dismissed EB-1A Case: Music

(b)(6)
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 
DATE: Office: TEXAS SERVICE CENTER FILE: 
JUL 2 9 2014 
INRE: Petitioner: 
Beneficiary: 
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: 
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/fonns 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. 
~"·~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition and the 
matter is now before the Administrative Appeals Office on appeal. We will dismiss the appeal. 
The petitioner, a jazz musician (bassist), seeks classification as an employment-based immigrant 
pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b )(1)(A), as an alien of extraordinary ability in the arts. The director determined that the 
petitioner had not met the requisite criteria for classification as an alien of extraordinary ability. 
On appeal, the petitioner submits a brief and additional evidence. In the brief, the petitioner asserts 
that he meets the categories of evidence at 8 C.F.R. § 204.5(h)(3)(i), (ii), (iii), (iv), (v), (vii), and 
(viii). 
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 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101
51 
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) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
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through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 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. 1 With respect to the criteria at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), 
the court concluded that while USCIS may have raised legitimate concerns about the significance of the 
evidence submitted to meet those two criteria, those concerns should have been raised in a subsequent 
"final merits 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.F.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. ANALYSIS 
A. One-time Achievement 
The regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement, specifically a major, internationally 
recognized award. 
The petitioner submitted a "list of 2011 Juno nominations" showing that the eight-song album 
b) was nominated for "Contemporary Jazz Album of the Year." In addition, the petitioner 
submitted the compact disc album cover for . indicating that he performed bass on Mr. 
album and composed one song entitled Although the petitioner was the bassist and 
composer on the album, his name is not identified with Mr. on the list of Juno nominees. 
Unlike other music groups that were listed as Juno nominees (such as ' for their album 
as "Album of the Year"), Mr not the entire band, was the listed nominee for 
"Contemporary Jazz Album ofthe Year." 
1 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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The Juno nomination received by Mr album does not constitute the petitioner's receipt of a 
major, internationally recognized award. Given Congress' intent to restrict this category to "that 
small percentage of individuals who have risen to the very top of their field of endeavor," the 
regulation permitting eligibility based on a one-time achievement must be interpreted very narrowly, 
with only a small handful of awards qualifying as major, internationally recognized awards. See 
H.R. Rep. 101-723, 59 (Sept. 19, 1990), reprinted in 1990 U.S.C.C.A.N. 6710, 1990 WL 200418 at 
*6739. The regulation is consistent with this legislative history, stating that a one-time achievement 
must be a major, internationally recognized award. 8 C.F.R. § 204.5(h)(3). The selection of Nobel 
Laureates, the example provided by Congress, is reported in the top media internationally regardless of 
the nationality of the awardees, is a familiar name to the public at large, and includes a large cash prize. 
Although an internationally recognized award could conceivably constitute a one-time achievement 
without 
meeting all of those elements, it is clear from the example provided by Congress that the award 
must be internationally recognized in the petitioner's field as one of the top awards in that field. 
In the appeal brief, the petitioner states: 
If [the petitioner] had received the JUNO award based on this nomination, it would have 
qualified as a one-time achievement; a major, internationally recognized award as described in 
8 C.F.R. § 204.5(h)(3). 
However, his nomination for such a major international award does not fall into any of the listed 
criteria, but it is comparable to both receipt of a one-time major award, and receipt of a lesser 
nationally or internationally or internationally recognized prize. 
The regulation at 8 C.P.R. § 204.5(h)(4) provides the petitioner an opportunity to submit comparable 
evidence to establish eligibility if the ten categories of evidence at 8 C.F.R. § 204.5(h)(3)(i)- (x) do 
not readily apply to his occupation. There is, however, no comparable evidence for the one-time 
achievement of a major, international recognized award. Regardless, the petitioner has not 
established that the categories of evidence at 8 C.F.R. § 204.5(h)(3) criteria are not readily applicable 
to his occupation and that garnering a nomination is comparable to receiving a major, internationally 
recognized award. For instance, the existence of Juno and Grammy awards in multiple jazz 
categories demonstrates that the awards criterion at 8 C.F.R. § 204.5(h)(3)(i) is readily applicable to 
jazz musicians. Moreover, we cannot conclude that receiving a nomination is of the same caliber of 
evidence as actually winning an award. 
In this instance, the petitioner has failed to demonstrate that Mr. Juno nomination constitutes 
evidence of the petitioner's receipt a major, internationally recognized award, or that the nomination 
meets the comparable evidence provision at 8 C.F.R. § 204.5(h)(4). Accordingly, the petitioner has 
failed to demonstrate evidence of a qualifying one-time achievement pursuant to the regulation at 
8 C.P.R. § 204.5(h)(3). 
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B. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 
As previously discussed, the petitioner submitted a "list of 2011 Juno nominations" showing that 
album was nominated for "Contemporary Jazz Album of the Year." Although the 
petitioner performed on the album and composed one of its songs, his name is not identified with 
Mr. on the list of Juno nominees. Regardless, the plain language of the regulatory criterion at 
8 C.F.R. § 204.5(h)(3)(i) specifically requires evidence of receipt of nationally or internationally 
recognized "prizes or awards," not receipt of only a nomination. Earning a nomination does not 
equate to receipt of a prize or an award. 
In the appeal brief, the petitioner asserts that the Juno nomination Mr. ' album received is 
comparable to the petitioner's receipt of a lesser nationally or internationally or internationally 
recognized prize. Where an individual is simply unable to satisfy the plain language requirements of 
the categories of evidence at 8 C.F.R. § 204.5(h)(3), the regulation at 8 C.F.R. § 204.5(h)( 4) does not 
allow for the submission of comparable evidence. The petitioner has not explained why the 
regulatory criteria 8 C.F.R. § 204.5(h)(3)(i) - (x) are not readily applicable to jazz musicians. 
Moreover, the petitioner has not established that his occupation is one in which there are no 
nationally or internationally recognized prizes or awards for excellence in the field. Furthermore, 
even if the petitioner were to demonstrate that he is eligible for the provisions of the regulation at 
8 C.F.R. § 204.5(h)(4), which he has not, the petitioner has not established that the Juno nomination 
that Mr. album received is comparable to "the alien's receipt of lesser nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor." The petitioner 
has not established that the evidence he submitted as comparable to the evidence required by the 
regulation at 8 C.F.R. § 204.5(h)(3)(i) was based primarily on his excellence in the field (rather than 
that of Mr. and that his evidence is of the same caliber as that required by the regulation. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
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. 
The petitioner submitted a November 28, 2012 letter from the Senior Coordinator of Tickets and 
Awards, I The JUNO Awards, 
congratulating him for having "been selected as a judge for the 2013 JUNO Awards in the 
Traditional Jazz Album of the Year category" and stating that Round #1 of the judging process was 
scheduled for "December 14, 2012- January 11, 2013." The petitioner also submitted a May 8, 
2013 letter from the organizers of the 2013 Juno Awards thanking the petitioner "for serving as a 
2 
On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision . Therefore, no determination has been made regarding whether the petitioner meets the remaining categories of 
evidence. 
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judge for the 2013 JUNO Awards." In addition, the petitioner submitted information about 
and the Juno Awards. These letters do not themselves identify the petitioner as a member of 
however, according to the information about membership: "The primary reason 
to join is to receive JUNO Awards voting privileges. members are eligible to vote 
in 14 different categories ." The petitioner also submitted a December 12, 2012 letter from the 
Program Coordinator of Submissions, 
, stating that the petitioner "is an accredited juror and has been a regular 
participant in jury process within the past year." The director concluded that the 
petitioner had not established membership in or On appeal, the petitioner asserts 
that these associations do not issue membership cards and continues: "Membership in these pools of 
judges for these distinguished organizations is exclusive." 
While the record does not suggest that admits members, the petitioner submitted 
information about membership, suggesting that it is, in fact, an association that admits 
members. 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)). 
Furthermore, with regard to the petitioner's participation as a judge for the 2013 Juno Awards and as 
a juror, the regulations contain a separate criterion for judging the work of others, 8 C.F.R. 
§ 204.5(h)(3)(iv), a criterion that the petitioner has already met. Evidence relating to or even meeting 
the judging the work of others criterion is not presumptive evidence that the petitioner also meets this 
criterion. The regulatory criteria are separate and distinct from one another. Because separate 
criteria exist for membership in associations requiring outstanding achievements of their members 
and judging the work of others, USCIS clearly does not view the two as being interchangeable such 
that "pools of judges" are qualifying associations. To hold otherwise would render meaningless the 
statutory requirement for extensive evidence or the regulatory requirement that a petitioner meet at least 
three separate criteria. 
Even if the petitioner had established membership in the submitted information about that 
association stated: "You must be actively working in the Canadian music industry and hold a 
Canadian birth certificate, passport or are [a] Canadian Landed Immigrant( s) with residency in 
Canada to qualify for membership." Being Canadian and "actively working in the Canadian music 
industry," however, do not equate to "outstanding achievements." There is no documentary evidence 
showing that requires outstanding achievements of its members and Juno award judges, as 
determined by recognized national or international experts in the field. 
The petitioner submitted a Juror Handbook and information about the foundation from its 
website. In addition, the petitioner submitted information abou uror selection that stated: 
Music industry professionals are eligible to become accredited jurors if: 
• They are a Canadian Citizen or a Permanent Resident 
• They have a minimum of 5 years of music industry experience, and have been active 
in the industry within the last 2 years. 
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• They have confidence in their ability to make an objective assessment of a project 
based on the music and documents provided. 
The petitioner has not established that being a Canadian citizen or permanent resident, having a 
minimum of 5 years of music industry experience, demonstrating activity in the music industry 
within the last 2 years, and possessing confidence in one's ability equate to "outstanding 
achievements." 
In the appellate brief, the petitioner asserts that his participation as a judge for the 2013 Juno Awards 
and as a juror should alternatively be considered as comparable evidence pursuant to the 
regulation at 8 C.P.R. § 204.5(h)(4). After first arguing that the petitioner's participation as a judge 
for and meets the elements of this criterion, the petitioner states: "We submit 
that if the above organizations do not qualify as associations requiring outstanding achievements, 
then such an association in the field of jazz music does not exist." The record, however, appears to 
contradict the petitioner's claim. Specifically, the petitioner submitted information from 
website that mentions artists and industry professionals whose achievements led to their induction 
into "the Canadian Music Hall of Fame." 
The petitioner's unsupported assertion fails to demonstrate that the regulatory criterion at 
8 C.P.R. § 204.5(h)(3)(ii) is not readily applicable to his occupation. The petitioner has not established 
that his occupation is one in which there are no associations which require outstanding achievements 
of their members, as judged by recognized national or international experts. Even if the petitioner 
had demonstrated that he was eligible for the provisions of the regulation at 8 C.P.R. § 204.5(h)(4), 
which he has not, the petitioner has not established that his participation as a judge for the 2013 Juno 
Awards and as a juror is comparable to the regulation at 8 C.P.R. § 204.5(h)(3)(ii) that 
requires "[d]ocumentation 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." As there is no evidence 
showing that his participation as a judge or juror required outstanding achievements, the petitioner 
has not established that the evidence he claims as comparable to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(ii) is of the same caliber as that required by the regulation. 
In light of the above, the petitioner has not established that he meets this regulatory 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 petitioner submitted a January 27, 2012 online concert review about his project posted on the 
"About.com Jazz" webpage at 
~ntitled While the article 
includes copyright information indicating that is a part of the 
_ the fact that a company affiliated with a major media company owns this website does not 
demonstrate that the website itself is major media. The petitioner also submitted information from 
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stating: ' connects your brand to consumers at their 
moment of need. . . . L reaches 84MM unique monthly visitors in the United States, with 
approximately 80% of our users arriving from search engines, seeking answers to their questions." The 
director determined that is a form of major media. USCIS, however, need not rely on self­
promotional material. See 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). Moreover, the information relates to generally, 
and is not objective documentary evidence specifying the number of visitors to the 
webpage where the review of the petitioner's work was posted, or showing the number of online 
visitors relative to those of other music news websites. Accordingly, the petitioner has not established 
that is a form of major media, and the director's finding on the issue is withdrawn. 
The AAO conducts 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); Dar v. INS, 891 F.2d 997, 1002 n. 
9 (2d Cir. 1989). 
The petitioner also submitted an event announcement (one sentence in the "About the event" section) 
from the or his , Jlaying at 
thf on February 21, 2013. The author of the preceding material, however, 
does not appear on the website. In addition, the petitioner submitted material from the "About the 
project" section of the website. The petitioner authored the "About the project" 
material, which describes his and thanks the audience, his fellow musicians, and other 
individuals who helped make his project possible. This information constitutes material the petitioner 
authored about his own work rather than published material about him and, therefore, the material 
does not meet the plain language requirements of this regulatory criterion. The regulations include a 
separate criterion for authorship of scholarly articles at 8 C.P.R. § 204.5(h)(3)(vi).3 Furthermore, the 
petitioner has not established that the website is a major trade publication or form of 
major media. 
The petitioner further submitted material entitled from the "billgs" 
section of the website. The January 16, 2013 posting by 
commented on the issue of crowdfunding music projects and includes a message from the petitioner to 
Mr. · For instance, the petitioner wrote: "The community can't constantly fund itself. It needs to 
have a real audience and demand outside of your other jazz musician friends. Chances are they are 
struggling as much as you are to make a living (to put that in polite terms)." The blog posting by Mr. 
is about crowdfunding and various musicians' opinions on the subject, not the petitioner. The 
plain language of the regulation, however, requires "published material about the alien." Articles that 
3 The petitioner , however, does not claim to meet the category of evidence at 8 C.F.R. § 204.5(h)(3)(vi). Even if the 
petitioner made such a claim, which he did not, the material he authored in the "About the project" section of the 
_ website does not equate to a scholarly article and was not in a professional or major trade publication or 
some other form of major media. 
4 
According to Merriam- Webster, a blog is "a Web site on which someone writes about personal opinions, activities, and 
experiences." See http://www.merriam-webster.com/dict ionary/blog, accessed on June 25, 2014, copy incorporated into 
the record of proceeding. ' 
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are not about the petitioner do not meet this regulatory criterion. See, e.g., Negro-Plumpe v. Okin, 
2:07-CV-00820 at *1, *7 (D. Nev. Sept. 2008) (upholding a finding that articles about a show are 
not about the actor). Moreover, 
although the petitioner submitted circulation figures for the 
newspaper, there is no documentary evidence showing that :online Jazzblog had the 
same level of readership or otherwise equates to a form of major me Ia. 
The petitioner submitted "Jazz listings for 2012 posted in the Music section of the 
website. The jazz listings include and more than twenty 
other performing acts for that period. The 23rd listing that mentions the petitioner stated: 
Although the petitioner submitted evidence that the is a form of major media, the 
petitioner has not established that a single mention of his name among numerous jazz schedule listings 
that identify a large number of other musicians constitutes "published material 
about the alien." The 
director stated: "In order for published material to meet this criterion, it must be primarily about the 
beneficiary . . . . While USCIS is satisfied that .. may qualify as major media, the 
brief mention of the beneficiary's name does not equate to published material about him or his work in 
the field." 
In the appeal brief, the petitioner asserts that "there is no basis in the regulations for a requirement 
that published material 'must be primarily about the beneficiary."' The petitioner points to Muni v. 
INS, 891 F. Supp. 440 (N. D. Ill. 1995) and Racine v. INS, 1995 WL 153319 (N.D. Ill. Feb. 27, 
1995), and asserts that federal courts have repeatedly rejected "the imposition of a "primarily about 
the beneficiary" standard. The courts' findings in the preceding decisions, however, are 
distinguishable from the present matter. 
For example, with regard to Racine v. INS, the plaintiff submitted documentation indicating that "he 
was the subject of publications in major media." Id. at *2. Regarding the category of evidence at 
8 C.F.R. § 204.5(h)(3)(iii), the court in Racine v. INS stated: 
[T]he INS was not following its own regulations when it held that there are no articles which 
state that Racine is "one of the best in his field." Of course, under the Act, he need not be 
one of the best, he need be only one who is in that small percentage at the top of his field. 
Further, there is no requirement under the Act that the articles need to state that he is one of 
the best or even that the articles describe him at the top of his field. The articles need to 
demonstrate his work within the field. 
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/d. at *6. In Racine v. INS, the court rejected that the INS finding that there were no articles which 
stated that Racine was "one of the best in his field." Similarly, in Muni v. INS, 891 F. Supp. at 445, 
the court stated: 
[T]he INS gave short shrift to the articles Muni submitted to support his petition. These 
articles do not establish that Muni is one of the stars of the NHL, but that is not the applicable 
standard. Under the INS' own regulations , all Muni need show is that there is "[p]ublished 
material about [him] in professional or major trade publications or other major media, 
relating to [his] work in the field for which classification is sought." 8 C.F.R. 
§ 204.5(h)(3)(iii). The articles Muni submitted, which appeared in various newspapers and 
hockey magazines, clearly fit this requirement; even the INS admits that some of the articles 
"discuss [Muni's] hitting ability and his record as a defenseman" .... Yet the INS did not 
explain why the articles did not qualify as proof of Muni's ability. 
In Muni v. INS, the court stated that the articles included a discussion of the plaintiffs "hitting 
ability and his record as a defensemen," and that the INS failed to explain why the articles did not 
qualify under 8 C.F.R. § 204.5(h)(3)(iii). 
In the present matter, even if we withdrew the director's use of the term "primarily," the petitioner's 
evidence still does not meet the plain language requirements of this regulatory criterion. A sizeable 
online listing of musicians that mentions the petitioner's name among twenty-four scheduled jazz acts 
does not constitute "published material about the alien." The online jazz schedule listing identifies only 
the petitioner's name and musical instrument, and does not qualify as material "about" him relating to 
his work in the field. 
The petitioner submitted material entitled from the Music 
"Blogs" section of the website. The sixth concert listing that mentions the petitioner 
stated: 
Again, the petitioner has not established that a single mention of his name in a sizeable concert schedule 
listing that includes dozens of other musicians equates to "published material about the alien." 
The petitioner submitted a February 1, 2011 article in . entitled ' 
1 he article IS a 
review of new compact disc, and is not about the petitioner. 
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The petitioner submitted a 2artial translation of a November 26, 2010 article in f 
entitled The petitioner did not submit "a full English language translation" of 
the article as required by the regulation at the ei!Ulation at 8 C.F.R. § 103.2(b)(3). Regardless, the 
partial translation is about jazz pianist not the petitioner. In addition, the petitioner 
submitted June 28, 2010 material in entitled Again, the 
petitioner did not submit a full English language translation of the material. The material includes 
eight June 28, 2010 jazz act recommendations by columnists 
Among the two jazz act recommendations 
of he selected ' and wrote three sentences about Mr. The 
third sentence mentioned the petitioner and two other members of Mr. music group. 
Accordingly, the ' material is not about the petitioner. The petitioner 
also submitted a May 4, 2010 artiCle m entitled 
The article is a review of album, and is not about the petitioner. 
The article focuses on Mr. and only mentions the other members of his jazz quartet in 
passing. Specifically , the petitioner is mentioned in only four sentences of the two-page article. 
Furthermore , although the petitioner also submitted circulation figures for J there is no 
evidence showing the distribution of relative to other Canadian newspapers or that it has a 
notable distribution outside Montreal. Accordingly, the petitioner has not demonstrated that the 
preceding articles appeared in a form of major media. 
The petitioner submitted a February 2010 album review m entitled 
The review is about the album y and only briefly 
mentions the petitioner among the five members of the quintet. In addition, there is no documentary 
evidence showing that is a major trade publication or form of major media. 
The oetitione submitted three sentences about him in the section of the Fall/Winter issue 
of . the alumni magazine of The magazine does not 
identify the author of the material, however, and there is no evidence showing that IS a 
form of major media. 
The petitioner submitted a July 2009 article in the 
The article is an interview with pianist . 
petitioner. In addition, there is no documentary evidence showing tha 
publication or form of major media. 
section of. 
and is not about the 
is a major trade 
The petitioner submitted a November 5, 2012 ' entitled ' 
that was posted on th The 
article is about the ' 
evidence showing that the 
' album and _ . not the petitioner. In addition, there is no 
website is a major trade publication or form of major media. 
In response to the director's request for evidence (RFE), the petitioner submitted 
that were published on April 11 , 20 13 in the Music section of the 
website. In addition. the oetitioner submitted a Februarv 28. 2013 article in 
(Canada) entitled The petitioner's response to 
the RFE also included a February 25, 2013 article posted on the website o · magazine entitled 
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Page 12 
The publications published 
the preceding articles subsequent to the filing of the Form I-140, Immigrant Petition for Alien Worker, 
on February 4, 2013. The petitioner, however, must establish eligibility at the time of filing. 8 C.F.R. 
§ 103.2(b)(l), (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, adopting 
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. Accordingly, we cannot consider 
the material published after February 4, 2013 as evidence to establish the petitioner's eligibility at the 
time of filing. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
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. 
As the director concluded, the petitioner's evidence that he served as a judge for the Juno awards and a 
juror 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 failed to establish eligibility for this regulatory 
criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of 
the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major 
significance in the field." (Emphasis added.) Here, the evidence must rise to the level of original 
artistic 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 APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 2003). 
The petitioner submitted various letters of support discussing his talent as a musician, his "Ancestry 
Project," his music recordings, and his other activities in the field . 
. a saxophonist, composer and recording artist with the 
resides in Montreal, Canada, states: 
label, who 
[The petitioner] is a regular member of my quartet, with which he tours and performs on a 
regular basis. Along with myself and my brother -· - he is also co-leader of the 
critically acclaimed trio a group that has released two well-received albums on 
the independent label. Over the years we have performed together extensively, 
including the world-renowned (2007), the 
(2008), the Canada (2010), and 
countless small venue 
events over the years. We recently completed a series of concerts in 
Ontario and Quebec with my quartet followed by the recording of my next album, scheduled 
(b)(6)
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Page 13 
for release in Spring 2013. Whether [the petitioner] is in New York or Montreal, he is always 
my "first-call" bass player for any performance. 
In my estimation, [the petitioner] has always possessed a unique and extraordinary talent as 
he pursued his career in Montreal. Since his move to New York City, he has grown 
exponentially within his craft, and rapidly developed recognition as an internationally elite 
bass player. [The petitioner] possesses a true dedication to the art that displays maturity well 
beyond his years, causing all those who see him to take notice. 
Mr. comments that the petitioner released two "well-received albums" as co-leader of the 
"critically acclaimed trio " and performed at various jazz festivals and other events, but 
does not provide specific examples of how the petitioner's work has influenced the field of jazz at a 
level indicative of original contributions of "major significance." Moreover, with regard to the 
petitioner's jazz albums and concerts, the regulations contain a separate criterion regarding 
commercial successes in the performing arts. 8 C.P.R. § 204.5(h)(3)(x). As the petitioner's jazz 
recordings and performances are far more relevant to the "commercial successes in the performing 
arts" criterion at 8 C.F.R. § 204.5(h)(3)(x), they will be discussed separately within the context of 
that regulatory criterion. Mr. further states that the petitioner "has always possessed a unique 
and extraordinary talent" and describes him "as an internationally elite bass player." Assuming the 
petitioner's music skills are unique, the classification sought was not designed for alleviating skill 
shortages in a given field. The issue of whether similarly-trained workers are available in the U.S. is 
an issue under the jurisdiction of the U.S. Department of Labor through the alien employment 
certification process. See Matter of New York State Dep 't of Transp., 22 I&N Dec. 215, 221 
(Comm'r 1998). The petitioner must demonstrate not only that his contributions are original, but 
also of major significance. 
The petitioner submitted a "list of 2011 Juno nominations" showing that the eight-song album 
by was nominated for "Contempor Jazz Album of the Year." In addition, the petitioner 
submitted the compact disc album cover for showing that he performed bass for the songs on 
Mr. album and that he composed one song entitled In the appeal brief, the petitioner 
states: "[The petitioner's] original composition, was featured on the JUNO-award-nominated 
album .... The album's status a JUNO-award-nominee provides strong evidence of the significance of 
the contribution in the field of jazz." The preceding Juno nomination for was previously 
addressed under the category of evidence M R ._F_R. § 204.5(h)(3)(i). Regardless, there is no 
documentary evidence setting the petitioner's composition apart from the seven other songs 
on Mr. album. In addition, the Juno nomination specifically named Mr. not the 
petitioner. Furthermore, there is no evidence showing that and ' 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. 
See Visinscaia v. Beers, --- F. Supp. 2d ---, 2013 WL 6571822, at *6 (D.D.C. Dec. 16, 2013) 
(upholding a finding that a ballroom dancer had not met this criterion because she did not demonstrate 
her impact in the field as a whole). 
a saxophonist and composer from Montreal, states: 
(b)(6)
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Page 14 
I have known [the petitioner] for over twelve years and have worked with him in a wide 
variety of musical situations, including numerous recording projects and international tours. 
In 2008, [the petitioner] performed with my band for three major festivals 
in Mexico, including the and 
the In April 2011, [the petitioner] was a member of 
my quintet when we played at the premiere edition of the in India. As 
always, [the petitioner] performed at an elite level and was a consummate professional during 
the performances. 
His playing is extremely unique, creative, and original and he has a very personal, sensitive 
approach to his instrument. In addition to his outstanding musicianship, he is always a great 
pleasure to work with . 
Ms. mentions that the petitioner collaborated with her on recording projects and toured 
internationally with her quintet, but fails to provide specific examples of how the petitioner's 
original work was of major significance in the field. In addition , Ms. comments on the 
petitioner's playing style and "outstanding musicianship." It is not enough, however, to be a talented 
bass player and to have others attest to that talent. An individual must have demonstrably impacted 
his field in order to meet this regulatory criterion. See id. There is no documentary evidence 
showing that the petitioner's music recordings have affected the jazz industry, have substantially 
influenced the work of other musicians, or otherwise constitute original contributions of major 
significance in the field. 
, a saxophonist and composer in New York, states: 
When I first had the opportunity to work with [the petitioner] in his native home of Montreal, 
Canada, I was greatly impressed by his musical abilities. . . . I have made him a regular 
fixture of my working groups both at the and through international tours in Europe 
and Canada. . . . I wish to express my desire to continue collaborating with him in the 
future .... [The petitioner] is a highly skilled and extremely accomplished bassist and 
musician and his playing, composing, and arranging skills possess an extremely high degree 
of depth and maturity. His skills on his instrument are extraordinary. He is a very unique and 
versatile artist in his own right, thanks to his broad and diverse musical and personal 
background. [The petitioner] is an invaluable asset to the music community and amongst the 
elite in a very competitive field. 
It must be said again that [the petitioner's] original compositions are extremely artistic and 
skilled. The significance of these compositions to the future of Jazz music is without 
question. I was deeply involved with his complex and engaging musical suite, 
_ _ The suite was a multi-part composition that detailed the life and career of 
his grandfather, who was himself a highly regarded musician in Montreal in 
the 1950s. Not only was I honored to take part in such a personal and meaningful 
composition , but also I could not help but sense with [the petitioner], that the future of Jazz 
music is in safe and capable hands. 
(b)(6)
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Page 15 
Mr. comments on the petitioner's music skills, unique artistry, and diverse background. 
Again, the issue of whether similarly-trained workers are available in the U.S. is an issue under the 
jurisdiction of the U.S. Department of Labor through the alien employment certification process. 
See Matter of New York State Dep 't of Transp., 22 I&N Dec. at 221. Moreover, the regulation 
requires that the petitioner demonstrate not only that his work is original, but of major significance 
in the field. In addition, Mr. states that he collaborated on the petitioner's 
_ but does not provide specific examples of how their work has influenced the field as a 
whole or otherwise constitutes original contributions of major significance in the field of jazz. 
a musician, bandleader, and composer residing in New York, states: 
I first met [the petitionerl in Montreal, Canada where I was performing at the 2006 edition of 
the prestigious During that visit, I had the opportunity to perform 
with him at tht and was also able to hear some of his recorded work 
with his group I was instantly struck by his maturity as a bassist and composer. 
Since then, we've collaborated together on various New York City based projects and plan to 
work on many more in the near future. Since that time, ... [the petitioner] has continued to 
grow as a musician. So much so that in many ways he is making contributions that are 
advancing the state of jazz music in the United States. Such original and novel contributions 
include his wonderful suite called Written about his grandfather 
who was also a musician, [the petitioner] did a brilliant job demonstrating his elite 
skill as a composer and arranger. I firmly believe that [the petitioner's] contributions to the 
world of Jazz are without comparison. 
Mr. comments on the petitioner's recorded work with and his collaborations 
with the petitioner, but does not explain how the petitioner's original work was of 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), aff'd, 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. Aor. 18. 1997). Further, in the same manner as Mr. Mr. 
mentions the asserting that the petitioner's work "is advancing the state of jazz 
music in the United States" and that his "contributions to the world of Jazz are without coiTIDarison." 
Mr. however, does not provide specific examples of how the petitioner's 
. has advanced the field of jazz music or was otherwise of major significance in the he d. 
USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of the 
United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
As previously discussed, the petitioner submitted a January 27, 2012 online concert review posted on 
the " webpage entitled The article states 
that the petitioner "has reached for something beyond the typical jazz concert expenence." In addition, 
the article describes the petitioner's music tribute to his grandfather at !beam Brooklyn as a "satisfying 
and entertaining combination of jazz" and "great storytelling." Although the preceding comments 
demonstrate the originality of the petitioner's project, the favorable online review is not sufficient to 
demonstrate that his project rises to the level of a contribution of major significance in the field. 
(b)(6)
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Page 16 
The oetitioner also submitted an online announcement posted at for his ' 
playing at the in Montreal on February 21, 2013. The petitioner authored the 
material, in which he describes his 1 , J , and thanks his fellow musicians and others who 
helped make his project possible. In addition, the petitioner submitted a February 28, 2013 article in 
The article 
describes the petitioner's ~-- J _j ' as "a very unique and personal concert," but does not 
establish that the petitioner's work was of major significance in the field. The February 21, 2013 
concert at the _ and the February 28, 2013 article in ost-date the filing 
of the Form I-140 petition on February 4, 2013. Again, the petitioner must establish eligibility at the 
time of filing. 8 C.F.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. at 49. Accordingly, 
material published and concerts performed after February 4, 2013 cannot be considered as evidence to 
establish the petitioner's eligibility at the time of filing. Regardless, the submitted documentation is 
not sufficient to demonstrate that the petitioner's work equates to contributions of major significance 
in the field. There is no documentary evidence showing the extent of the petitioner's influence on 
other jazz musicians in the field, or demonstrating that the field has specifically changed as a result 
of his original work, so as to establish the major significance of his contributions. 
, a composer and multi-instrumentalist whose current group is states: 
[The petitioner] is an originator and an innovator and in short, extraordinary. 
He has recently worked with me and it is clear that he will continue to be a significant 
contributor to whatever artistic project he is a part of. 
[The petitioner] absolute} y qualifies as a standout and as a professional. It IS without 
hesitation that I declare [the petitioner] to hold extraordinary abilities. 
Mr. asserts that the petitioner is "extraordinary" and has "extraordinary abilities, " but 
does not identify specific examples of how the petitioner's work has affected the field of jazz or 
otherwise constitutes original contributions of major significance in the field. Merely repeating the 
language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. 
Co., Ltd., 724 F. Supp. at 1108, affd, 905 F. 2d at 41; Avyr Associates, Inc., 1997 WL 188942, at *1, 
*5. 
a jazz flautist and faculty member at th{ 
states: 
[The petitioner] is featured on my upcoming septet album set to be released on th 
record label in 2013 and he will also be accompanying my group when it performs at the 
Mexico on December 81h 2012. Good bassists are essential to the 
success of a band - extraordinary bassists are what provide the foundation for soloists to 
truly flourish. When I played with [the petitioner], I was able to perform at the highest of 
levels due to his unparalleled ability. These bookings alone prove that [the petitioner] has 
performed a critical role for venues and musicians that carry distinguished reputations. He 
has enormous energy, a gift for melody and great creativity on his instrument. These factors 
combine to make [the petitioner] an elite member of a very competitive field. 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
Ms. comments on her musical collaborations with petitioner, but there is no documentary 
evidence showing that their work is of major significance in the field. The plain language of this 
criterion requires that the petitioner's contributions be "of major significance in the field" rather than 
limited to the other musicians with whom he has performed. See Visinscaia, 2013 WL 6571822, at 
*6 (upholding a finding that a ballroom dancer had not met this criterion because she did not 
demonstrate her impact in the field as a whole). 
, a professional jazz guitarist based in New York, states: 
I am writing on behalf of [the petitioner], a double bassist and friend I have had the pleasure 
of working with for the last three years. Since his arrival to New York City, [the petitioner] 
has established himself as a highly "in demand" double bassist, an exceptional feat for any 
musician in New York, one of the most competitive cities in the world. This is based on the 
fact 
that [the petitioner] is hands down one of the best of the best- extraordinary, in fact. 
His reputation reaches far beyond the New York City limits and touches many professional 
jazz musicians and aficionados across the globe. 
As a member of my successful and groundbreaking jazz themed children's music group 
' [the petitioner] has been an integral contributor to the success of 
numerous live concert performances. [The petitioner's] ability to perform such a wide 
variety of music is a skill set that many musicians spend a lifetime trying to obtain. It truly 
sets him amongst the elite of our trade and I am proud to consider him a colleague, band 
member, and collaborator. 
Mr. comments on the petitioner's talent as a double bassist, the demand for the etitioner 's 
services, and their collaboration as part of a children's music group. In addition, Mr. asserts 
that the petitioner 's "reputation reaches far beyond the New York City limits and touches many 
professional jazz musicians and aficionados across the globe," but does not provide specific 
examples of how the petitioner 's work has affected the jazz or children's music industries, or 
otherwise equates to contributions of major significance in the field. 
, a professional double bassist residing in New York, states: 
I first heard of [the petitioner] in September 2009 when I was looking for a bassist to take my 
place at the last minute for one of my concerts at the with a world-class 
combo, featuring vocalis~ 
I needed to find a musician who had enough skill and experience to perform some very 
challenging music with no time for rehearsal. Several musicians recommended [the 
petitioner] to me and so I called him for the concert at which I was told he performed 
outstandingly well. 
I have since then had the opportunity of hearing [the petitioner] performing in many different 
venues and musical contexts. There are many venues in New York City to experience live 
jazz, but [the petitioner] has performed at some of the most notable venues in the city, 
(b)(6)
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Page 18 
including the famed the , and the He is without 
doubt one of the greatest musical forces of our generation. He plays effortlessly in all styles 
and his skills on the double bass are only matched by his talent for composition. 
Mr. mentions that he relied on the petitioner to replace him as a "last minute" substitute at a 
concert at and that the petitioner "has performed at some of the most notable venues" 
in New York. In addition, Mr. asserts that the petitioner "is without doubt one of the 
greatest musical forces of our generation," but does not provide specific examples of the petitioner's 
compositions or recordings that have influenced the field as a whole or otherwise constitute original 
artistic contributions of "major significance" in the field. users need not accept primarily 
conclusory assertions. See 1756, Inc., 745 F. Supp. at 15 (holding that an agency need not credit 
conclusory assertions in immigration benefits adjudications). With regard to the petitioner's jazz 
performances at and other New York venues, again, the regulations contain a separate 
criterion regarding commercial successes in the performing arts. 8 C.P.R.§ 204.5(h)(3)(x). 
nominated trumpeter 
New York, a jazz guitarist and musical director for the Grammy­
states: 
I have had the chance to record and share the stage with [the petitioner] on numerous 
occasions. It is my feeling that these performances reached new levels of excellence thanks 
to his incredible musicianship and love for his craft. In my vast performing experience, it is 
rare to meet someone with that level of talent. [The petitioner] has already established 
himself as one of the world's best and only continues to improve. 
Mr. comments on his musical collaborations with the petitioner and asserts that the 
petitioner "has already established himself as one of the world's best," but does not point to specific 
examples of the petitioner's 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 v. USCIS, 580 F.3d 1030, 
1036 (9th Cir. 2009) aff'd in part 596 F.3d at 1122. In 2010, the Kazarian court reiterated that our 
conclusion that that petitioner did not meet the contributions criterion was "consistent with the relevant 
regulatory language." 596 F.3d at 1122. The petitioner has not established that his work has affected 
the field of jazz music in a major way, or that his work was otherwise indicative of original 
contributions of major significance in the field. 
a saxophonist residing in Brooklyn, New York, states: 
[The petitioner]'s skills as a bass player are what drew me to him in the beginning. Since first 
hearing him perform live at the prestigious in September 2005, 
then soon after becoming good friends, there are no other bass players that I would call to 
perform and/or record with before [the petitioner]. He is a versatile player who is able to 
perform almost anvthing vou £rive him, making him an ideal studio and performing musician. 
As a fellow alumnus, I can fully appreciate the level of training 
[the petitioner] has received and the true extent of his network of connections within the 
industry. . . . He already has changed the way that people perceive jazz and how it can be 
used in different forms to please different tastes and different generations. 
(b)(6)
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Page 19 
* * * 
Since we first met, I have collaborated with [the petitioner] for numerous performances 
including shows and recordings with my own trio as well as with our critically acclaimed 
collectively led group ' ' We have performed extensively together throughout 
Europe, and Canada, as well as in New York City. This includes appearances at the 
internationally renowned (2009), the 
(2010) and the (2011). 
Although Mr. asserts that the petitioner "has changed the way that people perceive jazz and 
how it can be used in different forms to please different tastes and different generations," Mr. : 
does not provide examples of these changes and there is no documentary evidence showing that the 
petitioner's work was of major significance in the field. users need not accept primarily 
conclusory assertions. See 1756, Inc., 745 F. Supp. at 15. In addition, Mr. comments on his 
recordings and performances with the petitioner as part of the group The Story, but there is no 
documentary evidence demonstrating that their work has had a substantial impact in the jazz 
recording industry, has influenced the work of other musicians in the field, or otherwise constitutes 
original contributions of major significance in the field. 
a professional musician and educator residing in Brooklyn, New York, stated: 
[The petitioner] is among some of the best players that I've ever worked with. He is talented, 
hardworking, and determined, and is currently one of the most in-demand double bassists in 
the New York City's elite music community. 
[The petitioner] and I have worked together in numerous professional situations including 
international performances with my own group, ' as well as with 
our collective band' " We have toured extensively in Europe with both, including 
appearances at the extremely prestigious Netherlands 
in 2009 , the in 2010 and a multi-week tour of the United 
Kingdom in 2010. 
[The petitioner's] musical and creative output is first rate and he is always a pleasure to work 
with. Since his arrival on the New York jazz scene, [the petitioner] has maintained a very 
busy schedule of performing, and recording on almost a daily basis. [The petitioner ' s] level 
of skill, creativity, and professionalism truly sets him amongst the best of our trade. 
Mr. comments on their collaborative performances, and asserts that the petitioner "is 
currently one of the most in-demand double bassists in the New York City's elite music community" 
and that his "level of skill, creativity, and professionalism truly sets him amongst the best of our 
trade," but does not explain how the petitioner's music has specifically affected the field of jazz or 
otherwise equates to original contributions of major significance in the field. Again, USers need 
not accept primarily conclusory assertions. See 1756, Inc., 745 F. Supp. at 15. 
, a jazz performer, writer, and band lander, states: 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
I first heard [the petitionerl with , band when they performed at New York 
City's highly distinguished in the fall of 2007. I was immediately impressed by his 
musical maturity and his sensitivity. I could see then that [the petitioner] possessed the 
critical skills that have led him to become one of the most sought after bassists currently on 
the elite New York City jazz scene. The is one ofNew York City's most prestigious 
jazz venues; on any given night one can hear the world's best musicians perform there .... I 
am proud to acknowledge [the petitioner] as one ofNew York's most elite bass players. 
* * * 
[The petitioner] is a natural musician with exceptional skills backed up by a great sense of 
melody, taste and a very strong sense of rhythm. These collections of skills are very difficult 
to attain, especially in a highly disciplined field like Jazz music. In my informed opinion, 
[the petitioner] has reached an extremely high level of musicianship that demonstrates his 
dedication to the craft and willingness to reach the apex of our trade. 
Mr. comments on the petitioner's performance at the n New York and his skills and 
talent as a jazz musician, but does not provide specific examples of how the petitioner's music has 
influenced the work of other bass players or has otherwise affected the field of jazz at a level 
indicative of contributions of major significance in the field. 
The petitioner submitted letters of varying probative value. Some letters are generalized, without 
identifying specific contributions or their impact in the field, and thus have little probative value. See 
1756, Inc., 745 F. Supp. at 17.); see also Visinscaia, 2013 WL 6571822, at *6 (upholding USCIS' 
decision to give limited weight to uncorroborated assertions from practitioners in the field); 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"). Furthermore, almost all of the letters of support are from those who have 
collaborated on various music projects with the petitioner. Although such letters are important in 
providing details about the petitioner's role in the collaborations, they cannot by themselves 
establish the influence of the petitioner's work beyond his immediate circle of music acquaintances. 
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 alien's eligibility. /d. 
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. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
(b)(6)
Page 21 
NON-PRECEDENT DECISION 
Evidence of the display of the alien 's work in the fi eld at artistic exhibitions or 
showcases. 
The petitioner submitted documentary evidence of his various jazz performances at concerts and 
music festivals as evidence for this criterion. The petitioner's work as a jazz musician is audible in 
nature and is enjoyed for its sound, not its visual aspects. Therefore, his music performances do not 
satisfy the regulatory requirements under 8 C.F.R. § 204.5(h)(3)(vii). The plain language of the 
regulation at 8 C.F.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." (Emphasis added.) 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, he is not displaying his work. The ten criteria in the regulations are designed to cover 
different areas; not every criterion will apply to every occupation. 
In the appeal brief, the petitioner asserts that ''jazz music is art, and playing jazz music for an 
audience is the exhibition of that art." The petitioner points to a September 2006 memorandum from 
Acting Associate Director for USCIS, that provided an update 
to Chapter 22 of the Adjudicator's Field Manual (AFM) concerning the regulatory criteria at 8 
C.F.R. § 204.5(h)(3) . . The petitioner asserts that the preceding AFM guidance for the regulatory 
criterion at 8 C.F.R. § 204.5(h)(3)(vii) shows that "artistic performance" is applicable to this regulatory 
criterion. A subsequent December 22, 2010 policy memorandum (PM) entitled "Evaluation of 
Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator 's Field Manual 
(AFM) Chapter 22.2, AFM Update ADll-14," however, rescinded and superseded that guidance 
stating: 
This PM rescinds and supersedes all previously published policy guidance issued by USCIS 
and the legacy Immigration and Naturalization Service (INS) specific to the evaluation of 
required initial evidence submitted in support of Form 1-140 petitions under Title 8 Code of 
Federal Regulations (8 CFR) sections 204.5(h)(3) and (4), 204.5(i)(3)(i), and 204.5(k)(3)(ii). 
The interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and has 
been upheld by a federal district court. Negro-Plumpe, 2:07-CV-820-ECR-RJJ at *7 (upholding an 
interpretation that performances by a performing artist do not fall under 8 C.F.R. 
§ 204.5(h)(3)(vii)). As the petitioner is not a visual artist and has not created tangible pieces of art 
that were on display at exhibitions or showcases, he has not submitted qualifying evidence that 
meets the plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). The 
petitioner 's music performances are far more relevant to the "commercial successes in the 
performing arts" criterion at 8 C.F.R. § 204.5(h)(3)(x) and we will discuss them separately within 
the context of that regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner asserts that he has performed in a leading or critical role foJ a jazz club in 
New York), (New York) (New York), 
(a concert theater in Brooklyn), (a bar in London), 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
(Pennsylvania), (Montreal), 
and 
The petitioner submitted online information about the 
reputation of the preceding venues, but the submitted information was either self-promotional or 
limited to local New York media (such as , and therefore not sufficient to 
demonstrate that they have a distinguished reputation. In addition, asserted that the 
is "highly distinguished " and "one of New York City's most prestigious jazz venues," but the 
record lacks sufficient objective evidence to support his claims. Again, USCIS need not accept 
primarily conclusory assertions. See 1756, Inc. v. US. Att'y Gen., 745 F. Supp. at 15. Moreover, if 
testimonial evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner 
to submit corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
Furthermore, the petitioner has not established that his role as part of a music act temporarily 
performing at the above venues was leading or critical for the organizations and establishments. 
There is no documentary evidence differentiating the petitioner's role as a musician from that of the 
numerous other jazz acts who also performed at the above venues, let alone from that of the 
management and staff at those organizations and establishments, so as to demonstrate his leading role 
for them.5 In addition, the submitted evidence fails to establish that the petitioner was responsible for 
the above organizations and establishments' success or standing to a degree consistent with the meaning 
of "critical role." The petitioner did not submit, for instance, evidence from the owners, managers, 
administrators, or festival coordinators discussing the significance of his specific contributions to the 
above organizations and establishments beyond their need to book musicians to entertain their 
patrons and audiences. 
The petitioner's music performances at the above venues are far more relevant to the "commercial 
successes in the performing arts" criterion at 8 C.F.R. § 204.5(h)(3)(x) and we will discuss them 
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 of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
The petitioner submitted evidence of his jazz recordings and his performances at concerts and music 
festivals as evidence for this criterion. 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, failed to submit documentary evidence of "sales" or 
"receipts" demonstrating that his specific song compositions and music performances were 
5 For example, while the President of the performs in a leading role for the school by overseeing 
its faculty and academic programs, a non-faculty visiting jazz performer such as the petitioner who was invited to play at a 
school recital does not. 
(b)(6)
NON-PRECEDENT DECISION 
Page 23 
indicative of his commercial successes in the performing arts. Accordingly, the petitioner has not 
established that he meets this regulatory criterion. 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
D. Prior. 0-1 Nonimmigrant Visa Status 
The record reflects that the petitioner is the beneficiary of approved 0-1 nonimmigrant visa petitions 
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)(15)(0)(i), in the case ofthe arts, distinction." The 0-1 regulation reiterates 
that "[e]xtraordinary ability in the field of arts means distinction." 8 C.F.R. § 214.2(o)(3)(ii). 
"Distinction" is a different 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. 
Many 1-140 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. Because 
USCIS spends less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions, 
some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d at 29-30; 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 1988). 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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 24 
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 alien, 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), aff'd, 248 F.3dl139 (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 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 
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.P.R. 
§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. Although 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 categories of evidence. /d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(l)(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 appeal is dismissed. 
6 
In any future proceeding, the AAO maintains 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).