dismissed EB-2 NIW Case: Performing Arts

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
bi-- 
WAC 06 081 52004 
IN RE: 
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 1 53(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. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
We note that, in a message dated August 27, 2007, the petitioner states: "I had to return to the UK after my 
original visa expired." The petitioner does not provide a current UK address, but she does state: "There is, in fact, 
still someone receiving my post from you in the US for me." Given this information and the lack of a current 
overseas address, we have sent this decision to the petitioner's last known address of record. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1 153(b)(2), as an alien of exceptional ability in the arts. The petitioner seeks employment as a "Media 
Worker (Singing and Acting)." The position, as the petitioner has described it, is most concisely termed "voice- 
over7? work. The petitioner asserts that an exemption from 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 had not shown 
that she qualifies for classification as an alien of exceptional ability, or that an exemption from the requirement of 
a job offer would be in the national interest of the United States. 
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 first issue under consideration is whether the petitioner qualifies for the immigrant visa classification sought. 
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 alien 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. 
The petitioner, prior to the denial of the petition, made the following claims about the six evidentiary criteria: 
An oflcial academic record showing that the alien has a degree, diploma, certificate, or 
similar award from a college, university, school, or other institution of learning relating to 
the area of exceptional ability. 
The petitioner stated that she had won "The-Lindley Prize, for 'Outstanding Contribution to Music,' presented 
by Bath University (One of the top universities in the UK)." The prize is an "award" in one sense of the 
word, but it is not similar to a degree or diploma. Awards of recognition are covered by a separate criterion, 
addressed further below. 
The petitioner holds a Bachelor's degree in Statistics, and a Post-Graduate Certificate in Education, but there 
is no evidence that either of these credentials relates to the performing arts. The petitioner claimed that the 
Post-Graduate Certificate is in "Music and Mathematics" Education, but nothing in the record supports this 
claim. The petitioner therefore has not satisfied this criterion. 
Evidence in the form of letter(s) @om 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. 
The petitioner stated: "This requirement is not appropriate to my work since it is essentially self-employed 
and contract based work." It is, nevertheless, possible for an actorlsinger to produce documentation of past 
work, such as the contracts that the petitioner herself mentioned. The petitioner submitted a list of her 
claimed stage roles from 1992 to 2003, but this list is not sufficient on its own. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter ofSofJici, 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 submitted no evidence, such as contracts or check stubs, to show that she has consistently 
received payment for her performances for at least ten years. The petitioner likewise submitted no 
documentation from theaters or acting companies to confirm, with any precision, the extent of her paid acting 
work. Some witnesses indicated that they had worked with her on particular projects, but the information 
provided does not establish at least ten years of full-time experience. We note that the petitioner herself 
stated: 
[Tlhe industry I am in is a volatile one and that jobs are often erratic but very rewarding. . . . 
I have the ability to support myself while pursuing this career in the USA as I now own 4 
property lets in the UK in a wonderful beach location in North Devon on the west coast. 
The petitioner did not state that she supports herself as a performer and supplements her income through 
rental properties. Rather, she stated that she supports herself through rental properties, which enables her to 
work in a "volatile" field with "often erratic" employment. 
A license to practice the profession or certzjication for a particular profession or occupation. 
Evidence of membership in professional associations. 
The petitioner claimed that her documented memberships in Equity (a stage actors' union) and the Musicians 
Union (described as "The Largest Union of Musicians in the World since 1893") satisfy both of the above two 
criteria. The petitioner did not explain how these memberships amount to a license or certification. With 
respect to membership in associations, if one must belong to these unions in order to work regularly, then 
membership is clearly not indicative of exceptional ability. The petitioner's membership cards do not meet 
either of the claimed criteria. 
Evidence that the alien has commanded a salary, or other remuneration for services, which 
demonstrates exceptional ability. 
The only evidence the petitioner cited under this criterion is a letter from producer Geoff Todd, who stated 
that he paid the petitioner "an hourly rate of £250" for a "European voice over job." The record contains no 
documentary evidence to show how this hourly rate ranks against the average rate for voiceover work in the 
United Kingdom at the time (c. 1998). It cannot suffice simply to show that the petitioner received payment 
for her work. The petitioner did not satis@ this criterion. 
Evidence of recognition for achievements and signzJicant contributions to the industry or Jield 
by peers, governmental entities, or professional or business organizations. 
Under this criterion, the petitioner listed various witness letters. Letters solicited especially to support the petition 
do not constitute recognition for achievements and significant contributions to the field. The only documentation 
that approaches evidence of recognition is a certificate showing that the University of Bath awarded the petitioner 
the Linley Prize in 1982. This evidence falls short for several reasons. The award does not recognize significant 
contributions to the industry or Jield, as the regulation requires. The award is considerably more limited, 
recognizing "an outstanding contribution to music at the University of Bath while the petitioner was a graduate 
student at that institution. The award, therefore, does not compare the petitioner to professional singers, but rather 
to graduate students who sing as an extracurricular pursuit. Also, the petitioner has not shown that the University 
of Bath falls under the aegis of "peers, governmental entities, or professional or business associations," which are 
the only sources of recognition that the regulation acknowledges. 
For the reasons set forth above, we find that the petitioner has not submitted sufficient evidence to meet the 
regulatory standards for exceptional ability in the arts. 
The director denied the appeal on October 16, 2006, stating that the petitioner had failed to establish 
exceptional ability in the arts. On appeal, the petitioner repeats many of the claims already discussed above 
but offers no new information or evidence to show how they should qu 
 tioner for classification as 
an alien of exceptional ability. For instance, the petitioner asserts that 
 letter establishes that she 
"commanded an extremely high salary" for her voice-over work on an unidentified film project, but the 
petitioner submits no documentary evidence to show that £250 per hour is, indeed, "an extremely high salary" 
for such work. 
We acknowledge that £250 (approximately $500 at current exchange rates) per hour would be, in general, a 
remarkable salary if consistently earned on a full-time basis; forty hours per week at that rate would yield 
over a million dollars per year. The petitioner, however, has not documented the number of hours she worked 
on the project. The petitioner has not disclosed her annual income from her admittedly "erratic" voice-over 
work, let alone provided any documentary evidence that would enable a meaningful comparison between her 
own earnings and those of other voice-over talents in the field. 
Elsewhere in this decision we shall address the petitioner's new claim to be a member of the professions by 
virtue of her software engineering work. It is relevant to mention that work here, because the appeal includes 
- - 
a letter from mr~anag;ng Director of Information Processing Limited, who states that the petitioner 
worked for that company "in a number of software engineering roles" from November 1985 to August 1988 
and again from March 1994 to May 2002. These periods overlap significantly with the time period previously 
claimed for the petitioner's performing career. If she was employed as a soflware engineer during the same 
period, then her voice-over work at the time would appear to be necessarily occasional and part-time rather 
than her primary full-time occupation. This information further militates against a finding that the petitioner 
had accumulated at least ten years of full-time experience in her originally claimed occupation. 
Because the petitioner, on appeal, largely repeated the same claims, with the same evidence, that the director 
had already judged to be insufficient to establish exceptional ability, we affirm the director's finding. 
The petitioner claims for the first time on appeal that she alternatively qualifies for classification as a member 
of the professions holding an advanced degree. Acting, singing and voice-over work do not fall under the 
regulatory definition of a "profession" at 8 C.F.R. fj 204.5(k)(2), because they are not listed in section 
101(a)(32) of the Act, nor is a United States baccalaureate degree or its foreign equivalent the minimum 
requirement for entry into the occupation. 
The petitioner claims that she now qualifies as a member of the professions holding an advanced degree 
because her "job with Home Exchanged [sic] has developed, since [she] first submitted [her] application," 
and that job now involves professional computer skills. The petitioner indicates on appeal that she began 
working for Home Exchange in March 2006, after the petition's filing date. The beneficiary of an immigrant 
visa petition must be eligible at the time of filing; a petition cannot be approved at a future date after the 
beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. 
Commr. 1971). Therefore, a petitioner may not make material changes to a petition that has already been 
filed in an effort to make an apparently deficient petition conform to Citizenship and Immigration Services 
(CIS) requirements. See Matter of Izummi, 22 I&N Dec. 169, 175 (Commr. 1998). A job that the petitioner 
did not hold until March 2006 cannot qualifjl her for a January 2006 priority date. Therefore, the petitioner 
cannot qualify as a member of the professions in the instant proceeding, initiated in January 2006. 
Page 6 
The remaining issue is whether the petitioner has established that a waiver of the job offer requirement, and thus a 
labor certification, is in the national interest. Because the petitioner has not established eligibility for the 
underlying immigrant classification, she cannot qualify for the national interest waiver (which is available 
only to aliens in that classification). Nevertheless, the director's decision focused on the waiver issue, which 
we shall discuss here in the interest of thoroughness. 
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, 
I0 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 CIS] 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. 2 15 (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 future, 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 reiterate 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. 
In a statement accompanying her initial submission, the petitioner stated: 
I have for many years been performing on stage and in media within the UK, as a self- 
employed singer and actress. I have . . . made a substantial impact within this industry both 
nationally and internationally, and I have submitted letters of support from many 
internationally acclaimed experts who judge this field. . . . 
I have also during my career made time to inspire many children into pursuing there [sic] 
own careers in music, stage and media through both my own performances and through 
lessons I have subsequently given to some of them. . . . 
The USA would benefit greatly from what I have to offer both from my exceptional 
performances and from my inspirational teaching of their children in singing and acting. 
The petitioner submitted a page marked "Reviews," showing enlargements of five undated clippings from 
unidentified publications. Most of the clippings consist of a single sentence, and two of the clippings do not 
show the petitioner's name. 
The petitioner's initial submission included six witness letters. Attorney Thomas P. Allen 111's letter dealt 
primarily with the petitioner's personal character. Richard Scudamore offered general praise for the 
petitioner's performing abilities, but he claimed no special expertise in the arts. He is, rather, the Chief 
Executive of the Football Association Premier League, who has known the petitioner "for her and my entire 
life." 
The remaining four letters are from witnesses in the sta e, film or television industries who discussed the 
petitioner's work in the arts. Producer and director 
C 
, President of Rich Animation Studios, 
stated: 
I wish to acknowledge the importance of [the petitioner] remain in the U.S. and in particular 
with reference to the animation film industry. Her talent, accomplishments and impact in the 
U.K. and in the U.S. in the musical and acting fields mean that she has the potential to create 
memorable performances in the animation film industry here in the U.S. . . . 
[The petitioner] has already proven her worth in our company during her training with us on 
the IT side of animation production. . . . However, we have now also realized, after reading 
her portfolio and listening to her demo, her quite outstanding talent and accomplishments in 
singing and acting within the U.K. and it has become clear to us that she would be an 
exceptional talent to be used here in the U.S. animation film industry, if she were to remain 
here. 
Page 8 
It is rare indeed to find someone who has this unique singing and acting talent and also 
creative computer skills which she is able to use to help develop her media career. 
indicated that he knew of the petitioner not from her reputation as a performer, but because she was 
working for his company "on the IT side of animation roduction." Another witness whose knowledge of the 
petitioner does not stem from her work is a Senior Producer for the British 
Broadcasting Corporation, who "first met [the petitioner] through family connections." He stated that he 
"would rate [the petitioner] very highly in terms of her artistic talents, her social skills and her truthfulness 
and honesty. . . . I have no hestitation [sic] in recommending [the petitioner] as a suitable candidate for 
remaining in the United States." 
, Managing Director and Senior Producer of BVC (Bath) Ltd., hired the petitioner for a "European 
voice over job I was working on [in 19981. . . . [The petitioner's] initial work for this project was 
extraordinary and my customers and I were delighted with the results. . . . I believe [the petitioner] to be an 
ideal candidate for pursuing this type of immigration visa and residency in the United States." 
I first met [the petitioner] in 1982 when she was in an original Musical of "A Christmas 
Carol" that I was directing. . . . 
I had much pleasure in directing [the petitioner] during her early performing years. . . . 
She is a very dedicated performer who is talented in both singing and acting. She has a 
singing voice of high quality ranging through soft ballads, jazz, rock and belted numbers. 
Her acting skills resulted in her playing many leading roles in straight plays also during this 
time. . . . I know that [the petitioner's] extensive stage experience also enabled her to move 
her career, very successfully, into media and voiceover work. 
The director issued a request for evidence on July 27, 2006, stating: "The lack of evidence in your file 
indicates that you may not understand the NIW process and that you may not be eligible to file as an E-21 
NIW." The director instructed the petitioner to submit additional evidence to establish eligibility for the 
national interest waiver. 
In response to the request for evidence, the petitioner stated that she serves the national interest by serving as 
the "Signature Voice" for Home Exchange and as a voiceover artist for Crest Animation. To describe this 
work, the petitioner submitted a total of five new letters from two witnesses. , President of 
HomeExchange.com, provided three letters. His first letter did not mention the petitioner at all, instead 
describing Home Exchange: 
The Home Exchange site has grown from 4,000 to almost 12,000 international Listings in 
110 countries since 2002. . . . 
We believe, and our feeling has been confirmed by our Members, that HomeExchange.com is 
making a significant contribution to cultural understanding and even international world 
peace through helping to establish inter-personal connections and understanding between 
individual persons and families. 
In his second letter stated: 
[W]e plan to continue using [the petitioner's] English accent voice as the "Signature Voice" 
provided on our website for both our International Customer Service and for the Home 
Exchange Radio Marketing detailed below. . . . 
After testing a number of candidates, we concluded that [the petitioner's] clear, mellow and 
rich natural speaking voice projects the professionalism, warmth and kindness that is 
necessary to provide information and encourage visitors from around the world to use the site 
and join HomeExchange.com. . . . 
We have already begun using [the petitioner's] "Signature Voice" for the Customer Service 
feature on our website and we also plan to record her "Signature Voice" for our Radio 
Marketing. It is essential to us that we continue to have [the petitioner's] voice available to 
make modifications and additions as required, often at short notice. . . . The option of having 
to have [the petitioner] record at a studio outside the US would be very expensive, and the 
inconvenience would put us at a competitive disadvantage to our foreign competitors. 
In his third letter, 
 stated: "1 plan to use [the petitioner's] voice . . . and her outstanding singing 
voice on the DVD extras of the new blockbuster film 'The Holiday,"' a motion picture premised a home 
exchange between characters portrayed by acclaimed actors Cameron Diaz and Kate Winslet. Mr. = 
asserted that the petitioner's "international customer service 'Signature Voice' as well as using her unique 
singing talent will be used to create the inviting ambience for Home Exchange Country destinations and 
exchange stories." 
= 
(now identified as President of Crest Animation), in a September 22,2006 letter, stated: 
I wish to use [the petitioner's] singing voice for the title song and some of the pebble 
narrative story music in the forthcoming film production of "Sylvester and the Magic 
Pebble." . . . 
Children S animation films~equently contain a moral story which is a powerful message to 
be sending out to the young adults and children around the world. These films, through their 
moral messages, create their own contribution to maintaining world piece [sic] through 
inJluencing the children who ultimately become the young adults of the world. 
[The petitioner's] rich and powerful singing voice is the exquisite quality I require for the 
magic and mystery contained in this film. 
To be able to compete the recording of [the petitioner's] voice within the US, using US 
recording studios and facilities, is crucial. To be forced to record this in another country 
would not only be logistically more difficult but would mean lost US work, company 
business and jobs that would have been created in recording, editing and mixing her singing 
in the US. 
(Emphasis in original.) In a second letter, bearing the same date, 
 stated: "I wish to use the singing 
and acting voices of [the petitioner] in the forthcoming film production of Alpha and Omega. . . . [The 
petitioner's] rich, mellow speaking and sin in 
 voice is just right for 'Molly,' the Irish sheep, in this 
production." (Emphasis in original.) Rrepeated his assertion that to record the petitioner's voice 
overseas "would mean lost US work." -1 did not specify how many "jobs . . . would have been 
created," and over how long a term, by having the petitioner record her performances in the United States. He 
also failed to explain why the raw session tapes of a voice-over recorded overseas could not be edited and 
mixed in the United States. 
The above letters show that the petitioner has lined up offers for voice-over and performing work, but they do 
not put forth a strong case for granting a national interest waiver. The projects are inherently short-term, and 
therefore it is not clear why the petitioner could not perform as required under the appropriate nonimmigrant 
classification. 
Furthermore, the arguments presented as to how this work serves the national interest are weak. Whatever the 
merits of the argument that children's films can contribute to "world p[ea]ce," this is a general argument 
about the merits of children's films; there has been no showing that the salubrious impact of Sylvester and the 
Magic Pebble would be dulled by recording the petitioner's voice overseas or by recording, in the United 
States, an actor already authorized to work in this country. With respect to Home Exchange, the record 
contains no documentary evidence to show the extent to which Home Exchange benefits the United States as 
a whole (as opposed to its clients and corporate shareholders), or that such benefits will accrue only for as 
long as the petitioner records Home Exchange voice-overs in the United States. 
Finally, we note that the petitioner's initial submission contained no mention of Home Exchange or the 
Sylvester and the Magic Pebble or Alpha and Omega film projects. Pursuant to Matter of Katigbak and 
Matter of Izummi, if these projects were not underway at the time the petition was filed, then the specifics of 
those projects cannot retroactively show that the petitioner was eligible for the waiver as of the filing date. 
In denying the petition, the director concluded that the petitioner had failed to establish that her "past record 
justifies projections of future benefit to the national interest." On appeal, the petitioner submits additional 
information about her work at Home Exchange, which, for reasons already explained, began too late to 
qualify her for the waiver in this proceeding, even if the national interest claims relating to that work had been 
persuasive (which they are not). We affirm the director's finding that the petitioner has not established 
eligibility for the national interest waiver. 
Page 11 
The petitioner has, in this proceeding, established that she is an experienced and respected voice-over artist, 
and that she has been able to line up projects of an artistic and business-related nature. In doing so, however, 
the petitioner has not established a degree of expertise significantly above that ordinarily encountered among 
voice-over artists, or that her individual contributions (beyond the usual contributions of qualified voice-over 
artists) have and will continue to be in the national interest. 
The petitioner has not established eligibility for the underlying immigrant classification. Even if she had, a plain 
reading of the statute shows it was not the intent of Congress that every alien of exceptional ability should be 
exempt from the requirement of a job offer based on national interest. Likewise, it does not appear to have been 
the intent of Congress to grant national interest waivers on the basis of the overall importance of a given 
occupation, rather than on the merits of the individual alien. On the basis of the evidence submitted, the petitioner 
has not established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.