Interini , Decision. #1496

Interini , Decision. #1496

.aurae or SBAW

In Visa Petition Proceedings

NYC-N--17649

Decided by District Director May 98, 1985

Since the term "of distinguished merit and ability" implies preeminence in the

gad of endeavor, nonfmmtrant classification under section 101(a) (15) (Et)

(1), Immigration and Nationality Act, for a singer-performer for a television

show, is denied an 18-year-old beneficiary who was unknown as a performer

a year ago; who has no record of extensive performances; whose recording

successes are few in number; while one of her recordings has reached the

pinnacle of success in Great Britain, their popularity has been Strictly

ephemeral; the supporting documentation, consisting of 20 clippings from

publications, is essentially biographical, offering virtually no critical appraisal of her performances or talents; the proposed salary for the work involved,

which does not include transportation and incidental expenses, would scarcely defray first-class transportation; and, in addition, an advisory opinion of

the American Federation of Televiskin and Radio Artists concludes the

beneficiary falls far short Of being of distinguished merit and ability.

-

A petition by Sullivan Productions, Incorporated, 524 West 57th

Street, New York, New -York, was submitted on May 19, 1965, to

accord Sandie Shaw, an 18-year-old native and citizen of Great

Britain, classification under section 101(a) (15) (H) (1) of the IMmigration and Nationality Act. The services of the beneficiary are

sought as a singer-performer for the Al Hirt Television Show.

The provisions of sections 101(a) (15) (H) (i) and 101(a) (15) . (H)

(ii) of the Act, which are applicable and to which reference will be

made, are quoted below:

Section 101(a) (15) the term "Immigrant" means every alien except an

alien who is within one of the following classes of nonimmigrant aliens—.

(B) an alien having a residence in a foreign country which he has• no intention of abandoning (i) who is of distinguished merit and ability and who is

coming temporarily to the United States to perform temporary - services of an

exceptional nature requiring such merit and ability; or (ii) who is homing

temporarily to the United States to perform other temporary services or labor,

if unemployed persons capable of performing such service or labor cannot be

found in this country.

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Interim Decision #1496

A prior -petition to accord the beneficiary classification under section 101(a) (1009 (i) of the Act was submitted by the Hullabaloo

Company, New York, New York, on March- 26, 1965. Her services

were sought as a performer to sing popular British songs on the Hullabaloo Television Show. The beneficiary was to receive $1500 for

one performance.

The documentation submitted in support of the earlier petition

included a letter by Mike Maitland of Warner Brothers Records,

Incorporated, Burbank, California, stating the beneficiary is destined

to become an important record artist in the United States, and statements by the General News Editor of Husk Business magazine and

the Music Editor of Billboard magazine indicating the beneficiary to

be among the top English recording stars and a singer and performer

of distinguished merit and exceptional ability. Also furnished were

various record popularity tables. During the week ending October

31, 1964, the beneficiary's recording of "Always Something There to

Remind Me" was in the number one position in Great Britain. An

article appearing in the London Daily Mail of October 23, 1964, was

submitted indicating the beneficiary to have been awarded a silver

disc to commemorate the sueesss of this recording.

It is the policy of this Service, in the course of processing petitions

of this' nature, to request relating organizations and associations or

outstanding individuals in their respective fields to provide advisory

opinions regarding the qualifications, skills, or talents of the various

beneficiaries. The Assistant Executive Secretary of the American

Federation of Television and Radio Artists informed this office on.

April 7, 1965, that, in his opinion, the beneficiary is not a distinguished performer. He also advised.that the services to be performed

did. not appear to be exceptional hi nature and further asserfed that

her recordings were neither exceptional nor outstanding

. While the desires of unions to ban or limit the employment of foreign entertainers utilized to the . detriment of unemployed American

performers is appreciated, the opinions of such organizations must be

gives solne weight because of their pertinency in matters involving an

assessment of the merit and availability of performers in areas in

which they are of necessity experienced and knowledgeable.

It was toncluded that the evidence of record failed to establish that

the beneficiary is a person of distinguished merit and ability within

the contemplation of section 101(a) (15) (H) (i) of the Immigration

and Nationality Act. On April 7, 1965, accordingly, the petition by

the Hullabaloo Company in behalf of Miss Shaw was denied.

A petition to accord Miss Shaw classification under section 101(a)

(16) (H) (ii) of the Act was submitted on May 24, 1965, by Puritan

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-Interim Decision #1496

Fashions, Incorporated, New York, New York. Her cervices as a

character singer are needed by that organization. to perform. "rock

and roll" songs at a prilate showing of Rnglish fashions on June 2,

.1965, in WASP York City. The petitioner desires to utilize the service ,

associated with a certain style of clothing.. A "Sandie Shaw'.' line of

dresses will be introduced at the showing. The beneficiary is to

receive a salary of $1000 for one evening's work. A clearance order

from the Bureau of Employment Security certifying that qualified,

wbrkers are not available for referral to the employer was submitted.

The petition was approved on May 21, 1965.

Sullivan Productions, Incorporated, desires the services- of .Miss

Shaw as a singer and performer for a three-day period; including

rehearsals. The salary to be received by the beneficiary is $750.. She

will not receive additimial remuneration to cover travel -costs or incidental expenses. The videotape is slated to be recorded on June 2,

1905, and aired DR August 7, 1965.

Twenty-six clippings were submitted in support of the instant petition. .This material consists of items pertaining to the beneficiary,

ranging, from very brief notices of performance to feature-length

articles. Almost all are from British publications. Many of the clippings are minutia or essentially biographical items offering so little

specific information with respect to the beneficiary's performances or

serious critical appraisal of her talents as to be virtually immaterial.

Such items, devoted primarily to accounts of interviews held with the

beneficiary and stories of how she entered the entertainment field,

merely tend:to.establish a certain degree of popularity or notoriety.

Other items pertain to the beneficiary's success as a recording artist

and are similar to those submitted by the Hullabaloo Company. One

of Miss Shaw's recordings is again:seen to have occupied the number

one position in British record rating charts for a brief period. in October 1964. Since that time, she has made only a small number of

recordings and although.they have had a measure of success, none has

been rated at or near the number one position. Charts based upon.

United States sales do not indicate that any of -the beneficiary's

recordings ever placed near the "top ten."

The clippings are generally vague and do not offer any substantive

information pertaining to the beneficiary's experience as a performing artist. There are no concert reviews. No evidence is contained

therein relating to any professional .education or training she may

have had Many items relate to the beneficiary's rather unique style

of performing barefooted. The Bournemouth, Times 'of • March 5,

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Interim Decision #1496 '

1965; states: "Intriguing as her voice is, it's her feet that have also

helped her gain recognition."

On May- 20, 1965, the American Federation of Television and Radio

Artists was informed of the current petition, appraised of the nature

of the supporting documentation, and requested to furnish an advisory opinion as to whether the beneficiary may be considered a performer of distinguished merit and ability. An opinion was also

solicited as to whether the duties to be performed require such a person. A letter dated. May 26, 1965, from the Assistant Executive Secretary of that organization was received which concludes that the

beneficiary falls far short of being of distinguished merit and ability

as those terms are usually defined. The letter states that her songs

were never very popular in the United. States but omits mention of

their popularity abroad. There is no opinion as to whether or not the

duties to be performed are exceptional in nature. This Service does

not dispute that at least one of the beneficiary's songs was, indeed, a

"hit" abroad.

It is held that the term "distinguished merit and ability" implies a

degree of skill and recognition substantially- above_ that ordinarily

encountered, to the extent that a person so described is preeminent in

his field of endeavor. This Service is charged with the responsibility

of determining whether or not a beneficiary meets this statutory requirement. On the other hand, the burden of proving that an entertainer possesses the necessary distinguished merit and ability and is to

perform services of an exceptional nature, as required by law, rests

upon the person or 'organization desiring to bring the alien to. the

United States. It is recognized that such determinations often lead to

controversey—professional contort and drama critics and book reviewers are seldom in total agreement. Very often completely divergent opinions pert ining to the same event axe authored by the

"experts." Among the criteria which may be applied in assessing

such intangibles as "distinguished merit and ability" are expert opinions, including critical reviews, popularity, box office appeal, sales of

records, and contractual arrangements, including remuneration.

While it is appreciated that sometimes the Service's decision is not

accepted without some disagreement by the parties affected, it must

be borne in mind that the issue involved is one where reasonable men

can differ in judgement.

The evidence of record shows that barely one year ago the beneficiary was unknown as a. performer. The praises and accolades contained in the clippings are not significantly different from those used

to describe any vocalist with a modest amount of success. There is no

record of extensive performance as she is in the relative infancy of

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Interim .Decision 4# 1496

her career. The beneficiary's recording successes are few in number

and cannot yet be considered to establish a degree of skill setting her

apart from the many others who have attained similar renown.

While on of her songs has reached the pinnacle of success in Britain,

their popularity has been strictly ephemeral, as is characteristic of

most songs, and even performers, in this idiom. The May 21, 1965

issue of Time magazine, for example, includes a -very comprehensive

survey of the "rock and roll" situation. Apropos of the short-lived

popularity of perforMers in this field is the following quotation from

this article : "Jan and Dean ('rock and roll' singers) have endured at

least until next week, which is unique in a market -where one-hit-andforever-miss performances are the rule rather than the exception."

The evidence considered in toto falls short of establishing that she has

the "distinguished merit and ability" contemplated by the statute.

It is noted, moreover, that a star of the caliber contemplated by this

section of the statute would ordinarily be expected to receive a much

higher salary than the $750 offered the beneficiary, for the amount of

work involved. This is especially the case when transpottation and II

incidental expenses are not included. Even if the beneficiary were to

travel "economy" class, the cost of transportation alone would amount

to almost $500, leaving barely $260 as her stipend. First class transportation Would virtually exhaust her proposed salary. The petitioning organization may not realistically be expected to be able to secure

the services of a performer of "distinguished merit and ability" at the

salary offered.

It has been concluded that the petitioner has not satisfactorily

borne the burdens imposed by the statute of astablialiing either that

the beneficiary is a person of distinguished merit and ability in her

field or that the duties to be performed are exceptional in nature

requiring such a person. For these reasons the petition will be

denied. This action is taken without prejudice towards the consideration of a further petition by Sullivan Productions, Incorporated, to

have thisbeneficiary accorded classification•under section 101(a) (15)

(H) (ii) of the Act Such a petition would have to be accompanied

by the requisite clearance order from the Bureau of Employment

Security and- regulatory fee.

ORDER: It is ordered that the petition of Sullivan Productions,

Incorporated, to have Sandra Goodrich, professionally known as

&mile Shaw, accorded classification under section 101(a) (15) (H)

(i) of the Immigration. and Nationality Act, -'he and the same is

hereby denied.

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