Elina Lev came to America eight years ago with a plan, a skill and a dream.
Her plan: Finish an undergraduate music degree and land a full-time job with an orchestra.
Her skill: Playing violin. She became the Charlotte Symphony’s associate concertmaster in 2009, stayed through 2013, then spent last season as acting assistant concertmaster at the larger Utah Symphony. Now she’s been hired for the second violin section of the San Francisco Symphony.
Her dream: permanent residence, en route to U.S. citizenship. But according to an anonymous adjudicator who refused her application while she was playing in Charlotte, the artistic standing of the CSO didn’t justify her request to stay here indefinitely.
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“The strange thing about Elina’s situation is that the only ground of the denial was the prestige of her employer,” says her attorney, Jonathan Ginsburg of the Fairfax, Va., firm Fettmann Ginsburg. “It was not about her skill or anything she’d done or her qualities as a potential citizen.”
“This process has been really bumpy and emotional,” says the Russian-born Lev, 28. “(Utah) was my second tenure-type job, and people seem pleased with my ability. What started out as a formality has become taxing in many ways, including on the bank account.”
Lev, daughter of a professional cellist and violinist in St. Petersburg, started playing at 4 and entered a conservatory at 6. She came to Chicago College of Performing Arts at Roosevelt University to study with Vadim Gluzman, who’s still her mentor, and got a job in Michael Tilson Thomas’ New World Symphony in Florida after graduation. (She’ll rejoin him in San Francisco.)
In 2009, she landed in Charlotte on her temporary work visa. After she got tenure at the CSO in 2010, her attorney at the time (not Ginsburg) suggested she ask for a green card, so she could apply for citizenship five years later. She was told in 2011 that she needed to supply more information, so she didn’t qualify quickly; two days later, her father died.
“I couldn’t leave the country, because it wasn’t guaranteed I would be allowed to come back,” she says. “I have a visa that says I can stay and work, but if I leave, I may not be allowed to return.”
Why she fell short
In June 2013, she filed her I-140 form with the United States Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security, asking again for permanent residence. It was rejected in March 2014, and she hired Ginsburg to make an appeal.
“You can file a motion to reopen a case – which means you don’t want to rely on the record as it is, and you have new stuff you want immigration to (examine) – or simply ask them to reconsider the decision,” he explains. “We have filed a motion to reopen and reconsider.”
Ginsburg says anyone trying to qualify as “an alien of extraordinary ability” can do so by demonstrating sustained national or international acclaim, by having a remarkable one-time achievement (a Nobel Prize, a gold medal at the Tchaikovsky competition), by meeting at least three conditions on a list of 10 supplied by the USCIS, or by submitting comparable evidence.
The agency agreed Lev belonged to associations that require outstanding achievement to join. It agreed she had won lesser nationally or internationally recognized prizes for excellence. But it balked at the idea that she “performed in a leading or critical role for organizations or establishments that have a distinguished reputation.”
Proving she belongs here
Ginsburg said he could have started from scratch, using the Utah Symphony job to show Lev now met criterion No. 3. Then he’d be gambling that a new assessor might not approve criteria 1 and 2. He didn’t do that, because he wasn’t sure how familiar with classical music any assessor might be: “USCIS does not have a center with a unit specializing in arts or entertainment, so different kinds of eyes look at this stuff.”
Instead, he decided to bolster Lev’s current claim by finding more evidence for point No. 3. He collected testimonials from people who know the Charlotte Symphony – its quality, its impact on the community, the contract players and guest artists it attracts – and submitted those. The appeal is ongoing and has no deadline for completion.
“You see this great organization with fine players, a distinguished music director in Christopher Warren-Green, fine soloists who have traveled the world,” says Lev. “You can see it’s part of a vibrant arts community, playing for opera and ballet performances.
“I am asking for something great (in permanent residence), so I have to work hard to get it. But it seems so obvious the Charlotte Symphony is a fine orchestra. I feel I’m trying to explain to people that the Earth is round.”