dismissed EB-1A Case: Music

(b)(6)
U.S. Department of Hom eland Securi ty 
U.S. Citizenship and Immigration Service 
AdministTative Appeals Office (AAO) 
20 tv1assachusetts Ave., N.W., !VIS 2090 
Washin£ton, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUN 2 8 2013 Office: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION : Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S. C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office . 
If you believe the AAO inappropriately applied the law in reaching its deci sion, or you have additional 
information that you wish to have considered , you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Fonn I-290B , Notice of Appeal or Motion, with a fee of $630 . The 
specific requirement s for filing such a motion can be found at 8 C.P.R.§ 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R . § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen . 
Thank you, 
)))]e_a;}ndL 
( ) Ron Rosenberg 
<t Acting Chief, Admini strative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petitioner filed a subsequent appeal. The Administrative Appeals 
Office (AAO) determined that the appeal was not filed in a timely manner. The AAO rejected 
the appeal without rendering a decision on the merits of the case. The matter is now before the 
AAO on motion to reopen and reconsider. The motion \Viii be granted, the previous decision of the 
AAO rejecting the appeal as untimely filed with be withdrawn, the decision of the director \Vill be 
affirmed. 
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 as a Christian musician and songwriter. The director 
determined that the petitioner had not met the requisite criteria for classification as an alien 
extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate the alien's "sustained national or international acclaim" and 
present "extensive documentation" of the alien's achievements. See section 203(b )(1 )(A)(i) of the 
Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. The director determined that 
the petitioner's evidence had met the categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(iv) and (vii). 
Counsel asserts that the petitioner has received major, internationally recognized awards and that the 
petitioner meets the regulatory categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(i), (v), and (x). 
For the reasons discussed below, the AAO will uphold the director's decision. 
I. LAW 
Section 203(b) ofthe 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, 
(b)(6)
Page 3 
(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 hnmigration 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 101st 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. /d.; 8 C.P.R. § 204.5(h)(2). 
The regulation at 8 C.P.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien' s 
sustained acclaim and the recognition of his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Comt of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009) aff'd in 
part 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.1 With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court 
concluded that while USCIS may have raised legitimate concerns about the significance of the 
evidence submitted to meet those two criteria, those concerns should have been raised in a 
subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
to satisfy the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.P.R.§ 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this matter, the AAO will review the 
evidence under the plain language requirements of each criterion claimed. As the petitioner did not 
submit qualifying evidence under at least three criteria, the proper conclusion is that the petitioner 
has failed to satisfy the regulatory requirement of three types of evidence. I d. 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirement s 
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). 
(b)(6)
Page4 
II. ANALYSIS 
A. One-time Achievement (that is, a major, internationally recognized award) 
The implementing regulation at 8 C.F.R. · § 204.5(h)(3) states that an alien can establish sustained 
national or international acclaim through evidence of a one-time achievement, specifically a major, 
internationally recognized award. 
The petitioner submitted a certificate from the 
stating that he was a nominee in the category " ' as voted 
by the membership of the . The petitioner also submitted a certificate 
from the stating that the album " ' by 
was nominated for a in the category ' 
' in 2011. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3), however, 
specifically requires a major, internationally recognized award, not a nomination. Earning a 
nomination is not equivalent to receiving a major, internationally recognized award. 
On appeal, counsel points to the 0-1 nonimmigrant regulation at 8 C.F.R. § 214.2(o)(3)(v)(A) 
relating to "an alien of extraordinary achievement in the motion picture or television industry." 
Counsel asserts that USCIS "is erroneously applying an undisclosed legal requirement that 
nominations for internationally recognized awards can be considered for the purposes of a non­
immigrant visa, but cannot be given the same weight in an immigrant visa application." First, the 
petitioner does not work in the motion picture or television industry. Second, in contrast to the 
nonimmigrant requirements, the immigrant regulations do not provide for nominations. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3) specifically requires the alien's receipt of a 
major, internationally recognized "award." 
Although the words "extraordinary ability" are used in the Act for classification of artists under both 
the nonimmigrant 0-1 and the first preference employment-b.ased immigrant categories, the statute 
and regulations defme the term differently for each classification. Section 10l(a)(46) of the Act 
states, "The term 'extraordinary ability' means, for purposes of section 10l(a)(l5)(0)(i), in the case 
of the arts, distinction." The 0-1 regulation reiterates that "[ e ]xtraordinary ability in the field of 
arts means distinction." 8 C.F.R. § 214.2(o)(3)(ii). "Distinction" is a lower standard than that 
required for the immigrant classification, which defines extraordinary ability as "a level of expertise 
indicating that the individual is one of that small percentage who have risen to the very top of the 
field of endeavor." 8 C.F.R. § 204.5(h)(2). The evidentiary criteria for these two classifications 
also differ in several respects, for example, nominations for awards or prizes are acceptable 
evidence of 0-1 nonimmigrant eligibility, 8 C.F.R. § 214.2(o)(3)(iv)(A) and 8 C.F.R. 
§ 214.2(o)(3)(v)(A), but the immigrant classification sought by the petitioner specifically requires 
actual receipt of a major, internationally recognized award, 8 C.F.R. § 204.5(h)(3), or nationally or 
internationally recognized prizes or awards. 8 C.F.R. § 204.5(h)(3)(i). 
The petitioner submitted a list of numerous ' from the 
website indicating that " won the ' 
' category. The petitioner's name does not appear on the list of '' 
(b)(6)
Page 5 
' and there is no documentary evidence demonstrating his receipt of the 
Instead, the award was received by 
the performing artist 
May 22, 2012letter from 
(whose real name is r. The petitioner submitted a 
stating: 
My name is 
moniker 
aka . Over the past 11 years I have used the 
to organically build my fan base playing hundreds of shows on three 
continents. In 2006, we released from which the rock anthem " ' featuring 
became a global hit. In 2008, we followed up 
with which catapulted success garnering multiple TV placements . . . . In 
2010, we released our most critically acclaimed project, 
* * * 
[The petitioner] and I have collaborated on numerous projects in the past and it is my plan to 
continue to work with [the petitioner] in the future on our upcoming projects. 
I have had great success working with [the petitioner] in the past. [The petitioner] has 
worked as a songwriter, producer and performer on the following songs: 
1. 
2. 
3. 
4. 
5. 
6. 
In addition, the petitioner submitted the album credits for confirming that he contributed 
to only two songs on the ten-song album. is credited for all ten songs on 
album, is credited for nine songs, and is credited for three songs. 
As the "( submitted by the petitioner list " '' not 
the petitioner, as the 'winner, and the petitioner contributed 
to only two songs on that album, the petitioner has failed to establish that the 
primarily recognized the petitioner's specific work rather than that of 
In response to the director's request for ~vidence, the petitioner submitted documentation from the 
by' ''won" 
group won 
petitioner also submitted information about the 
website that states: ' 
indicating that 
' and that the song " ' by the music 
' in October 20 11 ? The 
from the ---
were handed 
out 2011 in Canada." In addition, the petitioner submitted a certificate from 
2 The petitioner submitted the album credits for album indicating that he co-
wrote the song lyrics for '' 'and performed on the album. 
(b)(6)
Page6 
the stating that the album ' 
" by was nominated for a m the category ' 
in 2012. The received by 
and on , 2011 and l nomination post-date 
the petition's September 6, 2011 filing date. Eligibility, however, must be established at the time 
of filing. 8 e.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l eornm'r 
1971). A petition cannot be approved at a future date after the petitioner becomes eligible under 
a new set of facts. Matter of /zummi, 22 I&N Dec. 169, 175 (eornm'r 1998). That decision 
further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USeiS cannot 
"consider facts that come into being only subsequent to the filing of a petition." /d. at 176. 
Accordingly, the AAO will not consider the received by and 
on , 2011 and nomination as evidence in 
support of the petitioner's eligibility. 
The petitioner's evidence included information from the online encyclopedia Wikipedia about the 
the 
and the . With 
regard to information from Wikipedia, there are no assurances about the reliability of the content 
from this open, user-edited internet site.3 See Lamilem Badasa v. Michael Mukasey, 540 F.3d 
909 (8th eir. 2008). Accordingly, users will not assign weight to information for which 
Wikipedia is the source. The petitioner also submitted guidelines announced by the 
information about the from 
the website of the and information about the 
from the website of the Regarding the preceding information 
originating from the awards' presenters, USeiS need not rely on self-promotional material. See 
Braga v. Poulos, No. ev 06 5105 SJO, aff'd 317 Fed. Appx. 680 (e.A.9) (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). There is no reliable, objective documentary evidence showing that the 
, the 
and the ; are 
commensurate with major, internationally recognized awards. 
3 Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO 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. 
See http://en. wikipedia.org/wiki/Wikipedia:General disclaimer, accessed on May 30, 2013, copy incorporated into 
the record of proceeding. 
(b)(6)
Page 7 
Given Congress' intent to restrict this category to "that small percentage of individuals who have 
risen to the very top of their field of endeavor," the regulation permitting eligibility based on a 
one-time achievement must be interpreted very narrowly, with only a small handful of awards 
qualifying as major, internationally recognized awards. See H.R. Rep. 101-723, 59 (Sept. 19, 
1990), reprinted in 1990 U.S.C.C.A.N. 6710, 1990 WL 200418 at *6739. Given that the House 
Report specifically cited to the Nobel Prize as an example of a one-time achievement, examples 
of one-time awards which enjoy major, international recognition may include the Pulitzer Prize, 
the Academy Award, and an Olympic Medal. The regulation is consistent with this legislative 
history, stating that a one-time achievement must be a major, internationally recognized award. 
8 C.F.R. § 204.5(h)(3). The selection of Nobel Laureates, the example provided by Congress, is 
reported in the top media internationally regardless of the nationality of the awardees, is a familiar 
name to the public at large, and includes a large cash prize. While an internationally recognized 
award could conceivably constitute a one-time achievement without meeting all of those elements, 
it is clear from the example provided by Congress that the award must be internationally recognized 
in the alien's field as one of the top awards in that field. 
ln this instance, the petitioner has failed to submit evidence showing that was the recipient of a 
major, internationally recognized award. Accordingly, the petitioner has failed to demonstrate 
evidence of a qualifying one-time achievement pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3). 
B. Evidentiary Criteria4 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted a certificate from the 
that he was a nominee in the category ' 
membership of the 
stating 
' as voted by the 
The petitioner also submitted a certificate from the 
stating that the album •· '' by 
was nominated for a in the category '' 
" in 2011. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i), however, 
specifically requires evidence of "the alien's receipt" of "nationally or internationally recognized 
prizes or awards" for excellence in the field of endeavor, not receipt of nominations. Earning 
nominations is not equivalent to receiving nationally or internationally recognized prizes or 
awards for excellence in the field. 
The _IJetitioner submitted a list of numerous ' ' from the 
website indicating that " ' won the ' 
' category. As previously discussed, the petitioner's name does not appear on the list of 
" and there is no documentary evidence demonstrating his receipt 
4 
On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. Therefore, the AAO has not considered whether the petitioner meets the remaining categories of evidence. 
(b)(6)
Page 8 
of the Instead, the award was received by the 
performing artist The petitioner also submitted the album credits for 
confirming that he contributed to only two songs on the ten-song album. As the 
' submitted by the petitioner list " " not the 
petitioner, as the _ _ _ 'winner, and the petitioner contributed to 
only two songs on the ten-song album, it has not been established that the 
primarily recognized the petitioner's specific work rather than that of. 
In response to the director's request for evidence, the petitioner submitted documentation from the 
indicating that 
by' 'won' " and that the song " ' by the music 
group won' :" in October 2011. The 
petitioner also submitted information about the 
website that states: '" 
from the 
were handed 
out 2011 in Canada." In addition, the petitioner submitted a certificate from 
the stating that the album ' 
" by was nominated for a m the category ' 
'in 2012. The received by 
and on 2011 and nomination post-date 
the petition's September 6, 2011 filing date. As previously discussed, eligibility must be 
established at the time of filing. 8 C.P.R.§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 
at 49. Accordingly, the AAO will not consider the received by 
and on , 2011 and nomination as 
evidence in support of the petitioner's eligibility. 
The petitioner submitted information from the online encyclopedia Wikipedia about the 
, the 
, and the .. As previously 
discussed, there are no assurances about the reliability of Wikipedia's online content. See 
Larnilern Badasa v. Michael Mukasey, 540 F.3d at 909. Accordingly, USCIS will not assign 
weight to information for which Wikipedia is the source. The petitioner also submitted 
guidelines announced by the 
information about the from the website of the 
and information about the from the website of the 
The preceding information originating from the presenting organizations is not 
sufficient to demonstrate the national or international recognition of the awards claimed by the 
petitioner. Once again, USCIS need not rely on self-promotional material. The plain language of 
the regulation at 8 C.P.R. § 204.5(h)(3)(i) specifically requires that the petitioner's awards be 
nationally or internationally recognized in the field of endeavor and it is his burden to establish 
every element of this criterion. Even if the petitioner were to establish that he was the actual 
recipient of nationally or internationally recognized "prizes or awards" for excellence in the field 
at the time of filing, which he has not, there is no documentary evidence demonstrating that the 
petitioner's specific honors were recognized beyond the presenting organizations at a level 
commensurate with nationally or internationally recognized prizes or awards for excellence in 
the field. 
(b)(6)
Page 9 
In light of the above, the petitioner has not established that he meets this regulatory 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. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, the petitioner does not contest the 
director's findings for this criterion or offer additional arguments. The issue, therefore, is 
considered to be abandoned. Sepulveda v. U.S. Att'y Gen., 401 P.3d 1226, 1228 n. 2 (11th Cir. 
2005); Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 
30, 2011) (plaintiff's claims found to be abandoned as he failed to raise them on appeal to the 
AAO). Accordingly, the petitioner has not established that he meets this regulatory 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 discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, the petitioner does not contest the 
director's findings for this criterion or offer additional arguments. The issue, therefore, is 
considered to be abandoned. Sepulveda, 401 P.3d at 1228 n.2; Hristov, 2011 WL 4711885, at 
*9. Accordingly, the petitioner has not established that he meets this regulatory 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 plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iv) requires "[e]vidence of the 
alien's participation, either individually or on a panel, as a judge of the work of others in the 
same or an allied field of specification for which classification is sought." Based upon a review 
of the record of proceeding, the petitioner submitted sufficient documentation establishing that 
he meets the plain language requirements of the regulation at 8 C.P.R. § 204.5(h)(3)(iv). 
Accordingly, the petitioner has established that he meets this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director determined that the petitioner failed to establish eligibility for this regulatory 
criterion. The plain language of the regulation at 8 C.P.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.] Here, the evidence must be reviewed to see 
(b)(6)
Page 10 
whether it rises to the level of original artistic 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 (3rd Cir. 1995) quoted in APWU v. Potter, 
343 F.3d 619, 626 (2nd Cir. Sep 15, 2003). 
The petitioner submitted a certificate from the 
stating that he was a "nominee" in the category ' ' for 
album , but the evidence submitted by the petitioner indicates that he 
contributed to only one song on the album. The petitioner also submitted a certificate indicating 
that the album by was "nominated" for a in the category 
_ _ 'in 2011. The documentation submitted by the 
petitioner indicates that he contributed to only two songs on album. In addition, the 
petitioner submitted a list of numerous ' ' from the 
website indicating that " " won the ' 
' category. The preceding award was received by the performing artist 
not the petitioner. As such, the petitioner has failed to establish that the 
primarily recognized the petitioner's specific work rather than that of 
There is no documentary evidence showing that the petitioner's specific work on (two 
songs) and (one song) significantly impacted the recording industry, has 
substantially influenced the work of other contemporary musicians, or otherwise equates 
to original contributions of major significance in the field. 
In response to the director's request for evidence, the petitioner submitted documentation indicating 
that by ' ' won ' ' and that the song 
" " by the music group won '' ' at 
the in October 2011. In addition, the petitioner submitted a 
certificate from the stating that the album 
" by was nominated for a in the category 
" '' in 2012. As previously discussed, the 
preceding awards and nomination post-date the petition's September 6, 2011 filing date. 
Eligibility, however, must be established at the time of filing. 8 C.F.R. §§ l03.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, USCIS will not consider the awards and 
nomination as evidence to establish the petitioner's eligibility. 
The petitioner submitted an August 17, 2011 letter from 
, stating: 
, Producer, 
Based on my review of [the petitioner's] extensive performance, production, and 
songwriting career, I would evaluate [the petitioner] as a person of extraordinary ability 
in the field of Music. Moreover, he possesses a unique combination of skills 
and experience that will certainly benefit the United States. 
In my experience, very few people possess the background [the petitioner] possesses for 
performing nationally and internationally both as a recording artist and live performer. 
He clearly ranks among that small percentage who have risen to the top of his field and 
(b)(6)
Page 11 
has a rare combination of exceptional skills, achievements, and background in a very 
difficult field of considerable economic and cultural importance to the United States. As 
there is a current need for [the petitioner's] specialized experience, I recommend prompt 
approval of this petition filed in his behalf as a person of extraordinary ability in the field 
that very directly and substantially benefits the United States. 
asserts that the petitioner is "a person of extraordinary ability in the field of 
Music" and that the petitioner "ranks among that small percentage who have risen to the top of 
his field," but merely repeating the language of the statute or regulations does not satisfy the 
petitioner's burden of proof. 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, No. 95 civ 10729, 
1997 WL 188942 at *1, *5 (S.D.N.Y.). In addition, comments on the petitioner's 
"unique combination of skills and experience" and "rare combination of exceptional skills, 
achievements, and background." Assuming the petitioner's music skills are unique, the 
classification sought was not designed merely to alleviate skill shortages in a given field. In fact, 
that issue properly falls under the jurisdiction of the Department of Labor through the alien 
employment certification process. See Matter of New York State Department of Transportation, 
22 I&N Dec. 215, 221 (Comm'r 1998). also asserts that the petitioner's work will 
benefit the United States, but fails to provide specific examples of how the 
petitioner's original work was of major significance in the field at the time of filing. 
The petitioner submitted a May 22, 2012letter from stating: 
[The petitioner] has had tremendous success throughout his career as a musician in the 
Music genre. It is not a coincidence that some of my most 
critically acclaimed work was on the tracks I worked with [the petitioner]. 
* * * 
Our work that we have worked on together has been critically acclaimed and has created 
tremendous press. 
In support of 
entitled " 
states: 
comments, the petitioner submitted a September 1, 2011 article 
>'and two-time nominee, 
1 radio single this week with the song " 
the fourth charting single from the 2010 release, 
highest-selling album to date. 
* * * 
My first #1 single!!! I'm freaking out!!" said 
" posted at . The article 
is celebrating his first career No. 
'' at Rock radio formats. This is 
, which marks 
(b)(6)
Page 12 
The focus of the article is and his work, not the petitioner and his contributions 
in the field. The petitioner is not even mentioned in the article. In addition, the readership of the 
preceding article was limited in that it was "viewed" only 721 times. 
The petitioner also submitted a 
posted at 
, 2010 music review of album 
but the website's readership is undocumented. The album 
review states: 
So, if you haven't heard of of Ontario yet, then you have simply 
missed out on one of the hottest around throughout the past few years. Better 
known as the multiple award winning artist has three previously released 
albums under his belt, all of which are very good. is his fourth installment, 
and fans will wonder how it stacks up to the rest. 
The album opens with '' ," setting the tone for the entire record. 
delivers a great mix of unique production coupled with a great sound laid over 
hopeful soul-searching lyrics. It's easy to catch the influence of 
..J throughout the album, especially since he's vocally featured on a 
handful of tracks. There are many good songs, such as ' " " 
~' '
4 
," and 'j " tracks that all feature 
lyrics about staying strong for laced withsome tight beats. 
has also decided to take a few musical chances on One of the best 
tracks would have to be •· " for its slower sound, display of the 
piano keys, and great message for everyone. " ., is a really cool 
song where shares his powerful testimony while the chorus, featuring 
, makes the track - - Overall, this latest release isn't perfect, but it's also 
not too far from that goal either. The album has a little less . a little more , and a 
few more singing choruses than previous albums, and while that works rather well, it's 
not what I was expecting. All in all, the final product is very good and any fan of the 
.____ ........ - genre will definitely appreciate the sounds and message of 
Once again, the focus of the article is and his work, not the petitioner and his 
contributions in the field. While the article discusses the contributions of both 
and , the petitioner is not mentioned m the article. In addition, the review 
mentions only one song on the album, " "to which the petitioner contributed. 
The preceding articles posted at and are not sufficient to 
demonstrate that the petitioner's work rises to the level of original contributions of major 
significance in the field. 
The letter of support from further states: 
' has proven to be a huge hit for us as it has been implemented in 
major projects such as and the We are currently in the 
process of negotiating its use with the as well. This is one of the songs [the 
petitioner] is directly responsible for as songwriter, producer, and performer. 
(b)(6)
Page 13 
In support of 
that 
"background vocal" for 
comments, the petitioner submitted documentation indicating 
'song (which the petitioner collaborated on) was utilized as a 
' and for 
programming. The petitioner has not established that providing background music 
for television programming equates to original contributions of major significance in the field. 
The fact that received a $7,500 royalty fee for "background vocal" music 
usage in for example, does not demonstrate that the petitioner's 
work has had major significance in the field of mustc. 
letter of support continues: 
Each member in a band has a different role. There are vocalists, instrumentalists, writers, 
producers, and editors. I understand that certain roles have different levels of importance 
to the overall success of any album or song. is my brand name, and my band 
has various members that can be interchanged as necessary . [The petitioner's] role as 
songwriter is not one that can be replaced. His music is registered and has copyrights 
with the He is a music 
creator, and more significantly, he is the music creator behind some of my most popular 
and successful tracks. 
There is no great secret to the reason why [the petitioner's] work is significant and sought 
after. It sells very well and the public loves his sound. He has worked with many other 
musical artists in the music genre including 
and many others. [The petitioner's] work is on the 
creative side of the musical process, and is of the highest importance. 
The petitioner submitted evidence of his musical collaborations and recordings with 
, and others. While the musical 
registrations and copyrights with the 
demonstrate the originality of the petitioner's work, the record lacks documentary 
evidence showing that the petitioner's work was of major significance in the field. 
asserts that the petitioner ' s "role as songwriter is not one that can be replaced," but 
there is no documentary evidence demonstrating that the petitioner's work has had a substantial 
impact in the recording industry, has significantly influenced the work of other musicians in the 
field, or otherwise constitutes original contributions of major significance in the field. 
letter of support further states: "I have been fortunate to have a number of chart 
topping hits. The songs I worked on with [the petitioner] have had significant global sales such 
that we've landed on the Billboard charts as top sellers." The petitioner submitted the following 
Billboard charts: 
1. Billboard Hit . Radio National Airplay chart reflecting that 
song' 'ranked in 2010; 
(b)(6)
Page 14 
2. Billboard '' " chart reflecting that song' "ranked 
in 2010; 
3. Billboard " Hit Radio" airplay chart reflecting that 
song ' 
' ranked in 2010; and 
4. Billboard" " chart reflecting that song ' :" ranked 
lin 2011. 
With regard to items 1 - 4 above, according to the letter from and the album 
credits for the petitioner was not a songwriter or musical contributor for the songs 
' and ' " As the petitioner failed to submit any Billboard charts listing songs 
that he co-wrote or that were credited to him on a album, the record lacks evidence to 
support assertion. Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg'l Comm'r 1972)). Regardless, the petitioner has failed to establish that the 
commercial successes achieved by are primarily attributable to the petitioner's 
work, and there is no evidence demonstrating that the petitioner's specific contributions have had 
major significance in the field. Moreover, the regulations contain a separate criterion regarding 
commercial successes in the performing arts. 8 C.F.R. § 204.5(h)(3)(x). It will not be presumed 
that evidence relating to or even meeting the commercial successes criterion is presumptive 
evidence that the petitioner also meets the criterion at 8 C.P.R. § 204.5(h)(3)(v). The regulatory 
criteria are separate and distinct from one another. Because separate criteria exist for 
commercial successes in the performing arts and original contributions of major significance, 
USCIS clearly does not view the two as being interchangeable. To hold otherwise would render 
meaningless the statutory requirement for extensive evidence or the regulatory requirement that an 
alien meet at least three separate criteria. Music sales are far more relevant to the "commercial 
successes in the performing arts" criterion at 8 C.F.R. § 204.5(h)(3)(x) and will be further 
addressed there. 
The petitioner submitted a May 22, 2012 letter from 
stating: 
, lead singer of 
I am submitting this letter in support of the major contributions [the petitioner] has made 
in the field of music. . . . He has personally worked with _ 
on our most recent album as both a songwriter and 
musician. 
* * * 
[The petitioner] performed on Guitars, Drums, and Bass, and co-wrote the following 
songs on 
1. 
2. 
3. 
(b)(6)
Page 15 
4. 
5. 
These songs would not have been possible without [the petitioner's] efforts. We wrote 
these songs together equally. He was the co-songwriter for nearly half of the album. All 
of his contributions were original in nature in that he is the credited author of the music. 
The music was not sampled or simply performed by [the petitioner] for the album. His 
role was significant and vital as an author of the music. 
* * * 
is a significant album in that it was awarded with a 2012 
nomination. These nominations are based on submission and actual record sales. The 
final nominees are identified and awarded as such with one winner from each category 
selected annually. The single ' ' authored by [the petitioner], was the 2011 
winner of the . . . best . This is a tremendous honor 
of major significance within the Music scene. The accolades 
this album and song have achieved are among the pinnacle achievements of 
Music, and these are directly attributable to [the petitioner's] 
contributions. 
comments on the music that the petitiOner co-wrote and performed on 
album, but does not provide specific examples of 
how the petitioner's work has substantially influenced the music industry or otherwise equates to 
artistic contributions of major significance in the field of music. In 
addition, states that album received a 2012 
nomination and that the song ' 
' won "best • " in 
2011. As previously discussed, the 
were presented on 2011. Eligibility, however, must be established at the time of 
filing. 8 C.P.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, the 
AAO will not consider the received by _ on 2011 and 
2012 nomination as evidence to establish the petitioner's eligibility. 
The opinions of the petitioner's references are not without weight and have been considered by 
USCIS. The letters of support submitted by the petitioner are all from those who have 
collaborated on various projects with the petitioner. While such letters are important in 
providing details about the petitioner's role in the collaborations, they cannot by themselves 
establish the impact of the petitioner's work beyond his immediate circle of musical 
acquaintances. USCIS may, in its discretion, use as advisory opinions 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 reference letters 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. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to 
(b)(6)
Page 16 
be evidence as to "fact"). Thus, the content of the references' statements and how they became 
aware of the petitioner's reputation are important considerations. Even when written by 
independent experts, letters solicited by an alien in support of an immigration petition are of less 
weight than preexisting , independent evidence that one would expect of a musician or songwriter 
who has made original contributions of major significance in the field. Without additional , 
specific evidence showing that the petitioner's original work has been unusually influential, 
substantially impacted his field, or has otherwise risen to the level of contributions of major 
significance , the petitioner has failed to establish that he meets this regulatory criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The director's finding that the petitioner meets this regulatory criterion will be withdrawn. The 
petitioner submitted documentary evidence of his various music performances at concerts and 
festivals as evidence for this criterion. The petitioner also submitted documentation indicating 
that "song (which the petitioner collaborated on) was utilized as a 
"background vocal" for ' and for 
programming. Neither the petitioner nor counsel has explained how the preceding 
music performances equate to visual art exhibitions or showcases. The petitioner's work as a 
musician is audible in nature and is enjoyed for its sound, not its visual aspects. Therefore, his 
music performances do not satisfy the regulatory requirements under 8 C.F.R. § 204.5(h)(3)(vii). 
The plain language of the regulation at 8 C.P.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." [Emphasis added.] 
The petitioner is a musician. When he records a song or performs in concert , 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 music, he is not displaying his work. In addition , to 
the extent that the petitioner is a musician, it is inherent to his occupation to perform and play 
music. 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 atts is longstanding and 
has been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, 
*7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing artist 
do not fall under 8 C.F.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, he has not 
submitted qualifying evidence that meets the plain language requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(vii). As the petitioner's music performances are far more relevant to the 
"commercial successes in the performing arts" criterion at 8 C.P.R. § 204.5(h)(3)(x), they will be 
discussed separately within the context of that regulatory criterion. 
In light of the above , the petitioner has not established that he meets this regulatory criterion. 
Evidence of commercial successes in the peiforming arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
(b)(6)
Page 17 
This regulatory criterion focuses on volume of sales and box office receipts as a measure of the 
petitioner's commercial success in the performing arts. Therefore, the fact that a petitioner has 
recorded and released music or performed before an audience is insufficient, in and of itself, to 
meet this criterion. The evidence must show that the volume of sales and box office receipts 
reflect the petitioner's commercial success relative to others involved in similar pursuits in the 
performing arts. 
The petitioner submitted the following: 
1. Billboard Hit Radio National Airplay chart reflecting that 
''ranked m 2010; song" 
2. Billboard " _ :" chart reflecting that song' 
in 2010; 
3. Billboard " Hit Radio" airplay chart reflecting that 
song' 'ranked in 2010; 
4. Billboard" " chart reflecting that song' 
m 2011; and 
5. Radio and Records ' National Airplay" chart reflecting that 
song' 'ranked in 2009. 
'ranked 
"ranked 
With regard to items 1 - 5 above, according to the letter from and the album 
credits for and the petitioner was not a songwriter or musical contributor 
for the songs ", "' ,"and' ' ." As the petitioner did not contribute to 
any of the preceding three songs listed in the above charts, such evidence does not 
establish the petitioner's commercial success. 
The petitioner submitted a 
"compiled from retail, physical and digital sales" reflecting that album 
ranked in 2011. As the album credits for and the letter from 
indicate that the petitioner contributed to only two songs on the ten-song album, the 
petitioner has not demonstrated that the sales of are primarily attributable to the 
petitioner instead of and therefore, are evidence of the petitioner's commercial 
success. 
The petitioner submitted a September 1, 2011 article entitled ' 
" posted at but the petitioner failed to submit the actual singles chart 
showing that ' ' achieved the number one ranking as measured by retail, digital, 
or physical sales. In addition, the article does not specify the volume of sales for the ' 
'recording as required by the plain language of this regulatory criterion. 
The petitioner submitted a March 25, 2009 Letter to from 
stating that album CD had "NET SOUND SCANS" of 18,935 units. The 
letter does not indicate that a "sound scan" equates to an actual music sale and does not specify the 
monetary amount of sales. In addition, the album credits for and the letter from 
indicate that the petitioner contributed to only one song on the album. As such, the 
(b)(6)
Page 18 
petitioner has not demonstrated that the sales of the are primarily attributable to the 
petitioner instead of and therefore, are evidence of the petitioner's commercial 
success. 
The petitioner failed to submit documentary evidence of "sales" or "receipts" demonstrating that 
his specific songs and music performances were indicative of his commercial successes in the 
performing arts. Accordingly, the petitioner has not established that he meets this regulatory 
criterion. 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of the 
small percentage who has risen to the very top of the field of endeavor. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary 
categories, in accordance with the Kazarian opinion, the next step would be a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (1) a "level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the[ir] field of endeavor" and (2) "that the alien has sustained 
national or international acclaim and that his or her achievements have been recognized in the field 
of expertise." 8 C.P.R. §§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence is not indicative of a level of expertise consistent with the small 
percentage at the very top of the field or sustained national or international acclaim, the AAO need 
not explain that conclusion in a final merits determination. 5 Rather, the proper conclusion is that the 
petitioner has failed to satisfy the antecedent regulatory requirement of three categories of evidence. 
I d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(A) of the Act and the 
petition may not be approved. 
The AAO may deny an application or petition that fails to comply with the technical 
requirements of the law even if the Service Center does not identify all . of the grounds for denial 
in the initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 
5 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004 ). In any future proceeding, the AAO maintains the jurisdiction to conduct a fmal merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 103(a)(1) of the Act; section 
204(b) of the Act; DHS ·Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003) ; 8 C .F.R. 
§ 103.l(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions). 
(b)(6)
Page 19 
1043 (E.D. Cal. 2001) , aff'd, 345 F.3d 683 (91h Cir. 2003) ; see also Soltane v. DOJ, at 145 
(noting that the AAO conducts appellate review on a de novo basis). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The decision of the director is affirmed and the petition is denied.