dismissed EB-1A Case: Arts

identifying data d~leted to 
prevent clearly unwa~ted 
invasion of personal pnvacy 
PUBLIC COpy 
JUl 0 5 2012 
DATE: 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and ImmigraLion Scrvit.:es 
Administrative Appeals Office (AAO) 
20 Massachusells 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 )(I)(A) of the Immigration and Nationality Act, 8 U.S.c, § IIS3(b )(1 )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 c'F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 c'F.R. § 103.S(a)(1)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~
. 
.• ,;.-
Perry ew 
Chief, Administrative Appeals Office 
www.Dscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, initially denied the employment-based immigrant 
visa petition on November 18, 2008, reopened the matter on U.S. Citizenship and Immigration Services 
(USCIS) motion on April 23, 2009, and ultimately denied the petition in a final decision dated March 
31, 2011. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be dismissed. 
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 (the Act), 8 U.S.c. § l1S3(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.S(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. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, upon 
review of the entire record, the AAO upholds the director's conclusion that the petitioner has not 
established the beneticiary's eligibility for the exclusive 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 
Page 3 
(iii) the alien's entry into the United States will substantially benetit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USerS) 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 WIst Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29,1991). The tenn "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.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.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.F.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. USc/S, 596 F.3d 1115 (9th Cir. 2010). Although the 
court upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation 
of evidence submitted to meet a given evidentiary criterion.! With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while uscrs 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 "tinal merits detennination." [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 the AAO did)," and if the petitioner 
failed to 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.F.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, the AAO 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 failed to satisfy the 
antecedent regulatory requirement of three types of evidence. [d. 
I 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). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation ojrhe alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The petitioner submitted a number of award certificates received between 1991 and 2002. In the most 
recent denial dated March 31, 2011, the director stated the petitioner failed to "submit evidence to 
support her statements that the above-mentioned awards are lesser nationally or internationally 
recognized prizes or awards for excellence in the field." The director went on to state that "[t]here is no 
evidence provided from the presenting institutions explaining the significance of the award, the 
evaluation criteria, or the impact receiving this award had outside the particular institution." On 
appeal, the petitioner asserts that the "relative/friend in Nepal" she had asked "to visit those institutions 
and request the confirming letters/news about the significance of the award, the evaluation criteria, or 
the impact [of] receiving the award" was unsuccessful in obtaining such documentation for this 
criterion. 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. 158, 165 (Comm'r 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). The 
AAO notes that the documentation which the relative/friend was able to obtain is discussed later in this 
decision. The petitioner also failed to submit alternative evidence that the field, nationally or 
internationally, recognizes any of her awards. It remains the petitioner's burden to submit evidence 
addressing every clement of a given criterion, including that a prize or award is nationally or 
internationally recognized. 
The nonexistence or other unavailability of primary evidence creates a presumption of ineligibility. 
8 C.F.R. § 103.2(b)(2)(i). 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. Where a record does not exist, the petitioner must submit an original written statement 
on letterhead from the relevant authority indicating the reason the record does not exist and whether 
similar records for the time and place are available. 8 C.F.R. § 103.2(b)(2)(ii). The petitioner has 
not established that the above-mentioned evidence relating to the awards does not exist or cannot be 
obtained. Further, her self-serving statements do not equate to secondary evidence or affidavits. 
In light of the above, the petitioner has not established that she meets the plain language 
requirements of this regulatory criterion. 
2 The petitioner docs not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
Page 5 
Documentation ollhe alien's membership in associations in the field jiJr which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish that the evidence was qualifying. On appeal, counsel does not contest the director's findings 
for this criterion and states that petitioner does not claim to satisfy this criterion. Therefore, the AAO 
considers this issue to be abandoned. Sepulveda v. u.s. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 
2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); see also Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's 
claims were abandoned as he failed to raise them on appeal to the AAO). 
Published material about the alien in professional or major trade publications or other major 
media, relating 10 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. 
In order for published material to meet this criterion, it must be printed in professional or major trade 
publications or other major media. To qualify as major media, the publication should have significant 
national or international distribution. Some newspapers, such as the New York Times, nominally serve 
a particular locality but would qualify as major media because of significant national distribution, 
unlike small local community papers.3 
The petitioner submitted two articles with the original filing and two additional articles on appeal. 
Regarding the two articles submitted with the original filing, one is missing the first page of the 
translation and neither article is accompanied by a certification from the translator. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "any necessary translation." The 
regulation at 8 C.F.R. § 103.2(b)(3) provides: 
Translations. Any document containing foreign language submitted to [USCISj shall 
be accompanied by a full English language translation which the translator has 
certified as complete and accurate, and by the translator's certification that he or she 
is competent to translate from the foreign language into English. 
As the translations of the publications are uncertified and incomplete and, thus, did not comply with 
the terms of the regulations at 8 C.F.R. § 103.2(b)(3) and 8 C.F.R. § 204.5(h)(3)(iii), they cannot be 
considered here. Although these articles cannot be considered for the reason above, the AAO notes 
the petitioner supplemented the record in January 2009 with letters from the Chief Editor of 
Chalphal and the Chief Editor of Prjatantra. Although a "Certificate of Translation" was provided 
for the letters, only the English translation was submitted, and not the original foreign language 
J Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
--Page 6 
documents. The AAO also simply notes for the record that the petitioner, without explanation, 
submitted two copies of each letter, one signed by the Chief Editor and one with the signature whited 
out. 
Finally, with regard to the two articles submitted on appeal, although certified translations were 
included, the petitioner failed to submit any evidence to demonstrate that either publication qualifies 
as major media, such as distribution and circulation data. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence oj the alien 's participation, either individually or on a panel, as a judge oj the work of 
others in the same or an allied field of specification for which classification is sought. 
The director found that the petitioner established that the beneficiary satisfies the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) and the AAO concurs with that finding. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish that the evidence was qualifying. On appeal, counsel simply asserts "Petitioner believes that 
Petitioner has made artistic or business related contribution[ s] of major significance in Nepalese music 
field. [The] Petitioner requests you [] take a look [at] all submitted evidence[] while adjudicating this 
claim." The petitioner repeats this assertion on appeal. The petitioner did not provide any additional 
evidence or offer any additional arguments identifying any errors of law or fact in the director's 
analysis. Therefore, as neither counsel nor the petitioner fully briefed this issue, the AAO considers 
this issue abandoned. See Desravines v. United States Attorney General, No. 08-14861, 343 F. 
App'x 433, 435 (11th CiT. 2009) (finding that issues not briefed on appeal are deemed abandoned). 
The AAO notes, however, that the letters in the record fail to identify specific contributions by the 
petitioner or explain her impact in the field. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 
The petitioner submitted two letters from a chartered accountant in Nepal, one with the original 
petition and one in January 2009 regarding the petitioner's income. The second letter is not signed 
and therefore has no evidentiary value and cannot be considered here. In the letter submitted with 
the original petition, the accountant claims that the petitioner's earnings are "higher than the other 
singers who do the same job in Nepal," stating that the average monthly income for the petitioner for 
the 2006-2007 fiscal year was $2,400 and that $1,000 is the average monthly income for singers 
"except their sale of the albums" in Nepal. The accountant asserts "Records show that she is a good 
taxpayer of the nation" but does not attach any tax forms confirming the petitioner's income. 
Neither the petitioner, nor the accountant provided any explanation as to how the $1,000 month 
figure was calculated other than that the figure did not include album sales. The Board of 
Immigration Appeals has held 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 cases). The Board 
also held, however: "We not only encourage, but require the introduction of corroborative 
testimonial and documentary evidence, where available." Id. If testimonial evidence lacks 
specificity, detail, or credibility, there is a greater need for the petitioner to submit corroborative 
evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
Furthermore, the petitioner states in her response to the director's notice of intent to deny that her 
average monthly income of $2,400 was based not only upon "royalties paid by the entertainment 
companies and media station," but also from her "regular salary as a teacher/instructor." The 
petitioner failed to submit any additional information as to what portion of her income was derived 
from her salary as a teacher, the occupation listed in her passport. The record also fails to 
demonstrate that all of the petitioner's royalties were exclusive of any album sale income, which the 
accountant excluded from his determination of the average income of Nepalese singers. The record 
is void of reliable earnings evidence showing that the petitioner has received a "high salary" or 
"significantly high remuneration" in comparison with others in the petitioner's field. See Matter of 
Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) (considering professional golfer's earnings 
versus other PGA Tour golfers); see also Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) 
(considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 
444-45 (N. D. Ill. 1995) (comparing salary of NHL defensive player to salary of other NHL 
defensemen). In the present matter, the documentary evidence submitted by the petitioner does not 
establish that she has received significantly high remuneration for services in relation to others in the 
field. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) requires "evidence of commercial 
successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or 
video sales." The petitioner submitted a copy of the front and back cover for one cassette and one 
compact disc. However, as the petitioner did not include an English translation as required by 
8 C.F.R. § 103.2(b )(3), these items cannot be considered here. In addition, the petitioner submitted a 
letter from the Managing Director of Music Nepal PVT LTD which states that, according to the 
registered record of Music Nepal, the petitioner'S aIbum_ sold 156,000 copies in 2004 and an 
additional 300,000 albums between 2005 and 2007 and that the petitioner received $21,333.33 in 
royalties. However the article the submitted on from the Newspaper, 
states that "[tJhe [aJlbum 
_ It is incumbent upon the petitioner to resolve any inconsistencies III the record by 
--Page 8 
independent objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. [d. The petitioner has not resolved Music 
Nepal PVT LTD is confirming the sales of an album released by the 
Academy. Regardless, the letter does not constitute primary evidence 
previously mentioned, the nonexistence or other unavailability of primary evidence creates a 
presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). Moreover, the letter does not meet the 
requirements of an affidavit as required where primary and secondary evidence are documented to be 
nonexistent or unavailable. [d. 
In light of the above, the petitioner has not established that she meets the plain language requirements 
of this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. INTENT TO CONTINUE TO WORK IN THE AREA OF EXPERTISE 
The AAO notes that although required by 8 C.F.R. § 103.2(a)(1), the beneficiary failed to complete 
any portion of Part 6 of the Form 1-140, which requires the petitioner to list "Basic information about 
the proposed employment." See also Instructions for 1-140, Immigrant Petition for Alien Worker, 
(rev. July 30, 2(07), General Instructions, Step 1, line 3. The concurrently filed Form G-325A states 
that the petitioner has been unemployed since June 2007. 
This is an employment-based classification that requires that the alien seek to enter the United States to 
continue working in her area of expertise. Section 203(b)(1)(A)(ii) of the Act. It is "by virtue of such 
work" that aliens under this classification will substantially benetit prospectively the United States as 
envisioned under section 203(b)(l)(A)(iii) of the Act. H.R. Rep. No. 101-723,59 (Sept. 19, 1990). 
Congress did not intend for aliens of extraordinary ability to immigrate to the United States and remain 
idle. 56 Fed. Reg. 30703, 30704 (July 5, 1991). While neither the statute nor the regulations specify 
that the employment must be full-time, minimal hours of employment as a hobby or incidental to the 
alien's primary source of income does not substantially benefit prospectively the United States. 
The regulation at 8 C.F.R. § 204.5(h)(5) provides: 
No offer of employment required. Neither an offer for employment in the United States 
nor a labor certification is required for this classification; however, the petition must be 
accompanied by clear evidence that the alien is coming to the United States to continue 
work in the area of expertise. Such evidence may include letter(s) from prospective 
employer(s), evidence of prearranged commitments such as contracts, or a statement 
--Page 9 
from the beneficiary detailing plans on how he or she intends to continue his or her 
work in the United States. 
While the petitioner states in her affidavit that she has an offer of employment, the referenced letter 
fails to confirm this. The letter states that Sagarmatha Television "ha[s] [a] munber of events 
scheduled for [the] upcoming season ... which will require someone of [the petitioner]'s abilities, and 
we would be very grateful for her service to our community." The letter from Sagarmatha does not 
state that it will employ the petitioner, but only that, at an unknown point in the future, they will require 
someone like the petitioner. Furthermore, based upon the phrase "we would be very grateful for her 
service," it is unclear whether, if the petitioner's services were to be required in the future, it would be 
on anything more than a voluntary basis. On appeal, the petitioner states she "ha[ s J been working on 
[her] solo CD" and submitted two signed contracts with Music Nepal Pvt. Ltd. dated April 7, 2011, 
almost three years after the initial filing. The petitioner did not submit any additional evidence to 
demonstrate how these two contracts with a company based in Nepal would prospectively benefit the 
United States. 
The petitioner has not provided sufficient detail or evidence regarding her intentions to continue to 
work in the United States. This is an employment-based visa classification. Beyond a few singing 
performances between 2007 and 2010, the petitioner has not offered any evidence that her singing 
career will continue on anything more than an incidental basis. 
For these reasons, the AAO concurs with the director's finding that the petitioner has not submitted 
qualifying evidence under 8 c.F.R. § 204.5(h)(5). 
IV. 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 has 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 the AAO concludes 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, the AAO need not explain that conclusion in a 
final merits determination. 4 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
4 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 3S1 F.3d at 145. [n 
any future proceeding, Ihe AAO maintains the juri.,diction 10 conducl a final merits determination as the o/Iice 
Page 10 
antecedent regulatory requirement of three types of evidence. Id. at 1122. The petitioner has also failed 
to demonstrate her intent to work in her claimed field of expertise and ability to prospectively benefit 
the United States. 
For the above stated reasons, considered both in sum and as separate grounds for denial, the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(I)(ii). See also section 103(a)(1) of the Act; 
section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1,20(3); 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).