dismissed EB-1A Case: Violinist

(b)(6),. 
U.S, Department of Horn eland · Security 
U.S. Citizens hip and Im mig ration Service 
Admini strat.ive Appeal s Off ice (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washi n!!:ton. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: APR 3 0 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 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 AAO inappropriately applied the law in reaching its decision, or you have additional 
· information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a: motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Dlj)_d~ . · . 
n Rosenberg 
Acting Chief, Administrative Appeals Office 
www .uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The 
appeal will be rejected, or in the alternative dismissed. 
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 established the requisite extraordinary ability and failed to submit extensive 
documentation of her sustained national or international acclaim. 
Form 1~140, Immigrant Petition for Alien Worker, was electronically submitted to U.S. 
Citizenship and Immigration Services on September 22, 2011. Part 1 of the Form 1-140 
identifies as the petitioner. In Part 8 of Form 1-140, under 
"Petitioner's Signature," counselsigned and certified the petition electronically. Form 1-140 was 
not signed by the petitioner, as required by regulation, but instead by the petitioner's attorney. 
The only signatures on the form <.rre 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.P.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, 
notwithstanding 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 1-140 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. 
1 According to her Form I-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)Page 3 
There is no regulatory prov1s1on that waives the signature requirement for a petitiOner to 
designate an attorney or accredited representative to sign the petition on behalf of the petitioner. 
In this instance, the petition has ·not been properly filed because the petitioner did not sign the 
petition. Pursuant to the regulation at 8 C.F.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.F.R. § 103.2(a)(7)(iii). While the service center did not reject the petition, 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.), affd, 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 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 0974) (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 
departures from those rules, even to achieve laudable aims, cannot be sanctioned).· 
In the present matter, counsel signed Form I-140 petition both on behalf of the petitioner and as 
the preparer. The signature line on Form I-140 for the petitioner provides that the petitioner is 
certifying, "under penalty of perjury under the laws of the United States of America, that this 
petition and the evidence submitted with it. are all true and correct." To be valid, 28 U.S.C. 
§ 1746 requires that declarations be "subscribed" by the declarant "as true under penalty of 
perjury." Id. · In pertinent part, 18 U.S.C. § 1621, which governs liability for perjury under 
federal law, mandates that: "Whoever in any declaration under penalty of perjury as permitted 
under section 1746 of title 28, United States Code, willfully subscribes as true any material 
matter whicg he does not believe to be true is guilty of perjury." 18 U.S.C. § 1621. 
The probative force of a declaration subscribed under penalty of perjury derives from the 
signature of the declarant; one may not sign a declaration "for" another. Without the petitioner's 
actual signature as declarant, the declaration is completely robbed of any evidentiary force. See 
In re Rivera, 342 B.R. 435, 459 (D. N.J. 2006); Blumberg v. Gates, No. CV 00-05607, 2003 WL 
22002739 (C.D.Cal.) (not selected for publication). 
The AAO notes that Part 8 of Form I-140 specifically requires the. "Petitioner's Signature" and 
states: "Read the information on penalties in the instructions before completing this section. If 
someone helped you prepare this petition, he or she must complete Part 9." [Emphasis added.] 
An entirely separate line exists on Form I-140 for the signature of the preparer (Part 9) declaring 
that the form is "based on all information of which [the preparer has] knowledge." Thus, Form. 
I-140 petition acknowledges that a preparer who is not the petitioner cannot attest to the contents 
of the petition and supporting evidence. Rather, the preparer may only declare that the 
information provided is all the information of which he or she has knowledge. 
(b)(6)
Page4 
Because the underlying petition was not properly filed with the petitioner's signature as required 
by the regulation at 8 C.P.R. § 103.2(a)(2), further action on the petition caiUlotbe pursued, and 
the appeal must be rejected. 
Alternatively, the appeal will be dismissed. 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)(l)(A)(i) of the Act and 8 C.P.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 of a major, 
internationally recognized award. Absent the receipt of such an award, the regulation outlines ten 
categories of specific objective 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 regulat.ory categories of evidence to 
establish the basic eligibility requirements. 
On appeal, counsel asserts that the petitioner meets at least three of the regulatory categories of 
evidence at 8 C.P.R. §§ 204.5(h)(3) and that the petitioner submitted comparable evidence of her 
eligibility pursuant to 8 C.F.R. § 204.5(h)(4). The AAO acknowledges that the standard of proof 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)(l)(A)(i) of the Act, 8 U.S.C. § 1153(b)(l)(A)(i), and 8 C.P.R.§§ 204.5(h)(2) and (3). The 
inost recent precedent decision related to the preponderance of the evidence standard of proof is 
Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). This decision, and this standard, focuses on 
the factual nature of a claim; not whether a claim satisfies a regulatory requirement. /d. at 376 .. The 
preponderance of the evidence standard does not preclude USCIS from evaluating the evidence. 
The truth is to be determined not by the quantity of evidence alone but by its quality. /d. The 
Chawathe decision also stated: 
[T]he "preponderance of the evidence" standard does not relieve the. petitioner or 
applicant 
from satisfying the basic evidentiary requirements set by regulation. There are no 
regulations relating to a corporation's eligibility as an "American firm or corporation" under 
section 316(b) of the Act. Bad the regulations required specific evidence, the applicant 
would have been required to submit that evidence. Cf 8 C.P.R. § 204.5(h)(3) (2006) 
(requiring that specific objective evidence be submitted to demonstrate eligibility as an alien 
of extraordinary ability). 
25 I&N Dec. at 3 7 5 n. 7. The !mal determination of whether the evidence meets the plain language 
requirements of a regulation lies with USCIS, not with counsel. See Matter of Caron International, 
19 I&N Dec. 791, 795 (Comm'r 1988) (finding that the appropriate entity to determine eligibilityis 
USCIS in a scenario whereby an advisory opinion or statement is not consistent with other 
information that is part of the record). Ultimately, the truth is to be determined not by the quantity 
of evidence alone but by its quality. Mat(er of Chawathe, 25 I&N Dec. at 376 citing Matter of E-M-
(b)(6)
PageS 
20 I&N Dec. 77, 80 (Comm'r 1989). In the present matter, 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.P.R. § 204.5(h)(3) or that she has submitted 
qualifying comparable evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(4). 
For the reasons discussed below, the AAO will uphold the director's decision. 
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 
(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 10151 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.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a <me-time achievement (that is, a major, international recognized award) 
or through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at8 C.F.R. § 204.5(h)(3)(i)-(x). 
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, 580 F.3d 1030 (91h Cir. 2009) aff'd in 
part 596 F.3d 1115 (9th Cir. 2010). Although the court upheld the AAO's decision to deny the 
./ 
(b)(6)
Page 6 
petition, the court took issue with the AAO's evaluation of evidence submitted to meet a given 
evidentiary criterion? With respect to the· criteria at 8 C.P.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 "fmal merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part 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)." ld. at 1122 
(citing to 8 C.P.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a fmal merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy. 
the regulatory requirement of three types of evidence. I d. 
II. ANALYSIS 
A Evidentiary Criteria3 
Documentation of the alien ~s receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted the following: 
1. A certificate from the 1, where the petitioner earned 
her Bachelor of Music degree; stating that she achieved "a perfect grade point average 
of 4.0 while completing at least twelve semester hours" and "was entered on the 
President's List for the Fall2005 Semester"; 
2. A January 10, 2006 letter from 'the President of stating that the petitioner 
"achieved 
a perfect grade point average for the 2005 fall semester" and that her name 
was "placed on the President's LisC'; 
3. A May 25, 2006 letter from the Associate Dean for Academic Affairs at stating 
that the petitioner was "named to the Dean's Honor Roll of Scholars at the 
. Only students who have earned a 3.5 grade point average on a course 
load of 12 or more hours during the past semester earn the distinction of the Dean's 
Honor Roll"; 
2 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.FR. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
3 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
(b)(6)Page 7 
4. A July 12, 2004 letter from the Dean of the College of Music at congratulating 
the petitioner for her "achievement as a 3.5 honor roll student for the Spring 2004 
semester"; 
5. A June 24, 2003 letter from the Dean of the College of Music at congratulating 
the petitione'r for her "achievement as a 3.5 honor roll student for the Spring 2003 
semester"; 
6. A letter from the Coordinator, Learning Success Programs, Volunteer Tutor Program, 
Learning Center, congratulating the petitioner for "being an outstanding student 
at the based on her "3.5, or better, semester grade point 
average for Spring 2003" and inviting the petitioner "to participate in the Volunteer 
Tutor Program"; · 
7. A Certificate of Achievement from stating that the petitioner received the 
"Outstanding Undergraduate Student in Strings Award" on April 21, 2006; 
8. An April 7, 2006 letter from the Co-Chairs of ~he Honors and Recognition 
Committee stating that the petitioner would receive the "Outstanding Undergraduate 
Student in Strings Award" to be presented at the Honors Day Convocation on 
April21, 2006; 
9. An April 8, 2004 article in the (a local newspaper 
published in exas where is located) stating that the petitioner won 
"second place" in the "annual concerto contest" and would perform with: five 
other student finalists in 
~~----------------------------------------~ 
College of Music; 1 
10. A certificate issued by the President of stating: "This is to certify that (the 
petitioner] has been named the for 2007 in recognition of outstanding 
achievement as a Music Major at this Institution"; · 
11. A May 13, 2007 article in the " ' section of 
stating: " College of Music recently named 
student violinist (the petitioner] the 2007-08 The award is a $4,500 
scholarship. The winner is nominated and selected by music faculty and 
receives the award from the , which awards annual scholarships, 
grants and funds for the furthering of music education .... "; 
12. A letter from the Associate Dean for Admissions and Scholarship Services 
offering the petitioner a "violin scholarshjp in the amount of $4500 for the 2007-2008 
academic year," which was "awarded on the basis of ... talent and desire to 
participate in the College of Music Programs at 
13. Two May 2007 news releases stating: ' College 
of Music has named [!he petitioner] ... the 2007-2008 and the 
recipient of the . . . >. The award is presented annually to a student 
entering his or her senior year who has shown extraordinary musical and aqtdemic 
accomplishments"; 
14. Information about the . from the website of the National 
Endowment for the Arts stating that the was the recipient of a 
National Medal of Arts and that the · provides 
approximately $2 million in awards animally to help needy music students, educators, 
and music institutions" [emphasis added]; 
(b)(6)
Page 8 
15. A July 7, 2006 letter from the Dean of the College of Music at congratulating 
the petitioner as being among the group of · students that received a scholarship 
from ; 
16. A letter from the Associate Dean for Admissions and Scholarship Services 
offering the petitioner a " scholarship in the amount of 
$2000 for the 2005-2006 academic year," which was "awarded on the basis of ... 
talent and desire to participate in the College of Music Programs at the 
"· 
17. An April 25, 2002 news release issued by announcing that '' 
of Dallas have given the College of Musie $1.2 million to fund 
student scholarships and faculty excellence"; 
18. A concert schedule (April 10, 2010) from the.~ School of Music Chamber 
Music Festival ' ' (where the petitioner earned 
lier Master of Music degree) reflecting that the petitioner performed at her school's 
free concert along with numerous other students; 
19. A letter from the Director of Development, 
l stating that the petitioner received a 
information from the website of the 
that the foundation provides a scholarship in violin at - · 
School of Music; 
Scholarship and 
of Texas stating 
20. A February 25, 2011_ letter from Dr. _ _ Director of the Center for 
Chamber Music Studies at stating that the petitioner received ' 
and information from the website of the · stating that 
the foundation "supports classical music study for highly talented youth" and offers 
students "musical training and mentorship" through a variety of programs such as a 
violin master class; · 
21. A February 25, 2011 letter from Dr. stating that thepetitioner was 
"invited" to compete in the as a member of the 
Trio and information about the "for non-
professional musicians"; 
22. A February 25, 2011 letter from Dr. stating that the petitioner was 
"invited' to compete in the as a member of the 
Trio and information about the l stating that the 
association organizes "an annual competition for young chamber music performers," . 
that "the average age of the ensemble members must be under 28," and that 
participants are "non-I>rofessional performers"; 
23. Certif~cates froin the Chamber Music Competition stating that the 
petitioner performed in the competition as a member of the Trio in May 
2006 and as a member of the Trio in May 2008; 
24. Information from the website of the Chamber Music Association 
stating that "the 1 is the largest chamber music competition in the 
nation and the world. Each year an average of 125 ensembles ... enter in either the 
wind or string categories of three to six performers. is the only national 
chamber music competition with both senior divisions (ages 18-35) and a junior 
division (18 and younger)"; 
(b)(6)
Page 9 
25. A March 7, 2006 letter from the Student Affairs Manager, _ 
inviting the petitioner "to participate in the Instrumental 
Program (violin- 1) at the 's 2006 
Summer School and Festival" and requesting the petitioner to "submit a non­
refundable registration fee of $150.00 . . . and refundable security deposit of 
$150.00"; 
26. A "Certificate of Completion" from stating that the 
petitioner "successfully completed studies in the 2006 Summer School and Festival 
Violin Program hosted June 17, 2006 through August 12, 2006" and information 
about the academy from its website; 
27: A "Certificate of Participation" from Chamber Music 
, stating that the petitioner was the "1st Place Winner in the College Division" of the 
Second Annual 
Chamber Music Competition on April3, 2005; 
28. A May 1, 2005 article in the 
two other student members of the 
Chamber Music Competition; and 
stating that the petitioner and 
Trio won the 
29. Information from the website of , a nonprofit arts 
organization offering classical music through performances and musical education 
programs in announcing the high school and 
college winners of the " , Chamber Music Competition" in April 
2004. 
With regard to items 1 
- 9, the petitioner submitted a May 7, 2011 letter from 
Associate Professor of Violin, stating: 
[The 
petitioner] came to further her violin skills under my tutelage at the 
She has immediately won all top awards at the College of Music. She 
received a first prize at the Concerto Competition, where she selected as the only 
violinist from the two hundred of total number of applicants. 
L, 
Ms. asserts that the petitioner received "a first prize" at the, Concerto 
Competition, but the April 8, 2004 article in the (item 9) states that the 
petitioner won "second place" in the , Concerto Competition. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 
591-92 (BIA 1988). Regardless, the petitioner's student honors from UNT (items 1 - 9) reflect 
institutional recognition from her undergraduate alma mater rather than nationally or 
internationally recognized prizes or awards for excellence in the music field. 
Regarding items 10 - 14, the submitted documentation fails to establish that the petitioner's 
is a nationally or internationally recognized prize or award for excellence in the 
music field. For instance, the AAO notes that the petitioner's certificate (item 1 0) was issued by 
the President of "in recognition of outstanding achievement as a Music Major at this 
(b)(6)
Page 10 
Institution" rather than by an officer of the for excellence in the field of 
I 
endeavor. In addition, the May 13, 2007 article in the states: "The 
College of Music recently named student violinist [the petitioner] the 
2007-08 ... The winner is nominated and selected by 'music faculty .... " 
In addition, the May 7, 201lletter from Ms. states: "The award is presented annually 
to a . student entering their senior year who has shown extraordinary musical and academic 
accomplishments .... The winner is nominated and selected by the music faculty .... " 
The AAO cannot conclude that being "selected by music faculty" and garnering media 
coverage limited to a local newspaper published in (where is located) are 
indicative of national or internatiomi.l recognition in the petitioner's field of endeavor. While the 
information submitted by the petitioner from the National Endowment for the Arts' website 
(item 14) shows that the_ is the recipient of a nationally recognized award, the 
National Medal of Arts, there is no documentary evidence showing that the petitioner's 
specific scholarship enjoys a comparable level of recognition or otherwise equates to a nationally 
recognized award for excellence in the field. The petitioner's _ reflects 
recognition conferred by her undergraduate alma mater rather a nationally or internationally 
recognized prize or award for excellence the field of endeavor. There is no documentary 
evidence demonstrating that the petitioner's specific award was recognized beyond her alma 
mater, the locality of and the and therefore commensurate with a 
"nationally or internationally recognized" prize or award for excellence in the field. 
In regard to items 15- 17, the petitioner's Scholarship reflects institutional recognition 
from her undergraduate alma mater based on her "talent and desire to p~ticipate in the College 
of Music Programs at the _ " There is no documentary evidence 
showing that the petitioner's Scholarship is a nationally or internationally recognized 
prize or award for excellence in the music field. 
With regard to item 18, the School of Music Chamber Music Festival .,-
,, concert schedule, the petitioner has not established that performing in a free concert at her 
alma mater along with numerous other students from the School of 
Music is a nationally or internationally recognized prize or award for excellence in the field of 
endeavor. 
Regarding !terns 19 and 20, there is no documentary evidence showing that the petitioner's 
Scholarship and Award are nationally or internationally recognized 
prizes or awards for excellence in the music field. 
In regard to items 21 - 24, while the petitioner participated in the Chamber Music 
Competition "for non-professional musicians," the ~ Chamber Music Association's 
"annual competition for young chamber music performers," and twice entered the 
Chamber Music Competition for those age 35 and under, there is no evidence showing 
that she won "nationally or internationally recognized prizes or awards" [emphasis added] at the 
competitions. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires evidence of 
the petitioner's receipt of "prizes or awards," rather than simply certificates or a letter 
acknowledging her participation' as a competitor. For instance, the information submitted bythe 
(b)(6)
Page 11 
petitioner indicates that the Chamber Music Association awarded a $5,000 grand prize, 
two $2,000 first prizes, and $500 honorable mentions. In addition, the submitted information 
states that the Competition awards "three prizes totaling $15,500." There is no 
documentary evidence showing that the petitioner received any such awards in the 
t, and Fischoff competitions, and that her specific awards were nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor. 
With regard to items 25 and 26, the petitioner's admission to 
constitutes her admission to a training program for musicians rather than a nationally or 
internationally recognized prize or award for excellence in the field. There is no documentary 
evidence showing that the·petitioner's music fellowship for "studies in the 
and Festival Violin Program" is a'nationally or internationally recognized prize or award in the 
field of endeavor. Moreover, the AAO notes that competition for the petitioner's 'fellowship was 
limited to those seeking to further their musical education and training. Experienced violinists 
already employed in the field do not seek or compete for such training programs . 
. Regarding items 27 _:_ 29, the submitted documentation fails to demonstrate that the petitioner's 
1st Place award in the "College Division" of the Chamber Music 
Competition is a nationally or internationally recognized prize or award for excellence in the 
music field. The petitioner submitted a November 23, 2012 letter from Dr. 
Regents Professor of Piano, College of Music, stating: 
[The petitioner] was ... a winner of the Chamber Music Competition, 
which draws worldwide participation from musician ·contestants and is adjudicated by 
renowned performing artists chosen by the board of Chamber Music International. 
Classical music competitions are by their nature international in scope unless specifically 
targeted to residents of speCific states. It is not unusual anymore to have young artists fly 
from China or Korea to the U.S. for competitions. Chamber Music International 
provided [the petitioner] with important support and exposure as she started her chamber 
music career. 
A music competition may be open to students from throughout a particular country or countries, 
but this factor alone is not adequate to establish that a specific prize from the competition is 
"nationally or internationally recognized." The May 1, 2005 article in 
(item 28) and the information submitted from Chamber Music International (item 29) 
fail to demonstrate that the petitioner's College Division award is nationally or internationally 
recognized in her field of endeavor. Moreover, regarding the information from Chamber Music 
International's own website, USCIS need not rely on self-promotional material. See Braga v. 
Poulos, No. CV 065105 SJO, aff'd 317 Fed. Appx. 680 (C.A.9) (concluding that the AAO did not 
have to rely on self-serving assertions on the cover of a magazine as to the magazine's status as 
major media). 
In regard to items 1 - 29, the petitioner failed to submit documentary evidence of the national or 
international recognition of her particular prizes and awards. The plain language of the regulation at 
. 8 C.F.R. § 204.5(h)(3)(i) specifically requires the petitioner's receipt of more than one prize or 
(b)(6)
Page 12 
award and that the prizes and awards be nationally or internationally recognized in the field of 
endeavor. It is the petitioner's burden to establish every element of this criterion. There~is no 
documentary evidence demonstrating that the petitioner's specific prizes and awards were 
recognized beyond the presenting organizations, her university mentors and a local 
newspaper, and therefore commensurate with nationally or internationally recognized 
prizes for excellence in the field .. Accordingly, the petition~r has not established that she meets 
this regulatory criterion. 
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. 
The petitioner initially submitted her curriculum vitae, biography, Bachelor of 'Music degree 
from , Master of Music degree from and an article in 
the official student newspaper at entitled " School of Music ranks 
high." Earning one's undergraduate and graduate degrees from educational institutions does not 
equate to holding "membership in associations in the field." None of the prec:;eding 
documentation constitutes evidence of the petitioner's membership in associations in the field f~r 
which classification is sought, which require outstanding achievements of
1 
their members, as 
jud~ed by recognized natiqnal or.intemational experts. 
In response to the director's request for evidence, counsel asserts that the petitioner has 
submitted comparable evidence for this regulatory criterion. Counsel states: 
There is not necessarily orie organization to which only elite violinists belong. 
"Membership" in the class of elite violinists is earned by performing extraordinarily well 
- so well that the others recognize one's talent and request that you lead the orchestra, 
accompany a pop or country music star in concert or are invited to play at a prestigious, 
internationally-known festival. The analogous entities to "associations" for musicians 
then would be playing in a highly 
ranked-orchestra, performing a masterclass with a 
world-renowned violinist or being asked to debut and [sic] entirely new composition in a 
major city. 
On appeal, counsel further states: 
What is "comparable," and is used in this field to measure extraordinary ability, is a 
musician's success in landing a position in an orchestra, a teaching position at a 
prestigious music school or placing in the top three at an important competition or 
festival. Additionally, the record does include the criteria under which and applicant for 
a festival or orchestra position must qualify. 
Counsel asserts that "placing iil the top three at an important competition or festival," "landing a 
position in an orchestra," serving in "a teaching position~ at a prestigious music school," 
accompanying "a pop or country music star in concert," and various other forms of public 
\ 
(b)(6)
Page 13 
performance ar:e comparable evidence for the membership criterion at 8 C.F.R. § 204.5(h)(3)(ii). 
As the preceding examples presented by counsel pertain directly to other regulatory criteria at 
8 C.F.R. §§ 204.5(h)(3)(i), (viii) and (x), counsel's assertions are not persuasive. The regulation 
at 8 C.F.R. § 204.5(h)(3) provides that evidence of sustained national or international acclaim 
"shall" include evidence of a one-time achievement or evidence of at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. The ten 
categories in the regulations are designed to cover different areas; not every criterion will apply 
to' every occupation. For example, the criterion at 8 C.F.R. § 204.5(h)(3)(vii) implicitly applies 
to the visual arts, and the criterion at 8 C.F.R. § 204.5(h)(3)(x) expressly applies to the 
performing arts. The AAO further acknowledges that the regulation at 8 C.F.R. § 204.5(h)(4) 
provides "[i]f the above standards do not readily apply to the [petitioner's] occupation, the 
petitioner may submit comparable evidence to establish the [petitioner's] eligibility." It is clear 
from the use of the word "shall" in 8 C.F.R. § 204.5(h)(3) that the rule, not the exception, is that 
the petitioner must submit evidence to meet at least three of the regulatory criteria. Thus, it is the 
petitioner's burden to explain why the regulatory criteria are not readily applicable to her 
occupation and how the evidence submitted is "comparable:' to the objective evidence required 
at 8 C.F.R. § 204.5(h)(3)(i)- (x). 
Counsel asserts that "there are not formal associations like one would find among scientists, 
researchers or business professionals. Many of the 'associations' in the common use of the word 
are unions or organizations that merely require payment of dues for membership. Clearly, this is 
not the type of 'membership' that meets the requirement of this criterion." Without documentary 
evidence to support these claims, the assertions of counsel will not satisfy the petitioner's burden 
of proof. 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). As such, the 
petitioner has failed to demonstrate that the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(ii) does 
not apply to her occupation as required by the plain language of regulation at 8 C.F.R. 
§ 204.5(h)(4). Moreover, the AAO points to the example of a Voting member of the Recording 
Academy as an indication that there are associations in the music field that do not "merely 
require payment of dues for membership" and that 8 C.F.R. § 204.5(h)(3)(ii) may be applicable to 
. • 4 . 
musicians. 
In addition, there is no evidence that eligibility for visa preference in the petitioner's occupation 
as a violinist cannot be established by the ten categories of evidence specified by the regulation 
at 8 C.F.R. § 204.5(h)(3). In fact, counsel asserts in her appellate brief that the petitioner 
4 "Celebrating music through the GRAMMY® Awards for more than 50 years, The Recording Academy is the 
premier organization for honoring achievements in the recording arts, and supporting the music community. Each 
year, our Voting members decide who receives a GRAMMY, the most prestigious and respected award in music." 
Voting members are admitted based on factors such as documented sales/music chart information, reviews of 
performances by print or online magazines, or being nominated for a GRAMMY® Award within the previous five 
years. See http://www.grammy365.com/about and https://www.grammy365.com/join!membership-types, accessed 
on April 8, 2013, copy incorporated into the record of proceeding. ' 
(b)(6)
Page 14 
"submitted evidence in five categories." An inability to meet a criterion is not necessarily 
evidence that the criterion does not apply to the petitioner's occupation. Moreover, although the 
petitioner failed to claim these additional criteria, the petitioner has not established that the 
published material criterion at 8 C.F.R. § 204.5(h)(3)(iii), the judge of the work of others criterion at 
8 C.F.R. § 204.5(h)(3)(iv), the authorship of scholarly articles criterion at 8 C.F.R. 
§ 204.5(h)(3)(vi), the high salary criterion at 8 C.F.R. § 204.5(h)(3)(ix), and ·the commercial 
successes in the performing arts criterion at 8 C.F.R. § 204.5(h)(3)(x) are not readily applicable 
to violinists. The petitioner provides no evidence as to why these provisions of the regulation 
· would not be appropriate to the occupation of violinist. 
Even if the petitioner demonstrated that she was eligible for the provisions of the regulation at 
8 C.F.R. § 204.5(h)(4), which she clearly did not, the petitioner failed to establish that 
performing with other musicians, even noteworthy musicians in a concert, festival, competition 
or masterclass, is comparable to the regulation at -8 C.F.R. § 204.5(h)(3)(ii) that requires 
"[d]ocumentation of the alien's membership in associations in the field for which is classification 
is sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields." The regulation at 8 C.F.R. 
§ 204.5(h)(4) is not a provision to simply allow an alien to circumvent the regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)- (x) when an alien is unable to meet or submit documentary evidence 
of the criteria. Rather than submitting evidence ~hat is comparable to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ii), counsel's examples that performing with other musicians in a university 
setting, supporting role, instructional environment, or age-restricted competition limited to young 
musicians are comparable to being a member of associations that require outstanding 
achievements; as judged by recognized national or international experts appear to be less 
restrictive than the plain language of the regulation. Where an alien is simply unable to meet or 
submit documentary evidence of three of the criteria pursuant to the regulation at 8 C.F.R. § 
204.5(h)(3), the plain language of the regulation at 8 C.P.R. § 204.5(h)(4) does not allow for the 
submission of comparable evidence. 
In light of the above, the petitioner has not established that she meets this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
regulatory criterion. The plain language of the regulation at 8 C.P.R. §~ 204.5(h)(3)(v) requires 
"[e]vidence of the alien's original scientific, scholarly, artistic> athletic, or business-related 
contributions of major significance in the field." [Emphasis added.] Here, the evidence must be 
reviewed to see whether it rises to the level of original scholarly or artistic contributions "of 
major significance in the field." The phrase "major significance" is not superfluous and, thus, it 
has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 
1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). 
The petitioner submitted letters of support praising her talents as a musician and discussing her 
work. 
(b)(6)
Page 15 
states: 
[The petitioner] came to further her violin skills under my tutela!!e at the 
. 
. . She was appointed the concertmaster of the Symphony Orchestra 
and Chamber Orchestra, performed iri numerous orchestras and recitals. She ,quickly 
became one of the most sought-after performers in the 
* * * 
As passionate orchestra player and chamber musician, [the petitioner's] appearances 
include performances with many great and world-renowned artists, such as Sarah Chang, 
a Gramophone "Young Artist of the Year" award, Three-time Grammy Award winner 
Edgar Meyer, Grammy Award winner Andre Watts, Peter Salaff (seven Grammy award 
nominations, and qrammy award winner, and Petronel Malan (Three-times Grammy 
award Nominee), to name a few. 
[The 
petitioner] excels in every genre of music, performing for numerous most 
phenomenal artists who choose her over any competition. LeAnn Rimes invited her to 
perform at NFL Dallas Cowboys game at Irving, TX in 2002, which was televised by 
CBS (nearly 60,000 spectators). In 2005, she was re-hired by the three times GRAMMY 
nominee top selling western artist Dave Alexander to perform at another NFL Dallas 
Cowboys game - this time with Sheryl Crow, to sell-out crowds, and the televised 
audience of more than 60,000. Performance with world-class artist Willie Nelson in 
2007 at Nokia Theatre in Grand Prairie, TX, drew more than 6,000 spectators. [The 
petitioner] was invited to play with the Fort Worth Symphony- one of the best orchestras 
in Texas and in the country. 
* * * 
I 
I know that [the petitioner] qualifies as a performing artist of extraordinary ability. She is 
a comprehensive artist-teacher and versatile performer in many genres. She is a most 
engaging soloist, fantastic organizer, and very rare human being - extraordinarily 
intelligent and yet completely accessible and down to earth. 
' asserts that the petitioner "qualifies as a performing artist of extraordinary 
ability," but merely repeating the language of the statute or regulations 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), affd, 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.}. Ms. also comments on the petitioner's 
performances in a university setting at and the petitioner's supporting roles as part of an 
ensemble for award-winning and well-known artists, but Ms. . does not provide specific 
examples of how the petitioner's original work has influenced the field at a level indicative of 
contributions of "major significance." The AAO notes that having a diverse or unique skill set 
of music skills is not a scholarly or artistic contribution of major significance in and of itself. 
(b)(6)
Page 16 
Rather, the record must be supported by evidence that the petitioner has already used her unique 
skills to impact the field at a significant level in an original way. Furthermore, assuming the 
petitioner's violin skills are unique, the classification sought was not designed merely to alleviate 
l . 
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. ofTransp., 22 I&N Dec. 215, 221 (Cornm'r 1998). 
Regarding the concerts and compact disc recordings performed by the petitioner (such as songs 
on the album released by the indie rock band ', there is no documentary 
evidence showing that they equate to original co11tributions of major significance in the field. 
The AAO notes that the regulations include a separate criterion for "commercial successes in the 
performing arts" at 8 C.F.R. § 204.5(h)(3)(x).5 Here it should be emphasized that the regulatory 
criteria are separate and distinct from one another. Because separate criteria exist for 
commercial successes in the performing arts and original contributions of major significance, 
USCIS clearly does not view these criteria as being interchangeable. To hold otherwise would 
render meaningless the statutory requirement for extensive evidence or the regulatory requirement 
that a petitioner meet at least three separate criteria. While Ms. notes the caliber of the 
musicians with whom the petitioner has shared the stage as a part of their supporting ensemble, Ms. 
does not provide specific examples of how the petitioner's musical accomplishments 
have impacted the field in the same manner as those of Sarah Chang, Edgar Meyer, Andre Watts, 
Peter Salaff, or Petrone! Malan, the influential artists specifically mentioned by Ms. 
or of how the petitioner's works were otherwise majorly significant to the field. For example, 
there is no documentary evidence showing the extent of the petitioner's influence on other 
musicians in the field or that the field has somehow changed as a result of her original work, so 
as to demonstrate the major significance of her original contributions. 
Dr. states: 
I was one of [the petitioner's] teachers at the I have known 
and advised her for approximately eight years The 
. College of Music has an enrollment of more than 1,600 students from all over the world. 
Being one of the best students at has established her worth .. [The petitioner] was 
the first performer chosen for the Center for Chamber Music Studies and in many ways 
she was the. person this program was designed to serve. The Center is made up of 
performers picked by the faculty to form a string quartet, a piano trio, a wind quartet and 
a brass quintet. 
* * * 
5 As the petitioner did not claim to meet the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(x) at the time of filing, in 
response to the director's request for evidence, or on appeal, the AAO makes no specific determination on this ground; 
only that the petitioner has failed to establish eligibility pursuant to 8 C.F.R. § 204.5(h)(3)(x). 
(b)(6)
Page 17 
When she arrived in this country she blossomed under the guidance of Ms . 
. her violin teacher. Most of her college career took place at the 
, two universities with sterling reputations. She was 
placed in the piano trio which members riamed Trio. This group won 
first prize in the Chamber Music International competition and were invited to participate 
in the prestigious and Competitions. The trio was invited 
and toured the Czech Republic. While at the L she was the 
concertmaster and on two occasions the soloist with the orchestra. Her classroom studies 
never waned and she graduated cum laude. 
* * * 
Her college experience was remarkable being listed on the President's List for Academic 
Excellence .... Among her performances during this period were invitations to perform 
in the Festival, the Music Festival and the USA 
Festival. 
Dr. comments on the petitioner's music training at ·,but he fails 
to explain how the petitioner's work was both original and majorly significant in the field. In 
addition, while Dr. also notes that the petitioner performed at the Festival, 
the Music Festival, and the 1. Festival, he does not provide specific 
examples of how the petitioner's performances have substantially impacted the field or otherwise 
constitute original contributions of "major significance" in the field. · 
, Professor of Music, . School of Music, states: 
I attract the finest violinists in the U.S. to my studio at [The petitioner] earned her 
M.M. with me and is in the top 5% of recent graduates from our school and my studio. 
She is a fine violinist, an excellent ensemble player, and a truly gifted teacher, who has 
excellent rapport with her young students. 
* * * 
Former students .from my studio teach in colleges and universities as well as major 
schools of music (Juilliard, Yale), perform in major symphony orchestras (Boston, 
Chicago), perform in famous chamber music ensembles (Juilliard Quartet, Enso Quartet) 
-and may be found performing and teaching music all over the world in public and private 
schools and in their own teaching studios. 
asserts· that the petitioner "is ih the top 5% of recent graduates from the _ 
School of Music," but he does not specify how the petitioner's work was original or equates to 
original scholarly or artistic contributions of major significance in the field. In addition, while 
Mr. states that the petitioner is "a truly gifted teacher, who has excellent rapport with 
her young students," he does not provide specific examples of how the petitioner's original 
teaching methodologies have influenced the field or otherwise qualify as original contributions 
(b)(6)
Page 18 
of major significance in the field. Mr. notes that former students from his studio 
teach at "major schools of music (Juilliard, Yale), perform in major symphony orchestras 
(Boston,· Chicago)," and "perform in famous chamber music ensembles (Juilliard Quartet, Enso 
Quartet)," but there is no indication that the petitioner has achieved a similar level of 
accomplishment subsequent to her graduation from in May 2010. 
Artistic Director of the j Music Festival ( . , states: 
I have worked with [the petitioner] first-hand, first in an educational setting at the 
as a faculty instructor and subsequently as a colleague who has seen her growth and 
development into a first-class artist. The program in which [the petitioner] participated 
was the 2005 Young Artists Program, a six-week, full scholarship program of 
chamber music study open to only 14 string players. We receive hundreds of 
applications to fill these positions, so admission to the program is highly competitive to 
begin with. Once here, it was clear that [the petitioner] stood out among her excellent 
peers. Audiences returned week in week out to hear [the petitioner] perform on our 
Young Artists concert series, making it clear that their particular interest was in her 
extraordinary performing ability. 
Secondly, I am a string player and conductor who works with the best musicians in the 
world for decades now. Among these and members of the Juilliard, Guarneri and Tokyo 
string quartets, The Shanghai and Jupiter quartets, violinist Jaime Laredo and cellist 
Sharon Robinson and a long list of others of similar,.outstanding international reputation. 
After leaving , [the petitioner] has kept in touch and I have seen nothing but 
praise and awards coming her way, including the highly coveted Scholarship 
Award bestowed upon her during her time at the l cannot 
emphasize enough how difficult it is to attain such honors, and to my mind clearly and 
obviously demonstrates that [the petitioner] is a violinist of extraordinary ability. 
Mr. states that the petitioner participated was the 2005 Young Artists Program 
of chamber music study and performed in the 's "Young Artists concert series," but there is 
no documentary evidence showing that the petitioner's music has drawn unusually large 
audiences, generated substantial record sales, influenced the work of other professional 
violinists, or otherwise equates to original contributions of "major significance" in the field. Mr. 
also comments on the "praise and awards" received by the petitioner, but he fails to 
explain how the petitioner's work was both original and majorly significant in the music field. 
The AAO notes that the awards submitted by the petitioner (such as her Scholarship) have 
already been addressed under the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(i). Once again, it 
should be emphasized that the regulatory criteria are separate and distinct from one another. 
Because separate criteria exist for awards and original contributions of major significance, 
USCIS clearly does not view the two as being interchangeable. To hold otherw.ise would render 
meaningless the statutory requirement for extensive evidence or the regulatory requirement that a 
petitioner meet at least three separate criteria. 
(b)(6)
Page 19 
-Professor Emeritus, . states: 
[The petitioner] is one of the best violinists I have had the pleasure of having in my 
orchestra. She is a wonderful player and a truly marvelous colleague. This is not a 
matter of having another musician enter the country to get a position in a symphony, but 
a special player of the highest quality that is so rare. Winning competitions is not the sole 
requisite of a truly great talent, but it is often an important step in making of a career. 
She has done that more than once. We need her. This is a gem among gems, and I am 
hoping that she will be allowed to remain here in this country. 
Mr. J praises the petitioner's talent as a violinist, but he _fails to explain how the 
petitioner's original work was majorly significant to the field. Vague, solicited, letters from 
colleagues that do not specifically identify original contributions or provide specific examples of 
how those contributions influenced the field are insufficient. Kazarian, 580 F.3d at 1036. In 
2010, the Kazarian court reiterated that the AAO's conclusion that "letters from, physics professors 
attesting to [the alien's] contributions in_ the field" were insufficient was "consistent with the 
relevant regulatory language." Kazarian, 596 F.3d at 1122. The record lacks documentary 
evidence showing that the petitioner's work rises to the level of original artistic contributions of 
major significance in the field . 
....._ ___ _, Director of String Chamber Music at the Institute of Music, states: 
I taught [the petitioner] the violin at the in 2006. For 65 
years the has trained the next generation of great classical 
musicians. Potential students 'apply internationally. Out of 1500 applicants, only 135 are 
accepted. Former students occupy important positions in major orchestras and chamber 
music groups throughout the USA. As one can see, it is a real honor to be chosen to 
participate in this festivaL 
I was very impressed with [the petitioner's] extraordinary talent as a violinist and as a 
musician. She performs with an outstanding technique, and at an artistic level that is 
head and shoulders above her peers. I also had the joy of performing a chamber work 
with her, and she did an incredible job. 
Mr. praises the petitioner for her extraordinary talent and outstanding technique, but he 
fails to provide specific examples regarding how the petitioner's original work has significantly 
impacted the field or otherwise equates to original artistic contributions of major significance in 
the field. It is not enough to be a skilled violinist and to have others attest to one's talent. An 
alien must have demonstrably impacted his or her field in an original way in order to meet this 
reguiatory criterion. As previously discussed, assuming the petitioner's musical 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 certification process. See Matter of New York State Dep't. ofTransp:, 22 
I&N Dec. at 221. -
(b)(6)
Page 20 
Orchestral Project Manager, Symphony Orchestra, states: 
[The petitioner] has been employed with the _ Symphony Orchestra, Inc. 
m as a substitute musician in various performances since September 2012. 
* * * 
More than 400 musicians, staff and volunteers make up the Symphony 
Orchestra, _ Symphony Chorus and the Symphony league, operating 
educational programs, organizing community engagement events and performing 
concerts. 
* * * 
[The petitioner] has been playing with the Symphony since September 2012 and is 
always available to perform when the Symphony needs additional violinists. [The 
petitioner] performed with the in several very difficult concerts with Grammy 
Award winning artists, Booker T. Jones and Yo-Yo Ma, for which she had little time to 
prepare. The difference in the sound of the violin section was noticeable to her fellow 
musicians, Music Director, and audience, who all encouraged the administration to . 
engage her for future performances. There are very few musicians in the Mid-South who 
possess [the petitioner's] extraordinary abilities. 
The petitioner's work "as a substitute musician" for the "when the Symphony needs 
additional violinists" post-dates the September 22, 2011 filing of the petition. Eligibility must be 
established at the time of filing. 8 C.P.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 Izummi, 22 I&N Dec. 169, 175 (Comm'r 
1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 
1981), that users cannot "consider facts that come into being only subsequent to the filing of a 
petition." !d. at 176. Accordingly, the AAO will not consider the petitioner's occasional 
performances with the MSO in 2012 in this proceeding~ 
Dr. ·states: 
While [the petitioner] was a student at the College of Music I was privileged to 
coach the Trio of which she was a key member. We worked closely together 
on a weekly basis for two years; since that time, I have followed her career path closely 
arid with pride. . . . Admission to the College of Music is achieved only through a 
rigorous audition process. Not everyone is invited to audition; and approximately 50% of 
those who do audition are not accepted. 
* * * 
(b)(6)
Page 21 
[The petitioner] is an extraordinary asset to the musical community in the United 
States.... Not only is she a superb violinist with an unusually broad range of concert 
experiences, from symphony orchestra member to chamber musician, to solo artist, but 
also she is a deeply gifted and committed budding music educator. In addition to her 
very real accomplishments in the strictly classical arena, she has taken the time to be 
trained and certified as a Texas Teacher as well as a Suzuki educator. This strikes me as 
·particularly important as the education of future young musicians is vitally important, not 
only to the survival of the arts in this country, but also to the building of a well-rounded 
and cultivated population of music lovers. 
Dr. states that the petitioner completed a rigorous audition process to gain admission to 
and that the petitioner performed as a member of the Trio, but Dr. fails to 
provide specific examples of how the petitioner's music was majorly significant to the field. 
While Dr. describes the petitioner as a "budding music educator" who "has taken the time 
to be trained and certified as a Texas Teacher as well as a Suzuki educator," Dr. does not 
explain how the petitioner's original teaching methodologies have influenced the field of music 
education or otherwise constitute contributions of major significance in the field. For instance, 
there is no documentary evidence showing the adoption of the petitioner's original methods of 
instruction by various music schools or universities, or that her work is otherwise recognized as 
majorly significant in the field. 
Dr. Professor of Viola and Chamber Music, School of Music, 
, asserts that the petitioner's "a'dmission to School of 
Music carries an enormous weight" based on the school's stature. Professor also 
comments on the petitioner's exceptional ability, artistry, broad musical knowledge, and musical 
prowess as a violinist. However, he fails to explain how the petitioner's work was both original· 
and majorly significant in the field. Once again, assuming the petitioner's musical skills and 
educational qualifications 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 certification process. See Matter of New 
York StateDep't. ofTransp., 22 I&N Dec. at 221. 
The opinions of the petitioner's references are not without weight and . have been considered 
above. The AAO notes the above letters are all from the petitioner's music instructors, 
educators, and supervisors. While such letters are important in proyiding details about the 
petitioner's music training and activities, they cannot by themselves establish the impact of the 
petitioner's work in the field beyond her immediate circle of colleagues. 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.l988). However, USCIS is ultimately 
responsible for making th~ 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"). 
Thus, the content of the references' statements and how they became aware of the petitioner's 
(b)(6)
Page 22 
' J 
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 that one would expect of a professional violinist who has made original 
contributions of major significance in the field. Without additional, specific evidence showing 
that the petitioner's original work has been unusually influential, has substantially impacted her 
field, or has otherwise risen to.the level of original contributions of major significance, the AAO 
cannot conclude that she meets this regulatory 
criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The AAO withdraws the director's finding that the petitioner meets this regulatory criterion. The 
petitioner submitted documentary evidence of her various music performances as evidence for 
this criterion. Neither the petitioner nor counsel has explained how music performances equate to 
visual art exhibits. For instance, the petitioner's work as one of multiple violinists that perform for 
an orchestra is enjoyed for its sound, not its visual aspects. Such performances do not satisfy the 
regulatory requirements under 8 C.F.R. § 204.5(h)(3)(vii). The plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(vii) requires "[e]vidence of the display of the alien's work in the field at 
artistic exhibitions or showcases." The petitioner is a violinist. When she is playing with an 
orchestra or a chamber music group in concert, she is not displaying her music in the same sense 
that a painter or sculptor displays his or her work in a gallery or museum. The petitioner is 
performing her work, she is not displaying her work. In addition, to the extent that the petitioner 
is a performing artist, it is inherent to her occupation to perform. The AAO notes that the ten 
criteria in the regulations are designed to cover different areas; not every criterion will apply to 
every occupation. 
The interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and 
has been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, 
*7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing artist 
do not fall under 8 C.F.R. § 204.5(h)(3)(vii)). As the petitioner is not a visual artist and has not 
created tangible pieces of art that were on display at exhibitions or showcases, the petitioner has 
not submitted qualifying evidence that meets the plain language requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(vii). Accordingly, the petitioner has not established that she meets this 
regulatory criterion. 
Evidence that the alien has perfonned in a·leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The AAO withdraws the director's finding that the petitioner meets this regulatory criterion .. The 
petitioner submitted the following: 
1. A March 30, 2009 agreement between 
her services as a "violinist in the 2009 
2009 through June 7, 2009; 
2. Information about 
. and the petitioner engaging 
Orchestra" from May 11, 
printed from its website; 
(b)(6)
Page 23 
3. A letter from the Associate Dean for Admissions and Scholarship Services 
offering the petitioner a "College of Music Travel/Performance Scholarship" to assist 
her "in representing the College of Music at the Music Festival"; 
4. Information about the Music Festival printed from its website; 
1-5. A February 26, 2011 letter from Mr: stating that the petitioner performed 
"in an educational setting" in the 's Young Artists Program; 
6. Information about the printed from its website; 
7. A May 7, 2011 letter from Ms:' stating that the petitioner "was appointed 
the concertmaster of the UNT Symphony Orchestra and Chamber Orchestra," that 
"LeAnn Rimes invited [the petitioner] to perform at NFL Dallas Cowboys game at 
Irving, TX in 2002," that the petitioner performed "at another NFL Dallas Cowboys 
game ... with Sheryl Crow," that the petitioner performed "with world-class artist 
Willie Nelson in 2007 at Nokia Theatre in Grand Prairie, TX," and that the petitioner 
"was invited to play with the Symphony"; 
8. Information about the Symphony from its website and information about 
the 
music careers of LeAnn Rimes, Sheryl Crow, and Willie Nelson; 
9. Documentation indicating that the petitioner performed with Peter Gabriel's New Blood 
Orchestra along with other "freelance musicians from Houston" in a concert at the 
Woodlands Pavilion in June 2011 and two local articles about the concert; 
10. Documentation indicating that the petitioner performed in the "First Violins" section for 
11. Documentation indicating that the petitioner performed in the "First Violins" section for 
; and 
12. A concert schedule for Il Divo at the Woods Pavilion in Houston. 
With regard to items 1 - 6, the AAO is not persuaded that the Festival, the I 
Music Festival, and the equate to "organizations" or "establishments" rather than 
temporary music events or programs. Regardless, as the petitioner submitted information about 
the festivals originating from their own websites, the record lacks objective documentary evidence 
demonstrating that the aforementioned festivals have a distinguished reputation. Once again, 
USCIS need not rely on self-promotional material. Further, there is no documentary evidence 
showing that the petitioner performed in a leading or critical role for the festivals. In general, a 
leading role is evidenced from the role itself, and a critical role is one in which the alien was 
resJ>onsible for the success or standing of the organization or establishment. The letters from Dr. 
, Mr. ·, and the other references fail to adequately explain how the petitioner's role 
as a temporary or one-time participant in the festivals 'was leading or critical to~ the ongoing 
operation of festivals. Further, the references' letters lack specific information demonstrating the 
impact of the petitioner's performances relative to that of the numerous other performances at the 
festivals. While Mr. asserts that the petitioner "stood out among her peers" in the 
educational "program of chamber music study" at the , the documentation submitted by the 
petitioner fails to demonstrate that her role was leading or critical to the festival as a whole. 
With regard to the Festival, the , Music Festival, and the there is no 
evidence differentiating the petitioner's role from that of the festivals' organizers, artistic directors, 
and instructors so as to demonstrate her leading role, and the record fails to establish that she was 
(b)(6)
Page 24 
responsible for the festivals' success or standing to a degree consistent with the meaning of "critical 
role." 
Regarding item 7, the letter from Ms. states that the petitioner "was appointed the 
concertmaster of the Symphony Orchestra and Chamber Orchestra." While the AAO finds 
that the petitioner's role as concertmaster equates to a leading role for her collegiate orchestras, it 
is the petitioner's burden to demonstrate that the organizations or establishments claimed under 
this criterion are marked by eminence, distinction, excellence, or a similar reputation. The 
petitioner, however, failed to submit objective documentary evidence· showing that the 
Symphony Orchestra and Chamber Orchestra have a distinguished reputation relative to other 
successful orchestras.6 
In regard to items 7 - 9, the petitioner has not established that a performance as part of a large 
ensemble with LeAnn Rimes at a Dallas Cowboys game, with Sheryl Crow at a Dallas 
Cowboys 
game, with Willie Nelson at the Nokia Theatre (Grand Prairie, Texas), or with Peter Gabriel at 
the Woodlands Pavilion (Texas) equates to performing in a leading or critical role for those artists 
or their concert. Further, the record lacks letters of support from the preceding vocal artists 
explaining the leading or critic~l nature of the petitioner's one-time supporting violinist roles .. 
Moreover, while the petitioner submitted information about LeAnn Rimes, Sheryl Crow, Willie 
Nelson, and Peter Gabriel, the petitioner has not explained how these renowned vocal artists 
equate to "organizations or establishments." Regarding Ms. 's statement that the 
petitioner "was invited to play with the Symphony," there is no documentary 
evidence showing that the petitioner's role was leading or critical for the symphony. In addition, 
the self-serving information submitted from the Symphony's own website fails to 
demonstrate that the symphony has a distinguished reputation. 
With regard to items 10 and 11, the petitioner submitted documentation indicating that she 
performed with multiple other violinists in the "First Violins" section for and 
There is no documentary evidence showing that the petitioner's role for 
and i was leading or critical. In addition, the record lacks 
objective documentary evidence demonstrating that the preceding music ' groups have · a 
distinguished reputation. 
In regard to item 12, the AAO notes that the petitioner's name does not appear.on the II Divo 
concert schedule. Regardless, the ll Divo performance post-dates the September 22, 
2011 filing of the petition. 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. Accordingly, the 
AAO will not consider the ll Divo performance in this proceeding. 
6 For comparison, some examples of orchestras with distinguished reputations include the Berlin Philharmonic, the 
London Symphony Orchestra, the Vienna Philharmonic, the Chicago Symphony Orchestra, the Cleveland Orchestra, 
the Los Angeles Philharmonic, the Boston Symphony Orchestra, and the New York Philharmonic. See article 
entitled "Chicago Symphony Tops U.S. Orchestras" at http://www.npr.org/templates/story/storv.php?%20storyld= 
97291390, accessed on April 12,2013, copy incorporated into the record of proceeding. 
(b)(6)
Page 25 
fu addition, counsel asserts that the petitioner performed in a leading or critical role for 
the Symphony Orchestra, the String Orchestra, and the 
Symphony Orchestra, but the petitioner failed to submit objective documentary evidence 
showing that they have a distinguished reputation relative to other successful orchestras. Further, 
the record lacks documentary evidence from the preceding orchestras (such as contractual 
agreements or letters of employment) to support counsel's assertions regarding the nature of the 
petitioner's role. As previously discussed, the unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 
n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. Moreover, the regulation at 8 C.F.R. 
§ 204.5(g)(l) requires that evidence of experience "shall" consist of letters from employers. 
·In light of the ab~ve, the petitioner has not established that she meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
III. CONTINUING WORK IN THE AREA OF EXPERTISE IN THE UNITED STATES 
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)(1)(A)(ii) of the 
Act, 8 U.S.C. § 1153(b)(l)(A)(ii); 8 C.F.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. Id. 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.7 
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 fustructor, 
School District, stating that the petitioner is employed by the 
School District "as a Texas Teacher Intern in an Alternative Certification 
Program" and that the petitioner "teaches Suzuki Violin for grades Pre-kindergarten 
through second" at Elementary School; 
7 There is no documentary evidence showing, for example, that the ·petitioner meets any of the regulatory criteria at 
8 C.P.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)
'· . 
Page 26 
2. An April 16, 2011 
School, 
employed at 
Suzuki Violin"; 
letter from Principal, Elementary 
School District, stating that the petitioner "has been 
Elementary School 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. A School District 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 Junior High 
School) from Schools. The petitioner also submits her November 13, 2012 
"Contract of Employment" with the Board of Education of the Schools. The 
AAO is not persuaded, however, that a "Professional Violinist" and an elementary orjunior high 
.school music teacher are the same area of expertise. 8 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 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 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/linklsummary/27-2042.02, http://www.onetonline.org/link/summary/25-2021.00, and 
http://www.onetonline.org/linklsummary/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.html, accessed on April 23, 2013, copy incorporated into the record of 
proceeding. The 20 I 0 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.uov/soc/, accessed on April23, 2013, copy incorporated into the record of proceeding. 
(b)(6)
Page 27 
8 C.F.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 ori the I-140 petition as required by the regulation at 8 C.F.R. § 204.5(h)(5). 
N . CONCLUSION 
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. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to ·the very top of the[ir] field of endeavor" 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." 8 C.F.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
not explain that conclusion in a fmal merits determination.9 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence. 
!d. at .1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the 
petition may not be approved. 
· The AAO may deny\ an application or petition that fails to comply with the technical 
requirements of the law 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 1025, 
1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, at 145 
(noting that the AAO conducts appellate review on a de novo basis). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 USC. § 1361. Here: the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
9 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F. 3d 143, 145 (3d Cir. 
2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii). See also section 103(a)(l) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.P.R. § 2.1 (2003); 8 C.F.R. 
§ I 03.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions). 
(b)(6)
Page 28 
ORDER: The appeal is rejected, or in the alternative dismissed.