dismissed EB-2 NIW Case: Arts Management

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
identifying data deleted to 
 U. S. Citizenship 
prevent clearly unwarranted and Immigration 
invasion of personal privacj Services 
PUBLIC COPY 
Office: NEBRASKA SERVICE CENTER Date: lm 1 1 2009 
LIN 07 112 51704 
PETITION: 
 Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. § 103.5(a)(l)(i). 
F. Grissom 
Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. 5 1153(b)(2), as an alien of exceptional ability in the sciences, arts or business or as 
a member of the professions holding an advanced degree. At the time he filed the petition, the 
petitioner was a graduate assistant studying for a master's degree in Arts Management at Western 
Michigan University (WMU), Kalamazoo. On the Form 1-140 petition, the petitioner indicated that he 
seeks temporary, part-time employment as an "Agent[] and Business Manager of Artists, Performers 
and Athletes" at WMU. The petitioner asserts that an exemption fiom the requirement of a job offer, 
and thus of a labor certification, is in the national interest of the United States. The director found that 
the petitioner qualifies for classification as a member of the professions holding an advanced degree, but 
that the petitioner has not established that an exemption fiom the requirement of a job offer would be in 
the national interest of the United States. 
On appeal, the petitioner submits a personal statement and two new witness letters. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer. 
(i) . . . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director found that the petitioner qualifies as a member of the professions holding an advanced 
degree. We will revisit this finding later in this decision. The director's only stated ground for denial 
concerned the issue of whether the petitioner has established that a waiver of the job offer requirement, 
and thus a labor certification, is in the national interest. 
Page 3 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 10 1 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 1998), has set forth 
several factors which must be considered when evaluating a request for a national interest waiver. First, 
it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must 
be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver 
must establish that the alien will serve the national interest to a substantially greater degree than would 
an available U.S. worker having the same minimum qualifications. 
It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the hture, serve the national interest 
cannot suffice to establish prospective national benefit. The inclusion of the term "prospective" is used 
here to require future contributions by the alien, rather than to facilitate the entry of an alien with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. 
We also note that the regulation at 8 C.F.R. 5 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The regulation at 8 C.F.R. fj 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate. The 
record does not contain this required document, and therefore the petitioner has not properly applied 
Page 4 
for the national interest waiver. The director, however, did not raise this issue. We will, therefore, 
review the matter on the merits rather than leave it at a finding that the petitioner did not properly 
apply for the waiver. In a personal statement accompanying the initial filing of the petition, the 
petitioner described his work: 
[I]n 1995, I became a teacher at Hunan Provincial Art College. . . . Four years later, I 
was assigned by the college president to be the arts manager of Hunan Stars River 
Performing Art Company. . . . In 2001, I was assigned . . . to be the director of [the] 
Institute of Overseas Arts and Cultural Exchange. From 2001 to 2004, I led three 
Chinese artists groups to give 22 performances in four international arts festivals and a 
nine-city tour in Europe, Asia and the United States, and made one academic 
cooperation come to an agreement between Hunan Arts College, HN, China and 
Western Michigan University in the United States. . . . 
I have already contributed immensely to the arts field worldwide, practicing what I 
learned in arts management by participating in several arts and cultural exchange events 
and international arts festivals in three European and two Asian countries. . . . 
Through these programs, I also get to know how important my work is to improve the 
international culture understanding between countries. When I worked as the arts 
manager in Hunan Stars River Performing Art Company, I received a Jazz music band 
from Michigan, U.S. in June, 2002. Before I received the group, Jazz music had been 
listed as the not welcome music and prohibited to the public in China by the Chinese 
government. When I brought the American Jazz music band to give 6 concerts in two 
big cities: Changsha and Xi'an, people were shocked and crazy about this typical 
American style music. Then, the people began to listen and play the Jazz music and 
wanted to know more other American music. Now, millions of Chinese people have 
accepted the American Jazz music as their favorite, even there are many local Jazz 
music bands in the two cities in China. 
The wording of the above paragraph implies that the petitioner single-handedly overturned a national 
ban on jazz music in 2002. The petitioner submits no evidence that "the Chinese government" 
prohibited jazz music up until 2002. That government's general reputation for censorship is not 
sufficient to support the petitioner's specific claims. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Commr. 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Regl. Commr. 1972)). The petitioner continued: 
In February, 2004, with the joint invitation of Western Michigan University and 
Mayor of Kalamazoo, , I led a fifteen-person Chinese arts group to 
Michigan for a series of arts events. . . . [Tlhe group gave a concert . . . at the John 
David Mooney Foundation in Chicago. The audience for this performance included 
the ambassadors from Canada, Australia, Ireland, and Greece, as well as dignitaries 
from Korea and China. The group presented traditional Chinese arts to more than 
5,000 American people and were greatly welcomed. . . . As evidence of its 
significance, this cultural exchange resulted in two publications. 
The USCIS regulation at 8 C.F.R. 8 103.2(b)(3) requires the petitioner to submit complete, certified 
translations of foreign-language documents. The petitioner, however, submitted only "abstracts" that 
offered only summaries rather than complete translations. The two articles appeared respectively in the 
February 28 and 29, 2004, issues of China Culture Daily. The two articles reported that "a fourteen- 
person Chinese professional art group" toured the Midwestern United States, and that the artists were 
the guests of honor at a government-sponsored reception in Kalarnazoo. Overall, the abstracts are 
similar to the petitioner's own description of the events. The petitioner's name does not appear in the 
abstracts. 
The petitioner continued: 
I have led many Chinese arts groups to several countries in Europe, Asia and the United 
States, and I served as the arts manager and interpreter for each group. With my 
language advantage, I understand very well about the arts environment and markets in 
different countries. . . . Because of my international arts management experience in 
promoting arts and cultural exchange in many countries, I have gained an international 
reputation as an outstanding arts professional in my field. . . . 
My original and important contributions to international arts and cultural exchange . . . 
prove my ability to vitally contribute to the national interest. I have quite [a] lot [of] 
records of success in arts and cultural exchange on a worldwide basis and I have served 
the United States with yielding significant benefits. In addition, I hope to remedy the 
critical situation of the current market of arts and culture in the United States, and 
enlarge the developing market in Asia to present American artists' talents and their 
performing arts to Asian audiences. . . . 
All of my special qualities, skills, abilities, and knowledge, combined with my prior 
successes, make me ideally suited to the field of international arts and cultural exchange. 
. . . 
The Asian art professionals lack education and training of arts management and practical 
work experience in the United States; the American art professionals don't have any 
Asian arts and culture background and deep understanding of the Asian arts market and 
business operation. Meanwhile, I possess these unique skills, knowledge and 
background because of my education and practical work experience in Asia, Europe and 
the United States. My consistent accomplishments of high creativity and productivity 
on the international arts and cultural exchange identify that I am destined to continue 
making substantial contributions in the field. 
Page 6 
The petitioner indicated that he managed a group that won a medal at a festival in Greece in 2001, and 
another group that won a prize at a festival in Germany in 2003. The petitioner did not document these 
awards, nor did he claim that he personally won either of the awards. 
Several witness letters accompanied the petitioner's initial submission. Many of the witnesses are 
Arts, stated: 
[The petitioner] has proved himself to be an accomplished leader in promoting the arts 
and cultural exchange between the United States and Asian Countries, and he has 
exceptional ability [in] arts management in [the] global performing arts market. . . . 
We offered him a major fellowship because we believe that he is outstanding in the field 
of arts management with his unique skills, knowledge, and background. Since 2005, he 
has worked in my office. . . . 
I am struck with [the petitioner's] keen focus on bringing communities together for 
cultural understanding through artistic exchanges. He has many contacts in Asia and is 
now in the position to be able to facilitate the exchange of American Artists with Asian 
Artists, and international cultural understanding, which would enrich and educate our 
society to a high degree. 
Director of WMU's School of Music, credited the petitioner with "many 
contributions in the field" but did not elaborate. 
 stated that the petitioner's "work has the 
potential for continued exchanges and growth of understanding between cultures and countries." 
The university and Kalamazoo community have benefited greatly from [the petitioner's] 
expertise and organizational skills in the arts as he has completed graduate degree work 
and enhanced the cultural richness in Southwest Michigan. . . . 
[The petitioner] brings to this country a knowledge of arts activities in various parts of 
the world with a world vision for arts development that is important to us if we are to 
prevent further decline of our own artistic achievement. He has actively coordinated 
successful international tours with Chinese arts groups and has the contacts in China to 
facilitate interchanges with American arts groups. 
[The petitioner] is a dedicated student in the performing Arts Administration program at 
Western Michigan University. He is very interested in cross-cultural exchanges with 
Page 7 
China. This summer he was involved in bringing a Chinese silk embroidery exhibit and 
gala with the Mooney Foundation in Chicago, Illinois. 
For the past two years [the petitioner] has been an arts administration intern at Miller 
Auditorium. Miller Auditorium is a 3500 seat performing arts center on the campus of 
Western Michigan University. During this time [the petitioner] worked on [several] 
performances . . . [and] in several other departments including the Ticket Office, 
Administration and Marketing, gaining valuable experience. 
In January 2007, [the petitioner] attended the Association of Performing Arts Presenters 
Conference in New York City. . . . During the conference [the petitioner] was able to 
make contact with artist representatives and arts agents from all over the United States to 
build his network with the goal of promoting performing arts between Asia and the 
United States. 
Executive Director of the Arts Council of Greater Kalamazoo, stated: 
In the spring of 2006, I team-taught the Introduction to Performing Arts Administration 
course for the MFA program in Performing Arts Administration for Western Michigan 
University - where [the petitioner] was one of my students. . . . 
As the P.R.C. [People's Republic of China] has moved to a market economy, the 
performing arts facilities have also been making the difficult transition from a state- 
supported to a market driven funding base. Also, as government restrictions on Western 
art forms has [sic] begun to relax, the potential market for American performance groups 
has grown. But, as with all areas of commerce, negotiating the complex financial, 
cultural and political waters of China requires a sophistication and knowledge base that 
is difficult to achieve without being native born. This is particularly true in the 
performing arts world, where arts organizations rarely have access to staff members with 
this specialized knowledge and connections. 
. . . [The petitioner] has demonstrated his ability to plan and conduct successful arts 
exchanges between the U.S. and China in all genres of the arts. . . . He has the skill and 
aptitude to be of great value to American artistic institutions in expanding the potentially 
lucrative markets of Asia. 
WMU is located in the 60" House District which I have represented for the past six 
years in the Michigan Legislature. I have found [the petitioner] to be a highly energetic 
and enthusiastic young man with impressive experience in and knowledge of the arts 
and cultural exchanges. At his young age, he has already compiled an extensive 
background in the arts. . . . This talented and versatile individual has facilitated 
numerous cultural exchanges and fostered goodwill and understanding between the 
United States and China on several occasions. . . . 
[The petitioner's] outstanding resume speaks for itself - his vast experiences, activities 
and exhibits, presentations and publications, and achievements are too numerous to 
mention. His unique set of skills can only benefit this country as worldwide 
interdependence becomes increasingly important as we move through the 21St century. 
The petitioner submitted another group of letters, described not as letters of recommendation but as 
evidence of his "Creative Activities and Achievements." Some of these letters were courtesy letters 
acknowledging the petitioner's participation in various cultural exchange activities, while others 
discussed plans for then-future events. -) Artistic Director of the John David 
Mooney Foundation, Chicago, Illinois, stated that the petitioner "worked 144 hours putting together" 
[an] exhibit at the Foundation in 2006. 
The petitioner submitted copies of Chinese-language articles that he had written in various Chinese 
publications, along with capsule translations rather than the required complete translations. According 
to the petitioner, these articles were about such subjects as government support for the arts and a 
comparison of the music of Bach and Beethoven. 
On June 25,2008, the director issued a request for evidence (RFE), instructing the petitioner to submit 
- 
further evidence of the impact that the petitioner has had on his field. In response, the petitioner 
submitted three further witness letters. - former Mayor of Kalamazoo and - 
successor as the 60~ District's State Representative, stated: 
During my tenure as Mayor, I invited [the petitioner] to bring a group of Chinese folk 
musicians to perform in the state of Michigan. . . . Since this cultural exchange, [the 
petitioner] and I have remained in contact. . . . 
A remarkable cultural exchange to the United States began when [the petitioner] made it 
possible for an American Jazz group to visit China for the first time in China's history in 
2002, which received huge acclaim, especially from the youth. In 2004, [the petitioner] 
led a group of artists to the United States and his endeavors led to formal academic 
agreements between Western Michigan University and The Art School of Hunan 
Province in China. . . . 
[The petitioner's] intent . . . is to facilitate, develop, and expand exchange programs for 
Americans to perform in Asian cities. . . . With his contact[s] on several continents, [the 
petitioner] is able to help organize concerts and cultural exchanges, which will provide 
employment for American musicians in other countries. 
repeated the claim that the petitioner arranged the first visit to China by an American jazz 
group in 2002. The record contains no reliable documentation to corroborate this claim. Even if the 
petitioner did arrange the first such visit, this would not show that the petitioner was responsible for 
changing Chinese government policy relating to American jazz music; it could be that the policy 
changed without the petitioner's involvement, and the petitioner happened to be the first to take 
advantage of the change. The record contains no statement from any Chinese government official to 
confirm the policy change, and no media articles to report the policy change. The only references to the 
petitioner's claimed achievement are letters written years after the fact for the purpose of supporting the 
petition. 
- Acting Dean of WMU's College of Fine Arts, stated that the petitioner's 
background has given him "a unique familiarity with both Asian and American markets" and that he 
"holds the 
 to serve our national interest through his work in cultural exchanges." 
Executive Director of the Litchfield (Connecticut) Jazz Festival, stated: 
[The petitioner] is currently serving as a summer employee for The Litchfield Jazz 
Festival under my direction. With ten years experience in the field of cross-cultural arts 
management, [the petitioner] has some advantages; he is bilingual, and he is experienced 
in public relations and the development of international arts programs. 
. . . He possesses extraordinary energy and vision for developing international 
performing arts appreciation and programs. [The petitioner] is uniquely qualified to 
bring Asian performing artists and groups to the United States for the edification and 
enjoyment of Americans, to whom we may not otherwise have exposure. 
. . . [The petitioner] is uniquely qualified through his contacts, his education and his 
experience to nurture and develop more connections in the Asian market for American 
artists and vice versa. 
The RFE witnesses, like the initial witnesses, have worked closely with the petitioner, usually either as 
his teachers or as his employers. The letters often repeat the general assertion that the petitioner is in an 
excellent position to influence cultural exchange between Asia and the United States, but the letters do 
not show what impact the petitioner has had in this area since he entered the United States to earn his 
master's degree. 
The director denied the petition on September 29,2008, stating that the witness letters in the record "fall 
short of demonstrating the petitioner's influence in the field of endeavor beyond his past or present 
academic institutions and circle of colleagues or work acquaintances." The director added "there is no 
evidence that independent Artists or Musicians view the petitioner's individual work as particularly 
significant or influential." 
On appeal, the petitioner cites USCIS regulations at 8 C.F.R. $ 204.5@)(3)(v) and (vii). Those 
regulations relate to a separate immigrant classification (alien of extraordinary ability), established 
under a different section of law (section 203(b)(l)(A) of the Act). Because the petitioner filed a petition 
seeking a different classification, the cited regulations are irrelevant to the present appeal. 
The petitioner repeats the claim that he managed a group that "received a Silver Medal in the 
International Folk Arts Festival in Greece, [and] another group [that] won the Silver Prize in the 17" 
International Folklore Festival, Darngarten, Germany." He asserts that these "awards from several 
countries can sufficiently demonstrate my influence and impact in the field of arts administration." The 
petitioner does not explain this conclusion. The record does not show that the groups received their 
awards as a result of their management or administration, rather than on the merits of their own artistic 
performances. 
The petitioner asserts that he had previously "listed all the exhibitions and showcases under my leading 
role in seven countries. . . . More than 600,000 people in those audiences witnessed my impact and 
influence in the field." The argument appears to be that the petitioner has earned a waiver by arranging 
for international tours and exhibitions by various artists. Orchestrating such appearances, however, 
appears to be a basic job duty of his desired occupation. The petitioner does not explain why it is a 
mark of special distinction that, as an artist manager, he has successfully managed artists. 
The petitioner states: "Regarding the letters of recommendation, please note that they are not all from 
my academic institutions, colleagues, or friends at work. The Arts Council of Greater Kalamazoo, the 
Litchfield Performing Arts Inc. in Connecticut, and the John David Mooney Foundation in Chicago are 
independent arts organizations." The record contradicts the petitioner on this point. The record shows 
that Litchfield Performing Arts, Inc., produces the Litchfield Jazz Festival, where the petitioner was "a 
summer employee." , director of the Arts Council of Greater Kalamazoo, described the 
petitioner as "one of my students" at WMU. In one of his letters, - stated "I was [the 
petitioner's] supervisor" during his "work in art administration at John David Mooney Foundation in 
Chicago in July, 2006." 
The petitioner's assertion that his former teachers and supervisors are independent witnesses 
diminishes the credibility of his unsupported claims. Doubt cast on any aspect of the petitioner's 
proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). This further 
reduces the credibility of the petitioner's undocumented claims to have received "awards from 
several countries" and to have introduced jazz music to China. 
The petitioner submits two further letters, both from artist managers in New York, New York. The 
petitioner states that he had intended to submit these letters with the RFE response, but a house fire 
limited his ability to submit them at that time. The first letter is from 
 Executive 
Producer of AIM Entertainment, Inc., who states: 
I got to know [the petitioner] by his reputation in his fabulous arts administrative 
work in presenting American Jazz group and Broadway shows in China and other 
Asian cities [sic]. . . . Since then he has worked with us on numerous joint projects in 
Page 11 
several cities in Asia, and his unique edge of being familiar with artists, venues from 
both the United States and China adds tremendous value. . . . As a result of his effort, 
in 2003 [the] Chinese government changed its mind to issue a license to an American 
Jazz band. 
We note that the petitioner and others claimed that the American Jazz band visited China in 2002, not 
2003. -then described some of the petitioner's activities in 2008 and 2009, which occurred 
well after the petition's March 2007 filing date. The beneficiary of an immigrant visa petition must be 
eligible at the time of filing. 8 C.F.R. $5 103.2(b)(l) and (12). Subsequent developments cannot 
establish eligibility. See Matter ofKutigbak, 14 I&N Dec. 45,49 (Regl. Comrnr. 1971). 
of Stanton Management states: "[Tlouring in China offers many unique challenges 
for Americans. Cultural and language differences can be stark. [The petitioner], I believe, offers 
companies such as ours a unique opportunity to work more confidently in these markets." Mr. 
indicates that the petitioner's value lies in his familiarity with the culture, language, and 
artistic management practices in both the United States and China. The petitioner has not shown that 
these are special traits that he possesses, rather than the expected results of his being an artist manager 
in China who then studied arts management in the United States. 
The record establishes that the petitioner has successfully worked with traveling artists, whether 
Chinese artists outside of China or non-Chinese artists within China. The available evidence, however, 
does not show that the petitioner's impact and influence have been so significant as to warrant the 
special benefit of a national interest waiver. The AAO is not of the opinion that the petitioner's national 
origin is, itself, a strong factor that inherently establishes his eligibility for the benefit he seeks. 
For the reasons explained above, we agree with the director's finding that the petitioner has not shown 
that he qualifies for the waiver. 
Review of the record leads us to revisit the director's finding that the petitioner qualifies for the 
underlying immigrant classification. 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 Junka v. US. 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). 
In filing the petition, the petitioner did not initially specify whether he sought classification as a member 
of the professions holding an advanced degree, or as an alien of exceptional ability. In the notice of 
decision, the director stated "the petitioner holds the requisite advanced degree." 
The USCIS regulation at 8 C.F.R. 5 204.5(m)(2) defines "profession" as "one of the occupations listed 
in section 101(a)(32) of the Act, as well as any occupation for which a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry into the occupation." On Form 
1-140, the petitioner listed his job title as "Agents and Business Manager of Artists, Performers and 
Athletes," with a SOC (Standard Occupational Code) of 13-101 1. The petitioner's occupation is not 
listed in the cited section of the Act, but according to the listing for SOC 13-101 1 on the Bureau of 
Labor Statistics' O*NET database, "[mlost of these occupations require a four-year bachelor's degree."' 
It appears, therefore, that the petitioner's intended occupation qualifies as a profession because it 
requires a bachelor's degree. (This finding concerns the occupation itself, rather than the petitioner's 
qualifications for that occupation.) 
The USCIS regulation at 8 C.F.R. 5 204.5(m)(3)(i) requires that, to show that the alien is a 
professional holding an advanced degree, the petition must be accompanied by: 
(A) An official academic record showing that the alien has an United States advanced 
degree or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of 
letters from current or former employer(s) showing that the alien has at least five 
years of progressive post-baccalaureate experience in the specialty. 
At the time of filing, the petitioner did not claim to hold an actual advanced degree that would satisfy 
8 C.F.R. $ 204.5(m)(3)(i)(A). He was still studying for his master's degree when he filed the petition in 
March 2007. Therefore, he could qualify for classification as a member of the professions holding an 
advanced degree only if he provided employer letters showing that he has at least five years of 
progressive post-baccalaureate experience in the specialty. 
A translated certificate from Hunan Normal University indicates that the petitioner "studied in Music 
Education . . . from 1999 to 2002 and has completed the requirements as stipulated in a three-year 
undergraduate program with satisfactory results and is hereby granted graduation." The certificate, 
dated June 30,2002, does not mention any degree. A later "Certificate of the Bachelor's Degree," dated 
December 3 1, 2002, indicates that the petitioner "has studied for three years (from Sept. 1999 to June 
2002)" and "is awarded the degree of Bachelor of Arts." 
A translated "Certificate of Employment" indicates that the petitioner "worked as a Western Arts 
Teacher at Hunan Arts School from December 1995 up to now, and he has also worked as Arts 
Manager in Hunan Star River Performing Arts Company from May 2001 up to now." 
A United States baccalaureate degree is generally found to require four years of education. See Matter 
of Shah, 17 I&N Dec. 244 (Reg. Cornrn. 1977). The petitioner has submitted no evaluation report to 
show that his three-year degree from Hunan Normal University is equivalent to a four-year bachelor's 
degree from an accredited United States college or university. 
1 
 Source: httv://online.onetcenter.org/linkldetails/13- 10 1 1 .OO (visited June 9,2009; printout added to the record). 
More significantly, the petitioner received the above degree less than five years before he filed the 
petition on March 5, 2007. Therefore, even if his degree from Hunan Normal University were 
shown to be equivalent to a United States bachelor's degree, it is mathematically impossible for the 
petitioner to have accumulated five years of progressive post-baccalaureate experience prior to the 
filing date. 
In response to the RFE, the petitioner asserted "a letter from my former employer demonstrates six 
years of progressive post-baccalaureate experience in the specialty." The letter, attributed to Jienan Yi 
of Hunan Art School, indicated that the petitioner "had worked as Artistic Director at Star River 
Performing Arts, Inc., which is affiliated [with] Hunan Art School, from April 1999 to June 2005, 
adding up to six years." This new letter appears to contradicts the previously submitted "Certificate of 
Employment" that indicated that the petitioner "worked as a Western Arts Teacher at Hunan Arts 
School from December 1995 up to now, and he has also worked as Arts Manager in Hunan Star River 
Performing Arts Company from May 2001 up to now." Furthermore, the regulation clearly indicates 
that only post-baccalaureate experience counts toward the five-year experience requirement. Even if 
the petitioner had shown that his Chinese degree is equivalent to a United States baccalaureate (which 
he has not done), he did not receive that degree until 2002. By definition, any experience that he earned 
before he had a bachelor's degree is not, and cannot be, post-baccalaureate experience. 
For the above reasons, we must withdraw the director's finding that the petitioner, at the time of 
filing, qualified as a member of the professions with post-baccalaureate experience equivalent to an 
advanced degree. The information provided by the petitioner indicates, on its face, that the 
petitioner was not yet eligible for that classification as of the filing date because, at that time, he had 
neither an advanced degree nor five years of progressive post-baccalaureate experience in the 
specialty. 
In the interest of thorough consideration of the petition, we will briefly consider whether the petitioner 
qualifies for classification as an alien of exceptional ability in the sciences, arts or business. The 
regulation at 8 C.F.R. 204.5(k)(3)(ii) sets forth six criteria, at least three of which an alien must meet 
in order to qualify as an alien of exceptional ability in the sciences, the arts, or business. We note that 
the regulation at 8 C.F.R. 5 204.5(k)(2) defines "exceptional ability" as "a degree of expertise 
significantly above that ordinarily encountered" in a given area of endeavor. Therefore, evidence 
submitted to establish exceptional ability must somehow place the aIien above others in the field in 
order to fulfill the criteria below. Qualifications possessed by all or most workers in a given field 
cannot demonstrate "a degree of expertise significantly above that ordinarily encountered." For 
example, every qualified physician has a college degree and a license or certification, but it defies logic 
to claim that every physician therefore shows "exceptional" traits. 
An ofJicial academic record showing that the alien has a degree, diploma, certlJicate, 
or similar awardfiom a college, university, school, or other institution of learning 
relating to the area of exceptional ability. 8 C.F.R. $ 204.5(k)(3)(ii)(A) 
As noted above, the petitioner was still studying for his master's degree when he filed the petition. 
The petitioner's only degree at the time of filing was a three-year degree in music education. The 
petitioner does not satisfy this criterion. 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or 
she is being sought. 8 C.F.R. 5 204.5(k)(3)(ii)(B) 
We have already observed that the petitioner had less than five years of experience in arts management 
at the time of filing. Furthermore, all of the petitioner's experience in arts management appears to have 
been part-time, as he was employed as an art teacher in China, and later he was a full-time graduate 
student in the United States. Therefore, there is no evidence that the petitioner has any full-time 
experience in the occupation he now seeks. 
A license to practice the profession or certlJication for a particular profession or 
occupation. 8 C.F.R. 5 204.5(k)(3)(ii)(C) 
In 2003, China's State Administration for Industry and Commerce granted the petitioner a "General 
Business Broker" license as an "Arts and Cultural Broker." The record contains no further 
documentation or information about this license to show that it relates to his abilities, rather than 
serving as a basic permit to engage in the occupation. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. 5 204.5(k)(3)(ii)(D) 
The record contains no evidence relating to this criterion. 
Evidence of membership in professional associations. 8 C .F.R. 5 204.5 (k)(3)(ii)(E) 
The petitioner was a Council Member of the Performing Arts Institute of Henan Province prior to his 
arrival in the United States, and he joined the Association of Performing Arts Presenters in 2006. 
The record contains no further evidence about these associations, to show that membership entails 
exceptional ability. If an organization requires only that one pay dues and work in a particular field, 
then membership in such an organization does not establish a degree of expertise significantly above 
that ordinarily encountered in the field. 
Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. 5 204.5(k)(3)(ii)(F) 
The petitioner submits a "Special Tribute from [the] State of Michigan" and a "Proclamation from 
the city of Kalamazoo." The "Special Tribute," dated February 6, 2004, indicates that a "delegation 
from the Art School of Hunan Province" seeks "to begin a dialogue with Western Michigan 
University" and other institutions "for the purpose of establishing a student exchange program." The 
Mayor of Kalarnazoo issued his undated "Proclamation" to "welcome the representatives of The Art 
Vocational School and The Hunan Provincial Cultural Department . . . and express our deepest 
appreciation for their talents and wish them a successful visit." The petitioner's name does not 
appear on either of these documents, although the names of other visitors from China do appear. 
The petitioner has not explained how these documents amount to recognition for achievements or 
contributions. 
While the petitioner's initial submission included apparent attempts to establish eligibility as an alien 
of exceptional ability, the petitioner's WE response does not show any effort to pursue this claim. 
Instead, the petitioner focused his WE response on the claim that he qualifies as a member of the 
professions with the defined equivalent of an advanced degree. 
At the time of filing, the petitioner was not eligible for classification as a member of the professions 
holding an advanced degree or its defined equivalent. The evidence submitted is not sufficient to 
establish that the petitioner qualifies as an alien of exceptional ability in the sciences, arts or business. 
Also, on the basis of the evidence submitted, the petitioner has not established that a waiver of the 
requirement of an approved labor certification would be in the national interest of the United States 
even if the petitioner did qualify for the underlying immigrant classification. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternative basis for dismissal. In visa petition proceedings, the burden of proving eligibility for the 
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that 
burden has not been met. 
ORDER: The appeal is dismissed.