dismissed EB-1A Case: Music

• 
PlffiLlCCOPY 
DATE: Ju;, j 2012 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
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)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed plcase find the decision of the Administrative Appeals Oftlce in your case. All of the documents 
related to this matter have heen returned to the office that originally decided your case. Please he advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you hclievc the AAO inappropriately applied the law in reaching its decision. or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen with the 
ricld Dlfice or service center that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
MoliDn, with a fcc of $630. The specific requirements for filing such a motion can he found at S C.F.R. 
* 10.1.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires 
any motion to he fifcd within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
cYJ:-1t--'f'e---Perry Rhew 
Chid, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" as a musician in the performing 
arts, pursuant to section 203(b )(1 )(A) of the Immigration and Nationality Act, 8 U.s.c. 
§ I I 53(b)(1)(A). The director determined the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as an alien of 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 petitioner's priority date established by the petition filing date is October 14,2010. On October 21, 
20 to, the director served the petitioner with a notice of intent to deny (NOID). After receiving the 
petitioner's response to the NOlD, the director issued his decision on December 3, 2010. On appeal, the 
petitioner submitted a brief and additional documentary evidence. For the reasons discussed below, the 
AAO upholds the director's ultimate determination that the petitioner has not established his eligibility 
for the classification sought. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(I) Priority workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if --
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
Page J 
(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 101st Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897,60898-99 (Nov. 29, 1991). The tenn "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.F.R. * 204.5(h)(2). 
The regulation at 8 C.F.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.F.R. § 204.5(h)(3)(i)-(x). 
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. 201 0). 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 detennination." [d. 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 sutlicient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." [d. at 1122 (citing to 
K C.F.R. § 204.5(h)(3)). 
Thus, Kazariall sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a fioal merits detennination. 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. [d. 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements he yond 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 4 
II. ANALYSIS 
A. Previous Nonimmigrant 0-1 Approval 
Whilc U.S. Citizenship and Immigration Services (USCIS) has approved at least one 0-1 nonimmigrant 
visa petition filed on behalf of the petitioner, the prior approval does not preclude USCIS from denying 
an immigrant visa petition based on a different, if similarly phrased, standard. First, the regulatory 
requirements for an immigrant and non-immigrant alien of extraordinary ability in the arts are 
dramatically different. 8 C.P.R. § 214.2(o)(3)(ii) defines extraordinary ability in the arts (including the 
pcrfom1ing arts) as simply "distinction," which is further defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation relating to the immigrant classification, 8 C.P.R. § 204.5(h)(2), however, defines 
extraordinary ability in any field as "a level of expertise indicating that the individual is on of that small 
percentage who have risen to the very top of the field of endeavor." While the ten immigrant criteria set 
forth at 8 C.P.R. ~ 204.5(h)(3) appear in the nonimmigrant regulation at 8 C.P.R. § 214.2(0)(3)(iii), they 
refer only to aliens who seek extraordinary ability in the fields of science, education, business or 
athletics. Rather, separate criteria for nonimmigrant aliens of extraordinary ability in the arts are set 
forth in the regulation at 8 C.P.R. § 214.2(0)(3)(iv). The distinction between these fields and the arts, 
which appears in 8 C.P.R. § 214(0) does not appear in 8 C.F.R. § 204.5(h). As such, the petitioner's 
approval for a non-immigrant visa under the lesser standard of "distinction" is not evidence of his 
eligibility for the similarly titled immigrant visa. 
In addition, it must be noted that many 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 P. Supp. 2d 25 (D.D.C. 2003); 
IKEA US v. US Dept. of Justice, 48 P. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd v. Sava, 724 
F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing Porm 1-129 nonimmigrant 
petitions than Porm 1-140 immigrant petitions, some nonimmigrant petitions are simply approved in 
error. Q Data Consulting, Inc. v. INS, 293 P. Supp. 2d at 29-30; see also Texas A&M Univ. v. 
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 20(4) (finding that prior approvals do not 
preclude USCIS from denying an extension of the original visa based on a reassessment of petitioner's 
qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. 
Ltd. v. Montgomery, 825 P.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
PageS 
Furthermore. the AAO's authority over the service centers is comparable to the relationship between a 
court of appeals and a district court. Even if a service center director had approved the nonimmigrant 
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision 
of a service center. Glara Fashion, Inc. v. Holder, 11 CIY. 889 PAE, 2012 WL 352309 *7 
(S.D.N.Y. Feb. 3, 2012); Royal Siam v. Chertoff, 484 F.3d 139, 148 (1st Cir.2(07); Tapis Int'l v. INS, 
94 F.Supp.2d 172, 177 (D.Mass.2000» (Dkt.lO); Louisiana Philharmonic Orchestra v. INS, 
44 F.Supp.2d 800, 803 (E.D.La.1999), affd, 248 F.3d 1139 (5th Cir. 2001), cert. dellied, 122 S.Ct. 51 
(200 I). 
B. Field of Endeavor 
Counsel asserted that the AAO should view the petitioner's field of endeavor or field of expertise as 
--Alternative/Christian Rock." However, the petitioner's field is that of a musical recording artist. 
Notably, within the initial petition filing as the Form 1-140, the petitioner clearly indicated in Part 5 that 
his occupation is that of a "Music Recording Artist." The AAO is not persuaded by counsel's attempt 
to narrow the petitioner's general tield of musical recording artists down to Christian alternative rock 
recording artists. Notably, Buletini v. INS, 860 F. Supp. 1222, 1229-30 (ED. Mich. 1994), a case that 
counsel cites as persuasive, faulted legacy INS for narrowing that alien's field from medicine to 
nephrology. 
C Non-precedential District Court Decisions 
In his appellate brief, counsel refers to two district court decisions: Buletini, 860 F. Supp. at 1222, and 
Mlllli V. INS, 891 F. Supp. 440 (N.D. IlL 1995). Counsel cites Buletini and Muni as support for his 
position that the director erred in requiring that the petitioner first demonstrate that he meets at least 
three of the regulatory criteria listed at 8 CF.R. § 204.5(h)(3) and subsequently show: 
1. A --level of expertise indicating that the individual is one of that small percentage who have 
risen to the very top ofthe[ir] field of endeavor," 8 CF.R. § 204.5(h)(2); and 
2. --[T]hat the alien has sustained national or international acclaim and that his or her achievements 
have been recognized in the field of expertise." 8 CF.R § 204.S(h)(3). 
The AAO is not persuaded by counsel's characterization of Muni 's holding as finding that "satisfying 
three criteria through meeting the plain language of the regulations, an alien is deemed to have sustained 
acclaim ... ." Contrary to counsel's claim, MUlli specifically found that "the satisfaction of the three­
category production requirement does not mandate a finding that the petitioner has sustained national or 
international acclaim and recognition in his field." 891 F. Supp. at 446. Rather it is only "a start." Id. 
The court then faulted legacy INS for failing to attempt to explain why the evidence "did not meet the 
acclaim and recognition standard." Id. Further, Buletilli stated: 
Once it is established that the alien's evidence is sufficient to meet three of the criteria 
listed in 8 CF.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability 
Page (1 
unless [USCIS1 sets forth specific and substantiated reasons for its finding that the alien, 
despite having satisfied the criteria, does not meet the extraordinary ability standard. 
Id. at 1234. 
Contrary to counsel's claim that sustained national or international acclaim is demonstrated by meeting 
at least three of the regulatory criteria, both Muni and Buletini contemplate a final merits analysis to 
determine whether the alien has sustained national or international acclaim in ligbt of meeting at least 
three of the criteria. 
In contrast to the broad precedential authority of the case law of a United States circuit court, the AAO 
is not bound to follow the published decision of a United States district court in cases arising within the 
same district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district 
judge's decision will be given due consideration when it is properly before the AAO; however, the 
analysis does not have to be followed as a matter of law. Id. at 719. In this matter, there is a recent 
circuit court decision that is far greater authority. 
D. Standard of Proof and Totality of the Evidence 
Counsel·s appellate brief also indicated that the final merits portion of the director's decision failed to 
consider the evidence as a whole and instead of applying the preponderance of the evidence standard of 
prool~ the director applied the "criminal law standard of 'beyond a reasonable doubt.·" The record docs 
not support counsel's assertion that the director held the petitioner's evidence to an elevated standard 
beyond that which is required by most administrative immigration cases, the preponderance of the 
evidence standard of proof. This standard is outlined in Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 2(10), which indicated that in evaluating evidence, USCIS must "examine each piece of 
evidence for relevance, probative value, and credibility, both individually and within the context of the 
totality of the evidence, to determine whether the fact to be proven is probably true." USCIS 
determines the truth not by the quantity of evidence alone but by its quality. Matter of Chawathe, 
25 I&N Dec. at 376 citing Matter of E-M- 20 I&N Dec. 77, 80 (Comm'r 1989). Using this standard, the 
AAO concurs with the director's ultimate conclusion that the evidence does not establish the 
petitioner"s eligibility. 
E. Evidentiary Criterii 
Documentation of" the alien·s receipt ollesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
This criterion contains several evidentiary elements the petitioner must satisfy. According to the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i), the evidence must establish that the alien be the 
, The petitioner docs not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discussed in lhis decision. 
recipient of the prizes or the awards (in the plural). The clear regulatory language requires that the 
prizes or the awards are nationally or internationally recognized. The plain language of the regulation 
also requires evidence that each prize or award is one for excellence in the field of endeavor rather than 
simply for participating in or contributing to the event. The petitioner must satisfy all of these elements 
to meet the plain language requirements of this criterion. 
The petitioner provided a single award, 
issued by the International Songwriting Competition (ISC). 
failed to meet the requirements of this criterion. 
The director credited the with one award that satisfied this criterion's requirements, first place 
for the issued by the ISC. However, the petitioner provided no evidence 
demonstrating that this award is y or internationally recognized for excellence in the field. The 
evidence of media coverage relating to this award derives from the website associated with the 
petitioner's band, The preceding information from the . insufficient to 
demonstrate that the 2004 award is a nationally or internationally recognized award for excellence in the 
field. In addition, the petitioner provided a press release from the rSc. uscrs need not rely on the 
self-promotional material from ISC about its own award. See Braga v. Poulos, No. CY 06 5105 SJO 
(C. D. CA July 6, 20(7) afl'd 2009 WL 604888 (9th Cir. 2009) (concluding that the MO did not have 
to rely on self-serving assertions on the cover of a magazine as to the magazine's status as major 
media). This document is a photocopy and the petitioner failed to provide a copy that displays the full 
text. However, the document indicates that this competition received exposure in the media via the New 
York Times, which allegedly called it the "songwriting competition to take note of." The record is 
absent of such exposure from the New York Times. Furthermore, even if this assertion bears out, 
without the full New York Times article, the quote is without context and relates to the competition 
while the regulation requires that the award itself be nationally or internationally recognized. As such, 
this award will not serve to meet the requirements of this criterion. 
Additionally, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires evidence of 
"awards" in the plural, which is consistent with the statutory requirement for extensive evidence. 
Section 203(b)(I)(A)(i) of the Act. Significantly, not all of the criteria at 8 C.F.R. § 204.5(h)(3) are 
worded in the plural. Specifically, the regulations at 8 c.F.R. §§ 204.5(h)(3)(iv) and (ix) only require 
service on a single judging panel or a single high salary. When a regulatory criterion wishes to include 
the singular within the plural, it expressly does so as when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that 
evidence of experience must be in the form of"letter(s)." Thus, the AAO can infer that the plural in the 
remaining regulatory criteria has meaning. In a different context, federal courts have upheld USCIS' 
ability to interpret significance from whether the singular or plural is used in a regulation. See 
Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at *1, *12 (D.C. Cir. March 26, 2008); 
Silapilames.com Illc. v. Chertoff, 2006 WL 3491005 at *1, *10 (D. Or. Nov. 30, 2006) (upholding an 
interpretation that the regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree 
at 8 C.F.R. § 204.5(1)(2) requires a single degree rather than a combination of academic credentials). 
Consequently, even if the ISC award were to satisfy the regulatory requirements, the petitioner would 
still fail to meet the plain language requirements of 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/or which classification is sought. Such evidence 
shall illclude the title, date, and author of the material, and any necessary translation. 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must primarily be about the petitioner and the contents must relate to the petitioner's wQrk in 
the field under which he seeks classification as an immigrant. The published material must also appear 
in professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or international distribution and be published in a 
predominant national language. The final requirement is that the petitioner provide each published 
item's title, date. and author and if the published item is in a foreign language, the petitioner must 
provide a translation that complies with the requirements found at S C.F.R. § 103.2(b)(3). The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
The petitioner provided numerous forms of evidence relating to this criterion. The director determined 
that the petitioner failed to meet the requirements of this criterion. A review of the director's decision 
reveals that the director may have considered the quality of the evidence within the antecedent 
procedural step rather than simply determining if the petitioner provided evidence that meets the plain 
language requirements of this criterion. This type of analysis is more appropriate within the final merits 
determination. 
The bulk of the evidence the petitioner provided failed to meet the regulatory requirements under this 
criterion as the petitioner neglected to include any independent evidence to demonstrate that the 
provided media is one of the regulatory mandated publication types (professional or major trade 
publications or other major media). Much of the evidence is also considered to be self-serving as it 
originated from www.itlllo.nct, the website directly relating to the petitioner's band, Fono. In addition, 
with regard to the compact disc reviews, they are not about the petitioner relating to his work. See 
gmerally Negro-Plumpe v. Okin, 2:07-CV-S20-ECR-RJJ at 7 (D. Nev. Sept. 8, 200S) (upholding a 
finding that articles about a show are not about the actor). 
Considering the evidence cited within the director's decision, the evidence relating to Billhoard 
Magazine is not about the petitioner relating to his work in the field. Instead, the article failed to even 
mention the petitioner by name and it is about the band,. and their new album. The statute requires 
that the coverage be "about the alien" and "relating to the alien's work in the field." See S C.F.R. 
§ 204.5(h)(3)(iii). Also, as the director noted, this article is missing the publication date. 
Page <J 
Regarding the interview in 
the petitioner submitted informahon magazme's website indicating that it 
has a "nationwide" readership of 100,000 and is distributed in New York City, California, Texas and 
Florida. This information does not establish that this magazine is a professional or major trade 
publication or other major media. Regarding the posting of articles on the Internet, in today's world. 
many entities post at least some of their stories on the Internet. To ignore this reality would be to render 
the "major media" requirement meaningless. International accessibility by itself is not a realistic 
indicator of whether a given publication is "major media." The AAO will not presume that the mere 
inclusion on the Internet of articles from music will as major media. On 
appeal, the petitioner provided information from revealing monthly page 
views worldwide of only 20,000. The record does not establish that these numbers are consistent with a 
professional or major trade publication or other major media. 
who claims to be a former producer for 
the also claims to have produced a 30 minute 
"m"rl .. a variety offeatures about the band tor 
other SSC stations. The petitioner has not provided evidence to demonstrate that ••••••• 
remains employed by the BBC, and the petitioner failed to provide evidence to corroborate _ 
claims. The AAO will not presume that a letter from a former employee of a television 
station, without additional corroborating evidence, will satisfY this criterion's requirements. 
Additionally, the petitioner provided articles originating from Cross Rhythms, both the magazine and 
the website. Regarding the 1996 Cross Rhythms magazine article, the petitioner failed to provide any 
evidence rdating to the circulation or distribution of this publication from 1996. Instead, the petitioner 
submitted general intormation about Cross Rhythms' history and a list of radio stations that carry its 
shows. As such, the petitioner has not demonstrated that this publication qualifies as one of the required 
publication types. This decision has already explained why the AAO will not presume that the mere 
inclusion on the Internet of articles from music oriented websites will qualify as major media. 
Therefore, the petitioner has not submitted evidence that satisfies each of this regulation's requirements. 
Evidence of the alien's original scientific. scholarly, artistic. athletic. or business-related 
contributions of major significance in the field. 
The plain language of this regulatory criterion contains multiple evidentiary elements that the petitioner 
must satisfy. The first is evidence of the petitioner's contributions (in the plural) to his field. These 
contributions must have already been realized rather than being potential, future contributions. The 
petitioner must also demonstrate that his contributions are original. The evidence must establish that the 
contributions are scientific, scholarly, artistic, athletic, or business-related in nature. The final 
requirement is that the contributions rise to the level of major significance in the field as a whole, rather 
than to a project or to an organization. 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) 
Page 10 
quoted ill Al'WU v. Potter, 343 F.3d 619, 626 (2
nd 
Cir. Sep 15, 2(03). Contributions of major 
significance connotes that the petitioner's work has significantly impacted the field. The petitioner 
must submit evidence satisfying all of these elements to meet the plain language requiremenls of this 
criterion. 
The petitioner provided the opinion of experts as evidence under this criterion. The director determined 
that the petitioner failed to meet the requirements of this criterion. 
Within the appellate brief, counsel lists ten expert letters that the director allegedly ignored. A review 
of the director's decision reveals that the director did not perform an in-depth analysis on the expert 
letters, hut concluded generally that expert letters, per se, are insufficient to demonstrate that the 
petitioner has met this criterion's requirements. The director also stated that no other evidence within 
the record demonstrated the petitioner's eligibility to meet this regulatory requirement. 
served that the petitioner is "widely 
considered a true innovator in petitio~rmanently influenced his 
field" as a member of the bands Although _ further indicated that the 
petitioner is widely renowned, she failed to detail manner the petitioner has been an "innovator" 
or how he has "permanently influenced his field" as she claims. 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. at 1108, affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 WL 
188942 at *5 (S.D. N.Y.). Similarly, USCIS need not accept primarily conclusory assertions. 1756, Inc. 
v. The Attornev General of the United States, 745 F.Supp. 9, 15 (D.C. Dist. 1990). 
indicated that he has co~essed with 
which factored into ...-requesting 
that _ go on tour with While _ indicated that the petitioner has 
performed at prestigious concerts, he does not explain how the petitioner has impacted the musical 
industry with his contributions that can be construed to be of major significance. 
The letter from stat~titionerl is widely considered a true innovator in our 
industry." Much of the language in_letter mirrors that from '-letter above. In 
fact. several of the letters contain nearly identical language extoling the petitioner's accomplishments 
and abilities, but do not provide specific information indicating how the petitioner's contributions to his 
field have made an impact tantamount to contributions of major significance as the regulation requires. 
The petitioner's talent and experience in his field are not necessarily indicative of original artistic 
contributions of major significance in his field. It is not enough to be skillful and knowledgeable and to 
have others attest to those talents. An alien must have demonstrably impacted his field through 
identifiahle specific contributions in order to meet this regulatory criterion. 
The Board of Immigration Appeals (BlA) has held that testimony should not be disregarded simply 
because it is ··sclf:serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BlA 20(0) (citing 
cases). The Board also held, however: "We not only encourage, but require the introduction of 
Page 11 
corroborative testimonial and documentary evidence, where available." Id. If testimonial evidence 
lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit corroborative 
evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
Vague, solicited letters from local colleagues that do not specifically identify contributions or provide 
specific examples of how those contributions influenced the field are insufficient. Kazarian v. USc/S, 
580 F.3d 1030, 1036 (9th CiT. 2(09) a[fd in part 596 F.3d 1115 (9th Cir. 2(10). In 2010, the Kazarian 
court reiterated that the AAO's conclusion that "letters from physics professors attesting to [the alien's 1 
contributions in the tield" was insutlicient was "consistent with the relevant regulatory language." 
596 F.3d at 1122. The opinions of experts in the field are not without weight and have been considered 
above. While such letters can provide important details about the petitioner's skills, they cannot form 
the cornerstone of a successful extraordinary ability claim. 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 linal 
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; 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 2(08) (noting that expert opinion testimony does not purport to be 
evidence as to "fact"). USCIS 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, 
221&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. at 190). Thus, the 
content of the writers' statements and how they became aware of the petitioner's reputation arc 
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. 
As such, the petitioner has not submitted evidence that meets the plain language requirements of this 
criterion. 
Fvidence o(the dL\p/ay oJthe alien's work in the field at artistic exhibitions or showcases. 
The director determined the petitioner met the requirements of this criterion. The AAO departs from 
the director's eligibility determination related to this criterion for the reasons outlined below. 
The interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and has 
been upheld by a federal district court. See Negro-Plumpe, 2:07-CV-820-ECR-RJJ at *7 (upholding an 
interpretation that performances by a performing artist do not fall under 8 C.F.R. 
§ 204.5(h)(3)(vii)). The alien's work also must have been displayed at an artistic exhibitions or 
showcases (in the plural). While neither the regulation nor existing precedent speak to what constitutes 
an exhibition or a showcase, Merriam-Webster's online dictionary defines exhibition as, "a public 
Page 12 
showing (as of works of art).,,3 Merriam- Webster's online dictionary also defines showcase as, '·a 
setting, occasion, or medium for exhibiting something or someone especially in an attractive or 
favorable aspect.',4 Dictionaries are not of themselves evidence, but they may be referred to as aids to 
the memory and understanding of the court. Nix v. Hedden, 149 U.S. 304, 306 (1893). Therefore, it is 
the petitioner·s burden to demonstrate that the display of his work in the field claimed under this 
criterion occurred at artistic exhibitions or at artistic showcases. The petitioner must satisfy all of these 
elements to meet the plain language requirements of this criterion. 
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). Therefore, the AAO departs from and 
withdraws the director's favorable determination as it relates to this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
estahlishments that have a distinguished reputation. 
This criterion anticipates that a leading role should be apparent by its POSition in the overall 
organizational hierarchy and that it be accompanied by fhe role's matching duties. A critical role should 
be apparent from the petitioner's impact on fhe organization or fhe establishment's activities. The 
petitioner" s performance in this role should establish whether fhe role was critical for organizations or 
estahlishments as a whole. The petitioner must demonstrate that the organizations or establishments (in 
the plural) have a distinguished reputation. While neither the regulation nor precedent speak to what 
constitutes a distinguished reputation, Merriam-Webster's online dictionary defines distinguished as, 
··marked hv eminence, distinction, or excellence."s Dictionaries are not of themselves evidence, but 
they may be referred to as aids to the memory and understanding of the court. Nix v. Hedden, 
149 U.S. at 306. Therefore. it is the petitioner's burden to demonstrate that the organizations or 
establishments claimed under this criterion are marked by eminence, distinction, excellence, or a similar 
reputation. The petitioner must submit evidence satisfying all of these elements to meet the plain 
language requirements of this criterion. 
The director determined that the petitioner met the requirements of this criterion. The AAO departs 
from the director's favorable determination as it relates to this criterion for the reasons outlined below. 
Initially, counsel mischaracterized the plain language of this criterion, asserting that the petitioner ··has 
performed and will perform services as a lead or starring participant in productions or events." This 
language does not follow the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). Counsel 
also, however, went on to address this criterion as written. 
, See hnp:!/»,ww.mcrriam-wehsler.com/dictionary/exhihition, [accessed on April 24, 2012, a copy of which is 
incorporated into the record of proceeding.] 
"See htip)!www.rnerriam-wehster.comJdictionarylshowcase, [accessed on April 24, 2012, a copy of which is 
incorporaled into the record of proceeding.] 
, See htlJl:j!\V\V\v.n1crri'lm:»,ch~Ler.c{)mLgisti()nat:.YJ.\l.istinguish,\!, [accessed on April 24, 2012, a copy of which is 
incorporated illlo Ihe record of proceeding.] 
Page 13 
The director's decision indicates that the petitioner meets this criterion's requirements based on one of 
the petitioner's bands appearing on the soundtracks of television shows such as ER, Dog the BOllnty 
Hllnter, Road Rilles, Real World, two video games, and a beer-maker's now-defunct online audio 
player. The regulation requires that the leading or critical role be performed for organizations or 
establishments that have a distinguished reputation, The aforementioned are not organizations or 
establishments as contemplated by the regulation and the petitioner has not demonstrated that he 
performed in a leading or critical role for the organizations under which these entities exist. 
Consequently, these will not serve to satisfy the evidentiary requirements related to this criterion. 
Within the initial filing brief, counsel indicates that the petitioner qualified under this criterion based on: 
I. Performing at some of the most prominent Christian music and modern rock events of recent 
years, as well as playing with many of the top bands in those fields; 
2. Performing on rock tours; 
3. The fact that his band was featured that the band's 
music was featured on the abovementioned television programs; 
4. His leading role within the band, _; 
5. His leading role within his band _, which Universal Music Group is distributing; 
6. By his role 
7. Performing on rp.Dnfcllabel; and 
8. His upcoming performances and productions on behalf of 
Items I - 5 arc not qualifying organizations or establishments as contemplated by the regulation and 
will not serve to meet the of this criterion. Regarding item six, counsel 
refers to the leller from 
Within her to the manner in which the petitioner or 
critical role discussed the petitioner's leading role for the band, •. As 
_ is not a qualifying organization or establishment contemplated under the regulation, it will not 
satisfy this criterion's requirements. Regarding items seven and eight, while the petitioner provided 
information relating to each organization, he failed to submit evidence demonstrating that he performed 
in a leading role as represented by his position in either organization's hierarchy. Additionally, the 
record lacks evidence of the impact that the petitioner has had on either of these organizations. 
Page 14 
In view of the foregoing, the petItIOner has not submitted evidence that meets the plain language 
requirements of this criterion. Therefore, the AAO departs from and withdraws the director's favorable 
determination as it relates to this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
This criterion anticipates a petitioner will establish eligibility through volume of sales or box office 
receipts as a measure of the petitioner's commercial success in the performing arts. 
The petitioner's song was selected to appear The 
petitioner did not provide evidence to demonstrate ifhis band's song appeared on the versIOn of 
the game or if it was merely as an aftermarket song that was downloadable to the gamin~ 
Regardless, as the evidence on record failed to indicate the volume of the song's sales for _ 
_ it will not serve to satisfy the plain language requirements of this criterion. 
The petitioner provided licensing agreements between himself and various entItIes. The director 
determined that the petitioner met the requirements of this criterion. The AAO departs from the 
director's favorable determination as it relates to this criterion for the reasons outlined below. The 
regulation contains no caveat for an alien to demonstrate eligibility under this criterion based on 
licensing agreements. USCIS may not utilize novel substantive or evidentiary requirements beyond 
those set forth at 8 C.F.R. § 204.5. Kazarian, 596 F.3d at 1221, citing Love Korean Church v. ChertojJ; 
549 F.3d 749, 758 (9th Cir.2(08). The appropriate measure is through sales volume. 
Lastly, the petitioner submitted documentation relating to numerous "major industry airplay charts." 
While these charts indicate that songs that the petitioner's band performed rose to the top of many of the 
charts, this is insufficient evidence to meet the plain language requirements of this regulatory criterion. 
This evidence does not demonstrate commercial successes through sales volume as mandated by the 
regulation at 8 C.F.R. § 204.5(h)(3)(x). As the petitioner failed to provide evidence of record, compact 
disc, or othcr similar sales relating to his work, he has failed to submit evidence that satisfies the plain 
language requirements of this criterion. 
Accordingly, the petitioner has not submitted evidence that meets the plain language requirements of 
this criterion. Hence, the AAO departs from and withdraws the director's favorable determination as it 
relates to this criterion. 
F. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
-Page 15 
G. Final Merits Detennination 
Although the petitioner failed to satisfy at least three of the evidentiary criteria and a final merits 
determination is not required, the director perfonned this analysis and the AAO concurs with the 
director's detennination. In accordance with the Kazarian opinion, the next step is a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (I) a "level of expertise indicating that the individual is one of that small percentage who 
have risen to the very top ofthe[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 
lield of expertise." 8 C.F.R. § 204.5(h)(3). See Kazarian, 596 F.3d at 1119-20. 
The only award the petitioner provided was the 
issued by _ This decision has already addressed why the submitted award does not rise to the 
level of nationally or internationally recognized award for excellence in the field. A single award issued 
six years prior to the petition filing that lacks evidence of any significant recognition is not indicative of 
or consistent with sustained national acclaim or a level of expertise indicating that the petitioner is one 
of that small percentage who have risen to the very top of his field. 
Published material that is either not about the petitioner or his work or that appears in a news 
medium where it is not established that the publication has at least a national reach is not 
representative of national or international acclaim nor does it demonstrate the petitioner enjoys the 
status as one of that small percentage who have risen to the very top of their field of endeavor. 
Moreover, the most significant interviews of the petitioner date from 2007, which predates the filing 
of the petition by three years. Such evidence is not indicative of sustained acclaim in 2010 when the 
petitioner filed the petition. 
The petitioner's claim to have made contributions of major significance rests almost entirely on 
recommendation letters. The letters submitted on behalf of the petitioner fail to reflect any original 
contributions of major significance made by the petitioner and their simple repetition of the statutory 
and regulatory requirements is insufficient to establish her national or international acclaim. See 
Fedin Bros. Co., Ud., 724 F. Supp. at 1108, affd, 905 F. 2d 41 (2d. Cir. 1990); AvyrAssociales. Inc .. 
1997 WL 188942 at *5 (S.D.N.Y.). 
Performing in a leading or critical role for enlilies and projects that are not organizations or 
establishments is not indicative of or consistent with sustained national acclaim or a level of expertise 
indicating that the petitioner is one of that small percentage who have risen to the very top of his field. 
The petitioner has not established that he has perfonned in a leading or critical role for organizations or 
establishments that have a distinguished reputation. The documentation submitted by the petitioner is 
not indicative of or consistent with sustained national acclaim or a level of expertise indicating that he is 
one of that small percentage who have risen to the very top of his field. Moreover, there is no evidence 
indicating that the petitioner has perfonned in a leading or critical role for organizations or 
establishments that have a distinguished reputation since his arrival in the United States in 1996. The 
Page I (i 
statute and regulations, however, require the petitioner to demonstrate that his national or international 
acclaim has been sustained. See section 203(b)(1)(A)(i) of the Act, 8 U.S.c. § 1153(b)(1)(A)(i), and 
8 C.F.R. § 204.5(h)(3). The documentation submitted for the criterion at 8 C.F.R. § 204.5(h)(3)(viii) is 
not commensurate with sllstained national or international acclaim as of the petition's tiling date. 
While the petitioner submitted evidence of his musical performances, musical recordings and their 
placement with some popularity charts, performing and recording is inherent to the petitioner's 
occupation and are not, by themselves, indicative of acclaim or being within the small percentage at the 
top of is field of endeavor. The petitioner failed to submit documentation of his commercial successes 
in the form of evidence that documents sales volume. This failure makes it impossible to gauge 
whether his performances rise to the appropriate level related to the commercial successes criterion. 
Additionally, the petitioner's evidence failed to demonstrate that he "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). 
In this matter, the petitioner has not established that his achievements at the time of filing were 
commensurate with sustained national or international acclaim as a musician in the performing arts, or 
being among that small percentage at the very top of the field of endeavor. The submitted evidence is 
not indicative of a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 
101-723,59 (Sept. 19, 1990). The conclusion the AAO reaches by considering the evidence to meet 
each category of evidence at 8 C.F.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 the small percentage who has risen to the very top of the field of endeavor. 8 C.F.R. 
§ 204.5(h)(2). While the petitioner need not demonstrate that there is no one more accomplished than 
himself to qualify for the classification sought, it appears that the very top of his field of endeavor is far 
above the level he has attained. 
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. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
musician in the performing arts to such an extent that he may be said to have achieved sustained 
national or international acclaim or to be within the small percentage at the very top of his field. The 
evidence indicates that the petitioner shows talent as a musican, but is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his 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. 
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; 
-Page 17 
see a/so SO/lane v. DOl, 381 F.3d 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 appeal is dismissed.