VP 16-1795
Decided by the Central Office September 16, 1953
Visa Petition — Quota immigrant whose services are needed urgently in United States — Section 203 (a) (1) (A) of Immigration and Nationality Act — Expert testimony accepted to determine "exceptional ability" as potential actress in absence of previous experience of beneficiary — Permanency of employment where beneficiary is under optional contract.
(1) The beneficiary of this visa petition is under contract to the petitioning motion-picture-producing corporation which is training her as a potential actress. She is found to possess "exceptional ability" as used in section 203 (a) (1) (A) of the Immigration and Nationality Act, even though she has had no experience whatsoever, based on the opinion of the vice president of the corporation, who is an expert experienced in the selection and casting of actors, that she possesses abilities and talents which would qualify her as a motion-picture actress.
(2) Uncertainty as to the permanency of the services to be rendered in connection with employment of a continuing nature, by reason of the optional contract universally used in the motion-picture industry, does not render the beneficiary ineligible for classification under section 203 (a) (1) (A) of the Immigration and Nationality Act, even though the petitioner may not exercise the options at some future date, since her services are still desired on a continuing basis.
BEFORE THE CENTRAL OFFICE
PROCEEDINGS UNDER THE PROVISIONS OF SECTION 204 (B) OF THE IMMIGRATION AND NATIONALITY ACT
Discussion: The Petitioner, E---- C---- F---- F---- C----, Beverly Hills, Calif., is a Delaware corporation, successor to T---- C---- F---- F---- C----, incorporated under the laws of New York. The petitioner is engaged in motion-picture production and distribution. It is alleged that the petitioner derived a net income of $4,748,000 in 1952. The beneficiary alien B---- W----, is a 26-year-old native of Poland and presently a citizen of France. The petition for classification of the beneficiary as a quota immigrant whose services are needed urgently in the United States, within the contemplation of section 203 (a) (1) (A) of the Immigration and Nationality Act, was denied by the District Director of this Service at Los Angeles, Calif., on July 8, 1953, on the ground that insufficient evidence has been submitted to establish the beneficiary's qualifications for the requested classification. The district director in denying the petition stated, in part, that:
This Service cannot approve a petition to grant preferential quota status to a beneficiary, based upon allegations of exceptional ability where sufficient evidence of such ability has not been presented and where the petitioner manifests uncertainty as to the permanency of the employment, which is contingent upon the beneficiary demonstrating her merit and ability.
The petition is now before this office on appeal from that decision.
The evidence of record is regarded as establishing that the vice president of the petitioning corporation in charge of production, D---- F---- Z----, occupied that position with the petitioner's predecessor corporation from 1935 to September 1952, and with the petitioner corporation since that date. His office is located at the petitioner's principal studio in Los Angeles, Calif. In that capacity Mr. Z---- is responsible for the petitioner's motion-picture-production program, passing upon scripts for screen plays and the producer's selections of members of the cast of various motion pictures. Also, he suggests or selects actors and actresses to portray leading and important roles in the pictures produced by the petitioner. In an affidavit executed on June 17, 1953, Mr. Z---- pointed out that "sound principles of good studio operation and picture making, require, from time to time, the introduction of new personalities, that is, actors and actresses of unusual talents, abilities, or characteristics who are new to the theater-going public and who afford the public new focal points of interest. The development and use of such personalities is also absolutely necessary from the producer's point of view. * * * New talent is, in many ways, the lifeblood of this industry."
Mr. Z---- set forth in his affidavit that he first met the beneficiary alien in France where she had considerable experience as a professional model. He then concluded that she possessed talents and abilities that would qualify her as a motion-picture actress, provided she could master the English language within a reasonable time. The retention by the beneficiary of a foreign accent and mannerisms are regarded as valuable assets in her career as a motion-picture actress. As a result of a motion-picture test made in France, the beneficiary was employed by the petitioner. The beneficiary then came to the United States in November 1952 as a temporary visitor for business, for further training and study. She has been "extensively tutored" in English as well as working daily with a dramatic coach employed by the petitioner. Mr. Z---- swore that in January 1953 extensive black and white and technicolor motion-picture tests were made of the beneficiary, and that the results of these tests "more than substantiated affiant's original estimate of Miss W----'s potentialities as an actress." He stated that the original employment arrangement between the petitioner and the beneficiary was superseded by an exclusive long-term contract for a beginning term of 6 months, commencing February 9, 1953, with a guaranty of 20 weeks employment during that period at $350 per week, with an option for an additional 6 months at $400 per week, and six additional 1 year options at a salary scale ranging from $550 to $1,250 per week for the final optional year. It appears that the contract between the petitioner and the beneficiary is substantially the customary form of contract used in the motion-picture industry. Mr. Z---- pointed out that the petitioner has budgeted the sum of $1,480,000 for the production of a technicolor motion picture to be entitled "Hell and High Water," in which the beneficiary alien has been assigned the leading feminine role. He states that the beneficiary's role requires that she participate in the action almost continuously throughout the picture and that "if her performance is as outstanding as the affiant confidently expects it to be, the long-term contract for this actress' future services will be a corporate asset of considerable value, which value, however, will be dependent on her being permitted to remain in this country permanently. This company's investment, in time and money, in the development of this promising talent, would be lost if we must relinquish her services at the end of a limited temporary stay in the United States.
Counsel has pointed out that on July 6, 1953, 2 days before the decision of the District Director at Los Angeles, the petitioner exercised the first option granted by the employment contract with the beneficiary for an additional term of 6 months commencing August 9, 1953, at a salary of $400 per week, backing its judgment of the beneficiary's qualifications "to the extent of a total salary commitment of $15,000, plus investing in her a considerable schooling and coaching cost." Counsel also suggests that the assignment to the beneficiary of a "costaring role" in the indicated motion picture is further evidence of the petitioner's opinion that the beneficiary possesses distinguished ability. With respect to Mr. Z----'s qualifications to offer "opinion evidence" as to the beneficiary's exceptional ability, counsel refers to his record in supervising the production of about 675 feature motion pictures, allegedly costing an average of more than a million dollars each. Counsel states that most of these productions proved to be profit-making ventures, and that each of the productions comprise an accumulation of Mr. Z----'s estimates of the potential value of actors and actresses among other components of a motion picture.
No claim is made that the beneficiary possesses the high education contemplated by section 203 (a) (1) (A) of the Immigration and Nationality Act. The evidence of record will not support a conclusion that the beneficiary has received formal instruction in dramatics and related subjects to an extent that can be regarded as sufficient to confer eligibility upon her as a person who has had technical training within the meaning of that section. Nor is there any reasonable basis upon which it can be found that the beneficiary has had any experience whatsoever as a motion-picture actress. If at all qualified for the classification requested, the beneficiary must establish that she is a person of exceptional ability.
The term "exceptional ability" as used in section 203 (a) (1) (A) of the Immigration and Nationality Act, contemplates something more than what is usual, ordinary or common, and requires some rare or unusual talent, or unique or extraordinary ability in an occupation, profession, or calling which requires talent or skill. Whether or not a person possesses exceptional ability must, as a general rule, rest upon the opinions of persons who are qualified experts in the field in which the exceptional ability is claimed. Expert testimony is excepted from the general rule relating to opinion evidence, and constitutes admissible evidence which may be weighed and considered with all other evidence, because it in forms about matters gained by study or practical experience, not within the full understanding of the average person. ( So. Calif. Edison Co. v. Gemill, 30 Calif. App. (2d) 23; Farris et al. v. Interstate Circuit, Inc. 116 F. (2d) 409.)
The potentialities of the beneficiary as an actress, in the absence of any previous experience, is clearly beyond the knowledge or understanding of the average person. Only an expert experienced in the selection and casting of actors could express an opinion as to the indicated talents of the beneficiary. Mr. Z---- is beyond question fully and eminently qualified in this respect. His original, tentative and qualified opinion that the beneficiary possesses abilities and talents as an actress, despite her lack of experience, which would qualify her as a motion-picture actress, an opinion arrived at prior to her coming to the United States, has been substantiated by extensive motionpicture tests in this country and her progress under schooling by the petitioner. On the basis of the beneficiary's abilities and talents, as evidenced by the tests and schooling, the beneficiary has been assigned a costarring role in a motion picture for the production of which the petitioner has budgeted $1,480,000. It is found therefore that the beneficiary is a person possessing exceptional ability within the meaning of section 203 (a) (1) (A) of the Immigration and Nationality Act.
Section 203 (a) (1) (A) contemplates that the services to be performed will be on a continuing basis. In this connection it is established that the beneficiary's services, at the option of the petitioner at stated intervals, may be required for a period of at least 7 years. The optional contract entered into between the petitioner and the beneficiary for her services is of the kind universally used in the motion-picture industry. The fact that the petitioner may not exercise the options at some future date during the 7-year period does not alter the fact that the beneficiary's services are desired on a continuing basis. It is concluded therefore that the uncertainty as to the permanency of the services to be rendered in connection with employment of a continuing nature, does not render the beneficiary ineligible for the classification requested.
The petitioner's reasonably urgent need of the services of the beneficiary, and the fact that qualified persons to fill the employment need of the petitioner are not presently available in the United States are regarded as established by the evidence of record.
The motion-picture industry is among the large industries in this country. The continued success of that industry is regarded as tending toward the welfare of the United States. Therefore, in addition to being substantially beneficial prospectively to the cultural interests of this country, the beneficiary's entry into the United States for permanent residence will be prospectively in the interest of the welfare of the United States.
Upon consideration of the foregoing, it is concluded that:
(1) The beneficiary alien possesses exceptional ability with special reference to the requirements of her indicated employment.
(2) The petitioner has established its reasonably urgent need for the services of the beneficiary alien.
(3) Qualified persons possessing the required exceptional ability are not presently available to the petitioner in the United States.
(4) Because of the beneficiary alien's exceptional ability, her entry into the United States for permanent residence will be substantially beneficial prospectively to the cultural interest and welfare of the United States.
(5) The petitioner has complied with the applicable statutes and the regulations.Order: It is orderd that the appeal of T---- C---- F---- F---- C---- from the order of the district director of this Service at Los Angeles, Calif., denying the petition for classification of B---- W---- as a quota immigrant whose services are needed urgently in the United States, within the contemplation of section 203 (a) (1) (A) of the Immigration and Nationality Act, be sustained.
It is further ordered that the petition and related file be returned to the district director of this Service at Los Angeles, Calif., for appropriate action in accordance with the foregoing.