dismissed EB-1A Case: Folk Music

idmtjfying data deleted to 
Prevent clearly unwarranted 
invasion of personal pr~~acy 
1I.S. Dcpartnlr~~t ol' Hontcland Security 
I1.S. ('iti/c~tship and Immigration Services 
Office of',~tdti~iti;,ct~'~~~ive .4l)/,en/s MS 2090 
Washington. I>C' 20529-2090 
U.S. Citizenship 
and Immigration 
SRC 07 052 53092 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act: 8 U.S.C. $ 1 I53(b)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All doci~lnents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriate11 applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 3 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing Form I-290B, Notice of Appeal or Motion. with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. ji 103.5(a)(l)(i). 
&DLadficL 
Perrv Rhew 
Lrchi& Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied on June 15, 2007, by the 
Director, Texas Service Center, 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)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(l)(A), as an 
alien of extraordinary ability in the arts. The director determined that the petitioner had not 
established the sustained national or international acclaim necessary to qualify for classification as an 
alien of extraordinary ability. More specifically. the director found that the petitioner had failed to 
demonstrate receipt of a major, internationally recognized award, or that he meets at least three of 
the regulatory criteria at 8 C.F.R. $ 204.5(h)(3). 
On appeal, counsel argues that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3). In addition, counsel argues that the director failed to comply with a September 12, 
2006, memorandum titled, AFM Updufe: C'hupfer. 22: Ewzploymcnf-based pet if ion.^ (ADO3-01). 
issued by Michael Aytes, Acting Associate Director for Domestic Operations. Counsel claims: 
In the Texas Service Center's Request for Evidence [RFE] dated March 7, 2007, the 
officer reiterated the evidentiary requirements for aliens seeking classification of 
extraordinary ability and failed to provide Petitioner with an!/ "clear guidance" as to 
what was deficient in the filing and how to overcome the observed deficiencies. 
Without further information from the officer. it was difficult for Petitioner to address 
any specific issues the officer niay ha1.e Sound with the original filing. Again, the same 
can be said about the Notice of Decision. The ofiicer reiterates the evidentiary 
requirements but fails to state with specificity which pieces of evidence may have been 
deficient. 
The purpose of the RFE is to elicit further information that clarifies whether eligibility for the 
benefit sought has been established, as of the tinle the petition is filed. See 8 C.F.R. $5 103.2(b)(8) 
and (12). The RFE stated that the petitioner needed to submit evidence in support of his claim for 
eligibility under each criterion. 8 C.F.R. 4 103.2(b)(8) requires that the RFE specify the "type of 
evidence required" and does not require that any sort of exact documents be identified. Regardless, 
a review of the director's RFE reflects that it provided the types of evidence required and listed 
examples of evidence such as "copies of certificates, wards. copies of articles or other published 
materials by or about yourself or any other documentary evidence as long as it fulfills the reguiatory 
criteria cited." We find that the director's RFE was in accordance with the regulation at 8 C.F.R. 5 
103.2(b)(8) and further find that there was no error on part of the director's RFE. 
However, regarding the director's decision, we agree with counsel that the director failed to discuss 
the documentary evidence as it reiated to any of the regulatory criteria under 8 C.F.R. 
9 204.5(h)(3).' On appeal, we will evaluate and discuss the evidence submitted by the petitioner as 
I It is noted that the petitioner submitted a previous Form 1-140 requesting classification as an alien of extraordinary 
ability based upon essentially the sanie arguments and evidence as presented in this proceeding. The director's and the 
it pertains to the claimed regulatory criteria under 8 C.F.R. # 204.5(h)(3). The AAO maintains 
plenary power to review each appeal on a de novo basis. 5 1 J.S.C. $ 557(b) ("On appeal from or 
review of the initial decision. the agency has all the powers which it would have in making the 
initial decision except as it may limit the issues on notice or by rule."); see ulso .Janka v. US. Dept. 
of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). 'I'he AAO's de novo authority has been 
long recognized by the federal courts. See, e.g.. Dor v. INS. 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). 
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 thc area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" 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. 8 C.F.R. fj 204.5(h)(2). The specific requirements for supporting 
documents to establish that an alien has sustained national or international acclaim and recognition 
in his or her field of expertise are set fi~rth in the regulation at 8 C.I.R. 9 204.5(h)(3). The relevant 
criteria will be addressed below. It should be reiterated, however, that the petitioner must show that 
he has sustained national or international acclaim at the very top level. 
This petition, filed on December 13. 2006. seeks to classify the petitioner as an alien with 
extraordinary ability as a folk guitaristisinger. 
The regulation at 8 C.F.R. 5 204.5(11)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is. a major. internationally 
AAO's determinations in the prior proceeding were extensive. As such, any argument that the petitioner lacked notice 
of the deficiencies in the record is not very persuasive. 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, 
at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to 
qualify as an alien of extraordinary ability. A petitioner. however, cannot establish eligibility for 
this classification merely by submitting evidence that simply relates to at least three criteria at 8 
C.F.R. § 204.5(h)(3). In determining whether the petitioner meets a specific criterion, the evidence 
itself must be evaluated in terms of whether it is indicative of or consistent with sustained national 
or international acclaim. 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. 
5 204.5(h)(2). The petitioner has submitted evidence pertaining to the following criteria under 
8 C.F.R. tj 204.5(h)(3).~ 
Documentation cfrhe  lien'^^ receipt 01 I~SSY~ nationally or in1ern~1~io~~u1Iy rec~gnized 
prizes or awards.fir excellence in the,field of endeavor. 
The petitioner claims eligibility for this criterion based on the following submitted documentation: 
1. Certificate by the 2"d International Clii1drel.l'~ Competition Festival for Folklore 
Ensemble, Kozaki From Podille on an unspecified date; 
2. Certificate of Honour by the Vinnista Children's Musical School for First Place 
for the 4"' School Technique Competition of a Piano Kind, Young Virtuoso on 
an unspecified date; 
3. Diploma by the Ministry of Culture of Russian Federation for 3rd Degree for 
the 4th All-Russia Competition of Young Jazt Musicians on May 4-7. 1991; and 
4. Diploma by an unnamed source for an unknown award for Fireworks at the 3rd 
International Jazz Review Concert of the Students of Musical Schools and 
Lycee on an unspecified date. 
Regarding item I, the document fails to provide the petitioner's placement at the competition. such as a 
first, second, or third place finish. Regarding item 4, the document also fails to provide the petitioner's 
placement at the concert and the actual awarding entity. 
Besides the evidence listed above, the petitioner failed to provide any information regarding the 
petitioner's awards. For example, the petitioner failed to establish that the competitions were at the 
national or international level. While an award has the words "International." or "National" in the 
title, it does not automatically elevatz thc award to "extraordinary ability" standards. Without 
documentary evidence regarding the actual conlpetitions themselves. such as the level of those who 
participated, evidence of the selection criteria, or documentation regarding the prestige of the 
competition, we cannot conclude based on the name of the competition alone, that the competition 
is national or international. and therefore that its awards are recognized beyond the awarding 
entities as a national or international award. 
' The petitioner does not claim to meet or subn~it evidence re1atir.g to the criteria not discussed in this decision. 
In addition, the awards appear to be restricted to children, students, and "young jazz musicians." 
Such awards do not indicate that the petitioner "is one of that small percentage who have risen to 
the very top of the field of endeavor." See 8 C.F.R. $ 204.5(h)(2). There is no indication that the 
petitioner faced significant competition from throughout his field, rather than being mostly limited 
to a few individuals in age-based or other similarly limited competition. LJSCIS has long held that 
even athletes performing at the major league level do not automatically meet the "extraordinary 
ability" standard. Mutter of'Price. 20 I&N Dec. 953. 954 (Assoc. Commr. 1994): 56 Fed. Reg. at 
60899.~ Likewise, it does not follow that a competitor like the petitioner who has had success in a 
competition restricted by age or non-professional status, should necessarily qualify for an extraordinary 
ability employment-based immigrant visa. To find otherwise would contravene the regulatory 
requirement at 8 C.F.R. 5 204.5(h)(2) that this visa category be reserved for "that small percentage of 
individuals that have risen to the very top of their iield of endeavor." Finally, the petitioner failed to 
submit documentary evidence establishing that his a~iards Mere nationally or internationally 
recognized prizes or awards for singing. 
Notwithstanding the above, the regulation at 8 C.F.II. S; 204.5(h)(3) provides that "[a] petition for 
an alien of extraordinary ability must be acconlpanied 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." Evidence of the petitioner's nationally or internationally recognized prizes or awards 
must be evaluated in terms of these requirements. The weight given to evidence submitted to fulfill 
the criterion at 8 C.F.R. 5 204.5(h)(3)(i), 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 lo~zer 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. 
$ 204.5(h)(2). Item 3 listed above is the only award that specifies a year, 1991. in which it was 
awarded to the petitioner over a period of over 15 years prior to the filing of the petition. The 
petitioner has failed to establish the requisite sustained national or international acclaim. 
Accordingly, the petitioner has not established that he meets this criterion. 
" While we acknowledge that a district court's decision is not binding precedent. we note that in hl(l//cr ofRucine, 1995 
WL 153319 at *4 (N.D. Ill. Feb. 16. 1995) the court stated: 
[Tlhe plain reading of the statute suggests that the appropriate field of comparison is not a comparison of 
Racine's ability with that of all the hockey players at all levels of play; but rather, Racine's ability as a 
professional hockey player within the NtiL. This interpretation is consistent with a? least one other court in 
this district, Crimson v. INS, No. 93 C 2354. (N.D. Ill. September 9, 1993). and the detinition of the term 
8 C.F.R. 6 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
Although the present case arose within the jul-isdiction of another federal judic~al district and circuit. the court's 
reasoning indicates that USCJS' interpretation ofthe regulation at 8 C.1 .R. S 204.5(h)(2) i~ reasonable. 
Published material about the alien in projec.sioncr1 or- NIU~O~ truu'o  publication.^ or other 
major media, relating to the alien's ~.i~ork in the field for which clussificution is sought. 
Such evidence shall include the li/le. hte, cud uzithor of the n?uleriul, and any 
necessary tran.c lution. 
The petitioner claims eligibility for this criterion based on the following submitted doculllentation: 
1. Extract from the article, C'on.\frtrction of u S/udio in Vinni/su in Audiostop; 
2. Advertisement of the petitioner's compact disc, Never Ending Slory, on the 
website CD Baby; and 
3. Advertisement of the petitioner's compact disc, Nel~er Ending Story, on the 
website India Star Search. 
In general, in order for published material to meet this criterion, it must be primarily about the 
petitioner and, as stated in the regulations. be printed in professional or major trade publications or 
other major media. To qualify as major media. the publication sliould have significant national or 
international distribution. An alien would not earn acclaim at the national level from a local 
publication or from a publication printed in a language that the vast majority of the country's 
population cannot comprehend. 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.4 
Regarding item 1, the English translation accompanying the article fiiiled to comply with 8 C.F.R. 5 
103.2(b)(3), which requires that "[alny 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 petitioner only submitted an extract translation of the 
article instead of a full English language translation. In addition, 8 C.F.R. $ 204.5(h)(3)(iii) requires 
"[s]uch evidence shall include the title, date. and author of the material, and any necessary translation." 
However, the petitioner failed to provide the author and date of the article. Because the petitioner 
failed to comply with 8 C.F.R. 3s 103.2(b)(3) and 204.5(h)(;)(iii). 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. 
Regarding items 2 and 3. they fail to reflect the regulatory criterion at 8 C.F.R. $204.5(h)(3)(iii) which 
requires "[plublished 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." Instead, these reflect 
advertisements for downloading the petitioner's songs. Moreover, they fail to contain titles, dates, and 
authors. See 8 C.F.R. 5 204.5(h)(3)(iii). 
4 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Wu.~hit~,qton Po.~t. 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 count),. 
Notwithstanding the above, counsel failed to establish that Audiostop and the websites for CD 
Baby and Indie Star Search are professional or major trade publications or other niajor media. 
Regarding CD Baby and Indie Star Search, we are not persuaded that international accessibility by 
itself is a realistic indicator of whether a website is "major media." We will not presume that 
articles or advertisements posted on the Internet will notably increase the readership if it is 
otherwise unknown or distributed nationally or internationally. In addition. we do not find evidence 
that the petitioner had two advertisements about him is sufficient to establish the level of acclaim 
required for this highly restrictive classification. 
Accordingly, the petitioner has not established that he meets this criterion. 
Evidence of the di,spluy of' ihe crlien's 11.o1.k in the ,field ui ~rrii.viic exhihiiior7.s or 
showcases. 
On appeal, counsel claims the petitioner's eligibility for this criterion based on the petitioner headlining 
at the Sugar Rush Cafe, the petitioner's songs played on Radio Swanson, and the petitioner's albums 
and concerts. 
The plain language of this regulatory criterion at 8 C.F.R. $ 204.5(h)(3)(vii) indicates that it is 
intended for visual artists (such as sculptors and painters) rather than for singers such as the 
petitioner. It is inherent to the field of singing to perform on stage. Not every stage performance is an 
artistic exhibition or showcase. In the performing arts, acclaim is generally not established by the 
mere act of appearing in public, but rather by attracting a substantial audience. In this instance, the 
petitioner has failed to demonstrate that his performances were something other than what is intrinsic 
to a performer. The record contains no evidence that the petitioner's performances or the venue at 
which they occurred are recognized as prestigious or uhich otherwise establishes that his performances 
are indicative of national or international acclaim. Houever, while we find that the petitioner has not 
established his eligibility for this criterion. we find that the petitioner's performances and albums are 
far more relevant to the "conlmercial successes in the performing arts" criterion at 8 C.F.R. 
5 204.5(h)(3)(x) and therefore will be discussed later under this criterion. 
Accordingly, the petitioner has not established that hc meets this criterion. 
Evidence that the alien hus perlbrmed in a leading or. criticul /.ole ,fbr organizations or 
establishments that have u distin~qui.slzed r.epuiution. 
The petitioner claims eligibility for this criterion based on his perforlnances at the Sugar Rush Cafe. 
The petitioner submitted letters of recoml~iendation regarding the Sugar Rush Cafe. We cite some 
representative examples here: 
I have been in the audience at Sugar Rush during [the petitioner's] performances as a 
Ukrainian musician, and I can confirm that [the petitioner] has played a leading and 
critical role for organizations or establishments with a distinguished reputation. [The 
petitioner] is the main performer at Sugar Rush. where he impresses customers with his 
culturally unique skills as a Ukrainian folk guitaristlsinger. The Sugar Rush nightclub 
is well-established with a distinguished reputation and [the petitioner] has performed 
for thousands of people there. His performances bring in much revenue to Sugar Rush 
and cultural value to the entire south Florida area. 
[The petitioner] continues to impress both our customers and us with his culturally 
unique skills as a llkrainian musician/singer. [The petitioner] is an excellent performer, 
very punctual and reliable and a superb guitarist and singer. Our restaurant [Sugar 
Rush Cafe] has benefited tremendously since his employment. and he has been a 
tremendous asset to us. 
[The petitioner] plays the keyboard and sings. while I sing the female parts. Sugar 
Rush is a Russian restaurant and nightclub specializing in an Eastern European 
clientele. [The petitioner] plays and sings Russian, and Ukrainian songs, both 
contemporary. and historical folk. [I'he petitioner's] talents allow him to uniquely 
serve the cultural needs of the con~~nunity. 
This letter is to verify that I am personalljr familiar with the Sugar Rush Cafe and 
nightclub. It is an organization with a distinguished reputation. Sugar Rush Cafe is a 
Russian nightclub and restaurant that provides entertainment to its patrons by 
employing professional singers and entertainers who have expertise in the native 
cultures of Russia, Ukraine and the status of the fhrmer Soviet Union. It is, by far, the 
best nightclub specializing in Russian and Ukrainian music in the southern United 
States and it has a distinguished reputation. 
We also note that the petitioner submitted a letter from whose letter contained the 
exact language as letter. In addition, the petitioner submitted a letter from - 
which indicated that the petitioner worked at the Sugar Rush Cafe. 
At issue for this criterion are the position the petitioner Llas selected to fill and the reputation of the 
entity that selected him. In other words. the position must be of such significance that the alien's 
selection to fill the position. in and of itself. is indicative of or consistent with national or international 
acclaim. In this case, the reference letters submitted by the petitioner are not sufficient to meet this 
regulatory criterion. We note that the above letters are all from individuals who have worked or 
interacted with the petitioner. While such letters can provide important details about the 
petitioner's role in various projects, they cannot form the cornerstone of a successful extraordinary 
ability claim. The statutory requirement that an alien have "sustained national or international 
acclaim" necessitates evidence of recognition beyond the alien's immediate acquaintances. See 
section 203(b)(l)(A)(i) of the Act. 8 U.S.C. C) 1153(b)(l)(A)(i). and 8 C.F.R. 5 204.5(h)(3). 
Further, USCIS may, in its discretion. use as advisory opinion statements 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 ol' letters of support from the petitioner's personal contacts in 
not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to 
whether they support the alien's eligibility. ,Tee id at 795. Thus. the content of the writers' 
statements and how they became aware of the petitioner's reputation are important considerations. 
Even when written by independent experts, letters solicited by an alien in support of any 
immigration petition are of less weight than preexisting. independent evidence that one would 
expect of an individual who has sustained national or international acclaim at the very top of the 
field. 
While the letters praise the petitioner for his perforn~ances, the documentation. however, does not 
iw 
sh that his position is leading or critical to the Sugar Rush CalZ. Even the letter from 
indicates that the Sugar Rush Cafe employs other singers and entertainers who have expertise 
in the native cultures of Russia, Ukraine and the former Soviet tinion. The petitioner failed to 
establish how his position as an entertainer and singer at the Sugar Rush Cafe differentiates him from 
other entertainers and singers who also perform there or from the cafe's management. In this case, the 
documentation submitted by the petitioner does not establish that he was responsible for the success 
or standing to a degree consistent with the meaning of "leading or critical role" and indicative of 
sustained national or international acclaim. 
In addition, we are not persuaded by the letters themselves that the Sugar Rush Cafe is an 
establishment that has a distinguished reputation. Simply submitting letters of recommendation which 
state the Sugar Rush Cafe has a distinguished reputation is insufficient for the regulation at 8 C.F.R. 
204.5(h)(3)(viii). The petitioner failed to submit any supporting documentation establishing that 
Sugar Rush Cafe's reputation is different or distinct from other nightclubs or othenvise establishes its 
distinguished reputation. 
Accordingly, the petitioner has not established that he meets this criterion. 
Evidence of conzmercitrl .szlcces.\.e.s in the per:fOrnzing urf.r, us sholvn by box office 
receipts or record, ccusseiie, conzpclcf disk, or video ,s~lle.s. 
The petitioner claims eligibility for this criterion based on the following: 
1. A partial English translation of a radio show. Rhythm, in Vinnitsa, Urkraine (no 
foreign language document or evidence was submitted); 
2. Copy of a contract in a foreign language without any English language 
translations; 
Page 10 
Information from Anlazon.com in a foreign language without any English 
language translations; 
A partial English language translation regarding a contract between the petitioner 
and Magnet Production; 
A partial English language translation regarding a contract with 
ArtStarsStudioSouz; 
A partial English language translation of document regarding two of the 
petitioner's songs; 
Copies of foreign language compact disks and covers without any English 
translations; 
A copy of a compact disk titled. ilnufolij Anloni.therz & "Barhulniy Sezon" 
Group. 90-9 7 Ii.ur\; 
An advertisement fi-om the CII Baby's website for the petitioner's album. Never 
Ending Sto1.y, along with background inforn~ation regarding CD Baby; 
An email from .lames McCullough of IndieRhythm.com. regarding the advertising 
the petitioner's albu~ns on the website: 
An advertisement from CD()~~est.con~ regarding the petitioner's album, Never 
Ending St01.y; 
An advertisement from AudioLunchbox.com regarding the petitioner's album, 
Never Ending Story; 
An advertisement from Indie Star Search's website for the petj tioner's album, 
Never Encling Sto18y; 
An advertisement from Rhapsody.com regarding the petitioner's album, Never 
Ending St01 y; 
A copy of a diploma fron~ the Vinnitsa Region State Adn~inistration of the 
Management of Culture stating that the petitioner was an artistic administrator at 
Vinnitsa Philharmonic Society and a member of two bands; 
A copy of statement from the Department of Culture of the Municipal Palace of 
Arts stating that the petitioner was enlploped in the musical group, The Podol 
cob sucs; 
Copies of two ad\ertisements fhr the Sugar Rush Cafe with a picture of the 
petitioner performing; and 
Letters regarding his perfor-mances at Sugar Rush CaE. 
This regulatory criterion requires evidence of commercial successes in the form of "sales" or 
"receipts." Regarding items 1-7, the petitioner failed to provide full English language translations in 
compliance with the regulation at 8 C.F.R. 9 103.2(b)(3). As such, this evidence will not be 
accorded any weight in this proceeding. Regarding items 8-1 7, while the petitioner has established 
that he created at least two compact disks, advertised his conipact disks on various websites, and 
performed in musical groups, the petitioner failed to submit ally documentation reflecting the sales 
of his compact disks or box office receipts for his performances. The record does not include 
evidence of documented "sales" or "receipts" showing that the petitioner achieved commercial 
successes in the perforniing arts in a manner consistent with sustained national or international 
acclaim at the very top of his field. I'or example. there is no evidence showing that petitioner's 
performances consistently drew record crouds. mere regular sell-out performances, or resulted in 
greater audiences than other similar performances that did not feature him. Further. there is no 
evidence showing, for instance. that the petitioner's musical recordings have generated substantial 
national or international sales. 
Accordingly, the petitioner has not established that he meets this criterion. 
We note here that the petitioner was initially approved with a P-1 nonimmigrant visa and was 
subsequently approved with several P-3 nonimmigrant visas. While USCIS has approved at least 
one P-1 nonimmigrant visa petition filed on behalf of the petitioner. the prior approval does not 
preclude USCIS from denying an immigrant Lisa petition based on a different, if similarly phrased, 
standard. It must be noted that many 1-140 immigrant petitions are denied after USCIS approves 
prior nonimmigrant petitions. See, e.g, Q D~rfcr C'onrzrlting, lnc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Depl. of'Ju,stice. 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brother5 Co. Ltd 
v. Suva, 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 noninimigrant petitions are simply 
approved in error. Q Data C'on5ulting. Inc v. IIVS, 293 F. Supp. 2d at 29-30; see ulso Texas A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556. 2004 WI, 1240482 (5th Cir. 2004) (finding that prior 
approvals do not preclude USCIS from denying an eutznsion 01' the original visa based on a 
reassessment of petitioner'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., Mutter of 
Church Scientologv International, 19 I&N Dec. at 597. It would be absurd to suggest that USCIS 
or any agency must treat acknowledged errors as binding precedent. Su,ssex Engg. Ltd. v. 
Montgomery, 825 F.2d at 1090. 
Furthermore, the AAO's authority over the service ceniers is conlparable to the relationship 
between a court of appeals and a district court. I':\en if'a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiarq. the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiunu I'hilhu~"~nonic Orche,,rru v. INS, 2000 WL 
282785 (E.D. La.), ajf'd 248 F.3d 1 139 (5th Cir. 200 1 ). cert denied. 122 S.C't. 5 1 (200 1 ). 
In this case, we concur with the director's finding that the petitioner has failed to demonstrate his 
receipt of a major, internationally recognized award. or that he meets at least three of the criteria 
that must be satisfied to establish the national or international acclaim necessary to qualify as an 
alien of extraordinary ability. 8 C.F.R. tj 204.5(h)(3). The conclusion we reach by considering the 
evidence to meet each criterion separatelj is consistent with a reiiew 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 kery top of the field of' endeavor. 8 C.F.R. 5 204.5(h)(2). 
While the petitioner has earned the respect and admiration of the individuals offering 
recommendation letters, the petitioner failed to establish that hc has amassed a record of 
accomplishment which places him among that small percentage at the very top of his field. Review 
of the record does not establish that the petitioner has distinguished himself to such an extent that 
Page 12 
he may be said to have achieved sustained national or international acclaim or 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)(l)(A) of 
the Act, and the petition may not be approved. 
The petition will be denied for the above stated reasons, \sit11 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 mith the petitioner. Section 291 of the Act. 8 I1.S.C. 5 1361. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.