or current members, or payment of dues, do not satisfy this criterion as such requirements 
do not constitute outstanding achievements. Further, the overall prestige of a given association is 
not determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
The petitioner submitted a letter from the conductor of the Boston Pops, which confirmed her 
membership in the BSO and which discussed the selection process in order to become a member. In 
response to the RFE, the petitioner submitted various letters that also confirmed her membership in 
the BSO and the San Francisco Orchestra, in which the petitioner is also a member. Auditioning 
Procedures for the BSO were submitted as well. A letter from the BSO Personal Manager provided 
information regarding the strenuous selection process for open positions in the BSO. The petitioner 
also provided a letter to evidence her membership on the San Francisco Symphony and the 
competitiveness of being selected for that symphony. However, the information regarding the 
selection process for the San Francisco symphony was limited. 
The director concluded that the petitioner established that she met this requirement with regard to 
her membership in the BSO. We agree with the director. As such, the petitioner has satisfied this 
criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classlJication is sought. 
Such evidence shall include the title, date, and author of the material, and any necessaly 
translation. 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner 
and, as stated in the regulations, be printed in professional or major trade publications or other major 
media. To qualify as major media, the publication should have significant national or international 
distribution. An alien would not earn acclaim at the national level from a local publication or broadcast, 
or from a publication printed in a language that the vast majority of the country's population cannot 
comprehend. Some newspapers, such as the New York Times, nominally serve a particular locality but 
would qualify as major media because of significant national distribution, unlike small local community 
papers. 
1 
The petitioner initial1 submitted an article entitled "Music for the Ages," dated January 20, 2005 
and written by . The article did not indicate the source, however the name of the source, 
The Wellesley Townsman, was provided in the petitioner's initial brief. The article is about the 
various ways in which musicians become members of the BSO. The petitioner was interviewed and 
1 
 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside of that county. 
her comments regarding the selection process for the BSO were included in the article, along with 
another musician. No further evidence was provided in response to the WE or on appeal. 
There is no evidence (such as circulation statistics) showing that the preceding article submitted by 
the petitioner was printed in professional or major trade publications or some other form of major 
media. This article appears to be a regional paper rather than a nationally or internationally circulated 
publication. Regional coverage or coverage in a publication read by only a small ethnic segment of a 
country's total population is not evidence of national or international acclaim. Moreover, the plain 
language of this regulatory criterion requires that the published material be "about the alien." The 
article is not primarily about the alien, but rather about the career paths musicians take to become 
members of the BSO. 
The director found that the petitioner failed to satisfy this criterion, and we concur with his decision. 
As such, the petitioner has not established that she meets this criterion. 
Evidence of the alien's original scientzfic, scholarly, artistic, athletic, or business- 
related contributions of major signzficance in the field. 
The petitioner argued that this criterion applied to her and offered several letters of recommendation, 
in an attem~t to satisfv this criterion. In resDonse to the RFE, the ~etitioner resubmitted the 
The letters provided discuss the petitioner's talent as a violinist, her training, and examples of where 
she has performed. However, they fail to demonstrate that she has made original contributions of 
major significance in her field. The letters include no substantive discussion as to which of the 
petitioner's specific artistic achievements rise to the level of original contributions of major 
significance in the field. According to the regulation at 8 C.F.R. 4 204.5(h)(3)(v), an alien's 
contributions must be not only original but of major significance. We must presume that the phrase 
"major significance" is not superfluous and, thus, that it has some meaning. While the petitioner's 
artistic talent is admired by those offering letters of support, there is no evidence demonstrating that 
her work has had major significance in the field. For example, the record does not indicate the 
extent of the petitioner's influence on other performers nationally or internationally, nor does it show 
that the field has somehow changed as a result of her work. 
In his decision, the director cited to Matter of Chawathe (USCIS Adopted Decision, January 11, 
2006) insofar as its precedent reaffirmed 8 C.F.R. fj 204,5(h)(3), which required "specific objective 
evidence be submitted to demonstrate eligibility as an alien of extraordinary ability." The director 
then stated that he found "the record lacks documentary evidence establishing what contributions the 
petitioner has made to the field of endeavor and that those contributions are significant." On appeal, 
the petitioner's counsel argues that the letters provided serve as sufficient evidence to establish this 
criterion. However, even if we consider the letters to be independent evidence, the letters fail to 
provide a specific example of an original contribution of major significance in the petitioner's field. 
As such, we agree with the director that the petitioner has failed to hlfill this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The petitioner submitted a letter from the Orchestra Personnel Manager of the BSO, dated July 7,2007, 
which stated that the petitioner is employed with the BSO as a violinist with a salary of $1 19,080 and 
that her contract runs through August 26, 2007. This letter was accompanied by an employment 
contract, dated and signed by the petitioner and the BSO in March of 2004. The petitioner also 
submitted an agreement between herself and the San Francisco Symphony dated July 6, 2007 for her 
employment as a Section lSt Violinist for the 2007-2008 Season, which indicated that her salary would 
be "scale." The petitioner submitted the wage scale for the previous year, 2006-2007, for symphony 
orchestras which indicated that her salary with the San Francisco Symphony would be $1 14,400 
annually. In addition, the petitioner submitted a U.S. Department of Labor printout which indicated that 
musicians7 and singers' salary in the Boston area range from $30,18 1 to $91,333 per year. 
In response to the RFE, the petitioner submitted the Wage Scales for all the symphony orchestras. 
Further, the petitioner's brief argued that since all symphonies are bound by a union agreement, all 
orchestra members receive high salaries in relation to other musicians. The petitioner also submitted 
another letter from the San Francisco Symphony's Personnel Administrator that stated that its 
symphony members are "among the highest paid in the country" and that the petitioner is paid $121,000 
(plus media payments) for the 2007-2008 Season. 
Upon review, we find such evidence sufficient to establish that the petitioner meets this criterion. 
We, therefore, withdraw the director's finding on this issue. 
On appeal, counsel argues that the reference letters submitted on the petitioner's behalf are 
comparable evidence of the petitioner's extraordinary ability as a violinist. The regulation at 
8 C.F.R. Cj 204.5(h)(4) allows for the submission of "comparable evidence" only if the ten criteria 
"do not readily apply to the beneficiary's occupation." The regulatory language precludes the 
consideration of comparable evidence in this case, as there is no evidence that eligibility for visa 
preference in the petitioner's occupation cannot be established by the ten criteria specified by the 
regulation at 8 C.F.R. § 204.5(h)(3). Where an alien is simply unable to meet three of the regulatory 
criteria, the plain language of the regulation at 8 C.F.R. $204.5(h)(4) does not allow for the 
submission of comparable evidence. 
In this case, the petitioner has failed to demonstrate receipt of a major, internationally recognized 
award, or that she meets at least three of the regulatory criteria at 8 C.F.R. Cj 204.5(h)(3). The 
conclusion we reach by considering the evidence to meet each criterion separately is consistent with 
a review for 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. 8 
C.F.R. Cj 204.5(h)(2). We acknowledge that the petitioner has submitted letters of praise from 
internationally recognized experts in her field such a-; however, reputation by association 
cannot establish that the petitioner herself has sustained national or international acclaim. While the 
petitioner has attracted the favorable attention of these world-renowned musicians, a comparison of 
their achievements with those of the petitioner shows that she has not amassed a record of 
accomplishment which places her among that small percentage at the very top of her field. We agree 
with the renowned experts' assertions that the petitioner possesses great talent as a violinist, but the 
evidence of record does not establish that she has sustained national or international acclaim at this 
stage in her musical career. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. 
U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. The burden of proof in visa petition proceedings remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.