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 classification 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 "exceptional 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. 

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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 interests, 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 professional 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 271 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 occupation 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 submitted. 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 corn759 
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 international 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 knowledge of the alien's qualifications, and describe in detail the facts on 

which the affiant bases his assessment of the alien's superior qualifications. 

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 appearances 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 mentioned 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 Stardust Hotel in La,§ Vegas, in 1966. 

The evidence submitted does "Mt satisfy the evidentiary requirements previously set forth. The writers of the letters submitted, although several are engaged in the field of music, have not set forth 

their qualifications to judge the ability of the beneficiary and conse760 
.L111A3r1.111 Lieraston .to 

quently their opinions cannot be accepted as opinions by qualified 

critics. "Exceptional ability" must be demonstrated through accomplishment 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 "exceptional ability" as used in section 203(a) (3) of the Act, contemplates 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 performing 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 considered 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 another 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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