dismissed EB-1A Case: Music

(b)(6)
DATE: JUL 2 3 2014 Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b )(1)(A) of the Immigration and Nationality Act; 8 U.S.C. § 1153(b )(1 )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
))))tOJ/h uL 
f" Ron Rosenberg 
-\ Chief, Administrative Appeals Office 
www. uscis.gov 
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NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The employment-based immigrant visa petitiOn was denied by the Director, 
Nebraska Service Center. We rejected the subsequent appeal. The matter is before us on a motion 
to reopen. The motion to reopen will be granted, and our previous decision will be withdrawn. The 
petition is denied. 
The director denied the petition on September 1, 2010. The petitioner filed an appeal of that 
decision on October 5, 2010, 34 days after the decision was issued. We rejected the appeal as it was 
untimely filed. See 8 C.F.R. §§ 103.3(a)(2)(i) and 103.3(a)(2)(v)(B)(l). The petitioner filed a 
motion to reopen that decision based on the claim of ineffective assistance of prior counsel in 
accordance with Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). 
On motion, the petitioner complied with the requirements set forth in the Matter of Lozada. The 
motion to reopen will be granted, our previous decision rejecting the appeal will be withdrawn, and a 
new decision dismissing the appeal will be entered into the record. 1 
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. The director determined that the petitioner had not established the requisite 
extraordinary ability and failed to submit extensive documentation of his sustained national or 
international acclaim. On motion, the petitioner claims to meet at least three of the regulatory 
criteria at 8 C.F.R. § 204.5(h)(3). 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue 
work 
in the area of extraordinary ability, and 
1 
The petitioner was first represented by On appeal, the petitioner was represented by 
When the petitioner filed the appeal, he Indicated that a brief would be submitted to us within 30 
days. On October 29, 2010, Ms. requested an additional 30 days to submit a brief and/or additional 
documentation. The record of proceeding does not reflect that a brief and/or additional documentation was 
ever submitted in support of the appeal. 
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(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. !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 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. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld our decision to deny the petition, the court took issue with our evaluation of 
evidence submitted to meet a given evidentiary criterion? With respect to the criteria at 8 C.P.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." !d. at 1121-22. 
The court stated that our 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 we 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 we concluded)." !d. 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, we 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. 
II. AREA OF EXPERTISE 
In Part 6 of Form I-140, Immigrant Petition for Alien Worker, the petitioner listed his job title as 
"music director." In addition, the petitioner indicated his job description as "conducts, directs, plans, 
2 
Specifically, the court stated that we had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
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Page 4 
and leads instrumental and/or vocal performances." In the petitioner's cover letter accompanying 
the petition, however, the petitioner indicated that he was seeking classification as a violinist. In 
response to the director's request for evidence (RFE) pursuant to the regulation at 8 C.F.R. 
§ 103.2(b )(8), the petitioner claimed that he "anticipated" to be a music director, but he is seeking 
classification as an alien of extraordinary ability as a violinist. On motion, the petitioner claims that 
his area of expertise was mischaracterized by his first attorney by claiming that he was seeking 
classification as a music director instead of as a violinist. On motion, the petitioner clarifies that he 
seeks classification as a violinist. Therefore, the petitioner must rely on his accomplishments as a 
violinist to meet the requirements of the regulation at 8 C.F.R. § 204.5(h)(3) rather than as a music 
director. The statute and regulations require the petitioner's national or international acclaim to be 
sustained and that he seeks to continue work in his area of expertise in the United States. Sections 
203(b )(l)(A)(i) and (ii) of the Act, 8 U.S.C. § 1153(b )(l)(A)(i) and (ii), and 8 C.F.R. § 204.5(h)(3) 
and (5). 
III. ANALYSIS 
A. Translations 
Although the petitioner submitted English language translations, the translations are not certified, 
and some are partial or abbreviated translations. The regulation at 8 C.F.R. § 103.2(b) provides in 
pertinent part: 
(3) Translations. Any document containing foreign language submitted to USCIS 
shall be accompanied by a full English language translation which the translator has 
certified as complete and accurate, and by the translator's certification that he or she is 
competent to translate from the foreign language into English. 
As cited above, the regulation at 8 C.F.R. § 103.2(b)(3) specifically requires that any foreign 
language document that is submitted to USCIS must be accompanied by a full and certified English 
language translation. The petitioner did not comply with the regulation at 8 C.F.R. §103.2(b)(3). 
Accordingly, the translations have no probative value and will not be considered in this proceeding . 
B. Primary Evidence 
The regulation at 8 C.F.R. § 103.2(b)(2) provides in pertinent part: 
(i) The non-existence or other unavailability or 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 fact 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 
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NON-PRECEDENT DECISION 
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. 
The regulation at 8 C.F.R. § 103.2(b)(2)(i) provides that the non-existence or unavailability of 
required evidence creates a presumption of ineligibility. According to the same regulation, only 
where the petitioner demonstrates that primary evidence does not exist or cannot be obtained may 
the petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be 
unavailable may the petitioner rely on affidavits. 
C. Wikipedia 
A review of the record of proceeding reflects that the petitioner submitted screenshots from 
Wikipedia. As there are no assurances about the reliability of the content from this open, user-edited 
Internet site, information from Wikipedia will be accorded no evidentiary weight. See Laamilem 
Badasa v. Michael Mukasey, 540 F.3d 909 (81h Cir. 2008)? 
D. 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 plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the 
alien's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the 
field of endeavor. " It is the petitioner's burden to establish that the evidence meets every element of 
this criterion. Not only must the petitioner demonstrate his receipt of prizes and awards, he must 
also demonstrate that those prizes and awards are nationally or internationally recognized for 
excellence in the field of endeavor, which, by definition, means that they are recognized beyond the 
awarding entity. 
3 See also the online content from http://en.wikipedia.org/wiki/Wikipedia: General disclaimer, accessed on 
June 11, 2014, and copy incorporated into the record of proceeding: 
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. 
4 
On motion, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed 
in this decision. 
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The record of proceeding reflects that the petitioner claims eligibility for this criterion based on the 
following: 
Regarding items 1 - 4, the petitioner submitted foreign language documents without any certified 
English language translations pursuant to the regulation at 8 C.F.R. § 103.2(b )(3), and the petitioner 
did not submit any other primary evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(2) 
regarding his receipt of the purported prizes or awards. Therefore, the petitioner did not demonstrate 
his "receipt" of prizes or awards . Moreover, the petitioner did not establish that his purported prizes 
or awards are nationally or internationally recognized for excellence in the field consistent with the 
plain language of this regulatory criterion. Although the petitioner submitted screenshots regarding 
the Dr. 
and the _ , the petitioner did not submit any documentary 
evidence regarding the significance of the prizes or awards, so as to demonstrate that they are 
nationally or internationally recognized for excellence in the field. Regarding the petitioner's 
participation in a master course at the , the petitioner submitted a screenshot 
reflecting the conditions for participation; however there is no evidence demonstrating that the 
petitioner's participation equates to "prizes or awards," and the petitioner did not submit any 
documentary evidence establishing his participation is nationally or internationally recognized for 
excellence in the field. 
Regarding the prize at the the petitioner submitted a 
foreign language document without a certified English language translation pursuant to the 
regulation at 8 C.F.R. § 103.2(b )(3). The petitioner did submit, however, a letter from 
who confirmed that the petitioner won his competition. Although the petitioner submitted 
screenshots regarding including screenshots from Wikipedia, the petitioner did not 
submit any documentary evidence reflecting that his prize is nationally or internationally recognized 
for excellence in the field. 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
Regarding the prize at the _ the petitioner submitted a certified English 
language translation evidencing his receipt of the prize. The petitioner also submitted a document 
regarding the academy and a screenshot from 
that lists the previous winners and provides the prize's selection criteria; however the documentary 
evidence does not reflect whether the prize is nationally or internationally recognized for excellence 
in the field. 
On motion, the petitioner additionally claims that he won the bronze medal at the 
Besides the third prize at 
_ ~ • . a review of the record of proceeding does not 
reflect that the petitioner previously claimed these prizes, awards, or selections for this criterion at 
either the initial filing of the petition or in response to the director's RFE. Moreover, the record of 
proceeding does not contain any documentary evidence to support the petitioner's assertions that he 
received the prizes or awards, including the third prize at the 
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)). Moreover, the petitioner did not submit any documentary 
evidence demonstrating that any 
of these awards are nationally or internationally recognized for excellence in the field. 
Finally, on motion, the petitioner claims that since he filed his petition, he also won second prize at 
the The petitioner did not 
submit any documentary evidence to support his 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. at 165. Regardless, eligibility must be established at 
the time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l 
Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision 
further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot 
"consider facts that come into being only subsequent to the filing of a petition." !d. at 176. Further, 
the petitioner did not submit any documentary evidence establishing that prize is nationally or 
internationally recognized for excellence in the field. 
As discussed, the plain language of this regulatory criterion specifically requires that the petitioner 
demonstrate his receipt of nationally or internationally recognized prizes or awards for excellence in 
his field. The petitioner did not establish that he has received the claimed prizes or awards, and/or 
that they are nationally or internationally recognized prizes or awards for excellence in the field. 
Accordingly, the petitioner did not establish that he meets this criterion. 
(b)(6)
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NON-PRECEDENT DECISION 
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. 
On motion, the petitioner does not further claim eligibility for this criterion. Therefore, the 
petitioner abandoned this issue. See Sepulveda v. U.S. Att'y Gen., 401 F.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) (the court found the plaintiff's claims to be abandoned as he failed to raise them on 
appeal). 
Nonetheless, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires 
"[ d]ocurnentation of the alien's membership in associations in the field for which is classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields." In order to demonstrate that membership in an 
association meets this criterion, a petitioner must show that the association requires outstanding 
achievement as an essential condition for admission to membership. Membership requirements 
based on employment or activity in a given field, minimum education or experience, standardized 
test scores, grade point average, recommendations by colleagues or current 
members, or payment of 
dues do not satisfy this criterion as such requirements do not constitute outstanding achievements. 
Further, the overall prestige of a given association is not determinative; the issue here is membership 
requirements rather than the association's overall reputation. In response to the director's RFE, the 
petitioner claimed eligibility for this criterion based on his purported memberships with the 
Re!!ardin!! the netitioner snhmiUecl a screenshot from 
reflecting that "is a 
membership organization for string and orchestra teachers and our players, helping them to develop 
and refine their careers." The petitioner did not submit any documentary evidence supporting his 
assertion that he is a member of Going on record without supporting documentary evidence 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 
22 I&N Dec. at 16-'i. Moreover, the screenshot reflects the mission of without providing any 
evidence of membership requirements, so as to establish that it requires outstanding 
achievements its members, as judged by recognized national or international experts in their 
disciplines or fields. 
Regarding the petitioner submitted a screenshot from and a 
recommendation letter from Director of who stated that the petitioner 
"has coached groups at and provided sectionals as well as Violin Performance Classes and 
Master Classes for our students." However, Mr. did not state that the petitioner is a member 
of and the petitioner did not submit any other documentation establishing that he is a member 
of Going on record without supporting documentary evidence is not sufficient for purposes 
of meeting the burden of proof in these proceedinPs. Matter of Soffici, 22 I&N Dec. aJ HiS. 
Furthermore , the screenshot reflects the benefits of without providing any evidence of 
(b)(6)
NON-PRECEDENT DECISION 
Page 9 
membership requirements, so as to demonstrate that it requires outstanding achievements its 
members, as judged by recognized national or international experts. 
As discussed, the plain language of this regulatory criterion specifically requires that the petitioner 
has memberships with associations that require outstanding achievements. The petitioner did not 
demonstrate that he is a member of the associations and that they are associations requiring 
outstanding achievements for membership, as judged by recognized national or international experts. 
Accordingly, the petitioner did not establish that he meets this criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[p ]ublished material 
about the alien in professional or major trade publications or other major media, relating to the 
alien's work in the field for which classification is sought." In general, in order for published 
material to meet this criterion, it must be about the petitioner and, as stated in the regulations, be 
printed in professional or major trade publications or other major media. To qualify as major media, 
the publication should have significant national or international distribution. Some newspapers, such 
as the nominally serve a particular locality but would qualify as major media 
because of significant national distribution, unlike small local community papers. 5 Furthermore, the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that "[s]uch evidence shall 
include the title, date, and author of the material, and any necessary translation." 
On motion, the petitioner claims that he has been "profile[ d] in various media outlets throughout the 
U.S. Europe and South America." A review of the record of proceeding reflects that the petitioner 
submitted numerous articles that did not contain certified English translations as required pursuant to 
the regulation at 8 C.F.R. §§ 103.2(b )(3) and 204.5(h)(3)(iii). Moreover, it appears that several of 
the translations were only partially translated, such as the articles entitled ' 
For these reasons alone, the translations have no probative value. Furthermore, most 
of the translations reflect material about concerts and competitions that mention the petitioner but are 
not about the oetitioner. For exa ple, the translation for the article entitled ' 
is about a concert in the Golden Hall of the Augsburg 
Conservatory, and the translation for the article entitled is about 
the XXII International Competition for Musical Performance. Although the petitioner is mentioned 
as a performer or competitor, the articles are about the concerts and competitions rather than about 
the petitioner. Articles that are not about the petitioner do not meet this regulatory criterion. See, 
5 
Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the but in a section that is distributed only in 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
(b)(6)
NON-PRECEDENT DECISION 
Page 10 
e.g., Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept. 8, 2008) (upholding a 
finding that articles about a show are not about the actor). 
In addition, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that "[s]uch 
evidence shall include the title, date, and author of the material." The majority of the petitioner 's 
translations do not include the date and/or author of the material. For instance, the translation for the 
article entitled did not contain the date of 
the article, and the translatiOn ot he article en Itled _j 
did not contain the author of the article. 
Further, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the published 
material be "in professional or major trade publications or other major media." In response to the 
director's RFE, the petitioner submitted a list of publications with circulation statistics and provided 
the website addresses for the publications. The petitioner did not submit the screenshots of the 
websites and did not indicate the source of the circulation statistics. There is no evidence supporting 
the petitioner ' s assertions . Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. at 165. Moreover, even if the circulation statistics originated from the publications, the 
petitioner did not submit independent, object evidence demonstrating that the publications are 
professional or major trade publication or other major media. USCIS need not rely on the self­
promotional material of the publisher. See Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 6, 
2007) ciff'd 2009 WL 604888 (91h Cir. 2009) (concluding that self-serving assertions on the cover of 
a magazine as to the magazine's status is not reliable evidence of major media). 
Fin::~llv thP. nP.titinnP o;:nhmitt ~ fnnr ::~rtirl .;: th::~t mPrP nhlio;:hPrl in th e nolio;:h l::~n~age: 
None 
of the articles are about the petitioner relating to his work; rather the articles are about concerts in 
which the petitioner is mentioned as one of the performers. Again, articles that are not about the 
petitioner do not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 2:07-CV-820-
ECR-RJJ at *7. Moreover, the petitioner did not include the author for the article. 
Finally , the petitioner did not submit any documentary evidence, and they were not included in his 
compiled list mentioned above, demonstrating and 
are professional or major trade publications or other major media. 
As discussed above, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires 
"[p ]ublished material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought." The petitioner ' s 
documentary evidence does not reflect published material about him relating to his work in 
professional or major trade publications or other major media. 
Accordingly, the petitioner did not establish that he meets this criterion. 
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NON-PRECEDENT DECISION 
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. 
On motion, the petitioner does not contest the decision of the director or further claim eligibility for 
this criterion. Therefore, the petitioner abandoned this issue. See Sepulveda v. U.S. Att'y Gen., 401 
F.3d at 1228 n. 2; Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885, at *9. 
Nevertheless, the plain language of the regulation at 8 C.F.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." A review of the record of 
proceeding reflects that at the initial filing of the petition, the petitioner claimed eligibility for this 
criterion based on a workshop he created to teach violin and viola players, and the petitioner 
submitted promotional material and an application. Serving as a teacher to instruct students does not 
constitute participation as a judge of the work of others in the field. The phrase "a judge" implies a 
formal designation in a judging capacity, either on a panel or individually. Teaching in a classroom 
setting does not meet the elements of this criterion. 
Moreover. in response to the director's RFE. the Petitioner claimed that he served as a judge at the 
The petitioner submitted a pamphlet/brochure 
regarding the festival that listed the petitioner as an invited faculty member. The documentation 
does not, however, describe the petitioner's responsibilities at this festival or otherwise indicate that 
the petitioner served as a judge. The petitioner did not submit any documentation to support his 
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. at 165. 
The petitioner also claimed that he was going to be a judge at the upcoming 
and the petitioner submitted a brochure/application for the 
festival and screenshots from listing the petitioner 
as one of the violin/viola professors. None of the documentation indicates that the petitioner was to 
be a judge at the festival. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. at 165. Regardless, the petitioner's intention to serve as a judge is not evidence of his 
actual participation as a judge of others' work. Even if the petitioner demonstrated that he 
participated as a judge, which he did not, eligibility must be established at the time of filing. 8 
C.F.R. § 103.2(b )(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. A petition cannot be approved at 
a future date after the petitioner becomes eligible under a new set of facts. Matter of Izummi, 22 
I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 18 I&N Dec. at 114 
that users cannot "consider facts that come into being only subsequent to the filing of a petition." 
!d. at 176. 
For the reasons discussed above, the petitioner did not demonstrate that he served as a judge of the 
work of others in the same or an allied field of specification for which classification is sought at the 
time of the filing of the petition. 
(b)(6)
NON-PRECEDENT DECISION 
Page 12 
Accordingly, the petitioner did not establish that he meets this requirement. 
Evidence of the alien 's original scientific , scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The plain language of the regulation requires "[ e ]vidence of the alien's original scientific, scholarly , 
artistic, athletic, or business-related contributions of major significance in the field." Here, the 
evidence must rise to the level of original 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 APWV v. Potter, 343 F.3d 
619, 626 (2"d Cir. Sep 15, 2003). 
The petitioner submitted recommendation letters that praised him for his talents and skills. For 
instance, stated that the petitioner "is one of the outstanding 
violinists of today - he possess [sic] all the necessary ingredients: a beautiful tone, excellent 
technique, and imaginative musicianship." stated that he has "consistently been 
impressed with [the petitioner's] extraordinary ta ent, skill, and work ethic." Furthermore, 
stated that the petitioner "proved to be an outstanding violinist." In addition 
_ stated that the petitioner "proved to be an outstanding violinist and a mature young artist in 
concerts and international competitions." Further, stated that the petitioner "possesses 
a bi~r sound. maintains highest technical standards, and has an exceptional large repertoire." Also, 
stated that the petitioner 
"is an artist of extraordinary ability." Finally, 
stated that the petitioner 
"has had a stellar career as a violin soloist." 
None of the letters, however, indicated how the petitioner's skills or talents are original contributions 
of major significance in the field. Having a diverse skill set is not a contribution of major 
significance in and of itself. Rather, the record must be supported by evidence that the petitioner has 
already used those unique skills to impact the field at a significant level in an original way. 
Furthermore, assuming the petitioner's 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 labor certification process. 
See Matter of New York State Department of Transportation, 22 I&N Dec. 215, 221 (Assoc. 
Comm'r 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
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 MatterofV-K-, 24 I&N Dec. 500, n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"). Thus, the content 
of the references ' statements and how they became aware of the petitioner's reputation are important 
(b)(6)
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Page 13 
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 violinist who has made original contributions of major significance in the field. See also 
Visinscaia, CV No. 13-223, at *1, *6 (D.D.C. Dec. 13, 2013) (concluding that USCIS' decision to 
give little weight to uncorroborated assertions from professionals in the field was not arbitrary and 
capricious). 
Although those familiar with the petitioner's work generally describe it as "extraordinary," there is 
insufficient documentary evidence demonstrating that the petitioner's work is of major significance. 
This regulatory criterion not only requires the petitioner to make original contributions, the 
regulatory criterion also requires those contributions to be of major significance. Vague, solicited 
letters that repeat the regulatory language but do not explain how the petitioner's contributions have 
already influenced the field are insufficient to establish original contributions of major significance 
in the field. Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d 1115 
(9th Cir. 2010). In 2010, the Kazarian court reiterated that the USCIS' conclusion that the "letters 
from physics professors attesting to [the petitioner's] contributions in the field" were insufficient 
was "consistent with the relevant regulatory language." 596 F.3d at 1122. Moreover, the letters 
considered above primarily contain bare assertions of the petitioner's status in the field without 
providing specific examples of how those contributions rise to a level consistent with major 
significance in the field. 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, *1, 
*5 (S.D.N.Y. Apr. 18, 1997). Without supporting evidence, the petitioner has not met his burden of 
establishing his present contributions of major significance in the field. 
Without additional, specific evidence showing that the petitioner's work has been unusually 
influential, widely applied throughout his field, or has otherwise risen to the level of contributions of 
major significance, the petitioner has not established that he meets this criterion. 
Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
On motion, the petitioner does not further claim eligibility for this criterion. Therefore, the 
petitioner abandoned this issue. See Sepulveda v. U.S. Att'y Gen., 401 F.3d at 1228 n. 2; Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885, at *9 (the court found the plaintiffs claims to be 
abandoned as he failed to raise them on appeal). 
Notwithstanding the above, the plain language of the regulation requires "[e]vidence of the display 
of the alien's work in the field at artistic exhibitions or showcases." The petitioner is a violinist. 
When he is playing the violin, he performs before an audience. As a performing artist, it is inherent 
to his occupation to perform. If we accept that a performance artist like the petitioner meets this 
criterion, it would render the regulatory requirement that the petitioner meet at least three criteria 
(b)(6)
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Page 14 
meaningless as this criterion would effectively be collapsed into the criterion at the regulation at 8 
C.F.R. § 204.5(h)(3)(viii). The ten criteria in the regulations are designed to cover different areas; 
not every criterion will apply to every occupation. The interpretation that this criterion is limited to 
the visual arts is longstanding and has been upheld by a federal district court. Negro-Plumpe v. 
Okin, 2:07-CV-820-ECR-RJJ, at *7 (upholding an interpretation that performances by a performing 
artist do not fall under this criterion). 
Therefore, while the petitioner's performances have evidentiary value for other criteria , they cannot 
serve to meet this criterion. Instead , as the petitioner's performances are more relevant to the 
leading or critical role criterion set forth at the regulation at 8 C.F.R. § 204.5(h)(3)(viii) and the 
commercial success criterion set forth at the regulation at 8 C.F.R. § 204.5(h)(3)(x), they will be 
discussed separately within the context of those criteria. 
Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The plain language of the regulation requires "[ e ]vidence that the alien has performed in a leading or 
critical role for organizations or establishments that have a distinguished reputation." 
The petitioner submitted various concert programs and other documentation evidencing his concerts 
for numerous orchestras and ensembles. For instance. the oetitioner has oe.rformed for the 
There is no indication from a review of the documentary evidence that the petitioner performed in a 
leading or critical role. For example, the documentary evidence does not reflect that the petitioner 
was featured or received top billing in any of the concerts consistent with the meaning of leading or 
critical. The petitioner did not submit evidence showing his position in relation to that of the other 
musicians, or to demonstrate how the petitioner 's roles within these concerts differentiated him from 
the other musicians. As the petitioner is a violinist, it is expected that the petitioner will perform. 
Moreover, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires that the 
petitioner perform "for organizations or establishments that have a distinguished reputation. " The 
petitioner did not submit any documentary evidence regarding the reputation of any of the orchestras 
or ensembles, so as to demonstrate that they have distinguished reputations consistent with the 
regulatory criterion. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that 
the alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." The burden is on the petitioner to establish that he meets every element of 
this criterion. Without documentary evidence demonstrating that the petitioner has performed in a 
(b)(6)
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Page 15 
leading or critical role for organizations or establishments that have a distinguished reputation, the 
petitioner has not established that he meets the plain language of this regulatory criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
The plain language of the regulation requires "[ e ]vidence of commercial successes in the performing 
arts, as shown by box office receipts or record, cassette, compact disk, or video sales." 
At the initial filing of the petition, the petitioner claimed that his work "has also been featured on 
compact disc" and submitted a compact disc entitled, As this regulatory 
criterion requires evidence of commercial successes in the form of "box office receipts" or "sales," 
the petitioner's submission of a compact disc reflecting his performance without sales data for that 
compact disc does not meet the plain language of this regulatory criterion. 
In response to the director's RFE, the petitioner claimed eligibility based on "reviews of his 
performances over the years to sold-out crowds in Europe, South America, and the United States." 
Although the petitioner submitted programs, advertisements, and other promotional concert material 
of his performances, none of the documentation supports the petitioner's assertion that he performed 
to sold-out crowds. Going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
Furthermore, the petitioner did not submit any documentary evidence reflecting his commercial 
successes in the form of box office receipts as required pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(x). 
Similarly, on motion, the petitioner claims that he performed "as a soloist on five continents" and 
has "produc[ed] and perform[ed] engagements at over 200 concerts since 2002." Again, the 
petitioner did not submit any documentary evidence of his commercial successes consistent with the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x). 
Accordingly, the petitioner did not establish that he meets this criterion. 
E. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types 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 
(b)(6)
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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.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While we conclude 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, we need not explain that conclusion in a 
final merits determination. 6 Rather, the proper conclusion is that the petitioner has failed to satisfy 
the antecedent regulatory requirement of three types of evidence. !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. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The motion is granted. The petition remains denied. 
6 We conduct appellate review on a de novo basis. See Siddiqui v. Holder, 670 F.3d 736, 741 (7th Cir. 2012); 
Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004); Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989). In any 
future proceeding, we maintain the jurisdiction to conduct a final 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. 
§ 103.1(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).