KIM

Interim Decision 40871

MATIMR OF KIM

In Visa Petition Proceedings
A-17276790
Decided by Regional Commissioner Jay 18, 1967
Since the phrase "exceptional ability in the sciences or arts" contained in section
203(a) (3) of the Immigration and Nationality Act, as amended, contemplates
a broader field of activity, knowledge and ability than that encompassed by
the phrase "of distinguished merit and ability" contained in section 101(a) (15 )
(H) (1), beneficiary does not automatically qualify for preference classifica-
tion under section 203(a) (3) , as a singer, solely by virtue of baying been
accorded classification under section 101(a) (15) (H) (1) of the Act, as a
person of distinguished merit and ability in the entertainment field.
Oic BRIXISZ or Passions: Hiram W. Ewan, Esquire
1011 North Broadway, Suite 203
Los Angeles, California

This case comes forward on appeal from the decision of the District
Direetor, Los Angeles, who denied the petition on May 3, 1967, in that
it had not been satisfactorily established that the petitioner had "ex-
ceptional ability in the sciences or arts" to the degree contemplated
by the statute to qualify for 3rd preference classification.
Oral argument was requested and granted. Counsel appeared on date
scheduled and requested additional time to obtain more evidence. The
additional evidence has been submitted.
Petitioner is a married female, 29 years of age, a native and citizen
of Korea residing in Los Angeles. She was temporarily admitted to
the United States at Honolulu on October 12, 1963 as a nonimmigrant
of distinguished merit and ability under section 101(a) (15) (H) (i)
of the Immigration and Nationality Act, destined to the Desert Inn,
Las Vegas, Nevada.. She was subsequently the beneficiary of a second
petition for the same classification approved October 15, 1964, for
temporary performance at the Stardust Hotel in Las Vegas, and
granted an extension of stay to July 28, 1965. Her husband is also in
the United States in a temporary status as a representative of a foreign
news media.

758
 She seeks classification as a preference immigrant under section 203
(a) (3) of the Act, based upon her ability as a singer. The Department
of Labor certification required by section 212(a) (14) of the Act has
been issued_
Section 203 (a) (3) of the Act, provides for the issuance of visas
"to qualified immigrants who are members of the professions, or who
because of their exceptional ability in the sciences or the arts will
substantially benefit prospectively the national economy, cultural inter-
ests, or welfare of the United States".
Section 101(a) (32) of the Immigration and Nationality Act, as
amended, defines "profession" as including but not being limited to
architects, engineers, lawyers, physicians, surgeons, and teachers in
elementary or secondary schools, colleges, academies, or seminaries.
Although the definition contained in section 101 (a) (32) is intended
to serve only as a guide, examination of the occupations listed indicates
a common characteristic. A pre-requisite for recognition of profes-
sional status in those fields is normally the attainment of at least an
undergraduate degree, and in some instances, a degree beyond the
undergraduate level. Matter of Shin, Int. Dec. No. 1606.
The beneficiary claims to have attended Ewah University, Seoul,
Korea, from 1950 to 1959 studying vocal training and indicates that
no degree or certificate was earned for this course of study. On appeal
counsel presented a letter under the letterhead "Seoul High School of
Music and Art" dated May 1, 1967, stating that petitioner "graduated
from this school on February 27 1 1956". No other evidences of academic
qualifications or higher education has been presented. Consequently,
it has not been established that the beneficiary is eligible for preference
classification by reason of high education. She cannot be considered as
a member of the professions within the statutory definition of that
term.
Counsel on appeal argues that the petitioner Is a singer by occupa-
tion and singing is her profession. However, "profession" is a defined
term and the beneficiary's occupation does not fall within that
definition.
We must now determine whether the petitioner can be considered
eligible for 3rd preference classification as a person of exceptional
ability in the sciences or arts.
Title 8 CFR, Part 204.2(f), prescribes the type of evidence required
to establish exceptional ability within the meaning of section 203(a)
(3) of the Act. If the alien alleges eligibility on a claim of exceptional
ability in the sciences or the arts, documentary evidence must be sub-
mitted. Such evidence may attest to the universal acclaim and either
national or international recognition accorded the alien; that he has
received national or international recognized prizes or awards in corn-

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Interim Decision. 4p ta i s
petition awarded for excellence for a specific product, or performance,
or outstanding achievement, or that he is a member of a national or
international association which maintains standards of membership
recognizing outstanding achievement as judged by national or inter-
national recognized experts in a, specific discipline or field of endeavor.
Affidavit attesting to an alien's exceptional ability must set forth the
name and address of the affiant, state how he has acquired his knowl-
edge of the alien's qualifications, and describe in detail the facts on
which the affiant bases his assessment of the alien's superior quali-
fications.
Letters attesting to her ability have been submitted by the Korean
Music Association of Southern California, and by the Consul General
of the Republic of Korea in Los Angeles. Also, numerous uncertified
copies of newspaper and/or magazine clippings concerning appear-
ances from 1960 to 1963. The majority are from Korean and Japanese
publications. Most have only partial translations or penned notations
as to the text, while many are mute as to their content. Most of these
clippings are ordinary publicity type articles and cannot be considered
to be critical reviews by experts in the beneficiary's field of endeavor
as to the quality of the beneficiary's performance in the singing field.
Nowhere is there any evidence that the beneficiary has performed or
sung in an individual performance or act. All the evidence relates to
the beneficiary and her partner singing as a team. Nowhere in the
publicity items is there any Specific mention made of the beneficiary
as to her individual ability as a performer. There is no evidence that
she has ever starred or played a leading role. She has not been featured
by name or acknowledged as eminent by recognized critics or experts
in the field of entertainment. She has appeared at some of the more
prominent places of entertainment and nightclubs in Las Vegas and
New York, but never as the star feature or attraction, and never men-
tioned individually by name, only as a supporting act with her singing
partner. Whether or not a person possesses exceptional ability must
rest, as a general rule, upon the opinions of persons who are qualified
experts in the field in which the exceptional ability is claimed (5 I. & N.
'Dec. 454). In support of appeal, counsel has presented an affidavit
executed by the entertainment director of the agency which has the
beneficiary under contract, in which he describes the beneficiary as
having "exceptional ability in the science and art of singing", and that
the act in which beneficiary performs has been presented at the Star-
dust Hotel in La,§ Vegas, in 1966.
The evidence submitted does "Mt satisfy the evidentiary require-
ments previously set forth. The writers of the letters submitted, al-
though several are engaged in the field of music, have not set forth
their qualifications to judge the ability of the beneficiary and conse-

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 .L111A3r1.111 Lieraston .to

quently their opinions cannot be accepted as opinions by qualified
critics. "Exceptional ability" must be demonstrated through accom-
plishment in the individual's chosen field of endeavor. The individual
must have attained a status in his field wherein he is recognized by
his contemporaries as possessing exceptional ability. The term "ex-
ceptional ability" as used in section 203(a) (3) of the Act, contem-
plates something more than what is usual, ordinary, or common and
requires some rare or unusual talent, or unique or extraordinary ability
in a calling which, of itself, requires talent or skill. The evidence
fails to establish that the beneficiary is pre-eminent in her field of
endeavor. She falls short of establishing that she has attained the
eminent stature and reputation contemplated by the statute. The
recognition which she has received has been as a member of a per-
forming team, a singing duet, and not for individual performance.
Counsel argues that the Service having once found the beneficiary
qualified far status under section 101(a) (15) (H) (i) of the Act, as a
person.of distinguished merit and ability in the entertainment field,
she is qualified for the ,3rd preference classification she now seeks.
We cannot agree. Each type of case must be considered on its own
individual merits, characteristics, and qualifications.
The beneficiary's admission in "H i" status, as of distinguished
—

merit and ability, was granted on her performance as a team member
of a duet and that combined performance of the two singers was con-
sidered by the Service as qualifying the beneficiary for "H—i" status.
This 'does not, however, automatically qualify the beneficiaries for
3rd preference classification as persons of exceptional ability in the
sciences or arts. It is noted that counsel advised that the beneficiary's
singing partner has been denied 3rd preference classification in an-
other District.
"Exceptional abilityin the sciences or arts", as found in section 203
(9)(3) of the Act, contemplates a broader field of activity, knowledge,
and ability than the wording of section 101(a) (15) (II) (i), "who is
of distinguished merit and ability" coming .temporarily to perform
temporary services requiring such merit and ability. Section 203(a)
(3) encompasses exceptional ability in the field of the sciences or arts
such as a painter, sculptor, writer, prominent in his field while "H i" —

could be confined to a specific, limited act or ability which is a limited
part of the whole field.
Considering all the circumstances as described above," t must be
found that the debision of the District Director was proper. It has
not been satisfactorily established that the beneficiary is qualified for
3rd preference classification as a perton of exceptional ability in the
sciences or arts. The appeal will be diSmissed:
ORDER; It is ordered that the appeal b6 dismissed;

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