dismissed EB-1A Case: Music

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLTCCOPY 
J)/\ TEJUl 2 6 2012 
IN RF: Petitioller: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. I)cpartment of Homeland SCl'uril~ 
US Citizenship and Immigration .<..,L'n IlT~ 
Administrative Appeals Office (J\J\O) 
20 Massachusct!s Ave .. N.W., M..., ~I)LI(J 
Washington. DC 20529-2()()() 
U.S. Citizenship 
and Immigration 
Services 
FILE: _ 
PETITION: Immigrant Pclilion for Alien Worker as an Alien of Extraordinary Ahility Pursuant \0 SCclll)!l 
.'113(11)( 1)(/\) of the Immigration and Nationality Act, 8 U.S.c. § 1153(h)( 1)(/\) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Ellciu-.;cd pkasl' rind the decision of the Administrative Appeals Office in your casco All of the dOCUIllCll1'-, 
rcIatl'(J ttl [hi ... mallLT have heen returned to the office that originally decided your case. Please he advised II\:ll 
any further inquiry lhal you might have concerning your case must he made to that 011icc. 
If ydLJ lK'lit.:\'c the ;\;\0 inappropriately applied the law in reaching its decision, or you have (J(lditioll:d 
inf()rmation lhat you wish to have considered, you may file a motion to reconsider or a motion to reopell ill 
accordance with the instructions on Form 1-290B, Notice of Appeal or Motion, with a fce of $6](). Till' 
specific requirements for filing such a motion can he found at I> C.F.R. ~ 103.5. Do not file any motion 
directly "ilh the AAO. Picase he aware that 8 C.F.R. § 103.S(a)(1)(i) requires any motion to he filed \\ Itliill 
3() day" of the decisi()n that the motion seeks to rcconsider or rcopen. 
Thanh you, 
Perry Rhl'w 
ChicL Administrative APreals Office 
www.uscis.gov 
Page 2 
Discussion: The Director, Texas Service Center, denied the employment-based immigrant I'isa 
petition on May l~, 2011. The petitioner, who is also the beneficiary, appealed the decision with the 
Administrativc Appeals Office (AAO) on June 20, 2011. The appeal will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, specifically, :t' a 
musici:IIL pursuant to section 203(b)( I )(A) of the Immigration and Nationality Act (the Act). 
S U.S.C ~ ll'i.1(b)(I)(A). The director determined that the petitioner has not established thc 
sustaincd Il:ltion:i1 or international acclaim necessary to qualify for classification as an alien of 
cxtr:Lmdin:1I1 ahilit\. 
Congress set a \ery high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate thc alien's "sustained national or international acclaim" and 
prescnt "extensive documentation" of the alien's achievements. See section § 203(h)(I)(A)(i) of till' 
Act; S C.r:.R. § 204.5(h)(3). The implementing regulation at S c'F.R. § 204.5(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major. internationally recognized award. Ahsent the reccipt of such an award, the 
regulation outlines ten categories of specific objective evidence. S c'F.R. § 204.5(h)(3)(i)-(x). Tlll' 
petitioner must submit qualifying evidence under at least three of the ten regulatory categories 01 
eyidencL' to cstahlish the basic eligibility requirements. 
On appeal. counsel submits a bricf and a number of documents, most of which were previousll 
submitted to the director. In his appellate brief, counsel asserts that the petitioner meets the 
natioll:llly m internationally recognized prizes or awards criterion under H c'F.R. § 204.5(h)(3)(i). 
the membershir in associations which require outstanding achievements criterion under S Cr.R. 
~ 2()4.'i(h)(3)(ii). the rub Ii shed material about the alien criterion under S c'F.R. § 204.5(h)(J)(iii). 
the participation :IS a judge criterion under H c'F.R. § 204.5(h)(3)(iv), the original contributions 01 
major significance criterion under H c'F.R. § 204.5(h)(3)(v), the leading or critical role for 
organizations or establishments criterion under 8 c'F.R. § 204(h)(3)(viii), and the commercial 
successes in the rerfonning arts criterion under 8 CF.R. § 240(h)(3)(x). 
For the reasons discusscd below, the AAO finds that the petitioner has not established his eligibilitl 
for the exclusive classification sought. Specifically, the AAO finds that thc petitioner has not 
submitted qualifying evidence under at least three of the ten regulatory criteria set forth in thl' 
regulations at ~ CF.R. ~ 204.5(h)(3)(i)-(x). As such, the AAO finds that the petitioner has not 
demonstrated that he is one of the small percentage who are at the very top of the field and he has 
not sustained national or international acclaim. See S c'F.R. §§ 204.5(h) (2), (3). Accordingly. thl' 
/1;\0 mllst dismiss the petitioner's appeal. 
I. LAW 
Section 203(h) of the Act states, in pertinent part, that: 
I. Priority workers. - Visas shall first be made available ... to qualified immigranh 
who arc aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. - An alien is described in this subparagraph il 
(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 benclit 
prospectively the United States. 
United States Citizenship and Immigration Services (USCIS) and legacy Immigration ;Lnd 
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. T'..'" 
IOlst Cong .. 2d Sess. 59 (1990); 56 Fed. Reg. 601;97, 601;91;-99 (Nov. 29, 1991). The term 
"extraordin;Lrv ability" refers only to those individuals in that small percentage who have risen to the 
verI top 01 till' field of endeavor. I; CF.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. 9 204.5(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 Ill' 
established either through evidence of a one-time achievement, that is a major, international II 
recognized award, or through the submission of qualifying evidence under at least three of the ten 
categoric, of evidence listed under the regulations at 8 CF.R. § 204.5(h)(3)(i)-(x). 
In 20 10. the U.S. Court of Appeals for the 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 
the :\.\( rs decision to deny the petition, the court took issue with the AAO's evaluation or the 
evidencc submitted to meet a given evidentiary criterion 1 With respect to the criteria at I; Cl-.R. 
§ 20-l . .'i(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitim;LIL' 
concerns about the significance of the evidence submitted to meet those two criteria, those concern, 
should hay e been raised in a subsequent .. tinal merits determination" Kazarian, 5% F.3d at II ~ 1-
22. 
The eourt stated that the AAO's evaluation rested on an improper understanding of the regulations. 
I nstead or rarsi ng the signi licance of evidence as part of the initial inquiry, the court stated that .. thl' 
proper pmeeclure is to count the types of evidence provided (which the AAO did)," and if' the 
petitioner lailed to suhmit suntcient evidence, "the proper conclusion is that the applicant has I(Lilcd 
I Specified!y. the (ourl Slated that the AAO had unilaterally imposed novel suhstantivc or evidentiary rC4uirl'!lll'IlI<" 
ilevond LtlOse set tonil in Lile regulations aL 8 C.F.R. § 204.5(h)(3)(iv) and (vi). 
Page ..f 
to sat ish thL' regulatory requirement of three types of evidence (as the AAO concluded)." Kazariall. 
'i% 1.3d al I 122 (citing to (; C.F.R. § 204.5(h)(3)). 
Thus. Kazariall sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. In this case, the AAO concurs wilh Ihe 
director" s finding that the petitioner has not satisfied the antecedent regulatory requiremelll nf 
presenting at least three types of evidence under the regulations at (; C.F.R. § 204.5(h)(3)(i)-(x). <lnd 
he has not demonstrated that he is one of the small percentage who arc at the very top of the field or 
ha, achieved sustained national or international acclaim. See (; C.F.R. §§ 204.5(h) (2), (3). 
II. ANALYSIS 
A. Evidentiary Criteria 2 
Under the regulation at (; C.F.R. § 204.5(h)(3), the petitioner can establish sustained national or 
international acclaim and that his achievements have been recognized in the field of endeavor 11\ 
presenting evidence of a one-time achievement that is a major, internationally recognized award. In 
this case, the petitioner has not asserted or shown through his evidence that he is the recipient of a 
major. inlLrnationally recognized award at a level similar to that of the Nobel Prize. As such. IhL' 
petitioner must present at least three of the ten types of evidence under the regulations at (; c:.F.R. 
* 211.+.:i(h)(3)(i)-(x) to meet the basic eligibility requirements. 
f)oclIl/}el1lalion of/he alien's receipt oj lesser nalionaliy or internalionaliy recognized prices or 
{l\l'IIrd, fiJI' ('xeelienee in the field of endeavor. (; C.F.R. § 204.5(h)(3)(i). 
On appeal, counsel asserts that the petitioner meets this criterion, because he "placed Third in til,· 
Second Annual Mandolin Festival and Second place the following year at the Third Annual 
Mandolin l·estival." Counsel also asserts that the petitioner "winning the opportunity to rise througil 
the ranb oilihe I esteemed [Miami Symphony] Orchestra is a prize in and of itself." As supporting 
evidence. counsel points to (1) a June 10,2011 statement from 
!!!!!!!!!!!!!!~_, (2) an undated document entitled 
and a June 1 2011 letter from •••••••••••• 
First. based on the evidence in the record, the AAO concludes that the petitioner's second and third 
place finishes at the Festival of the Mandolin do nationally or internationalh 
recognized prizes or awards for excellence. the petitioner achieved ,I 
second place finish in the 
The AAO notes InconsIstent provi ' 
in counsel's appellate brief Counsel states in his appellate brief that the petitioner first finished ill 
the third pl'lce. then in the second place the following year. Moreover, according to the petitioner', 
The pl'liliollL'f du\.'" nol claim that he meets the regulatory categories of cvidcm.:c not discussed in this decision. 
-
curriculum \'il<le. he finished in the second place in both 
As thl' petitioner has provided inconsistent documents, is incumbent upon the pet' r to 
resolve the inconsistencies by independent objective evidence. Attempts to explain or reconcile the 
conflicting erccounts lor evidence], absent competent objective evidence pointing to where the truth. 
in fact. lies. will not suftice." Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitionel 
has provided no such evidence to explain or reconcile the inconsistent evidence. 
pernieipanh in eereh Category or Level," 
petitioner cOlTlpeted. participants were "students and mandolin players that are about to finish their 
studies or thuse that have a high perfonnance level of the instrument." Although the evidence slH)\\ s 
that there were only two participants from each state for each competitive category, the evidence 
fails to show how the two participants were selected, the number of musicians eligible to he 
nominated as one of the two participants, whether the two participants were selected based on theil 
ability to play the instrument, or who selected the two participants. Ultimately, the petitioner has not 
demonstrated that his second and/or third place finishes are recognized beyond the entity that 
organized the Festival of the Mandolin through objective or independent evidence such as hut not 
limited til media coverage of the festival or award selections. 
Second. the petitioner has not shown that his selection to the Miami Symphony Orchestra constitut" 
ern er"errd or prize, According to _, the petitioner became the orchestra's acting assistant 
viola in 2t10h after winning a competitive audition in Miami against violists from a number oj 
countries. and he became the orchestra's assistant principal viola in 2010. The orchestra selecting 
the petitioner for various positions is akin to an employer selecting a job applicant from a pool of 
applicants, Although it may be considered a competitive process, in that the employer likely selcch 
the most qualified applicant, such selection is not the same or substantially similar to granting the 
job applicant an award or prize for excellence. Moreover, the fact that the petitioner in 200(, was 
seJected as an acting assistant viola from a pool of musicians from different countries does flot 
qualify the selection as a nationally or internationally recognized prize or award for excellence, 
Finerll\. erlthough in his letter dated September 27, 2(}10 filed in support of the petition, counsel listed 
a number or the petitioner's other achievements, including acknowledgement and recognition letters 
from educationaL musical and religious entities, on appeal, counsel has not continued to assert that 
those achievements constitute nationally or internationally recognized awards or prizes ror 
excellence. As such. the AAO concludes that the petitioner has abandoned this issue. as he did nllt 
timely raise it on appeal, S'cpulveda v. Uniled Stules Ally Gen, 401 F.3d 1226, 1228 n.2 (11th Cir, 
2(0)): /iris/o\' \, Roark, No, 09-CV-27312011, 20\ 1 WL 4711885 at *1. 9 (ED,N.Y, Sept, .,0, 
2(11) (thl' I 'nitl·J States District Court found the plaintilTs claims to be abandoned as he failed til 
raise thel\1 on appeal to the AAO). 
Page () 
In short. the AAO cannot find that the petitioner has presented documentation of his receipt of lesser 
nationally or internationally recognized prizes or awards for excellence in the field of endeavor. The 
petitioner has not met this criterion. See 8 C.F.R. § 204.5(h)(3)(i). 
/)OClIl11cl1lll/ion ojlhe lllien's memhership in associations in the field for which classijica/ioll i, 
sOllghl. ",hieh "''I" ire olltstanding achievements of their members, as jlldged by reeoglli:,," 
IIll/iolllll (lr illternatiollal experts ill their disciplines or jields. 8 C.F.R. § 204.5(h)(3)(ii). 
On appeal, counsel asserts that the petitioner meets this criterion because he is "a member of thL' 
Florida Viola Socidy. the American Viola Society and therefore the International Viola Society." 
As evidence. counsel points to a June 11, 2011 letter from the 
acknowledged. however. "it is true that performers ofless credential can join 
The plain language of the criterion requires the petitioner to show that the associations, in whieh till' 
petitioner is a member, require outstanding achievements of their by recognized 
national or international experts in their disciplines or fields. Although stated that he 
is aware of the petitioner's talent and listed the purposes of the International Viola Society. he did 
not provide any information on the membership requirements for the Florida Viola Society. the 
American Viola Society or the International Viola Society. Indeed, neither his June 2011 letter nor 
any other evidence in the record establishes that any of the societies in which the petitioner is a 
memher requires "outstanding achievements" or that the "outstanding achievements" are judged In 
national or international experts in the relevant fields. 
In short, the AAO cannot find that the petitioner has presented documentation of his membership in 
associations in the field for which classification is sought, which require outstanding achievemelm 
of their members, as judged by recognized national or international experts in their disciplines Of 
ficlds. The petitioner has not met this criterion. See 8 C.F.R. § 204.5(h)(3)(ii). 
FIlMished lilli/erial about the aliell ill professional or major trade publica/iol1.\' or other major 
//ledia, relarillg /0 rhe alien's work ill the field for which classification is sought. Such evii/ellce 
litall illeillde rite ti/le. dare, and author of rhe marerial, und any necessary trallslatioll. 8 C.F.R. 
~ 2()c.\5(h)(3)(iii). 
On appeal, counsel asserts that the petitioner meets this criterion because he has been "referenced ill 
numerous oilline and paper publications regarding not only his role in many performances but also 
his personal story." As evidence, counsel points to (1) an April 22, 2011 ill lite 
Diario article, entitled (2) a May 5, 20 I 0 article entitled 
posted on mlamiartzine.com, (3) a September 29,2011 article 
entitled posted on gablcshomepage.com, (4) a December I'!. 
at the Higher Institute of Music of the State 01 
Vnacrul (ISMLV), the Quartets 104 and Amikoj are Participating." and (5) a March 25, 21111 
Page 7 
The AAO concludes that none of the articles constitutes published material in a professional or 
major trade publication or other major media. In her March 23, 2011 intent to deny, the director 
informed the petitioner that the evidence in the record was insufficient to meet this criterioll. 
Specially. the director noted: 
To assist in determining that the publications qualify as professional or 
major trade publications or other major media, the petitioner may 
submit: 
• Documentary evidence including: 
o The title, date, and author of the published material; 
o The circulation (online and/or in print); and 
o The intended audience of the publication. 
Note: The evidence submitted should be specific to the media format 
in which it was published. If the material was published online, the 
evidence should relate to the website. If it was published in print, the 
evidence should relate to the printed publication. 
In her May IK. 21111 decision, the director again noted, "the [petitioner] failed to provide infllflnatioll 
Oil the puhlications." Notwithstanding the director's notification, the petitioner has not provided al1\ 
supporting evidellce establishing that any of the articles were published in professional or maj,)[ 
trade publications or other major media. Although counsel states in his appellate brief that Diario de 
l.llS Amereia\ is "a Spanish language newspaper published out of Miami, Florida," and that it ""'h 
published in not only the print copy but, also online," counsel's assertions are not sufficient t(l 
establish that the newspaper constitutes a professional or major trade publication or other major 
media. Without documentary evidence to support the claim, the assertions of counsel will not sati,h 
the petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. 
Mal/a of ()haig/wna, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. L, 
n.2 (BI/\ 1l)~3): Malter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Moreover, even 
assul11i ng counsel's assertions were true, they would be insufficient to show that Diario de 1.11 \ 
AmericlI\ constitutes a prokssional or major trade publication or other major media. 
Furthermore. at least two of the articles are not about 
'ficall, both 
are advertisements or announcements upcoming aime 
to attract patrons. The AAO concludes that they are not about the petitioner, relating to his work. '" 
reyuired under the plain language of the criterion. 
In short. the AAO cannot find that the petitioner has presented published material about him in 
professional or l1lajor trade publications or other major media, relating to his work in the field lor 
which classification is sought. The petitioner has not met this criterion. See 8 CF.R. 
~ 204.5(h)(3 )(iii). 
F;"iJcllcc oflhe alien's participation, either individually or on a panel, as a judW! of Ihe work of 
olhen ill I!ll' sallle or an allied field of specification for which classification is sOllghl. 8 C 1-".1<. 
* 204.:i(h)(3)(iv). 
In her ,,-Ja\ IX. 201 I decision. the director concluded that the "Cristo Rey" Private School 
Educuional Lnit Diploma establishes that the petitioner meets this criterion. The AAO disagrees. 
See .\j)(,llcer Flllerprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 20(ll). a((d. 
.145 F.3d 6K3 (Yth Cir. 200.1); see also So/tone I'. Dep '( o/Justice, 381 F.3d 143, 145-46 (3d ('ir. 
2(04) (noting that the AAO conducts appellate review on a de novo basis). On appeal, counse!' 
pointing to the same document, continues to assert that the petitioner meets this criterion. 
After a close rcview of the March 15, 1996 diploma, along with other evidence in the record. thl' 
AAO concludes that the petitioner has not met this criterion. Specifically, neither the diploma 1\(" 
other evidence in the record shows that the petitioner judged "the work of others in the same or an 
allied field." as required by the plain language of the criterion. The diploma, issued by "Cristo Re\" 
Private School Educational Unit in San Cristobal, and signed by the school's director and 
~f music. indicates that the petitioner served as a "juror of 
_ There is no evidence showing that the petitioncrjudged the work of other musicians in 
the festival. Rather, it appears that the petitioner may have judged the voice talents of a group ot 
school-age children of unspecified age. The evidence in the record also fails to establish that the 
'''Cristo Rey' Private School Educational Unit" is a music school. such that its students may he 
considered members of the field of music. As the record lacks evidence on the participants of tile­
festival. and the diploma indicates that the participants may not be musicians, the AAO finds that thl' 
diploma is irbufficient evidence to show that the petitioner meets this criterion. 
In short, the AAO cannot find that the petitioner has presented evidence of his participation. either 
individually or on a panel, as a judge of the work of others in the same or an allied field ot 
specification for which classification is sought. The petitioner has not met this criterion. Sct' 
S c:.F.R. * 204.5(h)(3)(iv). 
Fl'idellce oI Ihe alien's original SCientific, scholarly, artistic, athletic, or husiness-re/aln! 
colllri/lIIliolll oIlilajor significance in the field. 8 CF.R. § 204.S(h)(3)(v). 
On appeal. counsel assets that the petitioner meets this criterion because "numerous testimonial 
letters from esteemecl individuals were provided to vouch for the importance of [the petitioner] to his 
lield." ilically. counsel points to the following reference letters: (1) a May 14,2010 letter from 
the Naples Philhannonic Orchestra Concertmaster and University of Miami's 
ril 20, 2011 letter from •••• 
(3) an April 17, 2011 letter from 
--Page l) 
After a close review of the reference letters and other evidence in the record, the AAO concludl's 
that the petitioner has not shown any original artistic contributions of major significance in the field. 
Indeed, none of the reference letters even mentions the petitioner making original contribution, in 
the field, let alone original contributions of major significance, According to Professor Basham, thl' 
petitioner "is a sensitive musician with an ability to work well with a group," Although_ 
•••• ,tated that the petitioner "has the ability to produce the strong, powerful sounds along \\ ith 
the del icate lones necessary to create the dramatic dynamic changes required of an orcheslral 
playcr. did not claim to have ever seen or heard of the petitioner's performances. 
In fact, as noted in the director's May 18,2011 letter does not specify thai 
he is "lIniliar with the petitioner's work, other than that he has "reviewed [the petitioner'sl 
background, resume and qualifications," Moreover, Professor Basham failed to indicate in his letter 
that the petitioner has made any artistic contributions of major significance in his field, which i.s 
required under the plain language of the criterion, Finally, notwithstanding 
opinion that the petitioner "clearly ranks among that small who have risen to the top of 
his field," the AAO finds that the information etter does not support 
the broad statement. Specifically, although thc petitioner's 
achievements in the letter. he did not compare the achievements against others in the petitioner's 
field. Merely repeating the language of the statute or regulations does not satisfy the petitioner's 
burden of proof. .'leI' Fedill Bros. Co" Ltd, v, Sava, 724 F Supp, 1103, 1108 (E.D,N,Y, 198'1), olr", 
'lOS F. 2d -II (2d Cit, 1990); Avyr Associates, Inc, v, Meissner, No, '15 Civ, 10729, 1'1'17 WL ISS9-12 
at "5 (S,D.N.Y, Apr. IS, 1997), Similarly, USCIS need not accept primarily conclusory assertions. 
See 1750, 1111', 1', Ulliled Stales AI1 'y Cell" 745 F, Supp, 'I, (0,(', Disc 1990), 
letter, the petitioner is "an exceptional Violist, , , [and] __ 
added considerably to the cuIturallife of South Florida with his man) 
appearances as a solo performer, chamber musician and orchestral musician," 
indicated in his letter that the petitioner is "a seasoned performer, , , land] a tine teacher," he Il,ikd 
to establish, or even assert, that the petitioner has made any artistic contributions of major 
significance in his field, as required under the plain language of the criterion, 
According to the petitioner's work is "outstandingly etTective in concert and reheaf'al 
situation" and he has "a rare gift combining both gentleness and authority," 
reference letter suffers the same deficiency as the abovementioned reference letters, cificallv . 
•••••• lctter bils to demonstrate, or even allege, that the petitioner has made any artistic 
contributions of major significance in his field, as required under the plain language of the criterion, 
According to has been teaching youth string classes at the Deering Estate 
at Cutler CJMYS, stated that she cannot run the program, offered by the GMYS 
preparatory department, "without the expertise and help of [thc petitioner. whol has proven to be the 
most valuable teacher [she has] had in [the] program and the students and parents arc delighted \\ ilb 
Page I() 
his classes." Although she praised the petitioner's ability to teach string classcs, she failed to 
mcntion that thc [lctitionCf has made any original artistic contributions of major significance in thL' 
field. as required under the plain language of the criterion. 
The record contains reference letters in addition to those discussed above. None of them, howner. 
establishes tlut the petitioner meets this criterion. Vague, solicited letters from local colleagues that 
do not specifically identify contributions or provide specific examples of how those contributions 
innuenced the field arc insufficient 3 Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 20(9), 01(<1 
ill ['art. 'iYh F.3d 1115 (9th Cir. 2(10). The opinions of experts in the field are not without weigh! 
and have heen considered. USCIS may, in its discretion, use as advisory opinions statemen(.s 
submitted as expert testimony. See Matter of Caron Int'!, 19 I&N Dec. 791, 795 (Comm'r ILJK1-I). 
However. USCIS is ultimately responsible for making the final detennination regarding an alien', 
eligibility for the benefit sought. Id. The submission of letters from experts supporting the petitioIl 
is not presumptive evidence of eligibility; USCIS may, as this decision has done, evaluate the 
content 01' thnse letters as to whether they support the alien's eligibility. See id. at 795; see ill,,, 
MillieI' or v-/\ -. 24 I&N Dec. 500, n.2 (BrA 2(08) (noting that expert opinion testimony does no! 
purport tn be evidence as to "fact"). USCIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. Id. at 7LJ'i; .W'" als() 
MalllT or Solliei. 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Cra/i or 
Cali/imlili. 1-1 I&N Dec. 190 (Reg'l Comm'r 1972». 
The reference letters in the record primarily contain bare assertions of acclaim and vague claims oj 
contributions without specifically identifying contrihutions and providing specific examples of hem 
those contributions rise to a level consistent with major significance in the field. As stated above. 
merely rcpeating the language of the statute or regulations docs not satisfy the petitioner's burden oi 
proof. Fedill Bros. Co., Ltd., 724 F. Supp. at 1108; Avyr Associate.l; Inc., 1997 WL 188942 at .". 
Similarly, USCIS need not accept primarily conclusory assertions. 1756, Ille., 745 F. Supp. at I:;. 
The petitioner also failed to submit sufficient corroborating evidence in existence prior to the 
preparation of the petition, which could have bolstered the weight of the referencc letters. 
In short. the A/\O cannot find that the petitioner has presented cvidence of his original scientific. 
scholarly, artistic, athletic, or business-related contributions of major significance in thc field. Thl' 
petitioner has not met this criterion. See 8 C.F.R. § 204.5(h)(3)(v). 
/:"1'idCI1(,[, of rhe display of the aliel1 's work in the field at artistic ('xhiililiolls or showCll\(" 
1-1 C.F.R. ~ 204.5(h)(3)(vii). 
In her May IS. 211 II decision, the director found that the petitioner has met this criterion. The A/\O 
concurs. In short. the AAO find that the petitioner has presented evidence of the display of his wmk 
In .?()[(J. the f.:a;:urUi/l court reiterated that the AAO's conclusion that "letters from physics professors attesting to IlhL' 
alien'~J cnntrioutioll:' in the ticld" were insufficient was "consistent with the relevant regulatory language," 596 F.~d (II 
1122. 
Page II 
in the rield at artistic cxhibitions or showcases. The petitioner has met this criterion. See ~ C.F.R. 
~ 204.5(h)(3)(vii). 
FI'idellce !I"1f Ihe alien has performed ill a leadill{? or critical role j(Jr orWlIlizlltioll1 (lr 
£'sllIhlis/I1l1el1ls Ihal have a distin{?uished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
On appeal. counsel asserts that the petitioner meets this criterion because he is currently the assistant 
principal viola ror the Miami Symphony Orchestra and has at times performed as the principal villia. 
and hccause he has "reccntly [started as J the string teacher for the Deering [E]state .. • The supporting 
documents in the record include: (I) the petitioner's curriculum vitae, (2) the Lctter of Agreement 
between the petitioner and the Miami Symphony Orchestra, dated September 2010, an April 17. 
2() II letter frolll the Miami Orchestra's Music 
IIIII~ ••• and (4) an April 20, 2011 letter from the Deering Estate at Cutler GMYS 
A leading role should be evident based not only on the petitioner's title hut his duties associated with 
thc position. A critical role should be apparent from the petitioner's impact on the organization ur 
establishment as a whole. To show his role in an organization or establishment, the petitioner ma) 
submit an organization chart demonstrating how his role fits within the hierarchy of the organization 
or establishment. 
Based nn the evidence in the record, the AAO concludes that the petitioner has not shown that he has 
performed a leading or critical role for either the Miami Symphony Orchestra or the Deering Estate 
at Cutler GMYS. First, nor any other evidence in the record indicates that thl' 
petitioner has a leadership role Symphony Orchestra. Although _t stated 
that the petitioner is a "musical leader:' he failed to explain the term "musicalleader:' or explain the 
petitioner's duties in the orchestra, such that the AAO may conclude that the has " 
leadershi role in the organization or establishment. Also, although the Brasil 
in his letter that the 
managing the overall [co-Jproduction" between 
Orchestra. he provided no specific information as to what the petllloner did. Moreover. 
"perlemnl ingl a vital role" in one production does not constitute performing a leading or critical role 
for the orchestra as a whole. Similarly, although_stated that the petitioner "is a maim 
asset and a key factor in the present artistic development of [t]he Miami Symphony Orchestra: _ 
_ failed to indicate what the petitioner does in the orchestra other than performing as a 
mUSICIan. also failed to indicate that the petitioner's role as an assistant principal vioLt 
is so critical that that his impact on the orchestra is apparent. Notably, Clause 3.5 of the Letter (II 
Agreement states that "[tJhe Orchestra management may in their absolute discretion ... omit the 
[petitioneri from any pert(lrmance." 
Second. the evidence shows that, as a string class teacher, the petitioner does not have a leadership 
role in the Deering Estate at Cutler GMYS. Although __ stated that the petitioner is .. thL· 
Illost valuahle teacher" in the GMYS preparatory department, and that she could not run till' 
Page 12 
preparatory program without the petitioner's expertise and help, she did not state that the petitionCf 
has performed a critical role for the Deering Estate at Cutler GMYS as a whole, which likely is an 
organization with a number of departments and/or programs. Moreover, the petitioner has not 
provided an organizational chart showing how his role as a teacher fits within the hierarchy of the 
entire organization. Finally, Ms. Wilcox described the nature and the goals of GMYS preparatorl 
department. neither she nor any other evidence in the record establishes that the organization Il<IS a 
distinguished reputation. 
lIlIUII';' has also submitted evidence showing that he has performed with the 
the 
groups, to show 
that he has performed a leading or ro r these organizations or establishments, or that these' 
organizations or establishments have a distinguished reputation. 
In short. the AAO cannot find that the petitioner has presented evidence that he has performed in a 
leading or critical role for organizations or establishments that have a distinguished reputation. The 
petitioner has not met this criterion. See 8 C.F.R. § 204.5(h)(3)(viii). 
/:1'idclI(e or commcrcial sllccesses ill the perjcJrmillR arts, as shown by box office receil)/I iii 
record. ('Ilssel/e. compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x). 
On appeal. coun.sel asserts that the petitioner meets this criterion because he performed on vi""1 
during a liling recording of Dios de Pactos, and that the recording sold over 258,000 copies and won 
As evidence, counsel points to a June 2, 20 II letter from 
Based on the evidence in the record, the AAO finds that the petitioner has not met this criterion. 
First. it is unclear from the record what' holds, if any, in Grupo Canzion. Thl' 
record also contains no information on a company located in Houston, Texas. or 
information on the company's associatIOn lve recording of Dios de Pactos in Miami. 
Florida. As such. the AAO lacks sufficient evidence to assess the reliability of _ June 2. 
2011 leller. Second. although the letter states that the petitioner "participated in the recording as 'I 
memiJer of thc orchestra New World School of Arts," the letter does not specify the total number III 
participants from the school or that the petitioner's namc was released to the public, such that the 
people who purchased the recording or awarded the Latin Grammy were aware of the petitioner's 
participation in the recording. Thus, the petitioner has not established that any commercial success 
can be considered that of the petitioner. Third, the petitioner has not presented any evidence to 
supporl a finding that selling over 258,000 copies of a live recording constitutes evidcnce III 
commercial success. 
Final". although counsel has previously asserted that the 
documents rebting to the selling of compact discs of the 
_ on appeal. counsel has failed to continue to assert that these documents constitute evidence 
Page 1.1 
of commercial successes. As such, the AAO concludes that the petitioner has abandoned this issue. 
as he did not timely raise it on appeal. Sepulveda, 401 F.3d at 1228 n.2; Hris(ov, 2011 WL 471It-:K'i 
at *9. 
In short. the AAO cannot find that the petitioner has presented evidence of commercial successes in 
Ihe peri<Hllling ,IriS. as shown by box office receipts or record, cassette, compact disk, or video s'lics. 
The petitioner has not met this criterion. See 8 C.F.R. § 204.S(h)(3)(x). 
B. Summary 
The A;\() concurs with the director's tinding that the petitioner has failed to satisfy the antecedenl 
regulatory requirement of presenting three types of evidence in the field of endeavor, as required 
under the regulation at 1\ C.F.R. § 204.S(h)(3). 
III. CONCLUSION 
The dllcuillentalilln submitted in support of a claim of extraordinary ability must clearly demonstr,IIL· 
that the alien has achieved sustained national or international acclaim and is one of the small 
pereent,lge who have risen to the very top of the 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 thai 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (I) ,I 
"k\e!ofexpertise indicating that the individual is one of that small percentage who have risen til thl' 
\ery top Ill' the field of endeavor," and (2) "that the alien has sustained national or international 
acclaim and that his l] achievements have been recognized in the tield of expertise." R C.I·.R. 
* 2().Li(il)(2) and (3): see also Kazarian, SIJ6 F.3d at 1119-20. While the AAO concludes that the 
evidence is nut indicative of a level of expertise consistent with the small percentage at the very lop 
of the fidel or sustained national or international acclaim, the AAO need not explain that conclusioll 
in a final merits ddermination.
4 
Rather, the proper conclusion is that the petitioner has failed II' 
satisfy the antecedenl regulatory requirement of presenting three types of evidence. Kazariall. )'Jh 
F.3d at 1 122. 
The petitioller has not established eligibility pursuant to section 203(b)(I)(A) of the Act and Ihe 
pelitioll ma\' flot be approved . 
.. Thc J\J\() m;linlain:-. de novo review of all questions of fact and law. See SO/lane v. Dep>t (lJuslice, 3Hl F.3d ] .. 1-.'1. 
145 (3d ('ir. :!()()-l). In any future proceeding, the AAO maintains the .iurisdiction to conduct a final merits determin<!tiPIl 
as Ihe olliLe Ihal made Ihe last dccision in this matter. 8 C.F.R. § t03.5(a)(I)(ii); see also INA §§ ll13(a)(I). 2tJ-llh) 
DHS Dde~ali()11 Numher OI50.t (effectivc March 1,2003); 8 C.F.R. § 2.1 (2003): 8 C.F.R. § Im.I(!)(3)(iii) (21111.1): 
Mullc/ "r\ll/cllO. Il! I&N Dec. 45R. 460 (iliA 1987) (holding that legacy INS, now USClS, is Ihc sole aUlhoril\' \\['h 
the juri-.;didinll ttl (kTidc visa petitions). 
Page 1-1. 
The burden ,,1' proof in visa petition proceedings remains entirely with the petitioner. Section 29 I 0\ 
the Act. K USc:. ~ 1361. Here, the petitioner has not sustained that burden. Accordingly. the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.