dismissed EB-1A Case: Arts

(b)(6)
DATE: JUL 1 l:j 201~ Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigra tion Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b )(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consid eration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO . 
Thank you, 
~q;· 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition and reaffirmed that decision on motion. The matter is now before the Administrative Appeals 
Office (AAO) on appeal. We will dismiss the appeal. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary to 
qualify for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
The petitioner's priority date established by the petition filing date is February 4, 2013. On March 20, 
2013, the director served the petitioner with a request for evidence (RFE). Mter receiving the 
petitioner's response to the RFE, the director issued his decision on August 21, 2013. On November 
18, 2013, the director dismissed the petitioner's motion and reaffirmed the denial. On appeal, the 
petitioner submits a brief with no additional documentary evidence. For the reasons discussed below, 
we uphold the director's ultimate determination that the petitioner has not established his eligibility for 
the classification sought. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability.-- An alien is described in this subparagraph if--
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation; 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
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(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101st Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. !d.; 
8 C.P.R. § 204.5(h)(2). 
The regulation at 8 C.P.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and 
the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although the court 
upheld our decision to deny the petition, the court took issue with our evaluation of evidence submitted 
to meet a given evidentiary criterion.1 With respect to the criteria at 8 C.P.R. § 204.5(h)(3)(iv) and (vi), 
the court concluded that while users may have raised legitimate concerns about the significance of the 
evidence submitted to meet those two criteria, those concerns should have been raised in a subsequent 
"final merits determination ." !d. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which we did)," and if the petitioner did 
not submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." !d. at 1122 (citing to 
8 C.P.R. § 204.5(h)(3)) . 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, we will review the evidence under the 
plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has not satisfied the 
regulatory requirement of three types of evidence . /d. 
1 
Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
~ ~ ~ -- ~ - ---·~--~-------------
(b)(6)
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Page4 
II. ANALYSIS 
A. One-time Achievement 
The petitioner initially claimed eligibility for this classification based on several awards that he asserted 
qualified as a one-time achievement defined at 8 C.F.R. § 204.5(h)(3). The director's RFE notified the 
petitioner that his awards were not sufficient under the regulation and the petitioner's response did not 
contest that conclusion. Furthermore, the petitioner does not assert eligibility under this provision on 
appeal. Therefore, the petitioner has abandoned his claims under this criterion. Sepulveda v. U.S. Atty 
Gen., 401 F.3d 1226, 1228 n. 2 (111h Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 
4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to be abandoned as he 
failed to raise them on appeal to the AAO). Accordingly, the petitioner has not submitted qualifying 
evidence under this criterion. 
B. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
This criterion contains several evidentiary elements the petitioner must satisfy. According to the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i), the evidence must establish that the alien is the 
recipient of the prizes or the awards (in the plural). The clear regulatory language requires that the 
prizes or the awards are nationally or internationally recognized. The plain language ofthe regulation 
also requires the petitioner to submit evidence that each prize or award is one for excellence in the field 
of endeavor rather than simply for participating in or contributing to an event or to a group. The 
petitioner must satisfy all of these elements to meet the plain language requirements of this criterion. 
The director determined that the petitioner did not meet the requirements of this criterion, specifically 
concluding that the petitioner had not established that he was the actual recipient of the awards 
recognizing albums on which he played. The regulation does require evidence "of the alien's receipt" 
of prizes or awards, but does not require that the alien be the sole recipient of the award. 
The evidence the petitioner provided under this criterion with the initial filing does not bear any source 
information which would allow USCIS to verify the reliability of the claimed information within the 
documents. Specifically, the documentation lacks any publication title, a relevant website address, or 
equivalent source information. These documents therefore carry very little evidentiary weight in these 
proceedings. Much of the evidence the petitioner provided in response to the director's RFE was the 
same as initially provided and lacked a verifiable source, such as a web address. The petitioner did 
provide web~ite nrintm1t~ f om the that indicated the 1 won the award in 
2006 for and as a solo artist, won the award in 2008 for 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discussed in this decision. 
(b)(6)
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NON-PRECEDENT DECISION 
verified that the petitioner played percussion on both albums. The credits for 
~ which lack a source, list the petitioner as a group member. The credits for 
consistent with a solo album, do not list any group members. With regard to the 2008 award, which 
received as a solo artist, the evidence does not demonstrate that the petitioner was one of the 
recipients. Even assuming that the petitioner was a member of the . in 2006, consistent 
with the director's concerns, the petitioner must still demonstrate that he was one of the actual recipients 
of the award. 
Where the regulations require specific, objective evidence of achievements, such as awards, the primary 
evidence of such awards would be copies of the awards themselves. The regulation at 8 C.P.R. 
§ 103.2(b )(2)(i) provides that the non-existence or unavailability of required evidence creates a 
presumption of ineligibility. According to the same regulation, only where the petitioner demonstrates 
that primary evidence does not exist or cannot be obtained may the petitioner rely on secondary 
evidence and only where secondary evidence is demonstrated to be unavailable may the petitioner rely 
on affidavits. There is no primary evidence demonstrating the petitioner received any of the awards, 
individually or as part of a musical group. In this case, while the petitioner submitted reference letters, 
he did not submit any documentary evidence demonstrating that primary evidence and secondary 
evidence do not exist or cannot be obtained. The petitioner has not demonstrated that the required 
evidence is unavailable or cannot be obtained, and, therefore, the petitioner is presumed ineligible under 
this criterion pursuant to 8 C.P.R. § 103.2(b )(2). 
Even if the organizers issued a 2006 to the petitioner as a group member, the petitioner did 
not submit probative documentary evidence in reference to the national or international recognition of 
that award as required by the regulation at 8 C.P.R. § 204.5(h)(3)(i). Rather, the petitioner submitted 
evidence that lacks any publication title, a relevant website address, or an equivalent means to confirm 
the source of the information. Such documents, therefore, carry very little evidentiary weight in these 
proceedings. Even if this award met the regulatory requirements, the plain language of the regulation at 
8 C.P.R. § 204.5(h)(3)(i) requires "prizes or awards" in the plural, which is consistent with the statutory 
requirement for extensive evidence. Section 203(b)(l)(A)(i) of the Act. Significantly, not all of the 
criteria at 8 C.P.R. § 204.5(h)(3) are worded in the plural. Thus, the AAO can infer that the plural in the 
remaining regulatory criteria has meaning. . 
The petitioner asserts within the appellate brief that the fewer people within an award winning group, 
the greater each person's impact is on the group's performance, and because the musical groups 
consisted of three to six members, the petitioner was vital to the end result. The petitioner 's assertion is 
not persuasive as the regulation focuses on the petitioner being a recipient of an award rather than his 
impact on an award-winning group's performance. 
Based on the foregoing, the petitioner has not submitted evidence that meets the plain language 
requirements of this criterion. 
. ... ... .. -----·--··--·------ -- ---------
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Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must be about the petitioner and the contents must relate to the petitioner's work in the field 
under which he seeks classification as an immigrant. The published material must also appear in 
professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or international distribution and be published in a 
predominant national language. The final requirement is that the petitioner provide each published 
item's title, date, and author, and if the published item is in a foreign language, the petitioner must 
provide a translation that complies with the requirements found at 8 C.F.R. § 103.2(b )(3). The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
The oetitioner orovided nublished material from 
_ newspaper. Within the initial filing, the petitioner did 
not identify the type of publication (professional publication, major trade publication, or other major 
media). In response to the director's RFE, the petitioner focused mostly on whether the published 
material is about the petitioner. The director determined that the petitioner did not meet the 
requirements of this criterion placing his primary emphasis on whether the published material was about 
the petitioner. In the director's decision on the petitioner's motion to reconsider, the director stated: "In 
addition, counsel's conclusions are misguided regarding 'professional publications' not being required 
to reach a wide audience. The words 'or other major media' under this criterion establishes that 
wherever the published material is printed, it must be major; i.e., have significant national or 
international distribution." As defined at Section 101(a)(32) ofthe act, profession "shall include but not 
be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or 
secondary schools, colleges, academies, or seminaries." The regulatory definition of profession at 
8 C.F.R. § 204.5(k)(2) adds any occupation for which a United States baccalaureate degree or its 
foreign equivalent is the minimum requirement for entry into the occupation. As musician does not fall 
within the definition of profession, music publications must qualify either as major trade publications or 
other major media. 
The published material from the newspaper is 
about the petitioner and his work in the field; however, the record lacks evidence that these are 
professional or major trade publications or other forms of major media. The petitioner must provide 
supporting evidence that demonstrates the submitted evidence gualifies as one of the required 
publication types. The petitioner claims that the newspaper 1s largest 
newspaper with a readership of over 400,000" and the is a national 
professional publication. The petitioner did not submit probative evidence to verify these claims. 
Going on record without supporting documentary evidence is not sufficient for purposes of meeting 
-- . -- ---- ------- ----
(b)(6)
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Page 7 
the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
As noted by the director, some of the published material from is about 
the band in which the petitioner performed, and does not discuss the petitioner. While one of the 
articles mentions the role of evidence that simply mentions 
the petitioner's position within the musical group does not equate to published material about him 
relating to his work in the field. Further, the remaining articles in this publication do not mention the 
petitioner. 
Within the appeal brief, the petitioner cites to Racine v. INS, 1995 WL 153319 at *4 (N.D. Ill. Feb. 
16, 1995) and Muni v. INS, 891 F. Supp. 440 (N.D. Ill. 1995). In contrast to the broad precedential 
authority of the case law of a United States circuit court; we are not bound to follow the published 
decision of a United States district court in cases arising within the same district. See Matter of K-S-, 
20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's decision will be given 
due consideration when it is properly before us; however, the analysis does not have to be followed 
as a matter of law. Id. at 719. The petitioner's appellate brief also claims that the articles do not 
"merely name [the petitioner] in passing without reviewing or evaluating his work. Instead these 
articles specifically r~view/critique his work." Regardless, that case did not state that the published 
material does not have to be about the petitioner, a regulatory requirement; rather, the court 
concluded the material did not have to expressly single out the petitioner as a star. The record does 
not contain any probative evidence that constitutes published material about the petitioner in 
professional or major trade publications or other major media. 
Finally, the petitioner did not demonstrate that the director used "primarily" to mean that the material 
must be solely or exclusively about the alien relating to his work. Nevertheless, an article that is not 
about the petitioner does not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-
820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a show are not 
about the actor). 
Consequently, the petitioner has not submitted evidence that meets the plain language requirements of 
this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The plain language of this regulatory criterion contains multiple evidentiary elements that the petitioner 
must satisfy. The first is evidence of the petitioner's contributions (in the plural) in his field. These 
contributions must have already been realized rather than being potential, future contributions. The 
petitioner must also demonstrate that his contributions are original. In addition, the evidence must 
establish that the contributions are scientific, scholarly, artistic, athletic, or business-related in nature. 
The final requirement is that the contributions rise to the level of major significance in the field as a 
whole, rather than to a project or to an organization. The phrase "major significance" is not superfluous 
(b)(6)
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Page 8 
and, thus, it has some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rct 
Cir. 1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). Contributions of 
major significance connotes that the petitioner's work has significantly impacted the field. 
See Visinscaia v. Beers, --- F. Supp. 2d ---, 2013 WL 6571822, at *6, 8 (D.D.C. Dec. 16, 2013) 
(upholding a finding that a ballroom dancer had not met this criterion because she did not demonstrate 
her impact in the field as a whole). The petitioner must submit evidence satisfying all of these elements 
to meet the plain language requirements of this criterion. 
The petitioner did not make a direct eligibility claim under this criterion within the initial filing. In 
response to the RFE the petitioner claimed two contributions. The first, that "he has taken traditional 
religious and ceremonial patterns that played on 
' The second contribution was -his published instructional book with a recorded CD and DVD. The director determined that the 
petitioner did not meet the requirements of this criterion. The director specifically stated (1) that 
according to the expert letters, the petitioner has reintroduced a previous practice, and (2) that the record 
lacks evidence demonstrating the petitioner's contributions were original or significant in the field. 
On appeal, the petitioner asserts that the director substituted his own opinion for those of the experts 
who provided letters relating to the petitioner's contributions within his field. Within the appeal, the 
petitioner cited to the letters from Dr. all of 
whom are experts in the petitioner's field. 
Regarding the petitioner's originality through the use of the letter from Dr. 
Professor and Research Fellow at the states: "I also want to 
describe an academic and original project that [the petitioner] has created. [The petitioner] has shed 
new light on an folkloric practice that was almost forgotten, specifically regarding 
music. There is ; that are played together as ... [the 
petitioner] has This has not been formalized or 
solidified in any fixed manner or in the Western Hemisphere. This is something original and significant 
for professors of music, ethnomusicologists, musicians and those who study ancestral rituals and 
culture." Dr. _ provides conflicting information regarding the originality of the petitioner's 
use of Initially, Dr. indicates the practice was almost forgotten, implying it 
previously existed; however, he also indicates that the petitioner created this practice and that it is 
original. 
The letter from a collaborator and one of the petitioner's fellow artists, states: "[The 
petitioner] has recently created a scholarly work of the use of 1 religious ceremonies 
in which he has converted This concept is definitely new and 
groundbreaking, and it will attract widespread attention in the United States. His work would have 
already been thrust into the limelight were it not for the communication shortcomings that exist in 
. . . Once he is here though, I am certain that his research and writings will attract the attention of 
anyone with interest in r music and culture." 
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Page 9 
, a Chicago-based musician, stated within his letter that the petitioner is 
"transcribing the rhythms ... into _ which [the petitioner] believes is 
how _ were originally played in .. I have not seen this concept performed, studied, or 
transcribed by anyone else in the world. The communities in the U.S. that study and use 
music ... will very much benefit from [the petitioner's] original and scholarly work." The letter rom 
a Cuban musician and producer also indicates that the petitioner "is working on 
a project to save the original _ (that are now commonly used but in the 
origins were played " 
These expert letters are somewhat inconsistent regarding the originality of the petitioner's use of a 
Accordingly, the record supports the director's concerns on this issue. Regardless of 
whether the petitioner's contribution is original, however, he must also demonstrate that the 
contribution is of major significance in the field. 
The expert letters the petitioner cites from Mr. and Mr. do not assert that the petitioner's 
incorporation of has already significantly impacted his field. Both authors reference a 
future benefit and impact within the petitioner's field of endeavor. That the petitioner will provide a 
prospective benefit to the United States as a permanent resident is a requirement under the Act. See 
section 203(b )(1)(A)(iii) of the Act. However, the above cited expert letters do not identify how the 
petitioner has already made a significant impact in his field, which is required by this regulatory 
criterion. A petitioner must establish the elements for the approval of the petition at the time of filing. 
8 C.F.R. §§ 103.2(b)(1), (12). Apetition may not be approved if the beneficiary was not qualified at the 
priority date, but expects to become eligible at a subsequent time. See Matter of Katigbak, 14 I&N Dec. 
45, 49 (Reg'l Comm'r 1971). This evidence does not establish that, as of the priority date, the 
petitioner's incorporation of has contributed to his field in a significant manner 
as required by the regulation. 
Regarding the petitioner's second contribution claimed under this criterion, the petitioner's appellate 
brief cites to a letter from Cuban musician in support of the assertion that the director 
"misconstrues [the petitioner'sl 'collaboration on a CD/DVD' by failing to look to the substance and 
content of the project. " Mr. letter quotes the prologue to the book on which the petitioner 
collaborated as stating that the book includes "a large portion of the percussive rhythms used by musical 
ensembles ... offering a new and unique view of our culture. This labor is comparable to a small atlas 
of rhythms." Mr. letter does not indicate the original nature of the petitioner's 
collaborative work. Additionally, although the letter states the prologue describes the work as a small 
atlas of rhythms transcribed to written form, Mr. did not describe how the petitioner's 
work has significantly impacted the field. 
The appellate brief also refers to the letter from the musician, . Within this letter, Mr. 
implies that transcribing the traditional music to a written format is unique and original. 
However, this letter lacks sufficient detail indicating the extent to which this contribution has impacted 
the petitioner's field. While the possibility exists that the petitioner's work may have some future 
impact within his field, he has not provided evidence indicating that his field has already changed as a 
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Page 10 
result of this work. The petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b )(1), 
(12). A petition may not be approved if the beneficiary expects to become eligible at a subsequent time. 
See Matter of Katigbak, 14 I&N Dec. at 49. This evidence does not establish that, as of the priority 
date, the petitioner had made a contribution of major significance in his field. 
The petitioner's appellate brief also reflects that his musical "field cannot be thoroughly grasped and 
comprehended by a layperson adjudicator. For that reason, the opinions of experts in the industry 
should be afforded due respect and recognition." While expert letters can provide important 
information pertaining to the field, to be relevant to this criterion, the expert letters must provide 
information about the petitioner and how his work has affected the field or must provide information 
regarding the extent to which the petitioner's work is being replicated or relied upon within his field. 
The above letters do not provide such a context. 
The petitioner also submitted several reference letters praising his talents and abilities as a percussionist. 
Most collaborated with the petitioner in creating albums and other music works, describing him as a star 
percussionist who was primarily responsible for the success of the musical productions. Talent and 
experience in one's field, however, are not necessarily indicative of original artistic contributions of 
major significance in the petitioner's field. The petitioner must have demonstrably impacted his field in 
order to meet this regulatory criterion. The reference letters the petitioner submits do not provide 
· specific examples of how the petitioner's work has significantly impacted the field at large or otherwise 
constitutes original contributions of major significance. The Board of Immigration Appeals (BIA) has 
stated that testimony should not be disregarded simply because it is "self-serving." See, e.g., Matter of 
S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing Matter of M-D-, 21 I&N Dec. 1180 (BIA 1998); 
Matter ofY-B- , 21 I&N Dec. 1136 (BIA 1998); Matter of Dass, 20 I&N Dec. 120 (BIA 1989); see also 
Matter of Acosta , 19 I&N Dec. 211, 218 (BIA 1985)). The Board clarified, however: "We not only 
encourage, but require the introduction of corroborative testimonial and documentary evidence, where 
available." Matter of S-A-, 22 I&N Dec. at 1332. If testimonial evidence lacks specificity, detail, or 
credibility, there is a greater need for the petitioner to submit corroborative evidence. Matter of Y-B-, 
21 I&N Dec. at 1136. 
Vague, solicited letters from local colleagues that do not specifically identify contributions or provide 
specific examples of how those contributions influenced the field are insufficient. Kazarian v. USCIS, 
580 F.3d 1030, 1036 (91h Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010). In 2010, the Kazarian 
court reiterated that the AAO's conclusion that "letters from physics professors attesting to [the alien's] 
contributions in the field" was insufficient was "consistent with the relevant regulatory language." 596 
F.3d at 1122. The opinions of experts in the field are not without weight and have been considered 
above. While such letters can provide important details about the petitioner's skills, they cannot form 
the cornerstone of a successful extraordinary ability claim. users may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Matter of Caron International, 
19 I&N Dec. 791, 795 (Cornm'r 1988). However, USCIS is ultimately responsible for making the final 
determination regarding an alien's eligibility for the benefit sought. ld. See also Visinscaia, 2013 WL 
6571822, at *8 (concluding that USCIS' decision to give limited weight to uncorroborated assertions 
from practitioners in the field was not arbitrary and capricious). 
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Page 11 
The submission of letters from experts supporting the petition is not presumptive evidence of eligibility; 
USCIS may evaluate the content of those letters as to whether they support the alien's eligibility. See 
id. at 795; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion 
testimony does not purport to be evidence as to "fact" but rather is admissible only if it will assist the 
trier of fact to understand the evidence or to determine a fact in issue). While letters authored in support 
of the petition have probative value, they are most persuasive when supported by evidence that already 
existed independently in the public sphere. Such independent evidence might include, but is not limited 
to, letters from independent industry experts with firsthand knowledge of the petitioner's impact in the 
field, media coverage, and published references to the impact of the petitioner's work. 
Consequently, the petitioner has not submitted evidence that meets the plain language requirements of 
this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
This criterion contains multiple evidentiary elements the petitioner must satisfy. The plain language 
requirements of this criterion requires that the work in the field is directly attributable to the alien. 
Generally, 8 C.P.R. § 204.5(h)(3)(vii) is limited to the visual arts. This interpretation is longstanding 
and has been upheld by a federal district court in Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *7 
(D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing artist do not fall 
under 8 C.P.R. § 204.5(h)(3)(vii)). The alien's work also must have been displayed at artistic 
exhibitions or showcases (in the plural). The petitioner must satisfy all of these elements to meet the 
plain language requirements of this criterion. 
The petitioner claimed his musical performances at jazz festivals as qualifying activities under this 
criterion. The director initially determined that the petitioner met the requirements of this criterion in 
his initial decision, but reversed his determination in the decision on the motion to reconsider. 
Within the appellate brief the petitioner claims: "There is absolutely no language limiting this criterion 
to visual artists, rather than performing artists." The plain language of the regulatory criterion at 
8 C.P.R. § 204.5(h)(3)(vii) requires evidence of the "display" of the petitioner's work in the field at 
artistic exhibitions or showcases. A musical performance or program is not a "display." 
As the petitioner is not a visual artist and has not created tangible pieces of art that were on display at 
exhibitions or showcases, the petitioner has not submitted qualifying evidence that meets the plain 
language requirements of the regulation at 8 C.P.R. § 204.5(h)(3)(vii). See also Negro-Plumpe v. Okin, 
2:07-CV-820-ECR-RJJ at 7. 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
This criterion anticipates that a leading role should be apparent by its position in the overall 
organizational hierarchy and that it be accompanied by the role's matching duties. The petitioner also 
has the responsibility to demonstrate that he actually performed the duties listed relating to the leading 
role. A critical role should be apparent from the petitioner's impact on the organization or the 
establishment's activities. The petitioner's performance in this role should establish whether the role 
was critical for the organization or establishment as a whole. The petitioner must demonstrate that the 
organizations or establishments (in the plural) have a distinguished reputation. While neither the 
regulation nor precedent speak to what constitutes a distinguished reputation, Merriam-Webster's online 
dictionary defines distinguished as, "marked by eminence, distinction, or excellence."5 Dictionaries are 
not of themselves evidence, but they may be referred to as aids to the memory and understanding of the 
court. Nix v. Hedden, 149 U.S. 304, 306 (1893). Therefore, it is the petitioner's burden to demonstrate 
that the organizations or establishments claimed under this criterion are marked by eminence, 
distinction, excellence, or an equivalent reputation. The petitioner must submit evidence satisfying all 
of these elements to meet the plain language requirements of this criterion. 
The petitioner claims eligibility under this criterion based on performing in several musical groups. The 
director determined that the petitioner did not meet the requirements of this criterion. Specifically, the 
director stated that the evidence reflects the petitioner performed in a leading or critical role on projects 
(albums) with the musical groups, but that the record lacked sufficient evidence to establish that the 
musical groups enjoyed a distinguished reputation. 
As the petitioner is claiming that the musical groups are the equivalent of organizations or 
establishments, he must also demonstrate that these groups enjoy a distinguished reputation. On appeal, 
the evidence the petitioner claims establishes the distinguished reputation of the below organizations is 
the same evidence initially discussed under the lesser prizes or awards criterion that does not bear any 
identifiable source. As such, the evidence associated with the following solo artists and musical groups 
carries significantly diminished evidentiary weight: 
The petitioner also submitted letters from artists and musical 
group members in reference to each group's distinguished reputation. Regarding the letters from band 
members, USCIS will not accept assertions made within these letters as the sole evidence of the group's 
distinguished reputation, or that the group received the claimed awards without evidence on record of 
the actual award. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
While the receipt of awards by these solo artists and musical groups would be probative evidence 
regarding their distinguished reputations, the evidence on record bears limited evidentiary value as the 
documents do not have any indication of the source of this material. The petitioner did document that 
5 
See http://www.merriam-webster.com/dictionary/distinguished, accessed on June 17, 2014, a copy of which is 
incorporated into the record of proceeding. 
(b)(6)
NON-PRECEDENT DECISION 
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the l received a and provided published material about the musical group 
Regarding the an award for a single album is not sufficient to 
demonstrate that the group, rather than as a solo artist who won another award in 2008, 
enjoys a distinguished reputation. Moreover, as discussed above, the material relating to the 
significance of the is from an unidentified source. 
While the petitioner has provided published material establishing that enjoys a distinguished 
reputation, he did not establish that he performed in a leading or critical role for this band. The 
petitioner's evidence relating to his role in this band is from a former band member, 
Mr. asserts that the petitioner was the lead percussionist and was critical to the group's success. 
Repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Associates, Inc. v. Meissner, No. 95 CIV. 10729, *1, *5 (S.D.N.Y. Apr. 18, 1997). 
Notably, the two articles about that the petitioner submitted do not support the statement 
that the petitioner was the lead percussionist. First, only one mentions the petitioner by name. Second, 
the article that does mention the petitioner's last name (as part of a father and son team) first states: 
' plays with two of the highest representatives of their generation of 
percussionists." The article's discussion of other percussionists before mentioning the petitioner as part 
of a father and son team rather than singling him out as the lead percussionist, is not consistent with Mr. 
letter. 
While the petitioner may have performed in a leading role for other musical groups, such as 
. he did not provide independent ev1 ence 
demonstratmg that these musica groups enJOY a S't""="s=m- gu-- ished reputation. Furthermore, the petitioner 
did not submit evidence demonstrating that he performed in a critical role for any organization such that 
the group's success can be attributed to the petitioner. 
As the petitioner has not submitted sufficient evidence regarding the distinguished reputation of the 
claimed musical groups, he has not satisfied the plain language requirements of this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
This criterion requires a petitioner to establish eligibility through volume of sales or box office receipts 
as a measure of the petitioner's commercial success in the performing arts. The director initially 
determined that the petitioner did not meet the requirements of this criterion in his initial decision, but 
reversed his determination in the decision on the motion to reconsider. The director based his final 
determination on the possibility that the petitioner was a member of the band in 1996 when 
the band's album reached tenth place in the charts. 
The petitioner relies on chart placement to satisfy this criterion's requirements. The petitioner did not 
provide evidence demonstrating that the chart placement was based on sales, and we will not presume 
that the evidence on record relates to sales versus airplay. The plain language of the regulation at 
(b)(6)
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8 C.P.R. § 204.5(h)(3)(x) requires evidence of commercial successes m the form of "sales" or 
"receipts." Nevertheless, the petitioner did provide an article from _ _ indicating that the 
album _ sold more than 150,000 copies. 
However, the record lacks probative evidence demonstrating the petitioner's involvement with this 
album sufficient to establish that the sales of this album constitute the petitioner's commercial success 
in the performing arts. For example, the record lacks evidence that the petitioner was prominently 
featured in the promotional material for the album. 
Accordingly, he has not submitted qualifying evidence that meets the plain language requirements of 
this criterion. 
C. Comparable Evidence 
The regulation at 8 C.P.R. § 204.5(h)(4) allows an alien to submit comparable evidence if the 
petitioner is able to demonstrate that the standards at 8 C.P.R. § 204.5(h)(3)(i)-(x) do not readily 
apply to his occupation. It is the petitioner's burden to explain why the regulatory criteria are not 
readily applicable to his occupation and how the evidence submitted is "comparable" to the objective 
evidence required at 8 C.P.R. § 204.5(h)(3)(i)-(x). Where an alien is simply unable to meet or submit 
sufficient documentary evidence of at least three of these criteria, the plain language of the 
regulation at 8 C.P.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. As 
the petitioner has not attempted to demonstrate that the regulatory criteria at 8 C.P.R. 
§ 204.5(h)(3)(i)-(x) do not readily apply to his occupation, the petitioner may not rely on comparable 
evidence to qualify for this immigrant classification. As such, the petitioner has not demonstrated 
that he may rely on comparable evidence. 
D. Waiver of National Interest in the Alternative 
The petitioner checked box "l.a." under Part 2 of the Form 1-140 petition requesting classification as an 
alien of extraordinary ability. In response to the RFE, the petitioner also requested, in the alternative, to 
be classified under a second preference immigrant classification in the event the director determined he 
was not eligible for the extraordinary ability classification. The petitioner renewed this request on 
motion before the director, but does not make this request on appeal. If the petitioner desires to apply 
for multiple classifications, he must file a separate petition for each desired classification. See generally 
Brazil Quality Stones, Inc., v. Chertoff, Slip Copy, 286 Fed. Appx. 963 (9
1
h Cir. July 10, 2008). 
users is statutorily prohibited from providing a petitioner with multiple adjudications for a single 
petition with a single fee. See section 286(m) of the Act, 8 U.S.C. § 1356 (providing that USCIS is 
required to recover the full cost of adjudication). We will not consider this request within the present 
proceeding. 
E. Summary 
The petitioner has not satisfied the antecedent regulatory requirement of three types of evidence. 
(b)(6)
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Page 15 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who have risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While we conclude that the evidence is 
not indicative of a level of expertise consistent with the small percentage at the very top of the field or 
sustained national or international acclaim, we need not explain that conclusion in a final merits 
determination. 6 Rather, the proper conclusion is that the petitioner has not satisfied the antecedent 
regulatory requirement of three types of evidence. !d. at 1l22. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the petition 
may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende , 26 I&N Dec. at 128. Here , that burden has not been met. 
ORDER: The appeal is dismissed. 
6 
The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d 
Cir. 2004). In any future proceeding, we maintain the jurisdiction to conduct a final merits determination as the 
office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; 
section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 
C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, 
now USCIS, is the sole authority with the jurisdiction to decide visa petitions).