Interim Decision #1755

Interim Decision #1755

MATTER or BROWNE

In Visa Petition Proceedings

LOS N-6064

Decided by District Director June 5, 1987

Petition by an internationally-known motion picture company to accord beneficiary, an actress of distinguished merit and ability whose services are desired

in a forthcoming motion picture, nonimmigrant classification under section

101(a) (15) (H) (1), Immigration and Nationality Act, is granted since a coin.

prehensive and objective analysis of all the evidence, including contradictory

opinions furnished by parties who may have opposing interests, establishes

that the relationship of beneficiary's proposed role with the starring roles and

with the aura, tone, and characterization juxtaposition sought to be achieved

by the writer and the producer-director requires an actress of distinguished

merit and ability to attain the desired objectives.

The petitioner, an internationally known, reputable, leading motion

picture company, has filed the instant petition seeking classification

under section 101(a) (15) (H) (i) for an actress, Coral Edith Pearman,

also known professionally as Coral Browne, hereinafter referred to

as the beneficiary. Her services are desired by the petitioner in a forthcoming motion picture entitled, "The Legend of Lylah Clare", to

enact the role of one called "Molly Luther".

In order to obtain the requested classification, the petitioner has

the burden of establishing that the beneficiary is an actress of distinguished merit and ability and that the role she is to perform requires

an actress of distinguished merit and ability. In support of its petition and its burden of proof, the petitioner, by its Assistant Secretary,

has submitted an affidavit in which it alleges that the beneficiary's

services are required from on or about May 29, 1967, for preliminary

services prior to commencement of principal photography which is

scheduled to commence on or about June 12,1967; that the beneficiary's

services will be required for approximately two months; that for her

services, the beneficiary will be paid the minimum sum of £3,000

( ,400) -which covers an initial three week guaranteed service period,

find an additional £1,000 ($2,800) per week for each week thereafter

.

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that her services are required; that in addition, the beneficiary will

be furnished first class round trip transportation from London, England to Los Angeles, California, plus MO per week living expenses

for the entire period that her services are required. The petitioner

further attests in its affidavit that the beneficiary is an actress of distinguished merit and ability in motion pictures and in the theatre,

both in the United States and abroad; that she co-starred with Peter

O'Toole and Omar Sharif in "Night of the Generals" in 1967;

co-starred with Donald Pleasance in the film "Dr. Crippen" in 1964;

and co-starred with Rosalind Russell and Forrest Tucker in the film

"Auntie Marne" in 1958. The petitioner lists seven plays in which the

beneficiary has performed on the legitimate stage.

In further support of its petition and its burden of proof, the petitioner has submitted an affidavit executed by Mr. Robert Aldrich who

will be the producer and director of the motion picture "The Legend

of Lylah Clare" in which he states that he has bean engaged as a producer and director in the motion picture industry for in excess of

twenty-five years; that he has directed many outstanding motion pictures, including "The Dirty Dozen", "Flight of the Phbenix", "Whatever Happened to Baby Jane", "Hush, Hush, Sweet Charlotte", "Vera

Cruz", "Big Knife", "Attack", and "Sodom and Gomorrah"; that his

pictures have been awarded fourteen Academy Award nominations;

that the beneficiary is a lady of important theatrical background who

previously had been admitted to the United States as an actress of

distinguished merit and ability to perform on the legitiniate stage in

"Right llonorable Gentleman", and "Tamburlaine, The Great",

and in the Alm "Auntie Mama" ; that in the proposed role for which her

classification is now. desired, she will 'appear in 29 scenes, covering

21143 pages of ,the script and having 27 speeches; that the beneficiary

in effect will be playing what would amount to a cameo role especially

fitted for her appearance and personality; that it was necessary to

make a special trip to England to persuade her to undertake this vignette role; that one °flier conditions of acceptance was that this be

considered a cameo role and give her special billing in last place of the

cast with special wording, such as: "and Coral Browne", "Guest

Star-Coral Browne", or "Coral Browne as Molly Luther"; that the

part the beneficiary is to play requires an English woman with pseudoaristocratic pretensions and airs, which would be most difficult for

any one to play except a qualified English actress of distinction, who

would give the role the "air" of the British star of the period.

In support. of Mr. Aldrich's statement that the beneficiary is a lady

of important theatrical background, he attaches to his affidavit an

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extract (page 401) of a publication entitled, "Who's Who in the

Theatre".

In accordance with the directive of 8 CFR 214.2(h) (2) (i), the

District Director consulted the Screen Actors Guild, an organization

of actors and actresses active in the motion picture industry, for the

purpose of obtaining the advisory opinion of the organization with

regard to the qualifications of the beneficiary and the nature of the

services to be performed by her. To assist the Screen Actors Guild in

furnishing its advice, the script of the proposed motion picture was

provided. In order to establish its expertise in the field of motion picture acting and the qualification of its officers to pass judgment and

to evaluate whether certain actors or actresses are of distinguished

merit and ability, and as to whether a particular role requires such

distinguished merit and ability, a communication dated May 22, 1967,

was submitted to this office in response to a request of May 16, 1967. In

this communication, Mr. John L. Dales, National Executive Secretary

of the Screen Actors Guild, advised that its Board of Directors consisted of active and highly trained and skilled professional actors who

have been elected to "govern the affairs of their fellow actors in the

Screen Actors Guild; that Guild executives are instructed to, and do,

freely call on the knowledge and opinion of these officers and Board

members; that the National Executive Secretary, John L. Dales, affiliated with the Guild in October of 1937, has been intimately associated

with actors and the motion picture and television industry continuously since then, is a member of the Academy of Motion Picture Arts

and Sciences, whose work requires close contact not only with members of the Guild, but with other talent guilds, such as the Writers and

Directors, and with the producing companies; that Chester L. Midgen,

the Guild's Associate National Executive Secretary, came to the Guild

in 1952 from the National Labor Relations Board where he was a

specialist in entertainment labor law problems, maintains extensive

contacts with the talent agencies and the casting offices of all studios

from all of which sources he gathers available information concerning

foreign talent; that Mr. A. Kendall Orsatti, Executive Assistant for

the Screen Actors Guild, was employed from 1956 to 1957 by Sabre

Motion Picture Productions, from 1958 to 1959 by Ror-Vic Productions at the Desilu Studios, in 1960 he served as a representative for

the American Federation of Television and Radio Artists, and in 1961,

joined the Guild as its Executive Assistant; that Executive Assistant

James L. Nissen, came to the Guild in March of 1957 directly from

Southwestern Law School where he obtained an L.L. B. degree.

The letter of May 22, 1967, states that all of the individuals mentioned in the communication, in addition to their own experience and

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knowledge, have available to them and make use of the extensive

knowledge and advice of :

1. The Guild Board of Directors, the Guild membership, consisting of actors of

all categories, including many who are also producers and directors;

2. All talent agencies franchised by the Screen Actors Guild which represent

under individual contracts all American and most foreign artists;

S. The foreign actors' unions around the world with whom the Guild maintains liaison, particularly in the United Kingdom;

4. The casting agencies in the motion picture industry operating either independently or exclusively for given studios. Constant contact is maintained

with these offices, avoiding only the one involved in a particular case. Inasmuch as Guild executives seek only public and professional knowledge of

foreign artists, this avenue of aid is also constantly open and extensively

used.

G. An extensive and current oubseription list of periodicals and literature on

motion picture and television around the world maintained by the Screen

Actors Guild in carrying out its obligation in the polidng of its residual

payment contractual requirements, both domestic and foreign. They also

have available the library of the Academy of Motion Picture Arta and Sciences, probably the most extensive fihn library in America today,

In its written advisory opinion submitted in affidavit form dated

May 81, 1967, signed by John L. Dales, Chester L. Migden, and A.

Jtendiill Orsatti, it is stated that each of the individuals signing the

affidavit has had extensive knowledge and background of the entertainment industry for a combined total in excess of fifty years, of

which Mr. Dales alone totals thirty of those years; that the business

experience of the deponents relates to actors, their roles, their conditions, their experience, their abilities, their utilization and functions in

the motion picture industry; that the deponents are of the firm opinion

that, although Miss Browne is an actress of distinguished merit and

ability who is coming temporarily to the United States to perform

temporary services, the services are by no means of an exceptional

nature nor do they require such merit and ability; that this opinion

is shared by the professional actors who are members of the Guild's

Executive Committee; that the three deponents have read the script

of the photoplay and have examined carefully the role of "Molly

Luther" • that the role is that of a syndicated columnist involving 27

lines, the majority of which take place at a press conference, the

speeches being singularly simple and, in the main, involving single

sentences; that there is nothing particularly unique, demanding or

difficult in the role or the dialogue; that in the opinion of the deponents the role does not involve anything approaching services of

an exceptional nature; on the contrary the role appears fairly routine

and ordinary, falling in the category of a small character role requiring acting ability but not acting ability on the seals of distinguished

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merit and ability as that concept was intended or within the fair

meaning of the statute; that they have little question but that the

characterization required could be readily portrayed by a considerable

number of character actresses in this country. In brief and in summation, the consulting organization's advice and expert opinion is that

services of an exceptional nature are not involved nor is distinguished

merit and ability required in connection with the role for which the

petitioner desires to employ the beneficiary.

It is important to note at this point that if the role requires an

actress of exceptional merit and ability, the instant petition must be

approved even though actresses having such merit and ability are

available in the United States to perform the role. Unlike classification

under section 101(a) (15) (H) (ii), unavailability of like labor is not

a prerequisite.

As is occasionally the case, we are here confronted with conflicting

expert o_ pinion as to one portion of the proof required to be established

by the petitioner. The difference of expert opinion found in the instant case clearly indicates the propriety and wisdom of 8 CFR 214.2

(h) (2) (i) in requiring as much objective evidence as possible on

which to predicate the necessary decision. It clearly appears from the

evidence introduced by the petitioner that the beneficiary is an actress

of distinguished merit and ability and the consulted organization, expert in the field, admits and concedes this. The petitioning company

whose late financial investment is involved in this motion picture asserts that they require the beneficiary's services for the role to be performed. This assertion is confirmed by the amount of money they have

contracted to pay in salary, living expenses, and transportation. The

director-producer of this motion picture, a man obviously of stature

in the industry and in his particular sphere with the industry, has

stated that the role requires an actress of distinguished merit, and

ability for reasons clearly set forth in his affidavit. It must be recognized that each of the opposing experts is asserting what they honestly

believe to be the truth. It must also be recognized that either may have

its opinion influenced by its own needs and the reasons for its existence. The petitioner and the producer are concerned with making

as fine a motion picture as possible with the greatest amount of profit;

the Screen Actors Guild is concerned, and properly so, with seeing to

it that its members are employed before importing actors into the

United States for purposes of employment.

The final determination of whether the statutory requirements have

been met is inherently contingent upon a comprehensive and objective analysis of all of the evidence, including the reading of the role

to be portrayed in the context of the entire script. Such evidence is

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not to be confined to facts and conclusion submitted by the parties

directly or indirectly involved, including any professional group

whose opinion has been solicited, but must also include any other peripheral or collateral facts as to which the Service has either actual or

constructive knowledge bearing on the issue. This would include the

opinions of the petitioner, their business and professional reputation,

the extent of their financial obligations involved in the particular production, the opinion of any union, other organization, recognized

critics, or other experts in the field in which the alien is to be engaged

together with the necessary background information establishing the

basis for and necessary expertise in the particular field. A petition of

the type here involved necessarily entails a certain amount of subjectivity which must enter into the•ultimate conclusion reached. It must

be emphasized, however, that neither individually nor collectively are

these peripheral or collateral matters to be completely clispositive of

the legal issue to be determined.

The evidence introduced by the petitioner and the valued opinion by

the recognized experts representing the Screen Actors Guild have been

carefully considered and evaluated together with the peripheral and

collateral factors referred to above. The entire script of the proposed

motion picture has been carefully perused with particular attention to

the role of "Molly Luther" described by the petitioner as a "cameo"

role.

A "cameo" role is a word of art employed in the industry to indicate (1) a portrayal of such poignancy or characterization as to stand

out clearly and vividly in the eyes of the viewer without any necessary relationship to the size of the part in the overall script or, (2) a

portrayal of a characterization stereotyped in the eyes of the viewer as

so closely connected with a specific actor either because of his prior

roles or because of his public image as to preclude any other actor from

being able to fill the part. For example, the viewing public's well

known awareness of the byplay between Bing Crosby and Bob Hope

would clearly indicate that only Bing Crosby could carry off the small

part of appearing in the last scene of a film walking off with the female lead whom Bob Hope has been pursuing throughout the entire

picture.

The independent reading of the proposed script clearly evidences

the fact that the role of "Molly Luther" is small, appearing on portions

of 211/4 pages of a. 159 page script involving in all some 27 lines of

dialogue. It appears, however, that this role provides a necessary

catalytic element to the forward progress and continuity of the story

and to the role of the principal female actress. One practical test as

to whether a role requires an actor of distinguished merit and ability

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might very well be whether the motion picture story or another characterization would be substantially impaired if the role were omitted.

Applying this test to the role of "Molly Luther", I am constrained to

conclude that a. substantial impairment would result, especially in the

"tone" sought to be reached in the scenes in which "Molly Luther"

appears_ Obviously, the actress makes the role as fully as the role

might make the actress. Also obviously, an actress of distinguished

merit and ability in a role such as "Molly Luther" might well be the

recipient of an Academy nomination. The fact that a lesser actress

could do the part in a. less significant manner and -without reaching

the heights of an award, is not dispositive of the issue as to whether

the role requires an actress of distinguished merit and ability. The

relationship oi this role with the starring roles and with the aura, tone,

and characterization juxtaposition sought to be achieved by the writer

and the producer-director, leads me to the conclusion that this role

does require an actress of distinguished merit and ability to reach the

objectives sought to be achieved. It having been established and conceded that the beneficiary is an actress of distinguished merit and

ability, it follows that the petition should be and is hereby approved.

ORDER: It is ordered that the visa petition filed by Metro- Goldwyn-Mayer, Inc. to classify Coral Edith Pearman, professionally

known as Coral Browne, as a nonimmigrant temporary worker under

section 101(a) (15) (H) (i), is approved.

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