dismissed EB-1A Case: Music

(b)(6)
DATE: 
IN RE: 
MAR 1 1 2015 
Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
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 )(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
�nbcrg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition and the matter is now before the Administrative Appeals Office (AAO) on appeal. We will 
dismiss the• appeal. 
The petitioner, a soprano saxophonist, seeks classification as an "alien of extraordinary ability" in the 
arts, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(A), which makes visas available to individuals who can demonstrate their extraordinary 
ability through sustained national or international acclaim and whose achievements have been 
recognized in their field through extensive documentation. The director determined that the petitioner 
had not satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires 
documentation of a one-time achievement or evidence that meets at least three of the ten regulatory 
criteria. 
On appeal, the petitioner submits a statement contesting the director's decision. The petitioner asserts 
that he meets the categories of evidence at 8 C.P.R. § 204.5(h)(3)(iii), (v), (vi), (vii), and (viii). 
For the reasons discussed below, we agree that the petitioner has not established his eligibility for 
the exclusive classification sought. Specifically, the petitioner has not submitted qualifying evidence 
of a one-time achievement pursuant to 8 C.P.R. § 204.5(h)(3), or evidence that satisfies at least three 
of the ten regulatory criteria set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(i)-(x). As such, the 
petitioner has not demonstrated that he is one of the small percentage who is at the very top in the 
field of endeavor, and that he has sustained national or international acclaim. See 8 C.P.R. 
§ 204.5(h)(2), (3). Accordingly, we will dismiss the petitioner's appeal. 
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 
(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 
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seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 10151 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.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can 
demonstrate the alien's sustained acclaim and the recognition of the alien's achievements in the field 
through evidence of a one-time achievement (that is, a major, internationally recognized award). If the 
petitioner does not submit this evidence, then a petitioner must submit sufficient qualifying evidence 
that meets at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination). See also Rijal v. USCIS, 
772 F.Supp.2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of Kazarian), aff'd, 683 
F.3d. 1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) (finding that 
USCIS appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 2010) (holding that the "truth is to be determined not by the quantity of evidence alone but by 
its quality" and that users examines "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"). 
II. ANALYSIS 
A. Evidentiary Criteria1 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classification is sought. 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 
The director determined that the petitioner established eligibility for this criterion. A review of the 
record of proceeding, however, does not reflect that the petitioner submitted sufficient documentary 
evidence establishing that he meets the plain language of this criterion, and the director's 
determination on this issue will be withdrawn. We maintain de novo review of all questions of fact 
and law. See Soltane v. United States Dep 't of Justice, 381 F.3d 143, 145 (3d Cir. 2004). 
The petitioner submitted a November ----:== article in entitled " 
_ _ _ 
_ " The petitioner also submitted a 
January 21, 2014, letter from __, a saxophonist and composer, asserting that 
newspaper "is a major publication in Mexico," and that it has a distribution of "more 
than 100,000 copies a day." There is no evidence in the record, however, to support Mr. 
1 We have reviewed all of the evidence the petitioner has submitted and will address those criteria the 
petitioner asserts that he meets or for which the petitioner has submitted relevant and probative evidence. 
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assertions. users need not rely on unsubstantiated claims. See 1756, Inc. v. US Att'y Gen., 745 F. 
Supp. 9, 15 (D.D.e. 1990) (holding that an agency need not credit conclusory assertions in 
immigration benefits adjudications); see also Visinscaia, 4 F.Supp.3d at 134-35 (upholding USCIS' 
decision to give limited weight to uncorroborated assertions from practitioners in the field). In addition, 
while the petitioner submitted information about from Wikipedia, he did 
not submit any information about .2 Accordingly, there is no evidence 
demonstrating that is a form of professional or major media. Furthermore, 
the English language translation of the article was not certified by the translator as required by the 
regulation at 8 e.F.R. §103.2(b)(3), which provides in pertinent part: 
Translations. Any document containing foreign language submitted to USers 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. 
Regarding the foreign language translations submitted by the petitioner in this proceeding, although 
not addressed by the director, the petitioner initially provided three "Certificate[ s] of Translation" for 
documents in Japanese, Italian, and Spanish which state that "the attached translations are a true and 
accurate translation of the original." In response to the director's request for evidence, the petitioner 
submitted two "Certificate[s] of Translation" for documents in Spanish and Japanese which state that 
"the attached translations are a true and accurate translation of the original. " It is unclear to which of 
the submitted documents, if any, the five certifications pertain. The submission of a translation 
certification that does not specifically identify the document or documents it purportedly 
accompanies does not meet the requirements of the regulation at 8 C.P.R. § 103.2(b)(3). In addition, 
none of the five certifications state that the submitted translations were "complete ." Because the 
petitioner did not submit a properly certified English language translation for each foreign language 
document, we cannot determine whether the evidence supports the petitioner's claims. Accordingly, 
the English language translations of the documents in Japanese, Italian, and Spanish are not 
probative and will not be accorded any weight in this proceeding. 
The petitioner submitted a January 1998 music review of his compact disc ' ' that 
appeared in . The English language translation of the article was not certified by the 
translator as required by the regulation at 8 C.P.R. § 103.2(b)(3). In addition, the petitioner 
submitted a January 28, 2014, letter from , a guitarist and writer, stating: "I hereby 
affirm that the that [the petitioner] has filed as his evidence is a professional and 
major trade publication. I have been a writer to this nationally distributed magazine since " 
Again, USCrS need not rely on unsubstantiated claims. The petitioner also submitted information 
from a Japanese publishing company website, stating that its magazine has a 
circulation of 100,000, but the English language translation of the online material was only a partial 
translation and was not certified by the translator as required by the regulation at 8 C.F.R. 
§103.2(b)(3). Furthermore, with regard to the information from the magazine's writer and publisher, 
USerS need not rely on self-promotional material. See Braga v. Poulos, No. CV 06 5105 SJO, aff'd 
317 Fed. Appx. 680 (e.A.9) (concluding that the AAO did not have to rely on self-serving assertions on 
2 
is a state in west-central Mexico. __ .... 
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the cover of a magazine as to the magazine's status as major media). The submitted information does 
not establish that is a professional or major trade publication or form of major media. 
The petitioner submitted a description of his '' ' compact disc in the ' 
" section of the April The English language translation of 
the material was not certified by the translator as required by the regulation at 8 C.F.R. 
§ 103.2(b )(3). The submitted material includes item numbers, descriptions, and prices for 29 
different compact discs, including the petitioner's release. The submitted catalogue of new compact 
disc releases in is more of an advertisement for the petitioner's music than 
independent journalistic coverage about the petitioner. The petitioner also submitted a January 31, 
2014, letter from , a contributor to , stating: "I hereby affirm that the 
that [the petitioner] has filed as his evidence is a professional and major 
trade publication in Japan. I have contributed my articles to this nationally distributed magazine .... " 
Again, USCIS need not rely on unsubstantiated claims. In addition, the petitioner submitted 
information from stating that "was founded in and its 
circulation was approximately 300,000 in the 70's and 80's," but the English language translation of 
the online material was incomplete and was not certified by the translator as required by the 
regulation at 8 C.F.R. §103.2(b)(3). Moreover, circulation information from the 1970s and 1980s 
does not demonstrate that was a major trade publication or form of major media in 
1998 when it advertised the petitioner's compact disc. 
The petitioner submitted a September radio program schedule m for 
in Japan listing his quartet in the " ' broadcast slot. The submitted 
schedule from the newspaper similarly lists hundreds of other radio program slots. The English 
language translation of the material was not certified by the translator as required by the regulation at 
8 C.F.R. § 103.2(b )(3). In addition, the plain language of this regulatory criterion requires 
"published material about the alien ... relating to the alien's work in the field" including "the title, 
date and author of the material." The schedule listing in and the radio 
program that featured the petitioner do not meet these requirements. 
The petitioner submitted February and November music reviews of his compact discs 
_ 
and " ' that appeared in The petitioner asserts that 
has a circulation of 8,000, but provided no documentary evidence to support the assertion. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
There is no evidence demonstrating that is a professional or major trade publication or form 
of major media. 
The petitioner submitted an April article about him in 
( , but there is no evidence showing that the publication is a professional or major trade 
publication or form of major media. 
The petitioner submitted a July 
In addition, the 
stating that 
, article about him in the " section of 
petitioner submitted a March online posting from 
had a circulation of 15,000. The English language 
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translations of the article and online information were not certified by the translator as required by 
the regulation at 8 C.P.R. § 103.2(b)(3). Furthermore, the petitioner has not established that the 
circulation figure for demonstrates that the newspaper is a major trade publication or form 
of major media. 
The petitioner submitted multiple advertisements in announcing his 
upcoming music performances. The submitted advertisements were not articles about the petitioner 
and did not include the author of the material. The preceding advertising material, which is not the 
result of independent journalistic reportage, does not meet this regulatory criterion. In addition, the 
petitioner submitted circulation information for from Wikipedia. With regard to 
information from Wikipedia, there are no assurances about the reliability of the content from this 
open, user-edited internet site.3 See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (81h Cir. 
2008). Accordingly, we will not assign weight to information for which Wikipedia is the source. 
The petitioner submitted additional material, but none of the articles meet the requirements of the 
regulation at 8 C.P.R. § 204.5(h)(3)(iii). For example, the remaining articles did not include a date or 
an author, were not about the petitioner, and the accompanying English language translations were 
not certified by the translator as required by the regulation at 8 C.P.R. §103.2(b)(3). Additionally, 
the petitioner did not submit documentary evidence demonstrating that the articles were published in 
professional or major trade publications or major media. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director determined that the petitioner had not established eligibility for this criterion. The plain 
language of this criterion 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 artistic contributions "of major significance in the fiel d." The 
phrase "major significance" is not superfluous and, thus, it has some meaning. Silverman v. Eastrich 
Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU v. Potter, 343 F.3d 
619, 626 (2nd Cir. Sep 15, 2003). 
3 Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone with an 
Internet connection to alter its content. Please be advised that nothing found here has necessarily 
been reviewed by people with the expertise required to provide you with complete, accurate or 
reliable information. . . . Wikipedia cannot guarantee the validity of the information found here. 
The content of any given article may recently have been changed, vandalized or altered by someone 
whose opinion does not correspond with the state of knowledge in the relevant fields. 
See http://en.wikipedia.org/wiki/Wikipedia:General disclaimer, accessed on January 15, 2015, copy 
incorporated into the record of proceeding. 
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The petitioner submitted various letters of support discussing his talent as a soprano saxophonist and 
his music performances. The director found that the submitted evidence was not sufficient to 
demonstrate that the petitioner has made original contributions of major significance in the field. On 
appeal, the petitioner asserts that the letters of support from and 
demonstrate his eligibility for this regulatory criterion. 
a freelance bassist in the area, states: 
I have had the privilege of working with [the petitioner] since 2012. Through our 
collaboration, I find him one of the most skilled and creative artists I have ever known. His 
ability to control the tone on his soprano sax is simply outstanding. Many experts consider 
the instrument one of the most challenging woodwind instruments. And, in my expert 
opinion, he is, without a doubt one of the few artists that is extremely successful at utilizing 
this advanced instrument as his own device to express himself. He is an excellent composer 
as well. The combination of his saxophone and his compositions is an absolute beauty. 
Besides being an amazing saxophonist/composer, [the petitioner] is a true artist in that not 
only he keeps improving his own artistry everyday, but he always works very hard to 
improve and inspire the lives of others that have come across. 
Mr. comments on the petitioner's skills and talent as musician and composer, but does not 
identify specific examples of how the petitioner's work has influenced the field of jazz or otherwise 
constitutes original contributions of major significance in the field. Vague, solicited letters from 
colleagues that do not specifically identify original contributions or provide specific examples of 
how those contributions influenced the field are insufficient. Kazarian, 580 F.3d 1030, 1036 (9th 
Cir. 2009). In 2010, the Kazarian court reiterated that conclusion was "consistent with the relevant 
regulatory language." 596F.3d at 1122. It is not enough to be a talented musician and to have others 
attest to that talent. An individual must have demonstrably impacted his field in order to meet this 
regulatory criterion. In addition, Mr. asserts that the petitioner "is an extraordinary talent in 
today's music world." Repeating the language of the statute or regulations, however, does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, No. 95 CIV. 
10729, 1997 WL 188942, *1, *5 (S.D.N.Y. Apr. 18, 1997). 
, Artistic Director, , states: 
[The petitioner] has performed at the . for countless occasions. His performances have 
received the most welcoming approval from our member audiences, who have highly 
experienced ears for the sophisticated nature of jazz music. The creativity and artistry in his 
work is [sic] simply extraordinary. The soprano saxophone music is something only the top 
expert saxophonists can make. And, [the petitioner's] soprano saxophone performances, 
especially the ones with the pianist, Ms. have been extremely unique, 
innovative and ground breaking. I have no doubt that [the petitioner] is one of the best 
soprano saxophonists in the world today. 
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Mr. mentions the petitioner's performances at the and states that the 
petitioner's "creativity and artistry [are] simply extraordinary," but does not provide specific 
examples of how the petitioner's work has affected the jazz community at a level indicative of original 
artistic contributions of major significance in the field. The plain language of this regulatory criterion 
requires that the petitioner's contributions be "of major significance in the field" rather than limited 
to the places where he performs. See Visinscaia, 4 F. Supp. 3d at 134 - 35 (upholding a finding that a 
ballroom dancer had not niet this criterion because she did not demonstrate her impact in the field as a 
whole). In addition, Mr. asserts that the petitioner's performances with "Ms. 
have been extremely unique, innovative .and ground breaking." The petitioner, however, did not 
submit evidence showing that their music collaborations have affected the field of jazz in a major way, 
have topped the jazz recording charts for a substantial period of time, or have otherwise risen to the 
level of original contributions of major significance in the field. Again, USCIS need not rely on 
unsubstantiated claims. See 1756, Inc. , 745 F. Supp. at 17; see also Visinscaia, 4 F.Supp.3d at 134-
35. 
a multi-woodwind performer, recording artist, and jazz educator, states: 
[The petitioner] is a fully committed soprano sax artist who executes with a personal voice. 
A musician's sound identity is primary and essential in being able to connect with an 
audience. It is obvious that [the petitioner's] primary instrument and passion is the soprano 
sax. He has a beautiful concept which translates his mastery and commitment to an 
instrument that is often whiny, nasal and out of tune. [The petitioner] also commands a 
strong repertoire on the alto and tenor saxes and loves to explore the tonal possibilities and 
extended range of the saxophone. 
[The petitioner] and I have collaborated through seminars dealing with the specialized needs 
of the soprano. Besides recognizing him as an extraordinary soprano saxophonist, I find his 
insights as a lecturer to be transformative in the unique ways the instrument can be 
approached. 
Mr. comments that the petitioner is "a fully committed soprano sax artist who executes 
with a personal voice," that the petitioner has mastered the instrument despite its challenges, and that 
he also has experience with alto and tenor saxes, but there is no documentary evidence showing the 
extent of the petitioner's influence on other saxophonists in the field or indicating that the field has 
specifically changed as a result of his original work so as to demonstrate the major significance of 
his contributions. In addition, Mr. mentions that he and the petitioner "have collaborated 
through seminars dealing with the specialized needs of the soprano saxophone" and that the 
petitioner's insights as a lecturer are "transformative in the unique ways the instrument can be 
approached." Mr. however, does not provide specific examples of how the petitioner's 
seminars, lectures, or playing techniques have affected education programs at various music schools, 
have influenced the work of other musicians, or otherwise equate to original contributions of major 
significance in the field. 
a "talent buyer" who books musicians to perform at the 
states: "With his recent CD ' recorded with 
- - -
, [the petitioner] successfully demonstrated to us how unique 
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and revolutionary his compositions and performances are." While the petitioner's release of his' 
" compact disc demonstrates the originality and uniqueness of his work, Ms. 
does not provide specific examples (such as jazz album charts) to support her assertion 
that the petitioner's recordings on the compact disc were "revolutionary" in the jazz industry or have 
otherwise risen to the level of artistic contributions of major significance in the field. Again, USCIS 
need not rely on unsubstantiated claims. 
In his statement contesting the director's decision, the petitioner does not point to any other reference 
letters that demonstrate his eligibility for this regulatory criterion. The remaining letters submitted 
in support of the petition, written by those who have collaborated with the petitioner on various 
musical projects, include statements and assertions similar to those previously discussed. 
Accordingly, they will not be specifically and individually discussed in this decision. 
The petitioner submitted letters of varying probative value. We have addressed the specific assertions 
above. Generalized conclusory assertions that do not identify specific contributions or their impact in 
the field have little probative value. See 1756, Inc., 745 F. Supp. at 17. In addition, uncorroborated 
assertions are insufficient. See Visinscaia, 4 F.Supp.3d at 134-35; Matter of Caron Int 'l, Inc., 19 
I&N Dec. 791, 795 (Comm'r 1988) (holding that an agency "may, in its discretion, use as advisory 
opinions statements ... submitted in evidence as expert testimony," but is ultimately responsible for 
making the final determination regarding an alien's eligibility for the benefit sought and "is not 
required to accept or may give less weight" to evidence that is "in any way questionable"). The 
submission of reference letters supporting the petition is not presumptive evidence of eligibility; 
users may evaluate the content of those letters as to whether they support the petitioner's 
eligibility. /d. See also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert 
opinion testimony does not purport to be evidence as to "fact"). Without additional, specific 
evidence showing that the petitioner's work has been unusually influential, substantially impacted 
the field, or has otherwise risen to the level of original contributions of major significance, the 
petitioner has not established that he meets this regulatory criterion. 
Evidence of the alien's authorship of scholarly articles in the field, in professional or 
major trade publications or other major media. 
The petitioner did not claim eligibility for this regulatory criterion initially or in response to the 
director's request for evidence. Therefore, the director did not make a determination regarding the 
petitioner's eligibility for this criterion. 
On appeal, the petitioner asserts that his compact disc sales demonstrate his eligibility for this 
regulatory criterion. The regulations, however, include a separate criterion for commercial successes in 
the performing arts at 8 C.F.R. § 204.5(h)(3)(x), and the petitioner's compact disc sales will be 
addressed there. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vi) requires 
"[e]vidence of the alien's authorship of scholarly articles in the field, in professional or major trade 
publications or other major media." In this case, there is no documentary evidence showing that the 
petitioner has authored scholarly articles in professional or major trade publications or other major 
media. Accordingly, the petitioner has not established that he meets this regulatory criterion. 
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Evidence of the display of the alien 's work in the field at artistic exhibitions or 
showcases. 
The director determined that the petitioner established eligibility for this criterion. A review of the 
record of proceeding, however, does not reflect that the petitioner submitted sufficient documentary 
evidence establishing that he meets the plain language of this criterion and the director's 
determination on this issue will be withdrawn. We maintain de novo review of all questions of fact 
and law. See Soltane v. United States Dep 't of Justice, 381 P.3d at 145. 
The petitioner submitted documentary evidence of his music recordings and performances at various 
concerts and festivals as evidence for this criterion. The plain language of the regulation at 8 C.P.R. 
§ 204.5(h)(3)(vii) requires "[e]vidence of the display of the alien's work in the field at artistic 
exhibitions or showcases." The petitioner is a musician. When he records a song or performs in 
concert, he is not displaying his music in the same sense that a painter or sculptor displays his or her 
work in a gallery or museum. The petitioner is performing his music. In addition, to the extent that 
the petitioner is a musician, it is inherent to his occupation to perform and play music. The ten 
criteria in the regulations are designed to cover different areas; not every criterion will apply to every 
occupation. 
The interpretation that 8 C.P.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and has 
been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. 
Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing artist do not fall 
under 8 C.P.R. § 204.5(h)(3)(vii)). As the petitioner is not a visual artist and has not created tangible 
pieces of art that were on display at exhibitions or showcases, he has not submitted qualifying 
evidence that meets the plain language requirements of the regulation at 8 C.P.R. § 204.5(h)(3)(vii). 
The petitioner's music performances are far more relevant to the "commercial successes in the 
performing arts" criterion at 8 C.P.R. § 204.5(h)(3)(x), and they will be discussed separately within 
the context of that regulatory criterion. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director determined that the petitioner had not established eligibility for this criterion. 
On appeal, the petitioner asserts that his performance at the 
meets this regulatory criterion. The director's discussion of the petitioner's evidence contains a 
typographical error with regard to the January 28, 2014, letter from a "talent buyer" 
for the 
_ 
. Specifically, the director's decision quotes a paragraph from Ms. 
1 letter, but mistakenly attributes the quoted paragraph to ' the Assistant City 
Manager, ." The record, however, does not include a letter from 
. The petitioner repeats the director's error on appeal by referring to "the comments from 
" in his argument challenging the director's findings for this criterion. The statements 
attributed to however, are actually those of Ms. 
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In her January 28, 2014, letter, Ms. states: 
I book jazz artists to perform at the and the _ in 
Massachusetts. Both venues have long histories and have been recognized as 
two of the world's most renowned jazz clubs, and it is my duty to select the very best talents 
in the world to maintain our leading status. 
I have had the honor of working with [the petitioner], an extraordinary saxophonist, flutist 
and composer. . . . Considering his sensational talent, we decided it is suitable for [the 
petitioner] to perform at the On October 27, 2013, [the petitioner] performed six 
of his original compositions with his soprano sax, tenor sax and flute. His virtuosic 
performances were enthusiastically applauded by a full house, and the event recorded 
remarkable CD sales as well. 
The petitioner has not established that his role as part of a "Sunday Brunch Series" temporarily 
performing at the was leading or critical for the establishment. Ms. asserts that 
the petitioner's October 27, 2013, perf ormance was "applauded by a full house" and "recorded 
remarkable CD sales," but she does not indicate number of tickets or compact discs sold, or the 
amount of sales revenue that the petitioner's perf ormance generated. There is no documentary 
evidence dif fe rentiating the petitioner's role as a musician fr om that of the numerous other jazz acts 
who have also performed at the club, let alone from that of the management and staff at the club, so as 
to demonstrate his leading role. In addition, the submitted evidence fails to establish that the petitioner 
contributed to the in a way that was significant to its success or standing and consistent 
with the meaning of "critical role." The petitioner did not submit, for instance, evidence from the 
club's management discussing the significance of his specific contribution to the beyond 
its need to book musicians to entertain its patrons and audiences. The petitioner's music 
performance at the is more relevant to the "commercial successes in the perf orming arts" 
criterion at 8 C.P.R. § 204.5(h)(3)(x), and we will discuss it further within the context of that 
regulatory criterion. 
With regard to the reputation of the , Ms. asserts that it has a long history and 
has been recognized as one of "the world's most renowned jazz clubs." USCIS, however, need not 
rely on unsubstantiated claims. See 1756, Inc., 745 F. Supp. at 17; see also Visinscaia, 4 F.Supp.3d 
at 134-35. In addition, the petitioner submitted an October 2013 event program and music calendar 
for the and promotional material about the printed from its website, but USCIS 
need not rely on self-promotional material. Cf Braga v. Poulos, No. CV 06 5105 SJO, aff'd 317 Fed. 
Appx. 680 (C.A.9) (concluding that the AAO did not have to rely on self-serving assertions on the 
cover of a magazine as to the magazine's status as major media). The petitioner also submitted 
information about the ' " from Wikipedia, but again, there are no assurances 
about the reliability of the content from this open, user-edited internet site. See Lamilem Badasa v. 
Michael Mukasey, 540 F.3d at 909. The assertions of Ms. the self-promotional material 
from the and the lack of reliability of the Wikipedia information are not sufficient to 
demonstrate that the jazz club has a distinguished reputation. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
(b)(6)
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NON-PRECEDENT DECISION 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
Although the petitioner does not specifically claim eligibility for this criterion, he asserts in the 
appellate submission that he has sold compact discs and performed for various audiences. For 
example, the petitioner performed as part of the "Sunday Brunch Series" on October : 
As previously discussed, however, the petitioner did not submit any specific sales figures for 
the event. This regulatory criterion focuses on volume of sales and receipts as a measure of the 
petitioner's commercial success in the performing arts. Therefore, the fact that a petitioner has 
recorded and released music or performed before an audience is insufficient, in and of itself, to meet 
this criterion. The evidence must show that the volume of sales or receipts reflect the petitioner's 
commercial success relative to others involved in similar pursuits in the performing arts. The 
petitioner, however, did not submit documentary evidence of "sales" or "receipts" demonstrating 
that his music recordings and performances were indicative of commercial successes in the 
performing arts. Again, 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. Accordingly, the petitioner has not established that he meets this regulatory criterion. 
B. Summary 
For the reasons discussed above, we agree with the director that the petitioner has not submitted the 
requisite initial evidence, in this case, evidence that satisfies three of the ten regulatory criteria. 
C. Prior 0-1 Nonimmigrant Visa Status 
The record reflects that the petitioner is the beneficiary of an approved 0-1 nonimmigrant visa 
petition for an alien of extraordinary ability in the arts. Although the words "extraordinary ability" are 
used in the Act for classification of artists under both the nonimmigrant 0-1 and the first preference 
employment-based immigrant categories, the statute and regulations define the term differently for each 
classification. Section 101(a)(46) of the Act states, "The term 'extraordinary ability' means, for 
purposes of section 101(a )(l5)(0)(i), in the case of the arts, distinction." The 0-1 regulation reiterates 
that "[e]xtraordinary ability in the field of arts means distinction." 8 C.P.R. § 214.2(o)(3)(ii). 
"Distinction" is a diff erent standard than that required for the immigrant classification, which defines 
extraordinary ability as "a level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the field of endeavor." 8 C.P.R. § 204.5(h)(2). The evidentiary 
criteria for these two classifications also differ in several respects, for example, nominations for awards 
or prizes are acceptable evidence of 0-1 eligibility, 8 C.P.R. § 214.2(o)(3)(iv)(A), but the immigrant 
classification requires actual receipt of nationally or internationally recognized awards or prizes. 
8 C.P.R. § 204.5(h)(3)(i). Given the clear statutory and regulatory distinction between these two 
classifications, the petitioner's receipt of 0-1 nonimmigrant classification is not evidence of his 
eligibility for immigrant classification as an alien with extraordinary ability. Further, approval of a 
nonimmigrant visa does not mandate the approval of a similar immigrant visa. Each petition must be 
decided on a case-by-case basis upon review of the evidence of record. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
Many immigrant petitions are denied after USCIS approves prior nonimmigrant petitions. See, e.g., 
Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of Justice, 
48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd., 724 F. Supp. at 1103. See also Texas 
A&M Univ. v. Upchurch, 99 Fed. Appx. 556 (5th Cir. 2004) (finding that prior approvals do not 
preclude USCIS from denying an extension of the original visa based on a reassessment of the 
alien's qualifications). 
We are 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 19 88). USCIS is not required to treat 
acknowledged errors as binding precedent. See Sussex Eng'g Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, our 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 has approved a nonimmigrant petition on 
behalf of the petitioner, we would not be bound to follow the contradictory decision of a service center. 
Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, *1, *3 (E.D. La. Mar. 
2000), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the individual has achieved sustained national or international acclaim and is one of the small 
percentage who has risen to the very top of his or her field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the 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. As the petitioner has not done so; the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of 
presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) 
and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final 
merits determination referenced in Kazarian, a review of the evidence in the aggregate supports a 
finding that the petitioner has not demonstrated the level of expertise required for the classification 
sought.4 
4 We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 
381 P.3d at 145. 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.P.R. § 103.5(a)(1)(ii); see also INA 
§§ 103(a)(1), 204(b); DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.P.R. § 2.1 (2003); 8 
C.P.R. § 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy 
INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions). 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis fo r the decision. 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 ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.