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PUBLIC COpy 
FILE: 
INRE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Irmnigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
Date: NOV 1 5 2010 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act; 8 U.S.C. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 law was inappropriately applied by us in reaching our decision, or you have 
additional information that you wish to hiwe considered, you may file a motion to reconsider or a 
motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 
All motions must be submitted to the office that originally decided your case by filing a Form I-290B, 
Notice of Appeal or Motion. The fee for a Form I-290B is currently $585, but will increase to $630 on 
November 23,2010. Any appeal or motion filed on or after November 23,2010 must be filed with the 
$630 fee. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
erry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on January 12,2009, and is now before the Administrative Appeals Office (AAO) 
on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as an 
alien of extraordinary ability as an artist, musician, and entertainer. The director determined that 
the petitioner had not established the requisite extraordinary ability and failed to submit 
extensive documentation of 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 "sustained national or international acclaim" and present 
"extensive documentation" of his or her 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, specifically a major, internationally recognized award. Absent the receipt of such 
an award, the regulation outlines ten categories of specific 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, the petitioner claims that he meets at least three of the regulatory criteria at 8 C.F.R. § 
204.5(h)(3). 
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 benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (US CIS) 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. 723 101 st 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. Id. and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate his or her 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 
following ten categories of evidence. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields; 
(iii) 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; 
(iv) Evidence of the alien's participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, In 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
Page 4 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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 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.l With respect to the criteria 
at 8 C.F.R. §§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS 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." Id. 
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)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3)). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both 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," 
8 C.F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. § l153(b)(1 )(A)(i). 
Id. at 1119. 
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 reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO maintains de novo review, the AAO 
will conduct a new analysis if the director reached his or her conclusion by using a one-step analysis 
rather than the two-step analysis dictated by the Kazarian court. See Spencer Enterprises, Inc. v. 
United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 (9th Cir. 2003); 
see also Soltane v. DO}, 381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
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). 
Page 5 
II. Translations 
While not addressed by the director in his decision, the record of proceeding reflects that the 
petitioner submitted numerous non-certified English language translations, partial translations, and 
foreign language documents without any English language translations. The regulation at 8 C.F.R. 
§ 103 .2(b) provides in pertinent part: 
(3) Translations. Any document containing foreign language submitted to USCIS 
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. 
The regulation at 8 C.F.R. § 103.2(b)(3) specifically requires a "full English language 
translation." However, the petitioner submitted partial translations for the majority of his foreign 
language documents. Moreover, the record of proceeding reflects that the petitioner submitted 
several documents without any English language translations, let alone fully certified 
translations. Because the petitioner failed to comply with the regulation at 8 C.F.R. 
§103.2(b)(3), the AAO cannot determine whether the evidence supports the petitioner's claims. 
Accordingly, the evidence is not probative and will not be accorded any weight in this 
proceeding. 
III. Analysis 
A. Evidentiary Criteria 
This petition, filed on July 27, 2007, seeks to classify the petitIOner as an alien with 
extraordinary ability as an artist, musician, and entertainer. The petitioner has submitted 
evidence pertaining to the following criteria under 8 C.F.R. § 204.5(h)(3). 2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
At the time of the filing of the petition, the petitioner claimed eligibility for this criterion based 
on his participation as a trombone player at the 2007 Latin Billboard Music Awards. In support 
of the petitioner's claim, he submitted a copy of his badge from the event along with several 
photographs with captions claiming that they reflected winners from the event. The director 
found that the documentary evidence submitted by the petitioner failed to establish eligibility for 
this criterion. 
On appeal, the petitioner states: 
2 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 6 
Even though, I recognized that individually I haven't received a major award, the 
service shouldn't disqualify my participation on the Billboard awards - 2007 
version. This proves my very high standard as a musician. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the 
alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in 
the field of endeavor [emphasis added]." Although the petitioner concedes to not receiving any 
major awards, the plain language of the regulation requires the petitioner to demonstrate his 
receipt of prizes or awards. Merely submitting documentation reflecting his participation at an 
awards event without evidence demonstrating his receipt of any prizes or awards is insufficient 
to meet the plain language of the regulation. 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires the 
petitioner to demonstrate his receipt of more than one award or prize. Therefore, even if we 
were to find that his participation at the 2007 Latin Billboard Music Awards qualified under this 
criterion, which we do not, the petitioner would have established eligibility for only one award. 
As such, the petitioner failed to meet the plain language of the regulation at 8 C.F.R. § 
204.5(h)(3)(i). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their 
members, as judged by recognized national or international experts in their 
disciplines or fields. 
At the time of the filing of the petition, the petitioner claimed eligibility for this criterion based 
on his membership with The Recording Academy (TRA) and the Columbian Association of 
Recording Artists and sers (CARAC). The petitioner submitted a letter dated January 12, 
2007, from TRA, congratulating the petitioner on 
becoming a member. In addition, the petitioner submitted a copy of his TRA membership card. 
In response to the director's request for evidence, the petitioner submitted another letter from Mr. 
Crilly who stated: 
In order to be accepted as a voting member, applicants must have met 
membership criteria including a demonstration of their creative and/or technical 
involvement in a minimum number of nationally-released musical recordings. 
The director found that the petitioner failed to establish that any of these associations require 
outstanding achievements of their members. On appeal, the petitioner argues: 
The Service erred disqualifying my membership to "The Recording Academy," 
unknowing the worldwide importance of this institution. In my field of expertise 
(music) the GRAMMY and LATIN-GRAMMY awards are the most 
internationally recognized awards, only comparable with the OSCARS, 
Page 7 
PULITZERS and NOBEL pnzes for great achievements III other fields of 
expertise. 
* * * 
The wording of this element of the Criteria asks for the applicant's membership, 
and because the Academy is the most relevant institution in my field of expertise 
and because only the best musicians can be members of the association; the 
Service should recognize that I qualitatively satisfy with the requirement. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "[d]ocumentation of 
the alien's membership in associations in the field for which is classification is sought, which 
require outstanding achievements of their members, as judged by recognized national or 
international experts in their disciplines or fields." In order to demonstrate that membership in 
an association meets this criterion, a petitioner must show that the association requires 
outstanding achievement as an essential condition for admission to membership. Membership 
requirements based on employment or activity in a given field, minimum education or 
experience, standardized test scores, grade point average, recommendations by colleagues or 
current members, or payment of dues do not satisfy this criterion as such requirements do not 
constitute outstanding achievements. Further, the overall prestige of a given association is not 
determinative; the issue here is membership requirements rather than the association's overall 
reputation. 
While the petitioner argues about the "worldwide importance" of the Grammy Awards, the issue 
for this criterion is the membership requirements for TRA. In other words, the petitioner must 
demonstrate that membership with TRA requires outstanding achievements of its members, as 
judged by national or international experts in the field. In this case, while _ indicated 
that "applicants must have met membership criteria," he failed to specifically identify the criteria 
and only stated that applicants must demonstrate "their creative and/or technical involvement." 
We are not persuaded that demonstrating creative and/or technical involvement in a minimum 
number of nationally-released musical recordings is tantamount to outstanding achievements. 
Furthermore, the petitioner failed to establish that membership is judged by recognized national 
or international experts. 
Moreover, as indicated by the director, the petitioner failed to submit any documentary evidence 
establishing his membership with CARAC. 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. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972». In addition, the petitioner failed to submit 
any documentary evidence regarding the membership requirements of CARAC, so as to establish 
that membership requires outstanding achievements of its members, as judged by recognized 
national or international experts. 
Page 8 
Finally, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires the petitioner to 
demonstrate membership in more than one association. Even if we were to find that the 
petitioner's membership with TRA was a qualifying membership, which we do not, the petitioner 
would have established membership with only one qualifying association. As such, the 
petitioner failed to meet the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
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. 
At the time of the filing of the petition, the petitioner claimed eligibility for this criterion 
by submitting the following documentation: 
1. An article entitled, "Fruko Puts 
Colombian Salsa," July 22, 2006 
Times; 
. . . . .. .. y Measure of 
Chicago Sun-
2. An uncertified and partial translation an article entitled, "Kenny 
Qunitero and His Band Take the Genre Everywhere," February 3, 
2007, unidentified author, El Sentinel; 
3. An uncertified and partial translation of an article entitled, "Grupo 
Sarao Continues with Strength," unidentified date, unidentified 
author, unidentified source; 
4. An uncertified and partial translation of an advertisement entitled, 
"Claudia Diez & Tono 40," unidentified date, unidentified author, 
unidentified source; 
5. An uncertified and partial translation of an article entitled, "The 
Stars of Calle 8," unidentified date, unidentified author, 
www.univision.com; and 
6. An uncertified and partial translation of an article entitled, "Kenny 
Quintero in the Miami Carnival," unidentified date, unidentified 
author, www.univision.com. 
The director found that the documentary evidence barely mentioned the petitioner in the articles 
and failed to establish eligibility for this criterion. On appeal, the petitioner argues: 
I disagree with the Service because I attached in my application sufficient proofs 
of my participation on those musical groups/orchestras and as a musician I can 
only expect publications of about the groups I was part of and not of me 
individually. 
Page 9 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[P]ublished 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." In other words, the regulation at 8 
C.F.R. § 204.5(h)(3)(iii) requires that the published material be "about" the petitioner relating to 
his work. As such, articles that mention a group in which the petitioner performs is insufficient 
to meet the plain language of the regulation. 
We agree with the findings of the director for this criterion. Regarding item 1, the petitioner is 
never mentioned in the article. In fact, there is no evidence that the petitioner even performed at 
the Colombian Independence Day Festival. Regarding item 2, the petitioner is mentioned one 
time as being credited as one of the arrangers. As the petitioner only submitted a partial 
translation, the article appears to be about Grupo Sarao and its song, "Eres Tu." Regarding item 
3, the newspaper advertisement never mentions the petitioner, and we are not persuaded that a 
newspaper advertisement equates to the plain language of the regulation of "published material." 
Regarding items 4 - 6, the partial translations never mention the petitioner. In fact, regarding 
items 5 and 6, the partial translations only consist of one sentence for each article. In summary, 
only one of the six articles mentions the petitioner's name. As such, we cannot conclude that 
such scant evidence equates to published material about the petitioner relating to his work. 
We note that the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) also requires that 
"[ s ]uch evidence shall include the title, date, and author of the material, and any necessary 
translation." The petitioner failed to include the date and/or author of the material and certified 
and full translations for items 2 - 6. 
Moreover, the plain language of the regulation requires the material to be published "in 
professional or major trade publications or other major media." In general, 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 failed to submit any documentary evidence demonstrating that the material was 
published in professional or major trade publications or other major media. We note that regarding 
items 3 and 4, the petitioner failed to demonstrate where the material was published. We further 
note regarding items 5 and 6 that the articles were posted on www.univision.com. In today's world, 
many newspapers and news entities, regardless of size and distribution, post at least some of 
their stories on the Internet. To ignore this reality would be to render the "major media" 
requirement meaningless. However, we are not persuaded that international accessibility by 
itself is a realistic indicator of whether a given website is "major media." The petitioner has not 
demonstrated that www.univision.comis considered as major media. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
3 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 10 
Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specification for which 
classification is sought. 
At the time of the filing of the petition, the petitioner claimed eligibility for this criterion based 
on the previously mentioned membership card from TRA. The director found that the petitioner 
failed to establish eligibility for this criterion. On appeal, the petitioner argues: 
The Service erred on this element again because [it] doesn't recognize my 
participation as a voting judge for the world famous GRAMMY Awards. The 
Service underrates the importance and honor of been a voting member of the 
Recording Academy ... even though the regulation establishes only to prove my 
participation as a Judge: As the Service may notice; only the very best 
artists/entertainers qualify to be a voting member of the GRAMMY and LATIN 
GRAMMY AWARDS. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence of the 
alien's participation, either individually or on a panel, as a judge of the work of others in the same or 
an allied field of specification for which classification is sought." In this case, the petitioner only 
submitted a membership card from TRA reflecting that the petitioner is a "Voting Member." The 
petitioner failed to establish that he has ever voted for anything, let alone "as a judge of the work of 
others." Furthermore, we note that the documenation reflects that the petitioner has only been a 
voting member since January 2007, a period of six months prior to the filing of the petition. Merely 
submitting documentation reflecting that the petitioner has the ability to vote is insufficient to 
establish eligibility for this criterion without documentation reflecting that the petitioner has actually 
judged the work of others. 
Moreover, we are not persuaded that submitting documentation reflecting voter membership 
also demonstrates that the petitioner also judges the work of others. The petitioner failed to 
establish the duties and responsibilities of a voting member so as to establish that he judges the 
work of others. For example, an individual who votes on the administrative functions of the 
association, such as voting on the day the awards ceremony will take place, cannot be 
considered to have judged the work of others. However, if the individual votes on musical 
performers, such as judging the best group of the year, then the petitioner would satisfy the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). In this case, the petitioner failed 
to establish that he has participated as a judge of the work of others consistent with the plain 
language of the regulation. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field 
Page 11 
At the time of the original filing of the petition, the petitioner claimed eligibility for this criterion 
by stating: 
Singers and musicians contribution in the field has to be judged by the number of 
songs being recorded, published and singed solo or as part of group and the 
musical hits those have become in which the artist has a leading participation .... 
I enclose relevant documentation of my participation on records of different bands 
including my participation in Orequesta brava, Grupo Sarao, Nueva Energia, 
fruko y sus Tesos, etc. on all of them I have a leading participation as arranger, 
musician andlor musical director. 
In support of the petition, the petitioner submitted a list reflecting that the petitioner participated 
as a trombone player, arranger, andlor studio director for ten artists along with copies of CD 
covers. We note that the petitioner failed to submit full and certified translations of the CD 
covers. In the director's decision, he found that the petitioner's participation on songs and albums 
failed to reflect original contributions of major significance to the field. 
On appeal, the petitioner argues: 
I don't understand how the Service can say that "Musical Director" is a small 
participation in a recording. As proved in my application I participated in a very 
important role such as the described in all the recordings attached; I can say that 
my contribution for the success has been very important without unknowing the 
work developed by others; thus, the Service should recognize that I qualitatively 
satisfy this element. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the 
alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." In compliance with Kazarian, the AAO must focus on the plain 
language ofthe regulatory criteria. 596 F.3d at 1121. Here, the evidence must be reviewed to see 
whether it rises to the level of original artistic-related "contributions of major significance in the 
field." 
In this case, the documentary evidence submitted by the petitioner fails to establish that he has 
made original contributions of major significance to the field. While the CD covers reflect that 
the petitioner performed on the CD or participated in the arranging of the songs, the petitioner 
failed to demonstrate that his performances or participation were of major significance to the 
field. This regulatory criterion not only requires the petitioner to make original contributions, 
but also requires those contributions to be of major significance. Merely submitting 
documentation reflecting the petitioner's participation as a musician or producer on several CDs 
is insufficient to establish eligibility for this criterion without evidence reflecting that the 
petitioner's work has influenced or impacted the field of music to a degree that is consistent with 
the plain language of the regulation at 8 C.F.R. § 204.5(h)(v). The lack of supporting 
... 
" 
Page 12 
documentary evidence gives the AAO no basis to gauge the significance of the petitioner's 
contributions. 
Without additional, specific evidence showing that the petitioner's work has been unusually 
influential or has otherwise risen to the level of contributions of major significance, we cannot 
conclude that he meets this criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
At the time of the original filing of the petition, the petitioner claimed eligibility for this criterion 
by stating: 
Will find flyers, posters, ads and newspapers articles announcing some of my 
concerts as part of different orchestras including resent [sic] presentations I had 
with the "Orchestra Brava," Claudia Diez y Tono 40 and Fruko y sus Tesos. I 
also included some photos of myself during some presentations including the 
participation in the world famous Calle * Festival in Miami Fl. 
While the petitioner submitted flyers and posters for various venues, including non-certified 
translations as well as photographs, the 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 or showcases." This criterion relates to the visual arts. It is inherent to the field of 
music and entertaining to perform on stage or in public. Therefore, not every stage performance is 
an artistic exhibition or showcase. 
For this reason, the regulations establish separate criteria, especially for those whose work is in 
the performing arts. We find that the petitioner's performances and concerts are far more relevant 
to the "commercial successes in the performing arts" criterion at 8 C.F.R. § 204.5(h)(3)(x) and 
will be discussed under that criterion. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The petitioner claimed eligibility for this criterion based on his "participation on a very 
important musical organization called 'Julymar productions' on which I have a leading role; I 
am the Musical Director of the producer and the leading musician." The director determined 
that the documentary evidence, a letter from submitted by the 
petitioner failed to establish that he performed in a leading or critical role. On appeal, the 
Page 13 
petitioner failed to contest the decision of the director or offer additional arguments. 
Therefore, we will not further discuss this criterion on appeal. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field 
At the time of the filing of the petition, the petitioner submitted uncertified translations of royalty 
payments from several entities such as Codiscos, Disco Tienda Latina, and Col Music for his 
participation on CDs. The director found that the documentary evidence submitted by the 
petitioner failed to establish eligibility for this criterion. 
On appeal, the petitioner argues: 
The Service doesn't recognize as significant the payments for royalties I received 
by different record companies including "Codiscos" the biggest and more 
important record Company in Colombia because of my participation in different 
productions; the Service just called them "small royalty payments." Musician's 
remuneration is always shown in royalties, and the amount depends exclusively in 
the record sales. With those evidences I shown sufficiently that I comply with the 
qualitatively requirements of the element, thus the Service should recognize them. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires "[e]vidence that the 
alien has commanded a high salary or other significantly high remuneration for services, in relation 
to others in the field [emphasis added]." While the documentary evidence submitted by the 
petitioner reflects that he has received royalty payments, the petitioner failed to submit any 
documentary evidence comparing his royalty payments to others in the field so as to establish that 
the petitioner has commanded "other significantly high remuneration for services." Merely 
submitting documentation that reflects a salary or remuneration for services without evidence 
establishing that the petitioner has commanded significantly high remuneration for services 
compared to others in the field is insufficient to meet the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix). The petitioner failed to establish that his remuneration in the form of royalty 
payments was significantly high in relation to others in the field. 
Accordingly, the petitioner failed to establish that he 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. 
At the time of the original filing of the petition, the petitioner claimed eligibility for this criterion 
based on "some billboard or box office and radio spins, which are fully understandable where the 
song 'Eres Tu' of the 'Group Sarao' remained on the top of the US charts from December 2001 to 
-' 
Page 14 
November 2002." In support of this criterion, the petitioner submitted chart statistics from 
regarding ." Specifically, the documentation reflected the following: 
1. Number 6 - Top 50 Salsa - December 1, 2001; 
2. Number 3 - Top 50 Salsa- January 21,2002; 
3. Number 11 - Top 40 Salsa - January 21, 2002; 
4. Number 21 - Top 40 Radio and Musica - September 29,2002; and 
5. Number 34 - Top 50 Salsa - November 18,2002. 
The director found that the petitioner failed to establish that he was "a leading or defining player 
in the production and release of the record" or that _ was a commercial success. On 
appeal, the petitioner claimed: 
The Service recognized the success of 
which remained on the top of the US charts from December 2001 to November 
2002. . .. In my application I enclosed evidences of my participation in the 
record: I was the arranger, the musical director and the trombonist. I am 
attaching printout of the web page called: www.artistdirect.com. proving the 
importance of my participation. 
We acknowledge that the documentation submitted by the petitioner on appeal reflects that the 
petitioner is credited as the trombone player, arranger, and musical director with ••••• 
However, while "Eres Tu" reached as high as number three on the top 50 salsa charts, we are not 
persuaded that such evidence demonstrates commercial successes consistent within the meaning 
of the plain language ofthe regulation at 8 C.F.R. § 204.5(h)(3)(x) which requires "[e]vidence of 
commercial successes in the performing arts, as shown by box office receipts or record, cassette, 
compact disk, or video sales (emphasis added)." 
This regulatory criterion requires evidence of commercial successes in the form of "box office 
receipts" or "sales." However, the petitioner's submission of top 40 and 50 radio spins of a single 
song does not equate to evidence of "box office receipts" or "sales." There is no evidence 
showing his box office receipts for performances or the sales of his songs or compact disks. 
Furthermore, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) requires the 
petitioner to demonstrate more than one commercial success. Even if we were to find that "Eres 
Tu" was a commercial success, which we do not, the petitioner would have established only one 
commercial success. As such, the petitioner failed to meet the plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(x). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
B. Comparable Evidence 
Page 15 
At the time of the original filing of the petition, the petitioner submitted recommendation letters and 
claimed eligibility pursuant to comparable evidence under the regulation at 8 C.F.R. § 204.5(h)(4). 
The director found: 
The regulatory language precludes the consideration of comparable evidence in this 
case, as there is no indication that eligibility for visa preference in the petitioner's 
occupation cannot be established by the criteria specified by the regulation. 
We agree with the fmdings of the director. The regulation at 8 C.F.R. § 204.5(h)(3) provides that 
evidence of sustained national or international acclaim "shall" include evidence of a one-time 
achievement or evidence of at least three of the following regulation categories. The ten categories 
in the regulations are designed to cover different areas; not every criterion will apply to every 
occupation. For example, the criterion at 8 C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual 
arts, and the criterion at 8 C.F.R. § 204.5(h)(3)(x) expressly applies to the performing arts. We 
further acknowledge that the regulation at 8 C.F.R. § 204.5(h)(4) provides "[i]fthe above standards 
do not readily apply to the [petitioner's] occupation, the petitioner may submit comparable evidence 
to establish the [petitioner's] eligibility." It is clear from the use of the word "shall" in 8 C.F.R. 
§ 204.5(h)(3) that the rule, not the exception, is that the petitioner must submit evidence to meet at 
least three of the regulatory criteria. Thus, 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.F.R. § 204.5(h)(3)(i)-(x). 
The regulatory language precludes the consideration of comparable evidence in this case, as 
there is no indication that eligibility for visa preference in the petitioner's occupation as a 
musician or entertainer cannot be established by the ten criteria specified by the regulation at 8 
C.F.R. § 204.5(h)(3). In fact, as indicated in this decision, the petitioner submitted documentary 
evidence claiming eligibility for nine of the ten criteria at 8 C.F.R. § 204.5(h)(3). An inability to 
meet a criterion, however, is not necessarily evidence that the criterion does not apply to the 
petitioner's occupation. Moreover, the petitioner provided no documentation demonstrating that 
the regulatory criteria would not be appropriate to the profession of a musician or entertainer. 
While the petitioner submitted numerous uncertified translations of letters of recommendation at 
the time of the original filing of the petition, as well as additional letters of recommendation in 
response to the director's request for additional evidence, the letters generally referred to the 
petitioner's participation in various groups, orchestras, and cultural organizations and praised the 
petitioner for his talents as a trombone player. However, where an alien is simply unable to meet 
or submit documentary evidence of three of these criteria, the plain language of the regulation at 
8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. 
C. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct 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 
Page 16 
to the very top of the[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2); 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." See section 203(b)(1)(A)(i) of the Act, 8 U.S.c. 
§ 1153(b)(1)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 1115. The 
petitioner failed to establish eligibility for any of the criteria, of which at least three are required 
under the regulation at 8 C.F .R. § 204.5(h)(3). In this case, many of the deficiencies in the 
documentation submitted by the petitioner have already been addressed in our preceding 
discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). 
In evaluating our final merits determination, we must look at the totality of the evidence to 
conclude the petitioner's eligibility pursuant to section 203(b)(1 )(A) of the Act. In this case, the 
petitioner has demonstrated that he has participated in various musical groups in the roles as a 
trombone player, arranger, and musical director. The petitioner's biggest accomplishment as a 
musician was as the trombone player and arranger who achieved the number 
three song, "Eres Tu," in the top 50 salsa category. However, the accomplishments of the 
petitioner fall far short of establishing that he "is one of that small percentage who have risen to 
the very top of the field of endeavor" and that he "has sustained national or international acclaim 
and that his or her achievements have been recognized in the field of expertise." See 8 C.F .R. 
§ 204.5(h)(2), section 203(b)(1)(A)(i) of the Act, 8 U.S.C. § 1153(b)(1)(A)(i), and 8 C.F.R. 
§ 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[a] petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 C.F.R. § 204.5(h)(3), therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "a 
level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of the field of endeavor." 8 C.F.R. § 204.S(h)(2). Again, while we did not find that 
the song, "Eres Tu," was a commercial success pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(x), we note that the song was on the charts from December 2001 to November 
2002. The petitioner failed to submit any documentary evidence reflecting any other songs that 
were included on the charts since 2002, a period of approximately five years before the filing of 
the petition. We are not persuaded that a single song on the top 50 salsa charts occurring five 
years before the filing of the petition is sufficient to establish the level of sustained national or 
international acclaim required for this highly restrictive classification. 
Similarly, while the petitioner failed to establish eligibility under the membership criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), the petitioner's documentary evidence 
reflects that the petitioner became a voting member of TRA in January 2007, approximately six 
months prior to the filing of the petition. Moreover, as stated previously in our decision, the 
petitioner claimed eligibility for the published material criterion pursuant to the regulation at 8 
Page 17 
C.F.R. § 204.5(h)(3)(iii) based on articles that were not about him. In fact, only one article 
mentioned his name one time. We find that for a musician and entertainer, like the petitioner, that 
the lack of published material about him relating to his work demonstrates that he has not achieved 
sustained national or international acclaim. 
We cannot ignore that the statute requires the petitioner to submit "extensive documentation" of 
the petitioner's sustained national or international acclaim. See section 203(b)(I)(A) of the Act. 
The commentary for the proposed regulations implementing section 203(b)(l)(A)(i) of the Act 
provide that the "intent of Congress that a very high standard be set for aliens of extraordinary 
ability is reflected in this regulation by requiring the petitioner to present more extensive 
documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 
1991). In this case, the record of proceeding reflects uncertified translations, partial translations, 
and foreign language documents without any English translations. Furthermore, the petitioner 
claimed eligibility for the awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i) 
based on his participation in a performance at the 2007 Latin Billboard Music Awards without 
offering any evidence of nationally or internationally recognized awards. Even if we considered 
this as evidence of an award, which we did not, the petitioner only claimed eligibility based on 
one award, of which the plain language of the regulation requires more than one. Likewise, even 
though the petitioner failed to establish eligibility under the membership criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(ii), the petitioner only claimed eligibility with one 
association, of which the plain language of the regulation requires membership in more than one 
association. In addition, the petitioner failed to comply with the basic regulatory requirements 
such as providing the title, date, and author of the published material criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii). Moreover, while the petitioner submitted documentary 
evidence reflecting that he is a voting member of TRA, he failed to demonstrate that he has ever 
voted. Further, the petitioner claimed eligibility for the salary criterion pursuant to the regulation 
at 8 C.F.R. § 204.5(h)(ix) without offering any comparison of salaries or significantly high 
remuneration for services. Also, the petitioner claimed eligibility for the commercial successes 
criterion pursuant to the regulation at 8 C.F .R. § 204.5(h)(x) without offering any evidence of 
box office receipts or sales. Even if we found that the petitioner established commercial success 
with "Eres Tu," which he did not, the petitioner only claimed eligibility for one commercial 
success, of which the plain language of the regulation requires more than one commercial 
success. We note that while the petitioner did not contest the decision of the director on appeal 
regarding the leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii), the petitioner claimed eligibility based on his role with 
1Ii.1, of which the plain language of the regulation requires more than one or ~~~H~'.U 
role. An individual with sustained national or international acclaim should be able to submit 
extensive evidence of his accomplishments; the documentation submitted in support of this 
petition does not equate to "extensive documentation." 
Moreover, the petitioner claimed eligibility for the original contributions criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(v) based on his participation with various groups and bands. 
However, the petitioner failed to submit any documentation demonstrating original contributions 
that have significantly impacted the music field as a whole and not limited to the few groups in 
Page 18 
which he has worked and participated. As the petitioner is a musician, the petitioner is expected 
to perform with other artists and create and market songs and albums. However, the petitioner 
failed to submit documentary evidence that distinguishes him from other trombone players or 
arrangers. The petitioner failed to demonstrate that he contributed to the performances or 
musical projects beyond the routine duties of a musician or producer. 
Finally, while the petitioner failed to establish eligibility for comparable evidence pursuant to the 
regulation at 8 C.F.R. 204.5(h)(4), the petitioner submitted self-serving letters of 
recommendation that generally praise the petitioner as a musician and mention the petitioner's 
performances. Such letters cannot form the cornerstone of a successful extraordinary ability 
claim. Further, USCIS may, in its discretion, use as advisory opinion statements submitted as 
expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 1988). 
However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. Id The submission of letters of support from the 
petitioner's personal contacts 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. 
The petitioner failed to submit evidence demonstrating that he "is one of that small percentage who 
have risen to the very top of the field." In addition, the petitioner has not demonstrated his "career 
of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723,59 (Sept. 19, 
1990). 
The conclusion we reach by considering the evidence to meet each criterion separately is consistent 
with a review of the evidence in the aggregate. Even in the aggregate, the evidence does not 
distinguish the petitioner as one of the small percentage who has risen to the very top of the field of 
endeavor. 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. 
IV. 0-1 Nonimmigrant Admission 
On appeal, the petitioner argues: 
The decision is contradictory to Services' past decisions. As established in my 
application, I was holding on 01 non-immigrant visa at the moment. The legal 
requirements are similar, if not equal. 8 CFR 214.2(0)(i) vs. 8 CFR 204.5(h)(3) 
the criteria is similar and the legislator intention was clear in both regulatory 
requirements. The legislator was establishing a unified Criteria in order to prove 
the "Extraordinary Ability" as defined in both sections as: On 8 CFR 
214.2(0)(i)(3)(ii): "Extraordinary ability in the field of arts means distinction. 
Distinction means a high level of achievement in the field of arts evidenced by a 
degree of skill and recognition substantially above that ordinarily encountered to 
the extent that a person described as prominent is renowned, leading, or well­
known in the field of arts". And on 8 CFR 204.5(h)(2): "Extraordinaryability 
Page 19 
means a level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the field of endeavor." Even though, 
the wording is slightly different the meaning is exactly the same; thus, if the 
Service recognized my "Extraordinary Ability" in past cases [it] should recognize 
it in this Matter also. 
The record of proceeding reflects that the petitioner was last admitted to the United States as an 
0-1 nonimmigrant in the arts on November 23, 2006. Although the words "extraordinary ability" 
are used in the Act for classification of artists under both the nonimmigrant 0-1 and the first 
preference employment-based immigrant categories, the statute and regulations define the term 
differently for each classification. Section 10 1 (a)(46) of the Act states that "[t]he term 
'extraordinary ability' means, for purposes of section 101(a)(15)(0)(i), in the case of the arts, 
distinction." The 0-1 regulation reiterates that "[e]xtraordinary ability in the field of arts means 
distinction." 8 C.F.R. § 214.2(0)(3)(ii). "Distinction" is a lower standard than that required for the 
immigrant classification, which defmes extraordinary ability as "a level of expertise indicating that 
the individual is one of that small percentage who have risen to the very top of the field of 
endeavor." 8 C.F.R. § 204.5(h)(2). The evidentiary criteria for these two classifications also differ 
in several respects, for example, nominations for awards or prizes are acceptable evidence of 0-1 
eligibility, 8 C.F.R. § 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of 
nationally or internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear 
statutory and regulatory distinction between these two classifications, the petitioner's receipt of 0-1 
nonimmigrant classification is not evidence of his eligibility for immigrant classification as an alien 
with extraordinary ability. Further, we do not find that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each case must be decided on a case-by-case 
basis upon review of the evidence of record. 
It must be noted that many 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 1-
129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are 
simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 
Texas A&MUniv. v. Upchurch, 99 Fed. Appx. 556,2004 WL 1240482 (5th Cir. 2004) (finding that 
prior approvals do not preclude USCIS from denying an extension of the original visa based on a 
reassessment of the alien's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 191&N Dec. 593, 597 (Comm. 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director has approved a 
.. 
Page 20 
nonimmigrant petition on behalf of an alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that fails to comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in 
the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d at 1043, 
affd, 345 F.3d at 683; see also Solfane v. DOJ, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). 
V. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203 (b) (1 )(A) ofthe Act, and the petition may not be approved. 
The petition will be denied for the above stated reasons, with each considered as an independent 
and alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for 
the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.