dismissed O-1B Case: Music

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass, N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FILE: WAC 06 177 52596 Office: CALIFORNIA SERVICE CENTER Date: JAN 2 4 2007 
PETITION: 
 Petition for Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(15)(0)(i) . 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 06 177 52596 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center. 
The matter is now before the Administrative Appeals Office AAO on appeal. The appeal will be 
dismissed. 
The petitioner is an agent and the beneficiary is a violinist and violist. 
 The petitioner seeks 
nonimmigrant classification of the beneficiary as an alien with extraordinary ability in the arts under 
section 10 1 (a)(15)(0)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 10 1 (a)(l5)(0)(i), 
to perform and teach music for three years. 
The director denied the petition because the petitioner failed to establish that the beneficiary satisfied 
the standards for nonirnmigrant classification as an alien with extraordinary ability in the arts. 
On appeal, counsel contends that the evidence submitted below established that the beneficiary met the 
standards for 0-1 classification as an artist and that the director did not evaluate the record under the 
comparable evidence provision of 8 C.F.R. $2 1 4.1 (0)(3)(iv)(C). 
Section 10 1 (a)(15)(0)(i) of the Act provides classification to a qualified alien who: 
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, and seeks to enter the United 
States to continue work in the area of extraordinary ability[.] 
Section 101(a)(l5)(0)(i) of the Act, 8 U.S.C. $ 1 lOl(a)(15)(0)(i). 
The regulation at 8 C.F.R. $ 2 14.2(0)(3)(ii) provides the following pertinent definitions: 
Arts includes any field of creative activity or endeavor such as, but not limited to, fine 
arts, visual arts, culinary arts, and performing arts. . . . 
Extraordinary ability in the field of arts means distinction. Distinction means a high 
level of achievement in the arts evidenced by a degree of skill and recognition 
substantially above that ordinarily encountered to the extent that a person described as 
prominent is renowned, leading, or well-known in the field of arts. 
The regulation at 8 C.F.R. 5 214.2(0)(3)(iv), fbrther prescribes: 
Evidentiary criteria for an 0-1 alien of extraordinary ability in the arts. To qualify as an alien of 
extraordinary ability in the field of arts, the alien must be recognized as being prominent in his or 
her field of endeavor as demonstrated by the following: 
WAC 06 177 52596 
Page 3 
(A) Evidence that the alien has been nominated for, or has been the recipient of, 
significant national or international awards or prizes in the particular field such as an 
Academy Award, an Emmy, a Gramrny, or a Director's Guild Award; or 
(B) At least three of the following forms of documentation: 
(I) Evidence that the alien has performed, and will perform, services as a lead or 
starring participant in productions or events which have a distinguished reputation as 
evidenced by critical reviews, advertisements, publicity releases, publications, 
contracts, or endorsements; 
(2) Evidence that the alien has achieved national or international recognition for 
achievements evidenced by critical reviews or other published materials by or about 
the individual in major newspapers, trade journals, magazines, or other publications; 
(3) Evidence that the alien has performed, and will perform, in a lead, starring, or 
critical role for organizations and establishments that have a distinguished reputation 
evidenced by articles in newspapers, trade journals, publications, or testimonials; 
(4) Evidence that the alien has a record of major commercial or critically acclaimed 
successes as evidenced by such indicators as title, rating, standing in the field, box 
office receipts, motion picture or television ratings, and other occupational 
achievements reported in trade journals, major newspapers, or other publications; 
(5) Evidence that the alien has received significant recognition for achievements from 
organizations, critics, government agencies, or other recognized experts in the field in 
which the alien is engaged. Such testimonials must be in a form which clearly 
indicates the author's authority, expertise, and knowledge of the alien's achievements; 
or 
(6) Evidence that the alien has either commanded a hlgh salary or will command a 
high salary or other substantial remuneration for services in relation to others in the 
field, as evidenced by contracts or other reliable evidence; or 
(C) If the criteria in paragraph (0)(3)(iv) of this section do not readily apply to the 
beneficiary's occupation, the petitioner may submit comparable evidence in order to 
establish the beneficiary's eligibility. 
The beneficiary in this case is a native and citizen of South Korea. The record contains no evidence that 
the beneficiary has been nominated for or received any significant national or international awards or 
prizes in his field pursuant to the regulation at 8 C.F.R. 8 214.2(0)(3)(iv)(A). Accordingly, we will 
discuss his eligibility under the relevant criteria at 8 C.F.R. § 214.2(0)(3)(iv)(B). Counsel does not 
claim that the beneficiary meets any criteria that are not discussed below. 
WAC 06 177 52596 
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(I) Evidence that the alien has performed, and will perform, services as a lead or starring 
participant in productions or events which have a distinguished reputation as evidenced by 
critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. 
The petitioner submitted copies of 14 programs and fliers for concerts at which the beneficiary 
performed from 1988 to 2005. Five of these events were recitals that the petitioner performed as an 
undergraduate or graduate student. Three other concerts were faculty performances at schools where 
the petitioner taught music. Another three of the petitioner's performances took place at two local 
churches and a retirement home. Apart from the beneficiary's student recitals, all of the documents 
show that the beneficiary performed as part of an orchestra, ensemble or musical duo, but not as a 
solo performer, principal musician or featured soloist. The record is also devoid of any evidence that 
the musical events in which the petitioner performed have distinguished reputations. The programs 
and fliers do not demonstrate that the beneficiary has or will perform as a lead or starring participant 
in any productions or events that have a distinguished reputation. 
The petitioner submitted copies of two agreements between the beneficiary and the - 
Symphony Orchestra, which show that the petitioner has worked as an independent contractor for 
the orchestra, but which do not indicate that the petitioner has performed or will perform a lead or 
starring role in 
 orchestra's productions or events. The petitioner also submitted no 
evidence that the 
 Symphony Orchestra or any of its musical productions or events have a 
distinguished rep 
The petitioner submitted support letters fiom 11 individuals who have worked with the beneficiary 
and who praise his musical and teaching abilities, but do not discuss his work as a lead or starring 
participant in any distinguished musical productions or events. Accordingly, the beneficiary does 
not meet this criterion. 
(2) Evidence that the alien has achieved national or international recognition for achievements 
evidenced by critical reviews or other published materials by or about the inhidual in major 
newspapers, trade journals, magazines, or other publications. 
The petitioner submitted copies of two articles fiom 
 a Korean newspaper. Any document 
containing a foreign language that is submitted to Citizenshp and Immigration Services (CIS) must be 
accompanied by a full English translation, which the translator has certified as complete and accurate, 
and by the translator's certification that he or she is competent to translate fkom the foreign language 
into English. 8 C.F.R. 5 103.2(b)(3). Because the petitioner failed to submit certified translations of the 
articles, we cannot determine whether the evidence supports the petitioner's claim. Id. Accordingly, 
the evidence is not probative and will not be accorded any weight in this proceeding. Consequently, the 
beneficiary does not meet this criterion. 
(3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for 
organizations and establishments that have a distinguished reputation evidenced by articles in 
newspapers, trade journals, publications, or testimonials. 
WAC 06 177 52596 
Page 5 
The record shows that while a graduate student, the beneficiary performed with seven orchestras and 
quartets in Korea and the United States and that he was a violin and viola instructor for four music 
schools or centers in Michigan and Pennsylvania. After obtaining his doctorate in 2003, the 
petitioner taught music at 
 other schools &d performed with the 
Symphony Orchestra and th 
 n Pennsylvania. The support letters indicate h t at 
the beneficiary has 
 the schools where he has taught and the 
ensembles with which he has performed, but the testimonials do not establish that the beneficiary has 
or will perform in a lead, starring or critical role. The record also contains no articles attesting to the 
petitioner's role at, or the distinguished reputation of, any of these organizations or establishments. 
The support letters praise the petitioner's work at various institutions, but fail to establish that any 
these institutions has a distinguished reputation. Accordingly, the beneficiary does not meet this 
criterion. 
(5) Evidence that the alien has received signzficant recognition for achievements from 
organizations, critics, government agencies, or other recognized experts in the field in which 
the alien is engaged. Such testimonials must be in a form which clearly indicates the author's 
authority, expertise, and knowledge of the alien's achievements. 
The 11 support letters indicate that the beneficiary is well-respected by his colleagues and employers, 
but the testimonials fail to demonstrate that the beneficiarv has received simificgt recomition for his 
verbatim. This repetition indicates that the language of the letters is not the authors' own and detracts 
from their probative value. 
The remaining five letters fail to establish that the beneficiary has received significant recognition for 
his achievements. 
 Dr. Associate professor of Music at cheyney university of 
Pennsylvania, simply states that he believes the beneficiary is a violinist and violist of extraordinary 
merit and ability based on a single performance that the beneficiary gave with Dr. at a Cheyney 
University recital. hair of the Fine Arts Department at Cheyney University, states 
that he became when the beneficiary's wife was hired by the university. 
of the beneficiary, but merely states that the 
many occasions in support of many musical activities in 
the Fine Arts Dept." 
hb 
, President and Founder of Blue Lake Fine Arts Camp in Michigan, 
states that the beneficiary as een one of the camp's most effective and highly respected string teachers 
for elementary and high school students. Dr. of the East Bay Center for the Performing Arts 
in California, states that he and the both graduate students at Michigan State 
University in 1 995. ~r praises the beneficiary's musical abilities and states that he is aware of the 
beneficiary's 'reputation as a well-regarded teacher in the Philadelphia area." Finally, - 
Director of Instrumental Music for the Westtown School in Pennsylvania, praises the 
beneficiary as an exceptional string teacher. While these letters attest to the beneficiary's musical 
abilities and valuable contributions to various institutions, the testimonials fail to demonstrate that the 
beneficiary has received significant recognition for his achievements. Accordingly, the beneficiary 
does not meet this criterion. 
WAC 06 177 52596 
Page 6 
Comparable Evidence 
On appeal, counsel contends that the director failed to consider the supporting documentation under the 
comparable evidence provision of the regulation at 8 C.F.R. $2 14.1 (o)(3)(iv)(C), which allows the 
petitioner to submit comparable evidence of the beneficiary's eligibility if the criteria at 8 C.F.R. 
$ 214.2(3)(iv)(B) do not readily apply to the beneficiary's occupation. Counsel claims that the 
testimonials should be considered as comparable evidence of the beneficiary's eligibility because he is 
"an artist who is also an academic." Counsel's claim is unsupported by the record. The evidence 
submitted shows that at least three of the criteria at 8 C.F.R. $ 214.2(3)(iv)(B) apply to the beneficiary's 
occupation as both a musician and a music teacher and we have considered the 1 1 support letters in our 
above discussion of the beneficiary's eligibility under the first, third and fifth criteria. 
The petitioner has failed to establish that the beneficiary meets any of the evidentiary criteria at 8 C.F.R. 
5 2 14.2(3)(iv). Consequently, the beneficiary is ineligible for nonimrnigrant classification under section 
101 (a)(15)(0)(i) of the Act and the petition must be denied. 
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. tj 1361. Here, that burden has not been met. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.