dismissed EB-1A Case: Music

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
h 
FILE: Office: TEXAS SERVICE CENTER Date: 
SRC 06 030 51984 
 JAN 0 8 i!007 
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. 4 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
ad 
2 Robert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and is now before the Administrative Appeals Office on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) 
of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1 153(b)(l)(A), as an alien of extraordinary 
ability in the arts. The director determined that the petitioner had not established the sustained national 
or international acclaim requisite to classification as an alien of extraordinary ability. 
On appeal, counsel submitted a substantive statement but indicated that he would submit a brief within 
30 days. Counsel dated the appeal February 3, 2006. As of September 16, 2006, this office had 
received nothing hrther. Thus, on that date, this office contacted counsel by facsimile, advising that 
we had received no additional materials, inquiring as to whether anything had been submitted and 
requesting a copy of any additional materials submitted. In response, counsel requested that the appeal 
be decided on the record. On November 2, 2006, this office inadvertently reissued the same facsimile 
and received no response. Thus, we will adjudicate the appeal on the record. For the reasons discussed 
below, we uphold the director's decision. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
Citizenship and Immigration Services (CIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 60898-9 
(November 29, 1991). As used in this section, the term "extraordinary ability" means a level of 
expertise indicating that the individual is one of that small percentage who have risen to the very top 
of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). The specific requirements for supporting 
documents to establish that an alien has sustained national or international acclaim and recognition in 
his or her field of expertise are set forth in the regulation at 8 C.F.R. § 204.5(h)(3). 
The relevant criteria will be addressed below. It should be reiterated, however, that the petitioner 
must show that she has sustained national or intemational acclaim at the very top level. In his 
appellate statement, counsel implies that "sustained" refers to the petitioner's career, not necessarily 
her acclaim in the field. Thus, counsel implies that evidence of remote acclaim and a lengthy career 
is sufficient to demonstrate "sustained" acclaim. We do not agree. It is the "acclaim" that must be 
sustained. Thus, the petitioner must demonstrate that her acclaim, not just her career, is sustained as 
of the date of filing the petition. 
In this case, the petitioner seeks classification as an alien with extraordinary ability in the arts as a 
singer. The regulation at 8 C.F.R. § 204.5(h)(3) indicates that an alien can establish sustained national 
or international acclaim through evidence of a one-time achievement (that is, a major, intemational 
recognized award). Counsel claims the petitioner meets this criterion because she won the "'Gaviota 
de Plata' (Silver Seagull) as the Best Female Vocalist at the Twenty-Seventh International Song 
Festival at Viiia del Mar in 1986." The petitioner submitted two photographs of the petitioner and 
other individuals from an unidentified source with the caption, "XXVII International Festival of Song 
Viiia del Mar 5 - 10 February 1986." The record contains no photographs of her actual award, 
contemporaneous media coverage of the event or documentation from the festival organizers. The 
director determined that the submitted photographs were insufficient to demonstrate that the petitioner 
actually received this award. 
As evidence of the award's significance, the petitioner submitted several letters. m 
President of Programming at Univision Radio WAMR 107.5 in Florida asserts that the 
ar Music Festival is an international song festival that has been world renowned for nearly 
50 years and draws singers from Europe, Asia andthe Americas. 
 Senior vick 
President of Marketing at the Grand Entertainment Group in Florida; 
CTV.24; and Sales Manager of Universal Latino, use 
the award as a "career defining moment in the life of an artist." 
 President of DG 
Music International in Florida, asserts that he has participated with 1 eren 
 is s in different festivals. 
He states: 
This [Viiia del Mar Music] Festival is considered in the industry as a very prestigious 
Festival, and has featured, and produces some of the most famous artist[s] in Spanish 
Music. Winning this festival is considered an accomplishment in an artist's career that 
sets her among the best in the field. Winning in this Festival is a once in a lifetime 
moment that defines the caliber of the artist with other internationally renown vocalists 
and songwriters. 
recipient of the Spirit of Life Award from the Latin Music Industry City of Hope, 
asserts: 
I know of [the petitioner's] career as a singer, lyricist and producer of entertainment 
events. She has been bestowed with one of the most prized awards internationally, the 
"Gaviota de Plata," awarded to the best singer in the "Festival Intemacional de la 
Cancion de Viiia del Mar" (the International Song Festival of Viiia del Mar) Chile, the 
highly prestigious song festival. 
In response to the director's request for additional evidence (RFE) of the award's prestige, the 
petitioner submitted new letters from Florida Latin music professionals reiterating that a Vifia del Mar 
Festival award is a "career defining moment." 
In addition to the above letters, the record contains brief references to the award in what appears to be 
local media coverage of the petitioner. The media coverage is not contemporaneous with the award. 
The petitioner has not submitted any media coverage, especially national or international media 
coverage, of the festival itself in 1986 or in any year. 
The director concluded that the record lacked evidence that the petitioner actually received the award 
and that the award is a major international recognized award. The director also noted that the award 
was "received" several years prior to the filing of the petition. On appeal, counsel asserts that the 
director failed to consider the letters submitted and contradicts herself by questioning the petitioner's 
receipt of the award while asserting that the petitioner "received" the award several years ago. 
We do not find the director's decision contradictory. Read in context, the director's discussion of when 
the award was issued is provided as an additional point assuming the petitioner could provide evidence 
to corroborate her claims to have won the Viiia del Mar Music Festival award. We concur with the 
director that the record lacks the required initial evidence, the award itself. 
The regulation at 8 C.F.R. 5 103.2(b)(2) provides: 
Submitting secondary evidence and affidavits. (i) General. The non-existence or other 
unavailability of required evidence creates a presumption of ineligibility. If a required 
document, such as a birth or marriage certificate, does not exist or cannot be obtained, 
an applicant or petitioner must demonstrate this and submit secondary evidence, such as 
church or school records, pertinent to the facts at issue. If secondary evidence also does 
not exist or cannot be obtained, the applicant or petitioner must demonstrate the 
unavailability of both the required document and relevant secondary evidence, and 
submit two or more affidavits, sworn to or affirmed by persons who are not parties to 
the petition who have direct personal knowledge of the event and circumstances. 
Secondary evidence must overcome the unavailability of primary evidence, and 
affidavits must overcome the unavailability of both primary and secondary evidence. 
Page 5 
We find that where the regulations require specific, objective evidence of achievements, such as 
awards, the primary evidence of such awards would be copies of the awards themselves. Secondary 
evidence might be contemporaneous newspaper reports of the competition results. Affidavits attesting 
to awards, therefore, would need to "overcome the unavailability of both primary and secondary 
evidence." The petitioner has not demonstrated that the required evidence is unavailable or cannot be 
obtained, and therefore the petitioner is presumed ineligible pursuant to 8 C.F.R. 5 103.2(b)(2). 
Even assuming the petitioner has won the Vifia del Mar Music Festival Award, and we reiterate that the 
record does not contain the necessary primary or secondary evidence establishing that she did so, we 
fiuther concur with the director that the record lacks evidence that the festival is a major international 
recognized award or prize. It can be expected that a festival with major international recognition will 
generate coverage in the major media at the international or national level. The record contains no 
evidence that the festival is televised internationally or that the results are reported in the national print 
media beyond Chile, where the festival is held. 
In light of the above, the petitioner has not demonstrated a one-time achievement. 
Barring the alien's receipt of a major international recognized award, the regulation at 8 C.F.R. 
5 204.5(h)(3) outlines ten criteria, at least three of which must be satisfied for an alien to establish the 
sustained acclaim necessary to qualify as an alien of extraordinary ability. The petitioner has submitted 
evidence that, she claims, meets the criteria discussed below.' At the outset, however, we note that the 
petitioner is relying mostly on letters from members of the music industry in Argentina and Florida. 
The opinions of experts in the field, while not without weight, cannot form the cornerstone of a 
successful claim of sustained national or international acclaim. Citizenship and Immigration 
Services (CIS) 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. 1988). However, CIS 
is ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. The submission of letters from experts supporting the petition is not presumptive 
evidence of eligibility; CIS may evaluate the content of those letters as to whether they support the 
alien's eligibility. See id. at 795-796. CIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. Id. at 795; See also 
Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
(i) Documentation of the alien S receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
As discussed above, the petitioner has not demonstrated her receipt of the Vifia del Mar Music Festival 
award. Even assuming the record contained such evidence, the award was issued 19 years prior to the 
1 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
filing of the petition and, thus, could not establish sustained acclaim. Thus, we need not consider 
whether it is a lesser internationally recognized prize or award. 
In support of the petition, counsel resubmitted his RFE response letter fi-om a previous petition filed by 
the petitioner. In the response, counsel asserted that the petitioner received the Golden Anchor, the Star 
of The Sea, and the Golden Dolphin in Argentina. Counsel asserted that these awards "are artistic 
prizes in Argentina." In support of the Golden Anchor award, the petitioner submitted an article from 
the January 20, 1987 edition of La Capital entitled "The Golden Anchor is Handed Out." The article 
reports that "various members of the artistic community who are presently participating in shows in 
Mar De Plata were recognized with a luncheon, during which was announced the handing out of the 
distinction called the 'Golden Anchor."' The petitioner is included along with 17 other individuals 
"among others" that received this distinction. The article does not further discuss the significance of 
the award. Rather, the article indicates that the "Golden Anchor'' is a distinction limited to the Mar Del 
Plata region and that the petitioner's receipt of this local distinction occurred 18 years prior to the filing 
of this petition. 
The record lacks any evidence, other than the petitioner's self-serving resume, of the other awards 
claimed. The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 
I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez- 
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
 Moreover, going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter of Soffi, 22 I&N Dec. 15 8, 165 (Comm. 1998) (citing Matter of Treasure Crafl 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As stated above, the petitioner cannot rely on 
affidavits without first establishing that primary and seconary evidence is either unavailable or does not 
exist. 8 C.F.R. fj 103.2(b)(2). 
On appeal, counsel does not specifically challenge the director's adverse conclusions regarding this 
criterion. As discussed above, the petitioner has not submitted evidence that she actually received the 
awards other than the Golden Anchor, which appears to be a local honor. Moreover, the record lacks 
evidence of more recent recognition. Thus, she has not established that she meets this criterion through 
evidence of sustained acclaim in 2005, when the petition was filed. 
(ii) Documentation of the alien's membership in associations in the field for which classzfcation is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
The petitioner submitted a copy of her Latin Recording Academy membership card and a form letter 
discussing the benefits of academy membership. In response to the director's WE, the petitioner 
submitted Internet materials for the academy reflecting that voting members must demonstrate creative 
or technical credit on a minimum of six tracks on a commercially released album (or albums). Counsel 
does not challenge the director's conclusion that voting membership in the academy does not require 
Page 7 
outstanding achievements and we concur with the director. Accordingly, the petitioner does not meet 
this criterion. 
(iii) Published material about the a lien in professions I or major trade publications or other major 
media, relating to the alien S work in the field for which classzj?cation is sought. Such evidence 
shaN include the title, date, and author of the material, and any necessary translation. 
The record contains three media articles printed in 1987. As discussed above under the first criterion, 
one article simply includes the petitioner's name in a list of 17 other artists who received the Golden 
Anchor distinction. A second article contains a one-paragraph review of one of her recordings. The 
third article is the interview with the petitioner. The petitioner did not submit the distribution and 
circulation data for the publications. The director concluded that the petitioner had not established that 
the articles appeared in major media and that the articles were not indicative of sustained acclaim in 
2005, when the petition was filed. On appeal, counsel asserts that the articles all appeared in 
publications "of national importance" in Argentina. The unsupported assertions of counsel do not 
constitute evidence. Matter ofobaigbena, 19 I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. at 1 ; 
Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. Without evidence of the circulation and distribution 
of the publications that have covered the petitioner, we cannot determine whether they are major media. 
Regardless, as stated by the director, they are not evidence of acclaim afier 1987. 
In light of the above, the petitioner has not established that she meets this criterion. 
(x) Evidence of commercial successes in the performing arts, as shown by box ofice receipts or 
record, cassette, compact disk, or video sales. 
Counsel has claimed that the petitioner meets this criterion because "[fJifiy years of performing as a 
vocalist is an extraordinary achievement." While the petitioner submitted copies of concert posters and 
compact disc covers, she did not submit evidence of box office receipts or sales of her recordings, as 
required by the regulation at 8 C.F.R. 5 204.5(h)(3)(x). The director noted the lack of evidence 
specified by this regulation and concluded that the petitioner could not meet this criterion. 
On appeal, counsel asserts that the director ignored evidence of "critical success as demonstrated by the 
opinions of leading figures in the music industry." The regulation at 8 C.F.R. 5 204.5(h)(3)(x), 
however, explicitly requires evidence of commercial success through box office receipts or compact 
disc sales. While the regulation at 8 C.F.R. 5 204.5(h)(4) permits the submission of "comparable" 
evidence where a criterion is not readily applicable, the petitioner has not demonstrated that 
commercial success is not an applicable criterion for performing artists. Rather, it appears that the 
criterion was expressly designed for performing artists as the phrase "performing arts" appears in the 
regulation at 8 C.F.R. 5 204.5(h)(3)(x). Thus, we need not consider comparable evidence. 
Accordingly, the petitioner does not meet this criterion. 
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. 
Review of the record, however, does not establish that the petitioner has distinguished herself as a 
singer to such an extent that she may be said to have achieved sustained national or international 
acclaim or to be within the small percentage at the very top of her field. The evidence indicates that the 
petitioner shows talent as a singer and some former recognition in the field, but is not persuasive that 
the petitioner's achievements set her significantly above almost all others in her field. Therefore, the 
petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.