dismissed EB-1A Case: Music

US. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
Office: VERMONT SERVICE CENTER Date: 0 1 rm6 
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. 3 1153(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. 
w 
Robert P. Wiemann, Director 
% Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification of the beneficiary 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 musician. The director determined that the petitioner had not established 
that the beneficiary had achieved the sustained national or international acclaim requisite to classification as an 
alien of extraordinary ability. On appeal, counsel submits a brief and copies of documents previously submitted. 
Counsel's claims do not overcome the deficiencies of the petition and the appeal will be dismissed for the 
following reasons. 
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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 
 8 C.F.R. 8 204.5(h)(3). 
 An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight given to evidence submitted to fulfill the criteria 
at 8 C.F.R. 8 204.5(h)(3), or under 8 C.F.R. § 204.5(h)(4), must depend on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained national or international acclaim at the very top of the 
alien's field of endeavor. A lower evidentiary standard would not be consistent with the regulatory definition 
of "extraordinary ability" as "a level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the field of endeavor." 8 C.F.R. 5 204.5(h)(2). 
We address the evidence submitted and counsel's contentions in the following discussion of the regulatory 
criteria relevant to the petitioner's case. Counsel does not claim that the beneficiary is eligible under any criteria 
not discussed below. 
Page 3 
(i) Documentation of the alien 's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in theJield of endeavor. 
Several support letters submitted below state that the beneficiary won awards a 
but the letters provide inconsistent descriptions of these awards. 
band received the "Rockers Award for the Band with the Best Original Stvle" in 1986 and 1987. 
and the "Martin International Award for the Best Reggae Band" in 1987. tates that the 
won "many Awards lncludin International Awar s; oc ers wards for the 
sic] Band for the year 199 1 ." states that the beneficiary received the Rockers Award 
International Award "for not state the dates of these awards or 
provide any other details about their 
 tates that the beneficiary received "an 
award from 'Rockers International' 
 Award,' two of the most prestigious 
awards that any Jamaican musician can receive." also affirms the beneficiary's receipt of the 
"Rockers Award and the Martin International Award," but does not state the dates and categories of these 
- 
awards. The beneficiary submitted no primary evidence of his purported awards to clarify the discrepancies in 
the letters' descriptions regarding the titles, dates and subject areas of the alleged awards. 
On appeal, counsel states: 
[The beneficiary] has received Rockers Awards and the Martins Int 
 onal ward for his excellence 
in Reggae music as a founding member of the Reggae band the a The Rockers Award is 
akin to the American Gramrny Awards and is a prestigious regional awards show in the Caribbean; [the 
beneficiary] is the recipient of two Rockers Awards. The Martins International Award is a coveted 
prize within the Reggae music community. 
Counsel does not state the dates of the beneficiary's purported awards and submits no evidence to support his 
statements regarding the prestige and national or international recognition of the awards. Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. 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). 
On appeal, counsel further states, "Pictures of the awards are not available but several letters which were 
submitted testify to the Beneficiary's having been so awarded." Counsel does not state that other primary 
evidence of the beneficiary's purported awards was unavailable and does not submit any documentation to 
clarify the support letters' inconsistent testimony regarding the beneficiary's alleged awards. It is incumbent 
upon the petitioner to resolve any inconsistencies in the record by independent objective evidence. Any 
attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The 
record contains no primary evidence of the petitioner's purported awards, provides only inconsistent 
testimony regarding the alleged awards, and is devoid of any documentation of the significance and national 
1 
 This band is alternately referred to as the " nd b various letters in the 
record. Because Manager o 
this spelling in our decision. 
to the band as the "I,', we use 
or international recognition of the awards. Consequently, the petitioner does not meet this criterion. 
(ii) Documentation of the alien's membership in associations in the field for which classiJication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or fields. 
Counsel claims the beneficiary meets this criterion through his membership in the Jamaica Federation of 
Musicians and Affiliated Artistes' Union. In his letter submitted below, d President of the 
Union, affirms the beneficiary's membership in the Union, but provides no escrlption of the Union's 
membership criteria. The record contains no other evidence that the Union requires outstanding achievements 
of its members as judged by recognized national or international experts in the field. Accordingly, the 
beneficiary does not meet this criterion. 
(iii) Published material about the alien in professional or major trade publications or other major media, 
relating to the alien's work in the field for which classlJication is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
With his Form 1-140, the petitioner submitted no evidence of published materials about the beneficiary's work. 
Yet on the Form I-290B, counsel states that the petitioner did submit "evidence of published material in major 
media publications about the Beneficiary." On appeal, counsel makes no mention of published materials about 
the beneficiary in his brief and submits no evidence of such materials. Consequently, the petitioner does not 
meet this criterion. 
(v) Evidence of the alien's original scientiJc, scholarly, artistic, athletic, or business-related contributions of 
major signzj?cance in the$eld. 
On appeal, counsel states, "It is clear that without [the beneficiary's] original contributions to Reggae and 
Gospel music, that [sic] these musical forms would be quite different today." As evidence to support his claim, 
counsel cites four recommendation letters submitted below. While such letters provide relevant information 
about an alien's experience and accomplishments, they cannot by themselves establish the alien's eligibility 
under this criterion because they do not demonstrate that the alien's work is of major significance in his field 
beyond the limited number of individuals with whom he has worked directly. Even when written by 
independent experts, letters solicited by an alien in support of an immigration petition carry less weight than 
preexisting, independent evidence of major contributions that one would expect of an alien who has sustained 
national or international acclaim. Accordingly, we review the letters as they relate to other evidence of the 
petitioner's contributions. 
M President of the Jamaica Federation of Musicians and Affiliated Artistes Union, states that the 
beneficiary is a reputed drummer and music tutor with expertise in several musical forms and that his services 
have been in demand in Jamaica and overseas. a musician and broadcaster in Jamaica, describes 
the beneficiary as one of the top drummers in Jama~ca q wlt t e exceptional gift of Composing, Arranging and 
Writing Music [sic] for most instruments." Mr. states that the beneficiary has a very diverse musical 
the Flames of Glory gospel music group, and has played with several well-known 
musicians. 
 an entertainment jou 
 ca, praises the beneficiary as a "musician 
his success with the 
 nd his work with the Bee Zee Street Music 
Academy for beginning musicians. Similar praise 
 skills and accomplishments are made by 
manager and bassis anaging Director 
anager of Bare Essentials 
D' 
Chief Executive Officer of Great Gospel Musical Productions Limited in 
Jamaica. 
While these letters praise the petitioner's skills and describe his purportedly successful musical career in 
Jamaica, they do not state that any of the beneficiary's accomplishments have made original artistic 
contributions of major significance to his field. 
Apart from these recommendation letters, the only other evidence submitted in support of the petition were two 
compact discs and six recording labels that list the petitioner as a musician, producer, arranger or composer. 
The compact discs and one recording label are undated. The remaining recording labels are dated between 1992 
and 1997. Four of the recording labels indicate that they were produced in Jamaica, but the petitioner submitted 
no evidence that the beneficiary's recordings were critically acclaimed, a commercial success, or otherwise 
significantly influenced other letter, Mr. ates that the 
beneficiary is featured on "the - and Friends, plus 
three singles, Jammin On the 
 Pickney." The record contains no evidence of 
these recordings. 
The record is devoid of documentary evidence to corroborate the beneficiary's musical achievements as 
described in the recommendation letters and the submitted evidence does not establish that the beneficiary has 
made any original contributions of major significance to his field. Moreover, the record shows that the 
beneficiary's most recent recording was made in 1997, seven years before this petition was filed. Hence, the 
beneficiary's documented work does not demonstrate the requisite sustained acclaim. Accordingly, the 
beneficiary does not meet this criterion. 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
Although this criterion generally applies to the visual arts, we nonetheless address the numerous references to 
the beneficiary's performances in the record as evidence of his eligibility under this criterion. Several of the 
recommendation letters state that the beneficiary performed at numerous concerts and festivals in Jamaica such 
as the Heineken Startime, Reggae Sumfest, Sting, Reggae Ram Jam, Hot Shot, Reggae Sunsplash, Reggae 
Carnival, Border Clash, Bob Marley Birthday Bash, White River Reggae Bash, and Knox Salute. Mr. - 
further states that the mperformed at unspecified venues and on unspecified dates in Europe, the 
United Kingdom, Canada, Japan and the United States. 
While frequent performances are inherent to the musical profession, the regulation requires that evidence under 
this criterion demonstrate sustained national or international acclaim and not simply document an alien's 
continued employment or activity in his or her field. In this case, the record contains no documentation of any 
of the beneficiary's performances or evidence that any of the festivals or concerts mentioned in the support 
letters are equivalent to major artistic exhibitions or showcases, participation in which might demonstrate 
national or international acclaim. Accordingly, the beneficiary does not meet this criterion. 
(viii) Evidence that the alien has performed in a leading or critical role for organizations or estcrblishments 
that have a distinguished reputation. 
claims that the beneficiary meets this criterion because he was a founding member of the 
performed with famous musicians and appeared at esteemed musical festivals in Jamaica. The 
ort this claim. The record is devoid of any primary evidence of the beneficiary's work with 
The petitioner submitted no evidence of the band's purported recordings, awards, or 
e record does not establish that the were critically acclaimed, had a major 
influence on other musicians in Jamaica or abroad, or otherwise enjoyed a distinguished reputation. The record 
- - - 
is similarly devoid of any documentation of the beneficiary's performances with famous musicians or at the 
festivals cited by counsel and in many of the recommendation letters. The petitioner also failed to submit 
evidence regarding the significance, national or international recognition, or distinguished reputation of any of 
the musical festivals at which the beneficiary purportedly performed and the record does not document the 
beneficiary's allegedly leading or critical role in any distinguished musical group which performed at these 
festivals. Accordingly, the beneficiary does not meet this criterion. 
In closing, we note two oversights made by counsel on appeal. First, on page two of his appellate brief, counsel 
states, "The professional soccer community being small and tight-knit, news of [the beneficiary's] stay in the 
United States reached which then sought out [the beneficiary] for the purpose of recruiting 
him for its coaching staff." Counsel's references to professional soccer and coaching are inapposite, given the 
established fact that the beneficiary is a musician, not an athlete or coach. 
Second, counsel contends that the director should have issued a Request for Evidence before denying the 
petition, but then states, "The response to Form 1-797 Request for Evidence added an explanatory cover letter 
and translations of the newspaper articles, contracts and testimonial letters to the record. The provided evidence 
firmly establishes the Beneficiary's eligibility for the classification sought." The director did not issue an RFE 
in this case and the record contains no RFE response from counsel or any evidence of newspaper articles or 
contracts. Regardless of counsel's error, we note that although 8 C.F.R. 9 103.2(b)(8) requires the director to 
request additional evidence in instances "where there is no evidence of ineligibility, and initial evidence or 
eligibility information is missing," the director is not required to issue a request for further information in every 
potentially deniable case. If the director determines that the initial evidence supports a decision of denial, the 
cited regulation does not require solicitation of further documentation. Furthermore, even if the director had 
committed a procedural error by failing to solicit further evidence, it is not clear what remedy would be 
appropriate beyond the appeal process itself. On appeal, the petitioner has submitted only copies of documents 
previously submitted and counsel does not claim that other evidence of the beneficiary's eligibility could or 
would have been submitted if the director had issued an RFE. Therefore, it would serve no useful purpose to 
remand this case simply to afford the petitioner the opportunity to supplement the record with new evidence. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 3 11 53(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The record in this 
case does not establish that the beneficiary has achieved sustained national or international acclaim as a 
musician placing him at the very top of his field. He is thus ineligible for classification as an alien with 
extraordinary ability pursuant to section 203(b)(l)(A) of the Act, 8 U.S.C. 3 1153(b)(l)(A), and his 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.