dismissed EB-1A Case: Arts

(b)(6)
.. 
,.., 
··. 
'• '. 
U.S. Department of ,Hom~ll.n~d S~curlty 
U.S. Citizenship and Immignition Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washimrton. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: MAR 1 ~ Z013 Office: TEXAS SERVICE <rENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
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 in your case. All of the 
. I 
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 concehting your case must be made to that office. 
If you believe . the AAO inappr.opriately applied the law in Jeaching its decision, or you have additional 
information that you wish to have considered, you ~ay file ~ motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice df Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found ~t 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C .F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to retonJider or reopen. . 
Thank you, · 
~(~ 
ou-- F.-Ron Rosenberg 
Acting Chie(, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
... . 
Page2 
DISCUSSION: The employment-base<J immigrant visa petition was denied by the Director, 
Texas Service Center. The petitioner filed a motion to Jeopen and reconsider, which the director 
dismissed. · The matter is now before the Administrativd Appeals Office (AAO) on appeal. The 
appeal 
will be dismissed. 
The petitioner seeks classification as an "alien of extraprdinaiy ability'' in the arts, pursuant to 
section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A) as 
~ singer. The director determined that the petitioner had bot established the requisite extraordinary 
ability and failed to submit extensive documentation df his sustained national or international 
acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustahled national or international acclaim" and 
present "extensive documentation" of the alien's achievelnents. See section 203(b)(l)(A)(i) of the 
Act and 8 C.P.R. § 204,5(h)(3). The implementing regul~tion 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 
achieveme!lt of a major, internationally recognized awardi Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.P.R. § 204.5(h)(3)(i) through 
I . 
(x). The petitioner must submit qualifying evidence uhder at least thfee of the ten regulatory 
categories of evidence to establish the basic eligibility reqtirements. 
On appeal, counsel asserts that the petitioner meets the regulatory categories of evidence at 
8 C.P.R. §§ 204.5(h)(3)(i) - (iv) and (vii) - (x). For tHe reasons discussed below, the AAO will 
uphold the director's decision. 
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 s~bparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- L alien is described in this 
subparagraph if --
(i) the alien has extraordinary aoility in the sciences, 
arts, education, business, or athlJtics which has 'been 
demonstrated by sustained natidnal or international 
I 
acclaim and whose achievements have been recognized 
in the field through extensive docJrnentation, 
(ii) the.alien seeks 
to enter the Uniled States to continue 
I 
work in the area of extraordinary ~bility, and 
(b)(6)
Page3 
(iii) the ·alien's entry into the United States will 
substantially benefit prospectively the United States. 
, . I . 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congres·~ intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordhlary ability. See H.R. 723 101 st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29j 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. ld; 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 achievJments 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 qualityir{g evidence under at least three of the ten 
categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(i). . 
In 2010, the U.S. Court of Appeals for the Ninth Circui~ (Ninth Circuit) reviewed the denial of a 
petition filed Ullder this classification. Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009) affd in 
part 596 F.3d 1115 (9th Cir. 2010). ·Although the cotd upheld the AAO's decision to deny the 
petition, the court took issue with the AAO's evaluatioJ of evidence submitted to meet a given 
eyidentiary criterion. 1 With respect to the criteria at 8 d.F.R. § 204.5(h)(3)(iv) and (vi), the court 
concluded that while USCIS may have raised legitimat~ concerns ·about the significance of the 
evidence submitted to meet those two criteria, those boncerns should have been raised in a 
subsequent "fmal ·merits determination." /d. at 1121-22 . . 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
. I 
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· pro~ided (which the AAO did)," and if the 
pet\tioner failed to submit sufficient evidence, "the properj 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 fmal merits determination. In this matter, the AAO will review the 
evidence under the plain language requirements of each cpterion 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 regulatory requirement of three tyPes of evidence. /d. 
1 Specific~lly, 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)(i~) and 8 C.F.R. § 204.5(h)(3)(vi). . 
I 
(b)(6)Page4 
II. ANALYSIS 
A. Evidentiary CriJeria2 
Documentation of the alien's r~ceipt of lessL nationally or internationally 
recognized prizes or awards for excellence in the )rield of endeavor. 
. I The petitioner submitted a congratulatory certificate i[rom Chairperson and 
Manaeine Director, stating: "Hearty qongratulation for your success to obtain 
2006, organized on the auspicious occasion of fifth ariniversary of . .. " The 
English language translation accompanying the preceHing congratulatory certificate did not 
include the required certification that the translator "is bompetent to translate from the foreign 
langu~~e into E?glish" as.specified.in the regulation at!8 C.~.R. § 103.2~)(3). Any docum~nt 
contammg foreign language submitted to USCIS shall be accompanied by a full Enghsh . . I 
language translation that 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 
. I 
~nglish. /d. Th,e petitioner also .submitted a photograph of a trophy, 
but the English language translation of the Nepali in~cription on the trophy was not a full 
translation and was not certified by the translator as !required· by the regulation at 8 C.F.R. 
§ 103.2(b)Q). Regardless, there is no documentary evidence showing that the petitioner's 
is a nationally o~ . internationally recognized award for 
excellence in the field of endeavor. 
Tlie petitioner submitted Letters of Felicitation from tqe 
· · .. ; the' 
in Saudi Arabia; the 
in Dam; 
'in Dam; the 
in Dam; the 
in Kathmandu; the 
Nepal; the 
Kathmandu; and the 
Regarding the preceding , Letters of Felibitation that were issued in the Nepali 
language, the English language translations accompanyuig the letters did not include the required 
certification that the translator "is competent to translate ltrom the foreign language into English" 
as specified in the regulation at 8 C.F.R. § 103.2(b)(3). In regard to the letter of felicitation from 
the Federation of Nepal Indigenous Nationalities, the ~ubmitted English · language translation 
misspells felicitation as "facilitation .... Further, there is !no documentary evidence showing that 
the Letters of Felicitation are nationally or .internationally recognized prizes or awards for 
excellence in the field of endeavor. 
The petitioner submitted a letter of appreciation "for his Vocal performance in 
Music album and additional letters from the 
of the N~pal Army, the Coordinator of ' - 2009, the Amit 
2 Qn appeal, the petitioner does not claim to meet any of the reguJ~ry. categories of evidence not discussed in this 
~~ I . . 
(b)(6)
Page,:, 
(Japan), the 
the 
, the 
I 
the 
the 
and the 
Regarding the preceding Letters of Appreciation that were 
issued in the Nepali language, the English language tran~lations accompanying the letters did not 
include the required certification that the translator "is icompetent to translate from the foreign 
language into English" as specified in the regulation at 8 C.F.R. § 103.2(b)(3). Further, the 
I 
petitioner failed to submit evidence demonstrating that the Letters of Appreciation are nationally 
or internationally recognized prizes or awards for , excell~nce in the field of endeavor. 
The petitioner submitted Certificates of Appreciatio~ from the 
I 
the Producer of the album , the 
and the 
but there is no documenta,;y evidence s~owing that the preceding Certificates of 
Appreciation equate to nationally or internationally recogruzed prizes or awards fqr excellence in 
the petitioner's field of endeavor. 
The petitioner submitted a certificate thanking him for. his "participation in 
organized in llam Town." The English language transla~ion accompanying the certificate did not 
include the required certificati?n that the translator "is !competent to translate from the foreign 
language into English" as specified in the regulation at 8 C.F.R. § 103.2(b)(3). Further, there is 
no evidence showing that the certificate equates to a hationally or internationally recognized 
prize or award for excellence in singing, rather thk simply an acknowledgment of the 
petitioner's participation in the town's cultural program: . · 
The petitioner submitted a Letter of Honor from ilie " '' in 
Kathmandu and a Certificate of Recognition from the in 
California. There is no documentary evidence demonstrkting that the preceding local honors are 
nationally or internationally recognized prizes or awards jfor excellence in singing. 
The petitioner submitted certificates reflecting his nomiJw.tions for the 
in the category of ' , the · 
in the category of and I the · in 
the category of The plairi language of the regulatory criterion at 
8 C.F.R. § 204.5(h)(3)(i) specifically requires evidence 6f receipt of nationally or internationally 
recognized "prizes or ~wards," not receipt of a mere non!tination. Earning a nomination does not 
equate to receipt of a prize or an award. In response t~ the director's request for evidence, the 
petitioner submitted a March 1, 2011 letter .from ~ Station Manager, 
Kathmandu, stating that the petitioner "is the recfpient of · · ·· 
__ in the jfor three consecutive yeats 2005, 2006 
and 2007." The certificates submitted by the petitioner, however, state 
only that he was "nominated" for the preceding awards[ It is incumbent upon the petitioner to 
resolve any inconsistencies in the record by independ~nt objective evidence. Any attempt to 
explain or reconcile s4ch incons!stencies will not suffice: unless the petitioner submits competent 
(b)(6)Page6 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 
(BIA 1988). The petitioner failed to submit primary ~vidence demonstrating that he actually 
received a _ _ subsequent to his dominations. Going on record without 
supporting documentary evidence is not· sufficient for puh>oses of meeting the burden of proof in 
these proceedings. Matter of Sofftci, 22 I&N Dec. 15~, 165 (Cormil'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l qomm'r 1972)). A petition must be filed 
with ~y initial evid,ence required by the regulation. 8 C.P.R. § 103.2(b)(1). The nonexistence 
or other unavailability of required evidence creates a I presumption of ineligibility. 8 C.P.R. 
§ 103.2(b)(2)(i). When relying on secondary evidence, ~e petitioner must provide documentary 
evidence that the primary evidence is either unavailablejor does not exist. /d. When relying on 
an affidavit, the petitioner must demonstrate that bo¢. primary and secondary evidence are 
unavailable. /d. The March 1, 201.1 letter from does not comply with the 
preceding regulatory requirements and fails to demoilstrate that the petitioner received the 
Tuborg Image Awards ~ claimed in the letter. I . 
The petitioner submitted a certificate from the ' ----------------, 
(200 1) stating: 
"This certificate has been provided with thanks to [the ~etitioner] for his success to achieve first 
position by participating in solo song in this assembly." The English language translation 
accompanying the preceding certificate did not incl~de the required certification that the 
translator "is competent to translate from the foreign laftguage into English" as specified in the 
regulation at 8 C.P.R. § 103.2(b)(3). In response. to tpe director's request for evidence, the 
petitioner submitted a March 4, 2011 letter·from Director, Program Division, 
stating: 
This is to certify that [the petitioner] secured First :Position in 
in the year 2001, organized by 
* * * 
In search of new talents, every year organizes 
among the talented singers in Nepal. . J . Hundreds of singers from various 
regions participate in this competition . . . . The awa!rd is given to those participants who 
are selected first at the regional level competitioh and fmally at the national level 
competition. I ~ · 
The petitioner also submitted information about posted on its website, but the 
' is not spedfically mentioned. Regardless, the self­
serving nature of the information posted on own website and provided by the 
station's Program Division. Director fails to demonstrate that the petitioner's award certificate 
from is a nationally or internationally recoknized award for excellence in the field 
of endeavor. USCIS need not rely on self-promotional rrtaterial. See Braga v. Poulos, No. CV 06 
5105 SJO (C. D. CA July 6, 2007) aff'd 317 Fed. Appx. 680 (9th Cir. 2009) (concluding that the 
AAO did not have to rely on self-serving assertions on the cover of a magazine as to the magazine's 
status as major media). Moreover, a song competition m~y be open to entries from throughout a 
(b)(6)Page7 
particular country, but this factor alone is not adequate to establish that a specific award from the 
I 
competition is "nationally or internationally recognized.'j 
-----
The petitioner submitted a May 15, 2010 letter from Administration Chief, 
stating that the petitioner waS awarded ' 
The p~titioner also submitted a photograph of 
his trophy. In response to ~e director's request for evidence, the 
petitioner submitted a March 2, 2011 letter from stating: ' _ 
organizes • annually .... j[The petitioner] was awarded ~e 
The petitioner also submitted a "Le~ter of Honor" from 
congratulating him "for successfully securing the 
' ' 
- ' In addition, the petitioner submitted tw~ photcigraphs of himself posted on the 
website photo gallery. The petitioner's respon~e to the director's request for evidence 
also included information about Nepali singers 
and but the submitted biographies! do not state that the preceding singers 
received awards. On motion to the director, the 
I 
petitioner submitted a May 12, 2011 letter from stating: "The artist whose song 
receive [sic] most requests for his/her song is nominat~d for the award ... ; The judges make 
fmal slate of winners. The recipients of the award are ~en honored, and the awards are handed 
over to them during the award ceremony, especially designed for the purpose." The three letters 
from are not sufficient to demonstrate that petitioner's award 
garnered significant recognition beyond the presenting organization. Further, the self-serving 
nature of the information provided in the three letters from and of the material 
posted on the website fails to demoJstrate that the petitioner's award is a 
nationally or internationally recognized · award for extellence in the field of endeavor. As 
previously discussed, USCIS need not rely on self-prombtional material. See Braga v. Poulos; at 
680. . . I 
---The petitioner submitted a June 2, 2010 letter from Executive Director, 
., stating that the petition~r won 
and 
2009.'' The petitioner also submitted photographs of his trophies, 
but the inscriptions on the trophies do not bear his name.l In response to the director's request for 
evidence, the petitioner submitted a December 19, 2009 article in a December 19, 
2009 article in and an undated article in the While 
the submitted articles briefly -mention that the petitionet was a recipient of the 
there is no cirbulation data showing that the preceding 
English language newspapers had significant nationJl readership throughout Nepal. The 
petitioner also submitted information about Nepali artist~ and 
received 
from 
but the submitted biographies do hot state that the preceding individuals 
In addition, the petitioner submitted a March 2, 2011 letter 
stating that the petitioner receiv~d an additional award for ' 
' The AAO notes that the petitioner ~eceived his ------- I 
(b)(6)PageS 
for subsequent to the petition's August 16, 2010 filing date. 
Eligibility, however, must be established at the. time df ·filing. 8 C.F.R. §§ 103.2(b)(1), (12); 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'rl1971). A petition cannot be approved at 
~ future date after the petitioner becomes eligible under a new set of facts. Matter of lzummi, 22 
I&N Dec. 169, 175 (Comm'r 1998). That decision furtlier provides, citing Matter of Bardouille, 
18 I&N Dec. 114 (BIA 1981), that USCIS cannot "cbnsider facts that come into being only 
subsequent to the filing of a petition." ld. at ·176. 4ccordingly, the AAO will not consider 
awards received by the petitioner after August 16, 201? as evidence to establish his eligibility. 
The March 2, 2011 letter from further states: 
was established in April 1996 with the inte~tion to help the music industry grow 
beyond what it was. Since then, , the parent organization and the 
event organizer of has been greatly/ involving [sic] in encouraging and 
promoting Nepali ~ists and music .... The award ceremony celebrated its 14th birthday 
recently, with artists awarded in 19 categories, fucluding the prestigious Life Time 
Achievement Award (awarded to a senior mebber of music industry for their 
contribution for the development of Nepali musi{), and performances by top Nepali 
artists. The songs and albums nominated in each category are based on the votes of the 
public and the winner is then evaluated by an indepdndent panel of judges. 
The petitioner also submitted general information aboJ posted on its website, but the 
are not specifically ~entioned.j On motion to the director, the petitioner 
submitted a May 15, 2011 letter from stating that "the songs and albums are 
first nominated in different categories. The listeners vote for the nomination. So, nomination of 
any artist in any category reflects popularity of the ahist. A panel of independent judges is 
formed to evaluate and to select the winners from thb pool of nominated artists." The three 
letters from Jeevean Shrestha are not sufficient to dembnstrate that the petitioner's awards from 
garnered significant recognitidn beyond the presenting organization. 
Further, the self-serving nature of the infol:mation pr~vided in the three letters from 
I 
and in the material posted on the website fails to demonstrate that the 
petitioner's awards are nationally or internationally rec0gnized awards for excellence in the field 
of endeavor. As previously discussed, USCIS need nJt rely on self-promotional material. See 
Braga v. Poulos, at 680. I 
----The petitioner submitted an unqated ' from the ' 
" · The English language translation 
accompanying the preceding award did not include the required certification that the translator 
"is competent to translate from the foreign language alto English" as specified in the regulation 
at 8 C.F.R. § 103.2(b)(3). On motion to the director, ihe petitioner submitted a March 9, 2011 
letter frorn Chairman, stating that "the 
organized a ceremony called 
[The petitioner] has been awarded the letter of praise during this special ceremony 
as a _....;;;..,__ _ · - -- · " The lettbr from is not sufficient to 
I 
demonstrate th~t the petitioner's award garnered significant recognition beyond the presenting 
organization. There is no documentary evidence shJwing that the petitioner's 
I 
(b)(6)
Page9 
is a nationally or internationally recogn,ized award for excellence in the music 
field. . I 
With regard to the preceding letters, certificates, tropnies, and other honors submitted by the 
I 
petitioner for this regulatory criterion, he did not submit evidence demonstrating the national or 
international recognition of his particular awards. The plkin language of the regulati,on at 8 C.F.R. 
§ 204.5(h)(3)(i) specifically requires that the petitioner'~ awards be nationally or 'internationally 
recognized in the field of endeavor and it is his burden td establish every element of this criterion. 
In this case, there is no documentary evidence demonstrJting that the petitioner's specific awards 
were recognized beyond the presenting organizations at !a level commensurate with nationally or 
internationally recognized prizes or awards for . ~xcellence in the field. Accordingly, the 
petitioner has not established that he meets this regulatot criterion. . 
Documentation of the alien's membership in associations in the field for which 
· classification is sought, which require outs
1
tanding achievements of their 
members, as judged by recognized national dr international experts in their 
disciplines or fields. . I · 
The petitioner submitted an October 30, 2009 Certificpte of Membership stating that he "is a 
duly elected member of the in accordance with the 
Constitution and By-Laws of this Association." The p~titioner also submitted an April 5, 2010 
letter from , Chairman, , stating that the 
petitioner is a founding member of the society. In respdnse to the director's request for evidence 
and on motion to the director, the petitioner ·submittJd additional letters from 
providing information about the and the pbtitioner's involvement with the society, 
but does not specify the knembership requirements. There is no 
documentary evidence (such as bylaws or constitution bides) showing that the 
I 
and the require outstanding achievements of their members, as 
judged by recognized national or international experts 1 the petitioner's field. 
The petitioner submitted an April 17, 2009 letter from Secretary, 
, stating that the petition~r has been an active member of 
smce 2000. In response to the director's request for ev!idence, the petitioner submitted a March 
6, 2011letter from stating: . I 
This is to certify that [the petitioner] is one of the outstanding members of the 
* * * 
Criteria for Membership. The membership in the association is granted to: 
a. A person who is a professional artist in the ffeld of music. . 
b. A person should be n(ltionally popular · amon~ the listeners. 
c. A person should demonstrate abilities to give visions and new direction towards 
the development of the association. 
(b)(6)
Page 10 
d. A person should help the association to fund either through direct donation or by 
participation in the concerts or other activitie~ organized by the association at the 
national level. 
Criteria for Members of the Review Panel. The members of the review panel who review 
the applications of the prospective members should: I 
a. Be the executive member (past or present) of Nepal Academy. . . 
b. Be a senior artist who is recognized as nationJI or international experts [sic] in the 
field of music. 
The AAO cannot conclude that being "a professional artist in the field of music," being 
"nationally popular among listeners," demonstrating "ab
1
ilities to give visions and new direction 
towards the development of the association," and hrllping "through direct donation or by 
participation in the concerts or other activities organizedjby the association at the national level" 
equate to "outstanding achievements." In addition, statements are unsupported by 
primary evidence of the bylaws or constitution specifying the above criteria. As 
previously discussed, going on record without supportink documentary evidence is not sufficient 
for purj:>oses of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
at 165.' On motion to the director, the petitioner subtbitted a May 15, 2011 letter from 
repeating much of the information provided iri his previous two letters. 
further states: "[The petitioner] was given life membership of this association. Life membership · 
is given to someone, who is extremely popular and natiopally recognized professional artist, who 
has excelled in the field and risen to the very top of the field." Merely repeating the language of 
the statute or regulations does not satisfy the petitioner'~ burden of proof. Fedin Bros. Co., Ltd. 
v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y: 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, No. 95 civ 10729, 1997 wL 188942 at *1, *5 (S.D.N.Y.). Further, 
none of the preceding letters from includes! an address, a telephone number, or any 
other information through which he can be contacted. 
The petitioner submitted a March 2, 2010 letter from I . _ , President, 
stating that the petitioner has been an active member of ;ince 
its establishment. In response to the director's request for evidence, the petitioner submitted ~ 
March 3, 20111etter from stating: 
· This is to certify that [the petitioner] is an· active and the most outstanding member of the 
since the establishment clf the organization. 
* * * 
Criteria for Membership. The membership is given to individuals who: 
1. Can volunteer to contribute for the cause arld upholding [sic] the mission of the 
organization. 
2. Is the most popular artist (singer, 
comedian etc.) of the nation. 
3. Is a [sic] organized and punctual. 
. I . . thl I pamter, mus1c1an, a ete, actor actress, 
(b)(6)Page 11 
4. Is a good presenter. 
statements are unsupported by primazy evidence the bylaws or 
constitu_tion specifying the above criteria. Once agahl, going on record without supporting 
, . I 
documentary evidence is not sufficie11t for purposes of: meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&N Dec. at 165. On motion to the director, the petitioner 
submitted a May 18, 2011 letter from rebeating the information provided in his 
previous two letters and providing iflformation about I the petitioner's involvement with the 
- None of the preceding letters from in his capacity as President of the 
includes an address, a telephone number, or anyjother information through which he can 
be contacteq. Further, the AAO cannot conclude that volunteering "to contribute for the cause 
and upholding [sic] the mission of the organization," befug "organized and punctual," and being 
"a good presenter" equate to "outstanding achievements!." Moreover, even if the AAO were to 
conclude that being "the most popular artist .. . of the n~tion" is an outstanding achievement, the 
documentation submitted by the petitioner does n~t indicate that members' 
achievements are judged by recognized national or interrlational experts in the petitioner's field. 
In light of the above, the petitioner has not established thlt he meets this regulatory criterion. 
Published material about the alien in professiojl 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, datJ, and author of the material, and 
any necessary translation. 
The AAO withdraws the director's fmding that the peti~ioner meets this regulatory criterion. . In 
general, in order for published material to meet this criterion, it must be about the petitioner and, as 
stated in the regulations, be printed in professional or majdr trade publications or other major media. 
__ I 
The petitioner submitted an article in the entitled ' 
' but ~e date and author of the article were not id~ntified as required by the plain language 
of this regulatory criterion. Further, the article is about the 
ceremony in general and only briefly mentions the petiti~>ner in one sentence. The plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires fuat the published material be "about the 
alien ... relating to the alien's work in the field." Thus, ah article that mentions the petitioner but is 
"about" someone or something else cannot qualify under the ' plain language of this regulation. See 
Noroozi v. Napolitano, 11 CV 8333 PAE, 2012 WL 5510934 at· *1, *9 (S.D.N.Y. Nov. 14, 
2012); also see generally Negro-Plumpe v. Okin, 2:07-GV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 
8, 2008) (upholding a fmding that articles about a show bra character within a show are not about 
the performer). In addition, there is no circulation evidJnce showing that the is 
a form of major media. 
The petitioner submitted a December 19, 2009 article~ entitled 
' but the author of the article was not 
identified as required by the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, 
the article is about the ceremhny generally and does not focus on the 
I 
(b)(6)Page 12 
petitioner. Instead, the article only briefly mentions ~im among the numerous other award 
recipients. The oetitioner also submitted a June 7, 2010 letter from Section 
Officer, listing 
nine newspapers and identifying as al Category "A" Daily. The letter from 
however, does not defme the cJtegory "A" designation. There is no 
circulation data showing that qualify as major 
media. 
The petitioner submitted an April 16, 2001 article in entitled 
" but the English language 
translation accompanying the article did not 
include the required certification that the translator "is tompetent to translate from the foreign 
language into English" as specified in the regulation ~t 8 C.P.R. § 103.2(b)(3). Further, the 
author of the article was not identified as required b~ the plain language of this regulatory 
criterion. The June 7, 2010 letter from ., · identifies as a Category 
·"A" Daily, but once again, the Category "A" designatiorl is not specifically defined. There is no 
circulation data showing that is a form of trlajor media. 
I . 
The petitioner submitted a November 4, 2009 article ill · entitled ' 
' but the English language translkti~n acco~panying the article did not 
include the required certification that the translator "is :competent to translate from the foreign 
language into English" as specified in the regulation at ·8 C.P.R. § 103.2(b)(3). In addition, the 
al.lthor of the article was not identified as required b~ the plain language of .the regulation at 
8 C.P.R. § 204.5(h)(3)(iii). Moreover, there is no documentary evidence showing that 
qualifies as a form of major media. 
The petitioner submitted articles in . entitl~ ' _ 
(September 8, 2009) and ' (November 13, 2009), but the English 
language translations accompanying the two articles did not include the required certification 
tl).at the translator "is competent to translate from the fofeign language into English" as specified 
in the regulation at 8 C.P.R. § 103.2(b)(3). Further, the 
1
author of the November 13, 2009 article 
was not identified as required by the plain language of ~is regulatory criterion. In addition, there 
is no documentary evidence showing ~at. _ is a form of major media. 
The petitioner submitted a December 19, 2909 article~ entitled' -------. 
The article is about the ceremony in general and does not 
focus on the petitioner. Instead, the article only briefly inentions him among· the numerous other 
award recipients. Further, there is no circulation eviderlce showing that qualifies as a 
form of major media. 
The petitioner submitted a March 21, 2004 article about himself in but there is 
no documentary evidence showing that the newspaper qralifies as a form of major ~edia. 
----~--. 
The peti~ioner submitted a 2009 article in entitled l 
" but the English language translation accdmpanying the article did not include the 
required certification that the translator "is competent t? translate from the foreign language into 
(b)(6)
Page 13 
English" as specified in the regulation ai 8 C.F.R. § 103.2(b)(3). Further, the author of the article 
was not identified as required by the plain language of th~ regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
In addition, there is no documentary evidence showing :that Glamour Plus is a form of major 
media. . . I . . 
The petitioner submitted promotional material for concert programs 
held in October 2003. The plain language of this r~gulatory criterion requires "published 
material about the alien . 
. . in professional or major cl-ade publications or other major media" 
including "the title, date and author of the material." Th~ ' promotional 
material does not meet the preceding requirements. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence of the alien's participation, either indivJually or on a panel, as a judge of 
the work of others in the same or an allied [field of specification for which 
classific.ation is sought. 
The AAO affirms the director's fmding that the petitioner'r evidence meets this regulatory criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
On appeal, counsel states: "We believe that [the petitioner's] albums, previously submitted with 
the petition, are still popular and selling well in Nepal, kd among Nepali speaking people living 
in different parts of the world. This is obviously a strohg proof of display of his artistic work." 
Neither the petitioner nor counsel has explained how hmsic performances equate to visual art 
exhibitions or showcases. The petitioner's work as a sin~er is audible in nature and is enjoyed for 
its sound, not its visual aspects. Therefore, his music pprformances do not satisfy the regulatory 
requirements under 8 C.F.R. § 204.5(h)(3)(vii). 'Fhe plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(vii) requires "[e]vidence of the display of the alien's work in the field at artistic 
exhibitions ?r sho~cases:" ~e peti~io?er is a singer. fben he r~ords an album o~ perfo~s in 
concert, he ts not dtsplaymg hts mustc m the same sense that a pamter or sculptor displays his or 
her work in a gallery or museum. The petitioner is pbrforming vocally as a singer, he is not 
displaying his work. In ~ddition, to the extent that the ~etitioner is a vocal artist, it is inherent to 
his occupation to make recordings of his music. Thd AAO notes that the ten criteria in the 
regulations are designed to cover different areas; nbt every criterion will apply to every 
occupation. 
The interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and 
has been upheld by a federal district court. Negro;.Plum~e v. Okin, 2:07-CV-820-ECR-RJJ at *1, 
*7 (D. Nev. Sept. 8, 2008) (upholding an interpretation! that perfomiances by a performing artist 
do not fall under 8 C.F.R. § 204.5(h)(3)(vii)). As the ~etitioner is not a visual artist and has not 
created tangible pieces of art that were on display At exhibitions or showcases, he has not 
submitted qualifying evidence that meets the plain 1J.guage requirements of the regulation at 
I 
(b)(6)
Page 14 
8 C.F.R. § 204.5(h)(3)(vii). Accordingly, the petitioner has not established that he meets this 
regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
, or establishments that have a distinguished reputation. 
The petitioner initially submitted a May 16,2000 letter froL Principal, -_---~ 
' - - ! stating that the petitioner has worketl at the school as a music teacher from 
April 1998 until the date of the letter. The etitioner al~o submitted a December 26, 2009 letter 
from the Principal of stating that the petitioner worked at the school as 
a vocal teacher from 2005- 2009. In addition, the petiti~ner submitted an August 13, 2010 letter 
from Principal, stating that the 
petitioner has worked at the school as a music teacher fifom 2006 until the date of the letter. In 
general, a leading role is evidenced from the role itself, and a critical role is one in which the alien is 
responsible for the success or standing of the organization., None of the principals' letters state that 
the petitioner performed in a leading or critical role for tHeir schools. The principals' letters fail to 
provide information regarding the leading or criticalj nature of the petitioner's duties and 
responsibilities, or information indicating the importancr of the petitioner's role relative to that 
of the other school teachers. Accordingly, the petitioner !has failed to demonstrate that his role for 
the above schools wa.s leading or critical. Further, there i~ no documentary evidence showing that 
the preceding schools have a distinguished reputation. As previously discussed, going on record 
without supporting documentary evidence is not suffideht for ,purposes of meeting the burden of 
proof ip. these proceedings: Matter of Soffici, 22 I&N oJc. at 165. 
The petitioner's initial evidence also included an undaJd letter from General 
Secretary, stating: "It is certified that [the petitioner] is 
involving [sic] the institution · He is working in established 
period being sub president. it [sic] is proved." The lifnited information provided in the letter 
from is not sufficient to demonstrate tliat the petitioner performecl in a leading 
or critical role for the preceding institution. letter fails to provide information · 
regarding the leading or critical nature of the petitioqer' s duties and responsibilities as "sub 
president," or information indicating the importance of lfhe petitioner's role relative to that of the 
other individuals working for the institution. Accordingly, the petitioner has failed to demonstrate 
that his role for _ _ w~s leading or critical. Further, there is no 
documentary evidence showing that has a distinguished 
reputation. As previously discussed, going on record wjithout 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. 
In response to the director's request for evidence, the petitioner submitted a December 27, 2009 
letter from Senior Music Directdr and Chief of the 
stating that the petitioner 
"perfohned ·in - many times and 
has also contributed long time by his performance in ~ational and abroad countries [sic]." The 
petitioner also submitted information about the from its website. With regard to 
the information from the own tebsite, USCIS need not rely on self-
(b)(6)
Page 15 
promotional material. See Braga v. Poulos, at 680. There is no objective documentary evidence 
demonstrating that the has a distinguished) reputation. Further, while 
states that the petitioner performed at the _ does not 
state that the petitioner's role was leading or critical! for the institution. The letter from 
fails to provide specific informatiorl about the nature of the petitioner's role 
for the or information indicating the irJportance of the petitioner's role relative 
to that of the other individuals working for the institutioh. Accordingly, the petitioner has failed 
to demonstrate that his role for the was leJding or critical. 
I 
The petitioner submitted a March 6, 2011 letter from stating: 
This is to certify that [the petitioner] is one of the outstanding members of the 
He is also given the lifetime ~embership by the association for his 
dedication and contributions for the development of the association. 
. is one of the oldesJ and the most reputed association of 
Nepali artis!:S: lyricists, composers, singers and musirians. 
On motion to the director, the petitioner submitted a May 15, 2011 letter from 
repeating the information in his previous letter and Jsserting that the petitioner "has made 
s~gnificant contributions to promote and to pursue the tkderlying goal of this association." As 
previously discussed, the letters from dp not include an address, a telephone 
number, or any otber Wormation through which he can be contacted. asserts that the 
'is one of the oldest and the most reputed associ~tion of Nepali artists," but as previously 
discussed, USCIS need not rely on self-promotional matJrial. See Braga v. Poulos, at 680. There 
is no objective documentary evidence showing that ilie - has a distinguished reputation. 
Again, going on record without supporting documentar~ evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedings. Mfztter of Soffici, 22 I&N Dec. at 165. 
further states that the petitioner "is one of the outstanding members of the 
. and was given "lifetime member~hip by the association," but 
fails to specify how the petitioner's duties and resporlsibilities were leading or critical to the 
association. If testimonial evidence lacks specificity, d~tail, or credibility, there is a greater need 
for the petitioner to submit corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA 
1998). For instance, the petitioner failed to submit an otlganizational chart or similar documentary 
evidence to demonstrate where his role fit within 
the o~erall hierarchy of the The letter 
from fails to explain how the petitioner's rdle was ieading relative to that of the other 
lifetime members, let alone the top officers who run jthe association. · Further, the submitted 
evidence does not establish that the petitioner was responsible for the success or standing to 
a degree consistent with the meaning of "critical role." J Accordingly, the petitioner has failed to 
demonstrate that his role for the was leading or critical. 
I __ 
The petitioner submitted an undated letter from stating: "This is to certify 
that [the petitioner] is one of the founding members of established in the 
year 2009. . 
. . His qualities and contributions are vecy fundamental to the development of the 
I 
(b)(6)
Page 16 
organization." On motion to the director, the petitioner,' submitted a May 17, 2011 letter from 
that states: · . 
. I [The petitioner] regularly participates and contributes in our regular activities. As a 
founding member, he is also one of the originii contributors in establishing this 
society ..•. He fully participates in the main activitiesJ exchanges and offers creative ideas 
to pursue main goals and objectives of this society. 
He has played extremely valuable and leading role for this society. He has made very 
critical contributions to this society. . · 1 -
There is no documentary evidence showing that the has a distinguished reputation. As 
previously discussed, going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proof in these proceedings. Matter of So.ffici, 22 I&N Dec. 
at 165. Further, while states that petitioner was a founding member and a 
regular participant in the activities, the brief letters from are not 
sufficient to demonstrate that the petitioner's role fori the was leading or critical to the 
organization as a whole. letters fail to provide information regarding the 
petitioner's specific organizational duties and respon~ibilities as a member, or information 
indicating the importance of the petitioner's role relative to that of the other members of the 
As previously discussed, if testimonial evidencJ lacks specificity, detail, or credibility, 
there is a greater need for the petitioner to submit corloborative evidence. Matter of Y-8-, 21 
I&N Dec. at 1136. The petitioner failed to submit an orkanizational chart or similar documentary 
evidence to demonstrate where his membership position ln. the fit within the overall hierarchy 
of the association. The documentation submitted by the petitioner does not differentiate him from 
other members of the association so as to demonstrate his leading role and fails to establish that he 
was responsible for the success or standing to J degree consistent with the meaning of 
"critical role." I . 
The petitioner submitted a March 3, 2011 letter from stating: ''This is to 
certify that [the petitioner] is an active and the most butstanding member of the _ 
since the establishment of the organizatioh. His contribution to the organization is 
critical and very praiseworthy." On motion to the dir~ctor, the petitioner submitted a May 18, 
2011 letter from stating: 
[The petitioner] takes keen interest in fundraising and welfare activities. He repeatedly 
volunteers, helps organize and participates in sue~ fundraising concerts. He also gets 
seriously and sincerely involved 
in carryirig out ~elfare activities. His dedication and 
commitment inspires and motivates other and has erihanced the image of the 
* * * 
He has played leading and critical role for this organization.· . I 
(b)(6)
Page 17 
asserts that the petitioner played a "leading and critical role" for the . but 
as previously discussed, merely repeating ihe language1 of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. cr .. Ltd. v. Sava, 724 F. Supp. at 1108; 
Avyr Associates, Inc. v. Meissner, No. 95 civ 10729 at*~· Further, the AAO again notes that the 
letters from in his capacity as President of the do not include an address, 
a telephone number, or any other information through ~hich he can be contacted. While 
comments that the petitioner is "the most out~tanding member" of the and a 
dedicated participant in its fundraising activities, the p~titioner's evidence fails to demonstrate 
how his involvement differentiated him from the organiiation's other active vol~teers and staff 
members, let alone the president and top! officers. For example, there is no 
organizational chart or other evidence documentll!g where the petitioner's position fell within the 
general hierarchy of the in addition, the evidebce submitted by the petitioner does not 
esUiblish that he was responsible for the ; succe~s or standing to a degree consistent with 
the meaning of "critical role." Accordingly, the petitioner!has failed to demonstrate that his role for 
the was leading or critical. Lastly, there is no aocumentary evidence showing that the · 
has a distinguished reputation.. As previou~ly discussed, going on record without 
supporting document~y evidence is not sufficient for puf'poses of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. at 161' . 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence that the alien has commanded a high Llary or other significantly high 
remuneration for services, in relation to others in jhe field. 
The petitioner submitted a July 9, 2010 letter from Managing Director, 
, stating that the petitioner performs there on Friday nights and 
receives "the sum of NRS 50,000.00 (Fifty Thousand /Nepalese Ruppees) per program." The 
petitioner, however, offers .no basis for comparison d~monstrating that his compensation was 
significantly high in relation to others in the field. The petitioner must present evi.dence of 
objective earnings data showing that he has earned ja "high salary" or "significantly high 
remuneration" in comparison with those performing silllilar work during the same time period. 
See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. G:omm'r 1994) (considering professional 
golfer's earnings versus other PGA Tour golferS); see jalso Skokos · v. C}.S. Dept. of Homeland 
Sec., 420 F. App'x 712, 713-14 (9th Cir. 2011) (finding average salary information for those 
performing lesser 
duties is not a comparison to others iJ the field); Grimson v. INS, 934 F. Supp. 
965, 968 (N.D. lll. 1996) (considering NHL enforcer's s
1
alary 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). Accordingly, the petitioner has not established that he meets 
this regulatory criterion. 
Evidence of commercial successes in the perfo"'(ling arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
' , __ 
The petitioner submitted a July 9, 2010 letter from Managing Director, _ 
, stating that the petitioper performs there on Friday nights and 
(b)(6)
Page 18 
· receives "the sum of NRS 50,000.00 (Fifty ·Thousand ~Nepalese Rupees) per program." The 
petitioner also submitted a June 21, 2010 letter from Managing Director, 
_ _ stating that the petitionerj "has been paid NRS 40,000.00 (Forty 
Thousand Nepalese Ruppes [sic])" for providing vocals 0n the song 
The plain language of this regulatory criterion requires ~vidence of coirimercial successes in the 
form of "receipts" or "sales." According to Merriam- Webster, a commercial success is defmed 
as "viewed with regard to profit" and "designed for a lkge market. "3 The petitioner failed to 
submit documentation of "sales" or "receipts" detrl.onstrating that the preceding music 
perl'of111ll!lces were indicative of his collll)lercial successt in the performing arts. 
The petitioner submitted a March 2, 2011 letter from Managing Director, 
, stating that the petitioner's alb*m ' sold 160,000 audio cassettes 
and 40,000 compact discs and that his album r- sold 22,000 
compact discs. The petitioner also submitted a May 13, 2011letter from stating: 
We produced and distributed [the petitioner's] solo album labeled, ' 
'(music tracks only~ in 2009. 
* * * 
m 2008 and 
1. We sold 160,000 audio cassettes, 40,000 CDs of' ' This was the most successful 
produced and distributed by Times Music and several song.s 
are very popular even today. 
2. ·We sold 22,000 CDs of' ' We confirmed through our 
l~tter that the sale of Karaoke albums outperformed clther such tracks. 
* * * 
Comparable albums released and sold same year 20~8 as follows: 
Name. of Artist Title of Album Units of CDs Sold 
1. [The petitioner] 
2. Aim Baral 
3. Amar Tandukar 
4. Guru Bhatiya 
HE ERA 
LUKLASYANGBOCHE 
DIYOBINAKO 
40,000 
32,000 
20,000 
20,000 
Units of Cassette 
Sold 
160,000 
120,000 
65,000 
52,000 
The petitioner submitted a March 4, 2011 letter fro~ _ Managing 
Director, , stating: ""Fe had an opportunity to produce one of 
his solo songs titled from album titlefi the year 2008. . 
. . As far as 
our records, 50,000 units of audio cassettes, 70,000 CIDs and 3000 DVDs are sold .... " The 
. I ' 
petitioner also submitted a subsequent letter from stating: 
. 3 See http://www.merriam-webster.com/dictionarylcommercial, acLsed on )\larch 4, 2013, copy incorporated into 
the reco~d of proceeding. I 
(b)(6)
; . 
Page 19 
The was a collection of modem songs and gazals by various artists and [the 
petitioner] was one ofthe artists whose song and aJdio visual titled 
was the number one hit song among the collection~. We sold 50,000 audio cassettes, 
70,000 COs, and 3000 DVDs. 
These numbers are very good in the context of Nepali music industry and the album was 
very successful. 
* * * 
We would like to draw your attention to the following comparable sales, which will 
provide you sales figures of comparable albums: 
Name of Album Singer COs Sold Cassettes Sold 
1. [The petitioner] 70,000 50,000 
2. Biyog Swaroop Raj Acharya 40,000 60,000 
3. [The petitioner] 43,000 40,000 
. 4. ~temet~i Ma Satyakala Rai 35,000 40,000 
The petitioner submitted a March 4, 2011 letter 
from -J Chief Administrative Officer, 
~ , stating that "total sales units wer~ 110,000.00 (Audio Cassettes only)" for 
the petitioner's album ~ The petitioner also su~mitted a May 16, 2011 letter from 
stating: 
We confirmed in our previous letter dated March 4, ~011 that we produced and marketed 
[the petitioner's] solo album in the year 2000. In the said letter, we also 
confirmed that we sold 110,000 cassettes of 
Through this letter we would like to bring to your attention that typically, new albums 
(cassettes) sell around 50,000. · 
* * *· 
In addition, following sales record of the albums released by new artists will substantiate 
our representations: 
1. Khen Raj Gurung (JIWAN PART-2, AUDIO CASSETTE SOLD 150,000 UNITS) 
2. [The petitioner] AUDIO CASSETTE !soLD 110,000 UNITS) 
3. Bhishan Mukarung (BANDHAN, CASSETTE ~OLD 45,000 UNITS) 
4. Shyarp Sundar (MALA! MAAF GARA, CASSFfTTE SOLD 45,000 UNITS) 
5, Moh~ Bhusal (NA LEKHA CHITT~I, C~SSE~TE SOLD 4.0.000 ~N.ITS). 
The self-servmg statements from the managmg drrectors and the chief admmistrative officer of 
the p.receding music companies that produced the peroner' s recOrdings are not sufficient to 
(b)(6)
Page 20 
demonstrate his commercial success relative to other recording artists in the industry. As 
previously discussed, USCIS need not rely on self-promotional material. See Braga v. Poulos, at 
680. Furthermore, USCIS need not accept primarily cqnclusory assertions. 1756, Inc, v. The 
Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). In addition, USCIS 
may, in its discretion, use as advisory opinions statemebts submitted as expert testimony. See 
Matter of Caron International, 19 I&N Dec. 791, 795,(Comm'r. 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefjt sought. · /d. The submission of letters in support of 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 795-796; see al~o Matter of V-K-, 24 I&N Dec. 500, n.2 
(BIA 200S) (noting th~t expert opinion testimony does 4ot purport to be evidence as to "fact"). 
Thus, the content of the references' statements and how they became aware of the petitioner's 
reputation are important considerations. Even when ~ritten by independent experts, letters 
solicited by an alien in support of an immigration petihon are of less weight than preexisting 
evidence of "sales" or "receipts" that. one would exp
1
ect of a singer who has demonstrated 
commercial successes in the performing arts. 
In this instance, the petitioner has failed to submit primary evidence of sales or receipts in the 
form of contemporaneous financial stateptents or inv6ices. The record also lacks objective 
documentation such as residual payments, album c*arts, or media articles demonstrating 
significant sales of the petitioner's music recordings. Instead, the petitioner offers only letters 
from the music companies that produced his recordings jmaking assertions regardi,ng the number 
of units sold and his purported commercial successes. Going on record without supporting 
documentary evidence is not sufficient for purposes o~ meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&NDec. at 165. ~petition must be filed with any initial 
evidence required by the regulation. · 8 C.P.R. § 103.2(b)(l). The nonexistence or other 
unavailability of primary evidence creates a presumptio~ of ineligibility. 8 C.P.R. § 103.2(b)(2). 
· When relying on secondary evidence, the petitioner mu~t provide documentary evidence that the 
primary evidence is either unavailable or does not exisi. /d. When relying on an affidavit, the 
petitioner must demonstrate that both primary and seco*dary evidence are unavailable. /d. The 
iibove letters from the managing directors and the chief administrative officer of the companies 
that produced the petitioner's recordings do not domply with the preceding regulatory 
requirements. The documentation submitted by ilie petitioner fails to demonstrate his 
commercial successes in the performing arts. 
In light of the above, the petitioner has not established that he meets this regulatory criterion 
. I . 
B. Summary! · 
The petitioner has failed to satisfy the antecedent regu;latory requirement of three categories of 
evidence. . . I · 
(b)(6)
Page 21 
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 has risen to the very top of the field 6f endeavor. 
Even if the petitioner had submitted the requisite evi~ence under at least three evidentiary 
categories, in accordance with the Kazarian optruon, ihe next step would be a fmal merits 
determination that considers all of the evidence in the co¥ext 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 endeavbr" and (2) "that the alien has sustained 
nation~ or international acclaim and that his or her achie~ements have been recognized in the field 
of expertise," 8 C.F.K §§ 204.5(h)(2) and (3); see also ~azarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a l+el of expertise consistent with the small 
percentage at the very top of the field or sustained nation~ or international acclaim, the AAO need 
not explain that conclusion in. a fmal merits determination.j Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence. 
/d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the 
petition may not be approved. · 
The AAO . may deny an application or petition that fails to comply with the technical 
requirements of the law even if the Service Center does !not identify all of the grounds for denial 
in the initial decision. See Spencer Enterprises, Inc. ~· United States, 229 F. Supp. 2d 1025, 
1043 (E.D. Cal. 2001), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. DOJ, at 145 
(noting that tbe AAO conducts appellate review on a de hovo basis). 
The burden of proof in visa petition proceedings remains lntirely 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. 
4 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 prqceeding, the AAO maintains the jurisdiction fO conduct a fmal merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § l03.5(a)(1)(ii). See also section l03(a)(1) of the Act; section . I 
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. 
§ l03.l(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, f;o (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions) . 
I