dismissed EB-1A Case: Music

puBUC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
B 7. 
Office: VERMONT SERVICE CENTER Date: OEC 2 8 20~ 
EAC 04 263 52267 
IN RE: 
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. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
2 Robert P. Wiemag, Chief 
Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 9 1153(b)(l)(A), as an alien of extraordinary ability. The 
director determined the petitioner had not established the sustained national or international acclaim necessary to 
qualify for classification as an alien of extraordinary ability. 
On appeal, counsel argues that the petitioner "qualifies to be granted approval of his 1-140 immigrant visa petition 
as an 'alien of extraordinary ability.' He is a nationally-known musician as well as having international 
performances in hs repertoire. He has met 8 of the 10 criteria suggested as the framework within which to prove 
'extraordinary ability. "' 
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 whch 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 to the United States will substantially benefit prospectively the 
United States. 
Citizenship and Immigration Services (CIS) 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 56 Fed. Reg. 60897, 60898-9 (November 29, 1991). As used in 
this section, the term "extraordinary ability" means a level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the field of endeavor. 8 C.F.R. 9 204.5(h)(2). The 
specific requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F.R. 
9 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, that the 
petitioner must show that he has earned sustained national or international acclaim at the very top level. 
This petition, filed on September 18, 2004, seeks to classify the petitioner as an alien with extraordinary 
ability as a French horn player and composer. 
Page 3 
The regulation at 8 C.F.R. 3 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international recognized 
award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of which 
must be satisfied for an alien to establish the sustained acclaim necessary to qualifL as an alien of 
extraordinary ability. The petitioner has submitted evidence pertaining to the following criteria. 
Documentation of the alien's receipt of lesser nationally or internationally recognizedprizes 
or awards for excellence in thefield of endeavor. 
The petitioner submitted an award diploma reflecting that he won second place at the 1998 Svetoslav Obrentenov 
"National Competition for Young Instrumentalists and Singers" in Bulgaria. The petitioner's award diploma 
identifies his specialty as "French horn till age of 19." 
The petitioner also submitted material relating to the 1996 competition which states: "During the Bulgarian 
Competition 'Svetoslav Obrentenov' . . . the results from the music pedagogic work in the schools, music schools 
and academies in Bulgaria in a two year interval are shown." 
In addressing the preceding evidence, the director's decision stated that this award "was made eligble to a group 
of up-and-coming young musicians, rather than musicians who are already well established in their field. Thus, 
this award is not sufficient to establish that the [petitioner] is one of the top . . . French horn players in his field 
when he was being compared to other young musicians who were not necessarily well-established." We concur 
with the director's observations. 
We find that an award limited to teenagers pursuing musical studies offers no meaningful comparison 
between the petitioner and experienced music professionals. The petitioner seeks a highly restictive visa 
classification, intended for individuals already at the top of their respective fields, rather than for individuals 
progressing toward the top at some unspecified future time. There is no indication that the petitioner faced 
competition from throughout his entire field, rather than his approximate age group within that field. The 
petitioner's receipt of an award restricted to teenagers or students is not an indication that he has reached the 
"very top of the field of endeavor." See 8 C.F.R. tj 204.5(h)(2). 
On appeal, counsel states: "The [petitioner] wrote the song 'A trip to you,' which won the Special Prize for 
Best Original Composition in the 1999 Discovery International Music Festival, an international competition 
for pop singers . . . ." The record, however, includes no contemporaneous evidence showing that the 
petitioner was a named recipient of a "Special Prize for Best Original Composition" at the 1999 Discovery 
International Music Festival. Without documentary evidence to support the claim, the assertions of counsel 
will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 
(BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Rather than submitting first-hand evidence showing that he is a named recipient of a Special Prize at the 1999 
Discovery International Music Festival, the petitioner instead submitted a July 10, 2004 letter from Dono 
Tsvetkov, Organizer and President of the Discovery International Music Festival, stating: 
Page 4 
I have known [the petitioner] since 1999 as a composer, pianist and a person responsible for the 
anangement of the song "A trip to you." The song won the special prize award on [sic] the international 
competition for pop performers at the "Discovery" festival in 1999. [The petitioner] together with the 
singer Desislava Dobreva and his group "Unknown" made a record of the song "A trip to you" that left a 
large impression on me. 
The petitioner also submitted the compact disc jacket for a compilation of 18 songs fiom the 1999 Discove~y 
International Music Festival "First lnte 
 the compact disc jacket reads as 
follows: "A TIUP TO YOU - 4:43 ([THE PETITIONER]/ 
[THE PETITIONER] 
Primary evidence of the petitioner's award from this festival, however, would be evidence of the prize itself 
from 1999 bearing the petitioner's name rather than a letter of support from issued several 
years later. While item 10 on the compact disc jacket lists the petitioner's name, there is nothing on the disc 
jacket indicating that he was singled out for recognition from among the dozens of other artists whose names 
appear on this compilation. In this instance, the petitioner has not complied with the regulation at 8 C.F.R. 
5 103.2(b)(2) regarding the submission of secondary evidence. 
 Specifically, the petitioner has not 
demonstrated that the "Special Prize for Best Original Composition in the 1999 Discovery International 
Music Festival" presented to him is unavailable or does not exist. The plain language of this criterion 
requires evidence of "the alien's receipt of lesser nationally or internationally recognized prizes or awards for 
excellence in the field of endeavor." An award presented t for her pop music 
performance (rather than to the petitioner for his composition) domkement .' Aside from 
the petitioner's failure to submit primary evidence of his Special Prize, there is no evidence of 
contemporaneous publicity surrounding his receipt of this award or evidence showing that his prize 
commands a substantial level of recognition. Further, we note that the title of the "Discovery International 
Music Festival" suggests that this competition is intended for pop musicians seeking to establish themselves 
rather than for seasoned music professionals who have already risen to the very top of the field. 
In light of the above, the petitioner has not established that he meets this criterion. 
Documentation of the alien's membership in associations in the3eld for which classzj?cation 
is sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines orfields. 
In order to demonstrate that membership in an association meets this criterion, the petitioner must show that 
 ' 
the association requires outstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or 
experience, standardized test scores, grade point average, recommendations by colleagues or current 
members, or payment of dues, do not satisfy this criterion as such requirements do not constitute outstanding 
achievements. In addition, it is clear fiom the regulatory language that members must be selected at the 
I 
 The petitioner submitted a 1999 article in Vsychko Za Varna entitled "The Best in Jazz is the Improvisation" stating: 
"Desislava Dobreva sang and won the audience award at the VIII International Pop Fest 'Discovery 99."' This article 
includes no mention of the petitioner's receipt of a "Special Prize." 
national or international level, rather than the local or regional level. Therefore, membership in an association 
that evaluates its membership applications at the local or regional chapter level would not qualify. Finally, 
the overall prestige of a given association is not determinative; the issue here is membership requirements 
rather than the association's overall reputation. 
On appeal, counsel states that "being a member of an orchestra constitutes being a member of an association." 
Counsel further states that the petitioner earned the "position of Principal horn with the New Symphony 
Orchestra, the National Youth Symphony Orchestra, and Opera Verdi Europe." We do not find that playing 
French horn for an orchestra constitutes membership in association in the field for purposes of this criterion. 
The petitioner's work for Opera Verdi Europe, for example, is not membership in an association in the field, 
but rather employment in his field. Nevertheless, the record does not include the membership bylaws or the 
official admission requirements for the aforementioned organizations. The petitioner has not established that 
admission to membership in these organizations required outstanding achievement or that he was evaluated 
by national or international experts in consideration of his admission to membership. The petitioner's role as a 
principal musician for these orchestras is better considered under the criterion set forth at 8 C.F.R. 
$ 204.50(3)(viii). Thus, the petitioner has not established that he meets this criterion. 
Published materials 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. 
In general, in order for published material to meet this criterion, it must be primarily about the petitioner and, as 
stated in the regulations, be printed in professional or major trade publications or other major media. To qualify 
as major media, the publication should have significant national or international distribution. An alien would not 
earn acclaim at the national or international level from a local publication. Some newspapers, such as the New 
York Times, nominally serve a particular locality but would qualify as major media because of significant national 
distribution, unlike small local community papers.2 
The petitioner submitted a 1999 article in Vsychko Za Varna entitled "The Best in Jazz is the Improvisation." 
The record, however, includes no evidence showing that this publication had substantial national readership. 
Further, the author of the article was not identified as required by this criterion. 
The petitioner also submitted a 1989 article entitled "First Steps on the Keyboard," but there is no evidence 
showing that the publication featuring this article had substantial national readership. This article, which 
discusses a childhood piano performance of the petitioner in his municipality, states: "[The petitioner] 
possesses qualities for future development and perfection as a musician." Such comments, however, are not 
an indication that the petitioner has sustained national acclaim or risen to the very top of his field of endeavor. 
The record also includes a March 29, 1999 article in Standart and a May 7, 2002 article entitled "Michail 
Gorbatchov" posted at http:i!slavishow.com, but the petitioner is not the primary subject of these articles. The 
2 
 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, cannot 
serve to spread an individual's reputation outside of that county. 
March 29, 1999 article is about singe 
 and devotes only one sentence to the petitioner while 
the May 7, 2002 includes nothing 
 plain language of this criterion, however, requires 
the submission of "published materials about the alien." The petitioner's March 29, 1999 and May 7, 2002 
articles fail to meet this requirement. If the petitioner is not the primary subject of the material, then it fails to 
demonstrate his individual acclaim at the national level. 
The petitioner also submitted a photograph of himself appearing in 24 Chasa in 1998. There is no indication, 
however, that the article which this photograph accompanied was primarily about the petitioner. We note that 
the petitioner's name was not identified in the photograph's caption while two other individuals in the picture 
were specifically named. Such material does not satisfy the plain language of the criterion at 8 C.F.R. 
5 204.5(h)(3)(iii). 
In a March 30, 2005 request for evidence notice issued by the director, the petitioner was specifically 
requested to submit "evidence of published materials in professional or major trade publications or major media 
about the alien, relating to the alien's work in the field for which classification is sought. The evidence should 
include the title, date and author of such published material, and any necessary translations." The petitioner was 
afforded twelve weeks in which to respond to the director's request for evidence. 
The regulation at 8 C.F.R. 8 103.2 (b)(8) states, in pertinent part: 
Request for evidence. Except as otherwise provided in this chapter, in other instances where there is no 
evidence of ineligbility, and initial evidence or eligbility information is missing or the Service finds that 
the evidence submitted either does not fully establish eligibility for the requested benefit or raises 
underlying questions regarding eligbility, the Service shall request the missing initial evidence, and may 
request additional evidence . . . . In such cases, the applicant or petitioner shall be given 12 weeks to 
respond to a request for evidence. Additional time may not be granted. Within this period the applicant 
or petitioner may: 
(i) Submit all the requested initial or additional evidence; 
(ii) Submit some or none of the requested additional evidence and ask for a decision based on the 
record; or 
(iii) Withdraw the application or petition. 
In a June 21,2005 letter submitted in response to the director's request for evidence, counsel for the petitioner 
requested an additional 60 days "to prepare a thorough response." The regulation at 8 C.F.R. tj 103.2(b)(8), 
however, specifically states that "additional time may not be granted." The petitioner failed to submit evidence 
relating to the criterion at 8 C.F.R. 5 204.5(h)(3)(iii) within the time period specified by the director. 
On July 25, 2005, the director denied the petition, stating that his "decision will be issued based on the 
evidence currently in the record." 
On appeal, the petitioner now submits a March 1999 article appearing in Standart entitled "Jazz Group 
Declares War on the Pop Folk." The record, however, includes no evidence showing that this publication had 
substantial national readership. Further, the author of the article was not identified as required by this 
criterion. The petitioner's appellate submission also included two brief promotional announcements for an 
April 1, 1999 concert performed by the petitioner's jazz group "Unknown." Such promotional 
announcements, which are not the result of independent journalistic reportage, cannot serve to meet this criterion. 
This material is simply not indicative of national or international acclaim. The petitioner was put on notice of 
required evidence and given a reasonable opportunity to provide it for the record before the visa petition was 
adjudicated. The petitioner failed to submit the preceding materials in response to the director's March 30, 
2005 request for evidence and now submits them on appeal. However, the AAO will not consider this 
evidence for any purpose. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of 
Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be 
considered, he should have submitted the documents in response to the director's request for evidence. Id. 
In light of the above, the petitioner has not established that he meets thls criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same m an alliedjield of spec8cation for which classiJication is sought. 
The regulation at 8 C.F.R. 8 204.5(h)(3) provides that "a petition for an alien of extraordinary ability must be 
accompanied by evidence that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." Evidence of the petitioner's participation as a 
judge must be evaluated in terms of these requirements. The weight given to evidence submitted to fulfill the 
criterion at 8 C.F.R. tj 204.5(h)(3)(iv), therefore, depends on the extent to which such evidence demonstrates, 
reflects, or is consistent with sustained national or international acclaim at the very top of the alien's field of 
endeavor. A lower evidentiary standard would not be consistent with the regulatory definition of 
"extraordinary ability" as "a level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the field of endeavor." 8 C.F.R. 5 204.5(h)(2). For example, serving as a 
judge for a national competition involving professional musicians is of far greater probative value than serving as 
a judge for a local competition involving amateurs or children. 
In a March 30, 2005 request for evidence notice issued by the director, the petitioner was specifically 
requested to submit "evidence of the alien's participation on a panel or individually as a judge of the work of 
others in the same or an allied field for which classification is sought." The petitioner was afforded twelve weeks 
in which to respond to the director's request for evidence. The petitioner failed to submit evidence relating to the 
criterion at 8 C.F.R. tj 204.5(h)(3)(iv) within the time period specified by the director. 
On appeal, the petitioner now submits two August 19, 2005 letters of reference fro 
 ounder 
and President of the New Symphony Orchestra. According to the petitioner's 
French horn instrumentalist for the New Symphony Orchestra since 1999. In her letters, 
 states 
that the petitioner participated as a panelist (or examiner) for evaluation and 
Orchestra musicians on February 2, 2002 and 
 The petitioner's appellate submission also 
includes a June 20, 2005 letter of reference fro 
 eneral Music Director and Manager of the 
National Youth Symphony Orchestra of Bulgaria, stating that the petitioner served on a "panel of judges for 
Page 8 
the competition which took place on 3 February 2002 for the purpose of assessment and reselection of the 
Bulgarian Youth Philharmonic Orchestra members." According to his resume, the petitioner performed as a 
principal French horn for the National Youth Symphony Orchestra fkom 1999 to 2004. 
The preceding reference letters are not adequate to demonstrate that the petitioner meets this criterion. The 
plain language of this criterion requires "[elvidence of the alien's participation . . . as a judge of the work of 
others." Primary evidence of the petitioner's participation would be contemporaneous paperwork 
documenting the evaluations performed by him rather than letters of support issued years after the events 
occurred. In this instance, the petitioner has not complied with the regulation at 8 C.F.R. 
 103.2(b)(2) 
regarding the submission of secondary evidence. Specifically, the petitioner has not demonstrated that the 
paperwork relating to the evaluations he performed is unavailable or does not exist. The absence of 
contemporaneous evidence of the petitioner's participation is a significant omission from the record. There is 
no evidence showing the names of the musicians evaluated by the petitioner, their level of expertise, and the 
paperwork documenting his assessments. The benefit sought in the present matter, however, is not the type for 
which documentation is typically unavailable and the statute specifically requires "extensive documentation7' to 
establish eligibility. See section 203(b)(l)(A)(i) of the Act. 
 The regulations governing the present immigrant 
visa determination have no requirement mandating that CIS specifically accept the credibility of personal 
testimony, even if not corroborated. The commentary for the proposed regulations implementing this statute 
provide that the "intent of Congress that a very high standard be set for aliens of extraordinary ability is reflected 
in this regulation by requiring the petitioner to present more extensive documentation than that required" for 
lesser classifications. 
 56 Fed. Reg. 30703, 30704 (July 5, 1991). 
 Thus, this criterion requires specific 
documentation beyond mere testimony. Aside from an absence of contemporaneous evidence documenting the 
petitioner's participation as a judge, we do not find that evaluating one's fellow instrumentalists in an orchestra 
in which one performs is indicative of national or international acclaim. 
Regarding the aforementioned reference letters submitted on appeal, the petitioner was put on notice of required 
evidence relating to the criterion at 8 C.F.R. tj 204.5(h)(3)(iv) and given a reasonable opportunity to provide it 
for the record before the visa petition was adjudicated. The petitioner failed to submit the preceding letters in 
response to the director's March 30, 2005 request for evidence and now submits them on appeal. However, 
the AAO will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N at 764; see also 
Matter of Obaigbena, 19 I&N at 533. As stated previously, if the petitioner had wanted the submitted 
evidence to be considered, he should have submitted the documents in response to the director's request for 
evidence. Id. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the display of the alien's work in thefield at artistic exhibitions or showcases. 
The petitioner submitted promotional announcements, reference letters, and program books relating to 
concerts in which he participated as an ensemble member. The petitioner also submitted internet printouts 
relating to Opera Verdi Europe's 2004 tour of the United States. As principal French horn player for Opera 
Verdi Europe's orchestra, the petitioner has performed in college auditoriums at Ball State University, the 
University of Massachusetts, the Richard Stockton College of New Jersey, Montgomery College, and 
Pennsylvania State University. The record, however, does not establish that these venues command the same 
level of prestige associated with top opera venues such as the Lincoln Center for the Performing Arts or the 
John F. Kennedy Center for the Performing Arts. Nevertheless, the plain language of this criterion indicates 
that it is intended for visual artists (such as sculptors and painters) rather than for than for instrumental 
musicians such as the petitioner. In the performing arts, acclaim is generally not established by the mere act 
of appearing in public, but rather by attracting a substantial audience. For this reason, the regulations 
establish separate criteria, especially for those whose work is in the performing arts. The petitioner's musical 
performances are far more relevant to the "commercial successes in the performing arts" criterion at 8 C.F.R. 
9 204.5@)(3)(x). Thus, the petitioner has not established that he meets this criterion. 
Evidence that the alien has perj4ormed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
In order to establish that he performed a leading or critical role for an organization or establishment with a 
distinguished reputation, the petitioner must establish the nature of his role within the entire organization or 
establishment and the reputation of the organization or establishment. 
The petitioner submitted letters of support and other evidence indicating that he performed as an ensemble 
member for orchestras such as Opera Verdi Europe, the New Symphony Orchestra, the Academic Symphonic 
Orchestra, the Sofia Philharmonic Orchestra, and the National Youth Symphony Orchestra. Aside from their 
own self-serving promotional material, there is no evidence showing that the preceding orchestras have 
earned distinguished national reputations in the same manner as (for example) the New York Philharmonic, 
Boston Symphony Orchestra, or Chicago Symphony Orchestra. 
The petitioner must also demonstrate that he has regularly performed in a "leading or critical role7' as an 
ensemble member. On appeal, counsel asserts that the petitioner earned the "position of Principal horn with 
the New Symphony Orchestra, the National Youth Symphony Orchestra, and Opera Verdi Europe." While 
the petitioner submitted a letter of support from Ivan Kyurkchiev, Artistic Director of Opera Verdi Europe, 
stating that the petitioner served as the principal French horn player for that organization, there is no evidence 
showing that he served as a principal instrumentalist for the New Symphony Orchestra or the National Youth 
Symphony Orchestra. As stated previously, the unsupported assertions of counsel do not constitute evidence. 
Matter of Obaigbena, 19 I&N at 533, 534; Matter of Laureano, 19 I&N at 1; Matter of Ramirez-Sanchez, 17 
I&N at 503,506. 
Regarding the petitioner's role as a principal French horn player for Opera Verdi Europe, we do not find that 
such a position is tantamount to a leading or critical role for this opera company. We note here that, aside 
from its orchestra, Opera Verdi Europe consists of singers, a choir, and ballet dancers. To satisfy this criterion, 
the petitioner must distinguish himself from the numerous other performing artists of the Opera Verdi Europe 
organization. Otherwise, the phrase "leading or critical role" is meaningless. The evidence reveals that the 
petitioner performs as part of an orchestral ensemble for Opera Verdi Europe's traveling productions. However, 
the evidence does not indicate that the petitioner's role is more notable or important than that of the hundred or so 
other artists employed by Opera Verdi Europe including its soprano and bass singers, orchestra conductor, artistic 
director, and ballet dancers. 
 petitioner's name has received top billing 
(in the same 
 r that the popularity of the opera company 
increased when the 
 evidence showing that the petitioner's 
contract with Opera Verdi Europe singles him out for greater compensation than that of others in the opera 
company. In this case, the petitioner's evidence fails to demonstrate that he has performed in a leading or 
critical role for a distinguished organization, or that his involvement has earned him sustained national or 
international acclaim. Thus, the petitioner has not established that he meets this criterion. 
Evidence that the alien has commanded a high salary or other signzjicantly high remuneration 
for services, in relation to others in thefield. 
In a March 30, 2005 request for evidence notice issued by the director, the petitioner was specifically 
requested to submit "evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field." The petitioner was afforded twelve weeks in which 
to respond to the director's request for evidence. The petitioner failed to submit evidence relating to the criterion 
at 8 C.F.R. 9 204.5(h)(3)(ix) within the time period specified by the director. 
On appeal, the petitioner now submits evidence of two payments in the amount of BGN 70 that he received 
from the Sofia Philharmonic Orchestra in 2002. The petitioner also submits a letter from the "Main 
accountant for Sofia Philharmonic" stating that "in 2002 the monthly salary in Sofia Philharmonic Orchestra 
for each instrumentalist was between 180-220 leva." The plain language of this criterion, however, requires 
the petitioner to submit evidence of a high salary "in relation to others in the field." In this instance, the 
petitioner has provided salary information that is restricted to his former employer. The petitioner offers no 
basis for comparison showing that his compensation was significantly high in relation to others in his field. There 
is no indication that the petitioner earns a level of compensation that places him among the highest paid 
instrumental musicians at the national or international level. 
Regarding the evidence of the petitioner's compensation submitted on appeal, the petitioner was put on notice of 
required evidence relating to the criterion at 8 C.F.R. fj 204.5(h)(3)(ix) and given a reasonable opportunity to 
provide it for the record before the visa petition was adjudicated. The petitioner failed to submit this evidence 
in response to the director's March 30,2005 request for evidence and now submits it on appeal. However, the 
AA0 will not consider this evidence for any purpose. See Matter of Soriano, 19 I&N at 764; see also Matter 
of Obaigbena, 19 I&N at 533. As stated previously, if the petitioner had wanted the submitted evidence to be 
considered, he should have submitted the documents in response to the director's request for evidence. Id. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales. 
This criterion calls for commercial success in the form of "sales" or "receipts"; simply submitting event 
programs, letters of support, promotional material, and compact disc recordings indicating that the petitioner 
participated in various performances cannot meet the plain wording of the regulation. The record includes no 
evidence of documented "sales" or "receipts" showing that the petitioner's performances drew record crowds, 
were regular sell-out performances, or resulted in greater audiences than other similar performances that did 
not feature the petitioner. In regard to the petitioner's musical recordings, there is no evidence showing that 
his compact discs had a high national or international sales volume. 
In light of the above, the petitioner has not established that he meets this criterion. 
In this case, the petitioner has failed to demonstrate his receipt of a major internationally recognized award, or 
that he meets at least three of the criteria that must be satisfied to establish the sustained acclaim necessary to 
qualify as an alien of extraordinary ability. 
Beyond the regulatory criteria, the petitioner submitted multiple letters of support attesting to his skill as a 
musician. While letters of support may place the evidence for the regulatory criteria in context, they cannot serve 
as primary evidence of the achievement required by each criterion. Pursuant to the statute and regulations, the 
classification sought requires documentary evidence of sustained national or international acclaim, and the 
petitioner cannot arbitrarily replace such evidence with attestations from the petitioner's colleagues, who 
assert that they find the petitioner's abilities to be extraordinary. Similarly, witness statements to the effect 
that the petitioner is widely acclaimed throughout the field have minimal evidentiary value without objective 
evidence from independent sources. 
While CIS has previously approved a P-1 nonimmigrant visa petition filed on behalf of the petitioner, a 
classification that requires the alien to perform with an entertainment group that has been recognized 
internationally as being outstanding, that prior approval does not preclude CIS from denying an immigrant visa 
petition based on a different, if similarly phrased, ~tandard.~ It must be noted that many 1-140 immigrant 
petitions are denied after CIS approves prior nonirnrnigrant 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. v. Suva, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because CIS spends less time reviewing I- 
129 nonimmigrant petitions than 1-140 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, 2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude 
CIS from denying an extension of the original visa based on a reassessment of petitioner's qualifications). 
The AAO is 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. 1988). It would be absurd to suggest that CIS or any agency must treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 
1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's 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 had approved the nonimmigrant petitions on behalf 
of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service center. 
Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), 
cert. denied, 122 S.Ct. 51 (2001). 
3 
 The specific requirements to establish eligibility for P-1 nonirnmigrant visa classification are set forth in the regulation 
at 8 C.F.R. 5 214.2(p). 
Review of the record does not establish that the petitioner has distinguished himself to such an extent that he may 
be said to have acheved sustained national or international acclaim or to be within the small percentage at the 
very top of his field. The evidence is not persuasive that the petitioner's achievements set him significantly above 
almost all others in his field at the national or international level. Therefore, the petitioner has not established 
eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 9 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.