dismissed EB-1A Case: Indian Classical Music

identifying data deleted to 
'prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: OFFICE: TEXAS SERVICE CENTER 
FEB 2 1 2012 
INRE:' Petitioner: 
Beneficiary: 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b )(l)(A) of the Immigration and Nationality Act; 8 U.S.c. § 1153(b )(1 )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to "this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have 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, with a fee of $630. 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. 
T~ank you, .. 
~~V; 
~ • ~ ~~:-C:~ 
.<'!l,;.. • .'.d ~~_ •. i' 
--- ~, {"""' __ /1~"-:--"'~} Perry Rhe~......r .... """'" 
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 May 14, 2010, 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 Immigratiori and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), as an 
alien of extraordinary ability as a tabla performer and teacher in Indian classical music. The 
director determined that the petitioner had not established the requisite extraordinary ability, 
failed to submit extensive documentation of his sustained national or international acclaim, and 
failed to establish his intention to continue to work in the United States in his area of expertise. 
Congress set a very high benchmark fqr 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.P.R. § 204.5(h)(3). The implementing regulation at 8 c.P.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.P.R. §§ 204.5(h)(3)(i) 
through (x). The petitioner must submit qualifying evidence under at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel claims that the petitioner meets at least three of the regulatory criteria at 8 
c.P.R. § 204.5(h)(3) and will continue to work in the United States in his area of expertise 
pursuant to section 203(b )(l)(A)(ii) of the Act and ~ c.P.R. § 204.5(h)(5). 
I. Oral Argument 
On appeal, counsel states: 
I would also request oral argument as it is difficult and will also take up a great deal 
of the [AAO's] time and resources to review the voluminous material that needs to 
be presented to establish table playing as an esoteric area of specialty that does not 
fall neatly into the criteria established in 8 c.P.R. §204.5(h)(3). 
The regulations provide that the requesting party must explain in writing why oral argument is 
necessary. Purthermore, U.S. Citizenship and Immigration Services (USCIS) has the sole 
authority to grant or deny a request for oral argument and will grant argument only in cases 
involving unique factors or issues of law tIlat cannot be adequately addressed in writing. See 8 
C.P.R. § 103.3(b). In this instance, counsel identified no unique factors or issues of law to be 
resolved. Further, the AAO is not persu~ded that the reasons for counsel's request are sufficient 
to demonstrate the necessity for an oral argument. Moreover, the written record of proceeding, 
including counsel's brief submitted on appeal, fully represents the facts and issues in this matter. 
Consequently, the request for oral argument is denied. 
Page 3 
. II. 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 
'(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS)' and legacy Immigration and. Naturalization 
Service (INS) have consistently recognized that Congress intended to, set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101
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; 
Page 4 
(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 perfoimed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(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.} 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 raiselin 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 "fmal merits determination" as 
the corollary to this procedure: . " 
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 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individualis 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. § 1153(b)(1)(A)(i). 
/d. at 1119. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a fi~al merits determination. In reviewing Service Center decisions, the 
AAO will apply the test set forth in Kazarian. As the AAO m~intains 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. DOl, ,381 F.3d 143, 145 (3d Cir. 2004) (noting that the AAO conducts 
appellate review on a de novo basis). 
III. Analysis 
A. Evidentiary Criteria 
This petition, filed on April 16, 2010, seeks to classify the petitioner as an alien with 
extraordinary ability as a tabla performer and teacher in Indian classical music. The petitioner 
has submitted evidence pertaining to the following criteria under the regulation at 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. 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. On appeal, counsel claims that the petitioner is ,eligible for this criterion based on the 
following: ' 
1. Taal Mani Award; 
2. Grade "A~' Artist of All India Radio; 
3. . Scheme for Scholarship to Young Artist in Different Cultural Fields; and 
2 On appeal, the petitioner does not claim to meet any criteria not disc.ussed in this decision:· 
Pag~ 6 
4. Gold Medal from the Sangeet Natak Academy. 
The plain language ofthe 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." Moreover, it is the petitioner's burden to establish eligibility for every 
element of this criterion. Not only must the petitioner demonstrate his receipt of prizes and 
awards, he must also demonstrate that those prizes and awards are nationally or internationally 
recognized for excellence in the field of endeavor. In other words, the petitioner must establish 
that his prizes and awards are recognized nationally or internationally for excellence in the field 
beyond the awarding entities. 
petitioner submitted a letter from 
who stated: 
is a non-profit public trust found in 1947 by 
Its mission is the . of Indian classical mUSIC mUSIcal 
artists. Since 1961, has been a more than 10 days 
long, annual music festival where top 
performer[ s] from all over India and the world are invited to perform their genre 
of music in the presence of a distinguished panel of judges and experts in the 
field. Next year we are planning to celebrate our Golden Jubilee year by this 
music festival conducting a 50 day long musical extravaganza. 
During this National event, our panel of judges will observe more than 1000 
invitees, basically upcoming artists, and from this pool selects around 100 
performers as finalists. This group will then be further reviewed, and the absolute 
best performers from these finalists are awarded with the title "Taal Mani" for 
best percussionist? '_' for best Vocalist and instrumentalist, and _ 
_ for best dancer. . 
Although _ provided background information regarding the history and selection process 
for the festival and award,_ failed to indicate or provide any information reflecting that 
the award is nationally or internationally recognized for excellence. There is no evidence 
indicating the national or international recognition for excellence of the award beyond 
_ Moreover, the petitioner failed to submit any independent, objective evidence 
demonstrating that "Taal Mani" is a nationally or internationally recognized prize or award for 
excellence in the field of endeavor. See Braga v. Poulos, No. CV 06 5105 SJO (c. D. CA July 6, 
2007) aff'd 2009 WL 604888 (9
th 
Cir. 2009) (concluding that the AAO did not have t() rely on 
self-sez:ring assertions on the cover of a magazine as to the magazine's status as major media). 
Regarding item 2, at the initial filing of the 
November 24, 1998, to the petitioner from 
who stated: 
° Page 7 
This is with reference to 
basis of your recording of 
by the Music Audition Board, held on the 
recorded earlier at this station. 
We are glad to inform you that you have been found successful and placed in A 
(H) grade offering our a fee of [200 rupees] only. It may be added however that 
broadcast engagement can be offered to you only as and when programme 
exigencies permit. 
It is noted that the documOent appears to be altered with white-out where the "A" grade IS 
indicated. Regardless, on appeal, counsel asserts: 
the world. 
autonomous arm of the 
oasts of millions listeners all 
Middleast [sic], African nations, Fiji, England and its 
programs in 41 languages ad 146 dialects. _selects musicians for their music 
programs based on their stature and ability and grades them according to their 
talent and ability, the highest grade being A. Almost all of the top musicians of 
India still are or have been graded artists of 
To be graded as an artist of is a notabie national achievement as it 
offers broadcast time over the radio to national and international audiences and 
immediate exposure and invitations to perform all over the country and abroad. 
Counsel failed to submit any documentary evidence to support her assertions. The unsupported 
statements of counsel on appeal or in a motion are not evidence and thus are not entitled to any 
evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). The petitioner 
failed to demonstrate that the "A" grade status equates to a prize or award, let alone a nationally 
or internationally recognized prize or award for excellence in the field. Furthermore, the 
petitioner failed to submit any documentary evidence beyond the awarding entity of All India 
Radio to reflect that "A" grade is a nationally or internationally recogllized prize or award for 
excellence consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i). 
Regarding item), on appeal, the petitioner submitted a screenshot from 
reflecting that "[t]his scheme seeks to give assistance to young artists of outstanding promise for 
advanced training within India in the field of Indian Classical Music, Indian Classical Dance, 
Theatre, Visual art, Mime Folk, Traditional and Indigenous Arts and Light Classical Music." 
However, academic study is not a field of endeavor, but training for a future field of endeavor. 
As such, academic schola~ships, student awards, postdoctoral fellowships, and financial aid 
awards cannot be considered nationally or internationally recognized prizes or awards in the 
petitioner's field of endeavor. Moreover, financial aid awards in the form of scholarships are 
reserved for students in need of financial assistance to pay for tuition and not based on 
excellence in the field. Therefore, the petitioner failed to establish that his scholarship is a 
nationally or iI),ternationally recognized prize or award for excellence in the field. Moreover, the 
Page 8 
petitioner failed to submit any documentary evidence beyond the awarding entity to demonstrate 
that the scholarship is recognized nationally or internationally for excellence in the field of 
endeavor. Finally, while they may,be prestigious, scholarships, fellowships, and other sources of 
competitive financial support are not nationally or internationally recognized prizes or awards 
because only other students - not recognized experts in the field - compete for such funding. 
The AAO cannot conclude that receiving funding for one's -academic training constitutes receipt 
of nationally or internationally recognized prizes or .awards for excellence in the field of 
endeavor. Such support funding is presented not to established musicians or artists with active 
professional careers, but rather to students seeking to further their training and experience. 
Academic awards and honors received while preparing for a vocation fall substantially short of 
constituting a national or international prize or award for recognition in the field. 
Regarding item 4, counsel asserts: 
medal awarded by the_ 
cultural arm of •••••••• 
"'v.u ..... ~ .... vu of over 400 contestants. 
In support of counsel's assertions, the petitioner submitted a self-serving declaration/at the initial 
filing of the petition and on appeal. The AAO notes that in the petitioner's first declaration, he 
made no mention of receiving "a gold medal awarded by the ' It is 
further noted that the petitioner claimed that his "parents' house was records are 
no longer available. Moreover, in the petitioner's second declaration submitted on appeal, the 
petitioner briefly claimed that he was "the winner of a Gold Medal for the best tabla artist in the 
year 1977." The petitioner failed to indicate the entity, establishment, or organization that issued 
the medaL Regardless, going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sajfici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg'l Comm'r 1972)). Furthermore,the petitioner failed to submit primary evidence of his 
receipt of the gold medal. The regulation at 8 C.F.R. § 103.2(b)(2)(i) provides that the non­
existence or unavailability of required evidence creates a presumption of ineligibility. According 
to the same regulation, only where the petitioner demonstrates that primary evidence does not 
exist or cannot be obtained may the petitioner rely on secondary evidence and only where 
secondary evidence is demonstrated to be unavailable may 'the petitioner rely on affidavits. In 
this case, the petitioner's self-serving declaration is insufficient to demonstrate that primary , 
evidence and secondary evidence does not exist, as well as. evidence of his receipt of the gold 
medal. 
The AAO notes that while not contested on appeal, the record of proceeding reflects that the 
petitioner submitted a certificate from 
reflecting that the petitioner was recognized for "Best Teacher of the Year" in 2006. However, 
the petitioner failed to submit any documentary evidence establishing that such recognition 
equates to a nationally ,or internationally recognized- prize or award for excellence in the field. 
There is no evidence reflecting that the acknowledgement is recognized beyond _ as a 
nationally or internationally recognized prize or award for excellence. 
Page 9 
As discussed, the plain language of this regulatory criterion specifically requires that the 
petitioner's prizes or awards be nationally or internationally recognized for excellence in his 
field. In this case, the petitioner I failed to demonstrate that his documentary evidence is 
tantamount to nationally or internationally recognized prizes or awards for excellence in the field 
of endeavor. 
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 initial filing of the petition, the petitioner did not claim eligibility for this criterion. On 
. May 4, 2010, the director issued a request for additional evidence pursuant to the regulation at 8 
C.F.R. § 103.2(b)(8) and informed the petitioner that "[t]he record is not supported by evidence 
of [his] membership in any association in the field that requires outstanding achievements of 
their members." In addition, the director informed the petitioner of the eligibility requirements 
and afforded the petitioner the opportunity to submit documentation regarding this criterion. 
However, in response to the director's request, the petitioner did not claim eligibility for this 
criterion and did not submit any additional documentation that pertained to this criterion. In the 
director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. On appeal, counsel claims: 
[The petitioner] could not provide any evidence to claim membership in any 
professional associations in the field, because there are no such associations in 
India or in the U.S. or anywhere else that Appellant is aware of, in the field for 
which he is seeking classification and for which outstanding achievements are 
required to apply for membership. 
/ 
Comparable evidence of accomplishments and achievements as authorized by 8 
C.F.R. 204.5(h)(4), [the petitioner] submits, includes'a series of concerts where 
[the petitioner] was requested by maestro~ and experts in the field ... to 
accompany them on the table at major festivals; others events and also on concert 
tours. 
* * *, 
Since no evidence of [the petitioner's] membership in any professional 
association which requires recognition of outstanding achievements to apply for 
membership, the Director concluded that [the petitioner] did not satisfy this 
criterion. This seems to be a circular argument. This criterion is one of those 
applied to prove extraordinary ability. To require recognition of outstanding 
achievements (extraordinary ability) to prove extraordinary ability does not lead 
Page 10 
to any logical' conclusion. This criterion which apparently was designed for 
scientists and academicians is not applicable to table artists whose achievements 
do not fit into this pigeon hole. [The petitioner] submits that this [is] one of those 
"one size fits all" propositions. Other types of comparable evidence such as those 
presented in the proceeding and subsequent secti~ns should be considered _instead. 
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 ten regulatory categories of evidence to establish the basic eligibility requirements. 
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. The AAO further acknowledges that the regulation at 8 C.F.R. 
§ 204.5(h)(4) provides "[i]f the 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). 
On appeal, the only evidence that was submitted to support the assertions of counsel regarding 
that "there are no such associations in India or in the U.S. or anywhere else that Appellant is 
aware of," is the previously mentioned declaration of the petitioner who stated that "there are no 
professional associatiQns 10 which one belongs or has to belong in order gain recognition and 
thus no criteria for admission or application exist." Going on record witpout supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffici, 22 I&NDec. at 165 (citing Matter of Treasure Craft of 
California, 14 I&N Dec. at 190). As such, the petitioner failed to demonstrate that the regulation 
at 8 C.F.R. § 204.5(h)(3)(ii) does not apply to his occupation as· required pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(4). 
Moreover, there is no indication that eligibility for visa preference in the petitioner's occupation 
as a tabla performer and teacher cannot be established by the ten criteria specified by the 
regulation at 8 C.F.R. § 204.5(h)(3). In fact, as indic~ted in this decision, counsel mentions 
evidence in his brief that specificall y relates to five of the ten criteria at the regulation at 8 C.F.R. 
§ 204.5(h)(3). An inability to meet a criterion, however, is not necessarily evidence that t,he 
criterion does not apply to the petitioner's occupation. Moreover, although the petitioner failed 
t~ claim these additional criteria, the AAO finds that a tabla performer and teacher could perform 
in a leading or critical role pursuant to the regulation. at 8 C.F.R. § 204.5(h)(3)(viii) and could 
have commer~ial successes in the performing arts pursuant to the regulation at 8 C.F.R., 
§ 204.5(h)(3)(x). Counsel provided no documentation as to why these provisions of the 
regulation would not be appropriate to the profession of a'tabla performer and teacher. 
Page 11 
Even· if the petitioner establfshed that he was eligible for the provisions of the regulation at 8 
C.F.R. § 204.5(h)(4), which he clearly did not, the petitioner failed to establish that performing 
with other musicians, even noteworthy musicians·, is comparable to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ii) that 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." 
The regulation at 8 C.F.R. § 204.5(h)( 4) is, not a provision to simply allow an alien to circumvent 
the regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x) when an alien is unable to meet or submit 
documentary evidence of the criteria. In this case, instead of submitting evidence that is 
comparable to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), counsel attempts to diminish the plain 
language of this criterion by claiming that performing with other musicians is comparable to 
being a member of associations that require outstanding achievements, as judged by recognized 
national or international experts. 
Where an alien is simply unable to meet or submit documentary evidence of three of the criteria 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3), the plain language of the regulation at 
8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. The AAO 
notes that the petitioner's performances will be considered under the original contributions 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v). 
Accordingl y, 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. 
The director determined that the petitioner failed to establish eligibility for- this criterion. 
Moreover, the director stated that "[i]n order to meet this criterion, published materials must be 
primarily about the peti~ioner, and be printed in professional or major trade publications or other 
major media." On appeal, counsel claims: . 
The regulations contain no such requirement and the Director has not cited any 
authority for this requirement that the publication must be primarily about the 
petitioner and be printed in professional or major trade publications or othe(' 
major media. The regulations merely require. that that [sic] published material be 
about the alien in professional or major~rade publications or other major media 
relating to the alien's work and does not require that it must be primarily about 
the alien or that the publication has to be printed. The regulations also permit 
"other major media". That would include electronic media like the Internet, 
blogs, twitter, on line availability of newspapers and magazines etc. The living 
language of the regulations permit other types of media to be considered. 
[emphasis in original] r 
-Page 12 
Based on the plain language of the regulation at 8 C.F.R.: § 204.5(h)(3)(iii) that 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," the AAO is not 
persuaded by counsel's argument that the director imposed an inappropriate restriction on the 
evidence presented in support of the petition. As the plain language of'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 in the field for which classification is sought, the director's general statement that the 
material should be "primarily" about the petitioner is not beyond the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii). Moreover, the submission of evidence that simply 
mentions the petitioner's name as one of the performers, quotes the petitioner, or is not otherwise 
about the petitioner fails to equate to published material about the alien relating to his work in 
the field. Furthermore,' the AAO does not find that the director's use of "primarily" means that 
the material must be solely or exclusively about the alien relating to his work. For example, an 
article that discusses multiple individuals regarding their work, in which one of those individuals 
is the petitioner, would generally meet the elements of this criterion. An article that is not about 
the petitioner does not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-
r 820-ECR-R11 at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a show 
are not about the actor). In the case here, which will be discussed in depth below, the petitioner 
submitted material that merely mentioned him as a performer or teacher but was not material 
about him relating to his work. It is insufficient to establish eligibility for this criterion based on 
any material that simply lists, mentions, or indicates the petitioner's name without material that 
is about him relating to his work. The AAO is not persuaded that anytime an alien's name is 
mentioned in the media the alien would automatically qualify for the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). 
Moreover, while the director indicated that the material must be "printed in professional or major 
trade publications or other major media," the AAO is not persuaded that the director's reference 
to "printed" reflected the director's determination that articles posted on the Internet did not 
qualify for this criterion. Further, in today's world, many newspapers and publications, 
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, the AAO 
is not persuaded that international accessibility by itself is a realistic indicator of whether a gtven 
website is "major media." As the AAO is also not persuaded that all articles posted on Internet 
are automatically considered major media, the petitioner must demonstrate that the web sites are 
major media regardless of the status of the printed publications. 
On appeal,counsel claims the following documentation reflects the petitioner's eligibility for 
this criterion: 
1. An article entitled, 
2. An article entitled, unidentified 
date, by 
/ 
Page 13 
3. 
4. 
5. 
6. Screenshots entitled, unidentified date, unidentified 
author 
7. 
Regarding item 1, the article reflects published material about the petitioner relating to his work. 
Regarding item 2, although counsel claimed on appeal that the article was published on 
December 4, 1990, a review of the document fails to indicate the date of publication. The AAO 
must look to the plain language of the documents executed by the petitioner and not to 
subsequent statements of counsel. Matter of Izummi,' 22 I&N Dec. 169: 185 (Comm'r 1998). 
Nonetheless, the article is about a recital in which the petitioner is mentioned one time as playing 
the tabla. The article is not published material about the petitioner relating to his work. Articles 
that are not about the petitioner do not meet this regulatory criterion. See, e.g., Negro-Plumpe v. 
Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (upholding a finding that articles about a show are not 
about the actor). Furthermore, at the initial filing of the petition or in response to the director's 
request for additional evidence pursuant to the regulation at 8 C.F.R. § 103.2(b )(8), the petitioner 
failed to submit any documentary evidence regarding Indian Express. On appeal, counsel claims 
that it is "the third largest circulating daily national and international newspaper in India with a 
circulation of over 300,000 copies nationwide." Counsel failed to submit any documentation to 
support its assertions. The unsupported statements of counsel on appeal or in a motion are not 
evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. at 
188-89 n.6. Instead, counsel referred to a website from Wikipedia without submitting any· . 
documentation from the website. Regardless, as there are no assurances about the reliability of 
the content from this open, user-edited Internet site, the AAO will not assign weight to 
Page 14 
information from Wikipedia. See Laamilem Badasa v. Michael Mukasey, 540 Fjd 909 (8th Cir. 
2008).3 
Regarding item 3, the blurb is about a lecture and demonstration in Tampa, Florida. While the 
petitioner is mentioned as one of the demonstrators, the blurb is not published material about the 
petitioner relating to his work. Articles that are not about the petitioner do not meet this 
regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7. Again, 
the petitioner failed to submit any documentary evidence regarding India Today International at 
the initial filing of the petition or in response to the director's request for additional evidence 
pursuant to the regulation at 8 CF.R. § 103.2(b )(8). On appeal, counsel claimed that India 
Today International "exceeds 1.1 million copies each week with a readership of over 15 
million." Once again, counsel referred to the publication's website without submitting any 
documentation to support its assertions. The unsupported statements of counsel on appeal or in a 
motion are not evidence and thus are not entitled to any evidentiary weight. See INS v. 
Phinpathya, 464 U.S. at 188-89 n.6. Nevertheless, the petitioner failed to submit any 
independent, objective evidence regarding India Today International, so as to demonstrate that is 
a professional or major trade publication or other major media. See Braga v. Poulos, No. CV 06 
5105 SJO (C. D. CA July 6, 2007) aff'd 2009 WL 604888 (9th Cir. 2009) (concluding that the 
AAO did not have to rely on self-serving assertions on the cover of a magazine' as to the 
magazine's status as major media). 
Regarding items 4 and 5, the articles are about the concerts rather than 
about the petitioner relating to his work. While the articles mention the petitioner a few times as 
:being the teacher to students who performed' at the concerts, the fact remains that the articles are 
not published material about the petitioner relating to his work. Articles that are not about the 
petitioner do not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV -820-
ECR-RJJ at *1, *7. The AAO notes that regarding item 5, the petitioner failed to include the 
author of the article as required pursuant to the regulation at 8 CF.R. § 204.5(h)(3)(iii). 
Nonetheless, on appeal, counsel claimed that the "India Herald is a major H~uston community 
newspaper published weekly and has a circulation of over 6,000 in Houston and more in the rest 
of the state." The unsupported statements of counsel on appeal or in a motion are not evidence 
3 See also the online content from http:Uen.wikipedia.orglwikirWikipedia: General disclaimer, accessed on February 
14, 2012, and copy incorporated into the record of proceeding is subject to the following general disclaimer: 
\ 
WIKIPEDIA MAKES N0 GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone 
with an Internet connection to alter its content. Please be advised that nothing found here has 
necessarily been reviewed by people with the expertise required to provide you with complete, 
accurate or reliable information. . .. Wikipedia cannot guarantee the validity of the information 
found here. The content of any given article may recently have been changed, vandalized or 
altered by someone whose opinion does not ,correspond with the state of knowledge in the relevant 
fields. 
Page 15 
and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. at 188-89 
n.6. Regardless, the AAO is not persuaded that a circulation rate of 6,000 per week is 
demonstrative of major media. 
Regarding item 6, on appeal, counsel claimed: 
An article dated •••• 
incredible tabla!" authored by 
newsmagazine, printed and published in New Orleans, Louisiana. (Exhibit 89 to 
the initial petition. A courtesy copy supplied.) The article also appeared on the 
Internet as a blog. It describes the table accompaniment and the 
dexterous interplay between the tabla player and the lead artist he was 
accompanying. 
A review of the record of proceeding, specifically Exhibit 89, fails to reflect that the petitioner 
submitted the article at the initial filing of the petition. In fact, Exhibit 89 is a CD cover for The 
Front Row Vol. 3 in which the petitioner is credited with on track number 13. On 
appeal, the "courtesy copy" is screenshots entitled that contains a picture 
of the petitioner with a caption stating played some incredible tabla!" 
from In fact, the screenshots are about a festival at Southern University 
of New Orleans,' Louisiana that mentioned the petitioner one time as playing the tabla. 
s, there is no evidence to support counsel's claims that the screenshot was published in 
as well as any evidence to demonstrate that or •••••• 
•••• is a professional. or major trade publication or other major media. The AAO notes 
that the petitioner failed to include the date and author of the screenshot as required pursuant to 
the regulation at 8 c.P.R. § 204.5(h)(3)(iii). 
Regarding item 7, the article was published after the filing of the petition. Eligibility must be 
established at the time of filing. Therefore, the AAO will not consider this item as evidence to 
establish the petitioner's eligibility. 8 c.P.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N 
Dec. 45~ 49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 
(Comm'r 1998). That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 
(BIA 1981), that USCIS cannot "consider facts that come into being only subsequent to the 
of a petition." /d. at 176. Notwithstanding, the article ·is about a concert at the 
rather than published material about the petitioner relating to his work. Once again, the 
petitioner failed to establish that _is a professional or major trade publication or 
other major media. 
The AAO notes that the record of proceeding contains several newspaper articles and 
screenshots that were not contested on appeal by counseL A review of the documentary 
evidence fails to reflect any published material about the petitioner relating to his work in 
professional or major trade publications or other major media consistent with the plain language 
of the regulation at 8 C.P.R. § 204.5(h)(3)(iii). The articles and screenshots briefly mention the 
Page 16 
, , 
petitioner as one of several performers in concerts, festivals; and cultural events but do not 
reflect published material about the petition~r relating to his work. In addition, the petitioner 
failed to submit any documentary evidence to establish that the blications, such as 
are professional or 
major trade publications or other major media. 
Accordingly, the petitioner faih~d to establish that he meets this criterion. 
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. 
The director determined that the petitioner failed to establish' eligibility for this criterion. On 
appeal, counsel claims: 
[The has students III 
as 
in Tampa, Florida and at 
for Indian Performing IS currently employed. He is invited by 
local schools and other institutions to judge music ,and dance competitions. 
He' has also been invited to judge senior vocal and percussion students in music 
competitions nationwide, while on the faculty of the University of_Students 
at the university came not only from different corners of the country but also from, 
all over the world. 
At the several music festivals he was invited to perform, he was also invited to r 
judge the performance of young, upcoming artists for the award of prizes, 
sometimes as an individual judge and at other times as a member of a panel of 
judges. 
In support of counsel's assertions, coUnsel refers to the previously mentioned declarations made 
by the petitioner. However, the petitioner failed to submit any documentation to support his 
assertions in his declarations. Going On record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. at 190). 
Notwithstanding, the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires evidence that the petitioner 
has served as "a judge of the work of others.", Serving as a teacher as part of one's job does not 
equate to participation as a judge of the work of others in the field. The phrase "a judge" implies 
a formal designation in a judging capacity, either on a panel or individually as specified at 8 
C.F.R. § 204.5(h)(3)(iv). The regulation cannot be read to include every informal instance of 
teaching in a clf[ssroom setting. , Furthermore, while counse! claimed that the petitioner was 
Page 17 
invited to judge student competitions and music festivals, the plain language of this regulatory 
criterion specifically requires "the alien's participation ... as the judge of the work of others." 
The mere invitation to serve as a judge without documentary evidence of actually judging is 
insufficient to meet the plain language of the regulation. . 
For the reasons discussed above, the petitioner failed to demonstrate that he has served as a judge 
of the work of others in the same or an allied field of specification for which classification is 
sought consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
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. . 
In the director's decision, he determined that the petitioner failed to establish-eligibility for this 
criterion. 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." 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." The phrase 
"major significance" is not superfluous and, thus, it has some meaning. Silverman v. Eastrich 
Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3fd Cir. 1995) quoted in APWU v. Potter; 343 F.3d 
619,626 (2nd Cir. Sep 15/2003). . .. 
A review of the record of proceeding reflects that the petitioner claims eligibility: for this 
criterion based on recommendation letters. While the recommendation letters praise the 
petitioner for his work, they fail to indicate that his contributions are of major significance in the 
field. The letters provide only general statements without offering any specific information to 
establish how the petitioner's work has been of major significance. For instance, 
_ stated that the petitioner's "extraordinary ability in developing new techniques or 
embellishing old techniques developed by his guru ... is truly astounding." However,_ 
•••• failed to identify the '''new techniques" and how they are of major significance in the 
field. failed to discuss the impact or influence of the petitioner's work on the 
field, so as to demonstrate original contributions of major significance in the field. 
· " . 
Moreover, the majority of the petitioner's recommendation letters briefly discussed the 
petitioner's "rare," "versatile," and "diverse" talents and experience. For example, _ 
_ stated that the petitioner's experience in forms of Indian classical music "has . ven him a 
diverse skill set which places him apart from other regular Tabla players." Further, 
stated that the petitioner "is one of the very, very few percussionists who can play the broad-head 
tabla." In addition, stated that the pet!tioner's "talents are versatile." 
However, none of the letters indicated how the petitioner's skills, experience, or personal traits 
are original contributions of major significance to the field. Merely having a diverse skill set is 
not a contribution of major significance in and of itself. Rather, the record must be supported by 
evidence that the petitioner has already used those uniquF skills to impact the field at a 
Page 18 . 
significant level in an original way. Furthermore, assuming the petitioner's skills are unique, the 
classification sought was not designed merely t6 alleviate skill shortages in a given field. In fact, 
that issue properly falls under the jurisdictiop of the Department of Labor through the alien 
employment labor certification process. See Matter of New York State Department of 
Transportation, 22 I&N Dec. 215,221 (Comm'r 1998). 
I 
The petitioner also submitted letters who 
made general statements regarding the s contributions to the Houston, Texas area such 
as "[p]rior to [the petitioner] moving to Houston, there was little opportunity to listen to and 
especially learn about Indian music, and now we have access to his exceptional performances." 
While the petitioner has demonstrated that he has performed and taught students, there is no 
documentary evidence to reflect the significance of the petitioner's contributions beyond the 
Houston area, let alone that his contributions have been of major significance in the field. 
While those familiar with the. petitioner's work generally describe it as "invaluable," 
"irreplaceable," and "extraordinary," there is insufficient documentary evidence demonstrating 
that the petitioner's work is of major significance. This regulatory criterion not only requires the 
petitioner to make original contributions, the regulatory criterion also requires those 
contributions to be of major significance. The AAO is not persuaded by vague, solicited letters 
that simply repeat the regulatory language but do not explain how the petitioner's contributions 
have already influenced the field. Merely repeating the language of the statute or regulations 
does not satisfy the petitioner's burden of proof. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 
1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. 
Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). The lack of supporting evidence gives the AAO 
no basis to gauge the significance of the petitioner's present contributions. 
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 (Comm'r 1988). 
However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. !d. 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; see also 
Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008). 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 an immigration 
petition are of less weight than preexisting, independent evidence of original contributions of 
major significance. ~ 
The record of proceeding also reflects that the petitioner submitted numerous concerts, programs, 
and other documentation reflecting that the petitioner performed and accompanied other artists at 
various concerts, festivals, and events. However, as the petitioner is a tabla player, it is expected 
that the petitioner will perform on stage or in front of an audience. However, merely performing, 
even if the performance is considered noteworthy, does not equate to original contributions of 
major significance in the field. The petitioner failed to submit any evidence showing that the 
Page 19 
\ 
petitioner's performances have considerably influenced the field or have otherwise significantly 
impacted the field. Again, while the petitioner;s performances demo'nstrate that his work may be 
original, the AAO is not persuaded that such performances are sufficient evidence establishing 
that they have been of major significance to the field as a whole rather than limited to the events 
or engagements in which they were performed. 
c. 
Again, 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 [emphasis added]." Without additional, specific evidence 
showing that the petitioner's work has been unusually influential, widely applied throughout his 
field, or has otherwise risen to the level of contributions of major significance, the AAO 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. 
The director determined that the petitionef'failed to establish eligibility for this criterion. 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." The petitioner is a tabla 
player. When he is performing or playing his tabla before ·an audience, he is not displaying his 
music in the same sense that a painter or sculptor displays his 'or her work in a gallery or 
museum. The petitioner is performing his work, he is not displaying his work. In addition, to 
the extent that the petitioner is a performing artist, it is inherent to his occupation to perform. 
Not every performance is an artistic exhibition designed to showcase the performer's art. If the 
AAO was to accept that a performance artist like the petitioner meets this criterion, it would 
render the regulatory requirement that the petitioner meet at least three criteria meaningless. The 
ten criteria in the regulations are designed to cover different areas; not every criterion will apply 
to every occupation. 
The interpretation that 8 C.P.R. § 204.5(h)(3)(vii) is limited to the visual arts)is longstanding and 
has been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, 
*7 (upholding an interpretation that performances by a performing artist do not fall under 8 
c.P.R. § 204.5(h)(3)(vii)). As the petitioner is not a visual artist and has not created tangible 
pieces of art that were on display at exhibitions or showcases, the petitioner has not submitted 
qualifying evidence that meets the plain language requirements of the regulation at 8 C.P.R. 
§ 204.5(h)(3)(vii). The AAO notes that the petitioner's performances were considered under the 
original contributions criterion pursuant to the regulation at 8 c.P.R. § 204.5(h)(3)(v). 
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. 
Page 20 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
criterion. On appeal, counsel claims the petitioner's eligibility for this criterion based on the 
following documentation: 
1. 2009 Form 1040 along with Schedule C (Profit Loss From Business) 
reflecting a net profit of $66,325; 
2. 2008 Form 1040 along with Schedule C reflecting a net profit of $65,287; 
3. A letter, dated MaY,6, 2010, from_who stated: 
The average remuneration for an accompanying 
percussionist varies from $200 to $400 per show. Since 
[the petitioner] is an extraordinary artist possessing rare 
talent and drawing large audiences for his concerts, he is 
paid $1000 to $1200 per concert, which is 3 to 4 times what 
is typically paid to other musicians; 
4. A letter, dated February 12, 2007, from who praised the 
petitioner for pis work as a tabla player and teacher; 
5. The previously discussed letter from and. 
6. Screenshots from _ regarding the Occupational Outlook 
Handbook (OOH) r~the highest ten percent for singers and 
musicians earned more than $59.92 per hour, and the highest ten percent 
for salaried music directors and composers earned more than $107,280. 
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]." Regarding items 1 and 2, a review of the 
Schedule Cs reflect that the petitioner operates a music school. However, the petitioner is 
seeking classification as an alien of extraordinary ability as a tabla performer and teacher rather 
than as a proprietor. See Lee v. I.N.s., 237 F. Supp. 2d 914 (N.D. Ill. 2002) (upholding a finding 
that competitive athletics and coaching are· not within the same area of expertise). Regardless, 
the petitioner failed to submit any documentary evidence that shows his earnings as a proprietor 
is high when compared to other music school proprietors. 
Regarding items 3 - 5, counsel claimed: 
, 
All three letters from three different organizations who employ tabla players for 
their performances, state that the average remuneration they offer and have 
offered to tabla players is in the range of $200 to $400, and that [the petitioner] 
routinely receives upwards of $1000 to $1200 per concert, which is substantially 
Page 21 
higher than the going rate for Indian tabla players all over the U.S., 'which 
averages $200-400. Such statistics are, however, are not in the public domain and \ . 
are not freely available. Music and concer,t presenters generally keep the salaries 
paid to their musicians strictly confidential because it gives them an advantage in.' 
the salary negotiation process. 
Contrary to counsel's assertions, all three letters do not reflect the average remuneration for tabla 
players. As demonstrated above, items 4 and 5 make no reference to average remuneration for 
tabla players, nor do they indicate the remuneratiohthat has been commanded by the petitioner. 
Moreover, counsel failed to submit any documentation to support his assertions regarding the· 
non-availability of musicians' salaries from music and concert presenters. The unsupported 
statements of counsel on appeal 'or in a motion are not evidence and thus are not entitled to any 
evidentiary weight. See INS v. Phinpathya, 464 U.S. at 188-89 n.6. 
Furthermore, the letter from is not primary evidence, such as evidence reflecting 
payment, paystubs, or income tax documentation, of his salary or remuneration for services as 
required pursuant to the regulation at 8 C.F.R. § 103.2(b)(8). Moreover, while_ 
indicated that the petitioner is paid $1000 to $1200 per concert, the petitioner's income tax 
documentation does not support letter. According to the petitioner's 2008 and 
2009 income tax documentation, the petitioner's yearly income was based entirely as a proprietor 
of a music school. The petitioner's income tax documentation does not reflect any wages earned 
as a performer at the time of filing of the petition. In addition, the AAO is not persuaded that the 
petitioner's submission of a sole letter that only refers to a single organization's payment for 
performances demonstrates that the petitioner has commanded a significantly high remuneration 
for services when compared to others in his field as a whole. 
The AAO notes that the record of 
from who 
in?icated,that ~he petitioner would b~ paid ,000 per. year. Not~ithstanding th~etitioner 
faIled to submirany documentary eVIdence demonstratmg that he IS employed by_ and has 
earned the offered salary, the $35,000 salary is substantially smaller than the top ten percent of 
salaries from the OOH. 
Again, the plain language of the regulation at 8C.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." For the reasons discussed, the petitioner failed to submit 
sufficient documentary evidence establishing that he has commanded a high salary or other 
significantly high remuneration for services compared to others in the field. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, the AAO must next conduct a final merits 
determination that considers all of the eviderice in the context of whether or not the petitioner has 
-Page 22 
demonstrated: (1) a- "level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the[ir] field of endeavor," 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 )(I)(A)(i) of the 
Act, 8 U.S.C. § 1153(b)(I)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1115. The petitioner failed to meet the plain langua'ge for any of the criteria, in 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 the 
AAO's preceding discussion of the regulatory criteria at 8 C.F.R. § 204.S(h)(3). 
In evaluating the AAO's final merits determination, the AAO must look at the totality of the 
evidence to determine the petitioner's eligibility pursuant to section 203(b)(1 )(A) of the Act. In 
. this case, the petitioner has garnered some locally recognized awards, has had his name 
mentioned in articles as being a participant at various local and regional festivals and concerts, 
and has taught students in the Tampa, Florida and Houston, Texas area. However, the personal· 
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)(I)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.S(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) 
The AAO 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 )(I)(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 t4is 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, counsel makes several assertions on appeal without 
any supporting documentary evidence. The unsupported statements of counsel on appeal or in a 
motion are not 'evidence and thus are not entitied to any evidentiary weight. See INS v. 
Phinpathya, 464 U.S. at 188-89, n.6. Mor~over, counsel makes numerous references to the 
petitioner's self-serving declarations without submitting any documentation to support the 
petitioner's claims. Going on record with()ut supporting documentary evidence is npt sufficient 
/ 
Page 23 
for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 
at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. at 190). Furtherrriore, the 
petitioner failed to submit primary evidence for several of the criteria as required pursuant to the 
regulation at 8 C.F.R. § 103.2(b)(8). In addition, it must be e'mphasized that the favorable 
opinions of experts in the field, while not without evidentiary weight, are nota solid basis for a 
successful extraordinary ability claim. Again, USCIS may, in its discretion, use as advisory 
opinions statements submitted as expert testimony. See Matter' of Caron International, 19 I&N 
Dec. at 795. However, USCIS is ultimately responsible for making the final determination 
regarding an alien's eligibility for the benefit sought. Id. The submission of letters from 
individuals, especially when they are colleagueS of the petitioner without any prior knowledge of 
the petitioner's work, supporting the petition is not presumptive evidence of eligibility; USCIS 
may evaluate the content of those letters as to whether they support the alien's eligibility. See id. 
at 795-796; see also Matter of V-K-, 24 I&N Dec. at' 500, n.2. The AAO is not persuaded that 
such evid~nce equates to "extensive documentation" and is demonstrative of this highly 
restrictive classification. The truth is to be determined not by the quantity of evidence alone but 
by its quality. Matter of Chawathe, 25 I&N Dec., 369 (AAO 2010) citing Matter of E-M- 20 
I&N Dec. 77, 80 (Comm'r 1989). 
The evidence of record falls short of demonstratirig the' petitioner's sustained national or 
international acclaim as a tabla player or teacher. The regulation at 8 C.F.R. § 204.5(h)(3,) 
requires "[a] petition for an alien of extraordinary ability must be accompanied by evidence that 
the alien has sustained national or international acclaim and this his or her achievements have 
been recognized in the field of expertise." While the petitioner submitted documentation 
demonstrating that he has participated in numerous concerts and has been briefly mentioned in 
publications, the documentary evidence is not consistent with or indicative of sustained national 
or international acclaim. 
I 
USCIS has long held that even athletes perfprming at the major league level do not automatically 
meet the statutory standards for immigrant classification as an alien of "extraordinru:y ability." 
Matter of Price, 20 I&N Dec. 953, '954 (Assoc. Comm'r'1994); 56 Ped. Reg. at 60899. In 
Matter of Racine, 1995 WL 153319 at *1, *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison 
is not a compa~ison of _ ability with that of all the hockey players at all 
levels of play; but rathe_ ability as a professional hockey player within 
the NHL. This interpretation is consistent with at least one other court in this 
district, Crimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the 
definition of tHe term 8 C.F.R.· § 204.5(h)(2), and the discussion set forth in the 
I 
preamble at 56 Fed. Reg. 60898-99, 
The court's reasoning indicates that USCIS' interpretation of the regulation at 8 c.P.R. 
§ 204.5(h)(2) is reasonable. Likewise, it does not follow that the petitioner who has not offered 
any evidence that distinguishes him from others' in his field, should necessarily qualify for 
approval of an extraordinary ability employment-based visa petition. To find otherwise would 
.. 
Page 24 
contravene the regulatory requirement at 8 c'P.R. § 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, field of 
endeavor." 
The conclusion the AAO reaches by considering the evidence to meet each category of evidence 
at 8 C.P.R. § 204.5(h)(3) separately is consistent with a review of the evidence in the aggregate. 
Ultimately, the evidence in the aggregate does not distinguish the petitioner as one of that small 
percentage who has risen to the very top of the field of endeavor. 8 C.P.R. § 204.5(h)(2). The ) 
petitioner seeks a highly restrictive visa classification, intended for individuals at the top of their 
respective fields, rather than for individuals progressing toward the top at some unspecified 
future time. In this case, the petitioner has not established that his achievements at the time of 
filing the petition were commensurate with sustained national or international acclaim, or that he 
was among that small percentage at the very top of the field of endeavor. 
IV. Intent to Continue to Work in the Area of Expertise in the United States 
The director determined that the petitioner failed to establish his intent to continue to work in his 
area of expertise as a tabla performer and teacher. On appeal, counsel claims: 
[The petitioner] respectfully submits that he has, by clear evidence submitted, that 
he is a tabla player and teacher and has continued in that field for more than thirty 
years and has not worked in any other field. He continues to work in that field 
and will continue to work in that field. He Kcurrently employed, as the Director 
of Percussion on a permanent basis with the _ and has plans' to continue in 
that capacity and, if and when his petitioner for immigrant visa petition is granted, 
plans to establish his own school of tabla and Indian percussion based on the age­
old guru-sishya parampara geared not only towards students who live with and 
learn from the guru on a full time basis but also to part-time students who are 
employed in other fields to make a living. 
The regulation at 8 c'P.R. § 204.5(h)(5) states: 
Neither an offer for employment in the United States nor a labor certification is 
required for this classification; however, the petition must be accompanied by 
clear evidence that the alien is coming to the United States to continue work in the 
area of expertise. Such' evidence may include letter(s) from prospective 
employer(s), evidence of prearranged commitments such as contracts, or a 
statement from the beneficiary detailing plans on how he or she intends to 
continue his or her work in the United States. 
While the petition was filed on April 16, 2010, the petitioner submitted the previously discussed 
job offer letter, dated January 5, 2007, offering employment at _as the "director of 
percussion." However, as discussed under'the high salary criterion pursuant to the regulation at 
8 C.P.R. § 204.5(h)(3)(ix), the petition has been operating a music school as a proprietor since at 
Page 25 
least from 2008. See Lee v. I.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 2002) (upholding a finding that 
competitive athletics and coaching are not within the same area of expertise y. Moreover, while 
the job letter indicates that the petitioner will earn $35,000 per year, the petitioner's profit from 
his music school is almost twice that amount. Furthermore, the petitioner failed to submit an 
updated job letter evidencing that he intends to pursue employment with or that he is 
actually employed by _ Finally, the record of proceeding fails to support counsel's 
assertions on appeal. The unsupported statements of cOllnsel on appeal or in a motion are not 
evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 464 U.S. at 
188-89, n.6. There is no evidence indicating that the petitioner is currently employed QY_ 
and the record reflects that the petitioner is already operating his own music school rather than he 
''plans to establish his own school of tabla and Indian percussion [emphasis added]" as claimed 
by counsel. Again, operating a music school is not in the petitioner's field of expertise. 
For the reasons discussed above, the petItioner failed to establish that he will continue in his area 
of expertise in the United States under section 203(b)(1)(A)(ii) of the Act and the regulation at 8 
C.F.R. § 204.5(h)(5). 
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 natiomil or 
international level. Therefore, the petitioner has not established eligibility pursuant to section 
203(b)(1)(A)(i) and (ii) of the Act, and the petition may not be approved. 
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 Soltane v. DOl, 381 F.3d at 145 (noting that the AAO conducts 
appellate review on a de novo basis). Y 
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. § 136l. 
Here, that burden has not been met. 
ORDER: The appeal is dismissed.