dismissed EB-1A Case: Music

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: 
JUl 1 7 2012 
Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and lmmigrnlion Services 
Administrative Appeab Office (AAO) 
20 Massachusetts Ave .. N.W., MS 2090 
Washington. DC 20:'i29-2()l)() 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ahility Pursuant to Section 
203(h)(I)(A) of the Immigration and Nationality Act. 8 U.S.c. § 11S3(b)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please he advised that 
any further inquiry that you might have concerning your case must he made to that office. 
If you helieve the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form J-Z90B, Notice of Appeal or Motion, with a fcc of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please he aware that 8 C.F.R. § J03.5(a)(I)(i) requires any motion to he filed within 
30 days of thL: decision that the motion seeks to reconsider or reopen. 
Thank you, 
-'4.
r 
Q_­(,/- 7J--- £,)/-
Perry Rhcw 
Chief, Administrative Appeals Office 
\\'ww.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts as a drummer and 
drum teacher, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. 
§ 1153(b )(1 )(A).' 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. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(I)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing 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 of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
The petitioner'S priority date established by the petition filing date is October I, 2010. On December 8, 
2010, the director served the petitioner with a request for evidence (RFE). After receiving the 
petitioner's response to the RFE, the director issued her decision on April 22, 2011. On appeal, the 
petitioner submits a brief with new evidence. For the reasons discussed below, the AAO upholds the 
director's ultimate determination that the petitioner has not established his eligibility for the 
classification sought. 
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 
arc 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, 
I The petitioner's passport, issued in 1999, lists the petitioner's profession as accounting. 
Page 3 
(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 lOlst 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 bc established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.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. USClS, 596 F.3d 1115 (9th Cir. 2010). Although the court 
upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion. 2 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 the AAO's 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 the AAO did)," and if the petitioner 
failed to submit sutIicient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO 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, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. A~ 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. 
2 Specifically, the court stated that the AAO had unilaterally imposed novel suhstantive or evidentiary 
requirements heyond 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). 
-Page 4 
II. ANALYSIS 
A. Presentation of Evidence 
It is important to note that neither within the initial filing, nor in response to the RFE, did the petitioner 
or counsel provide a cover letter, statement or brief indicating under which criteria the director should 
apply the petitioner's evidence. Nor did the petitioner or counsel specifically assert which criteria the 
petitioner satisfied under the regulation at 8 C.F.R. § 204.5(h)(3). The burden is on the petitioner to 
establish eligibility. It is not the director's responsibility to infer or second-guess the intended criteria. 
The first instance in which the petitioner identified the particular criteria that he felt his evidence meets 
is within the appellate brief. 
Additionally, the Form 1-140, Immigrant Petition for Alien Worker does not contain any information on 
the petitioner's occupation or a job title relating to his proposed employment. The petitioner left both 
spaces on the Form 1-140 regarding this information blank. The regulation at 8 C.F.R. ~ 103.2(a)(1) 
requires that a petitioner execute a petition in accordance with the instructions. The director accepted 
the petition and within the RFE categorized the petitioner's area of expertise as a teacher. Within the 
response to the RFE, neither counsel nor the petitioner refuted the director's assessment that the 
petitioner intended to work in the United States as a teacher. However, on appeal counsel's brief 
indicates that the director's characterization of the petitioner as a teacher is too narrow and that it was an 
error. Counsel fails to explain how the error is the director's when counsel never previously provided a 
cover letter or brief to place the evidence in context. 
B. Evidentiary Criteria3 
Doclimenialion oj" the alien"s receipt OJ" lesser nationally or internationally reL'ognized prize\ or 
awards for excellence ill the field of endeavor. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish his eligibility. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda v. u.s. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11 th Cir. 20(5); Hristov v. Roark, 
No. 09-CV-273 1 2011 , 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the court found the 
plaintiffs claims to be abandoned as he failed to raise them on appeal to the AAO). Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion . 
.1 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discussed in this decision. 
Page 5 
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. 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must primarily be about the petitioner and the contents must relate to the petitioner's work in 
the field under which he seeks classification as an immigrant. The published material must also appear 
in professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or international distribution and be published in a 
predominant national language. The final requirement is that the petitioner provide each published 
item's title, date, and author and if the published item is in a foreign language, the petitioner must 
provide a translation that complies with the requirements found at 8 C.F.R. !\ 103.2(b)(3). The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
Accompanying the initial petition, the petltloner provided a January 8, 2003, article from 
citypages.com; a June 29, 2010, article from millelacsmessenger.com; a website printout from 
cdbaby.com printed on September 25, 2010; and a pamphlet from The Blake School dated June 5, 2007. 
In response to the director's RFE the petitioner provided additional evidence accompanied by a list of 
the additional evidence, but failed to provide the director with any guidance as to which criterion each 
form of evidence should be applied. On appeal the petitioner provided a website printout from 
Kenwood School, a website printout from Duniya Drum & Dance, a 2007 Minneapolis Public Schools 
report to the community, a website printout from billboard.com, a website printout from Caveman 
Records, and a pamphlet from the Carter G. Woodson Institute for Student Excellence (WISE). The 
director determined that the petitioner met the requirements of this criterion. Tbe AAO does not concur 
with the director's determination as it relates to this criterion for the reasons discussed below. 
The plain language requirements of this criterion specify that the published material must be about the 
alien and related to his work in tbe field and must appear in one of the three publication types: a 
professional publication, a major trade publication or other major media. 
The petitioner submitted articles from citypages.com and from millelacsmessenger.com. Each article 
appeared on a website, but the petitioner failed to provide evidence relating to wbich publication type 
each website constituted. Wbile the article from millelacsmessenger.com bighlights the petitioner, the 
article is not about him and relating to his work in the field. This article is primarily about the diversity 
of a local youth program and this is an insufficient representation to meet the plain language 
requirements of this criterion. The article in citypages.com is not about the petitioner. Rather it is about 
a unique restaurant in Minneapolis. These articles are insufficient evidence to meet the plain language 
requirements of this criterion. 
The website printout from cdbaby.com suffers the same evidentiary deficiency as the two above articles 
in that the petitioner failed to provide evidence that the website is a professional publication, a major 
Page 6 
trade publication or other major media. Regarding the pamphlet from the Blake School, the pamphlet is 
not about the petitioner and relating to his work. Furthermore, the record is deficient of evidence 
demonstrating that this pamphlet qualifies as a professional publication, a major trade publication or 
other major media. 
The evidence from Kenwood School, Duniya Drum & Dance, billboard.com, Caveman Records, and 
WISE, each postdates the petition filing date. The director's RFE notified the petitioner that any 
additional evidence, beyond that submitted with the initial petition, must be dated prior to the 
petitioner's priority date established by the petition filing date. The AAO will not consider evidence 
that postdates the petition filing date. See generally 8 c.F.R. §§ 103.2(b )(1); Matter of Katighak, 
14 I&N Dec. 45.49 (Reg' I Comm'r 1971). Regarding the final form of evidence submitted on appeal, 
a 2007 Minneapolis Public Schools report to the community, the petitioner is listed as one among 
hundreds of arts and community partners. This falls far short of meeting the plain language 
requirements of this criterion that the published material be about the petitioner and relating to his work. 
Additionally, the petitioner provided no evidence that this report constitutes a professional publication, 
a major trade publication or other major media. 
As the record is lacking the aforementioned required evidence, the AAO does not concur with the 
director's determination that the petitioner submitted evidence that meets the plain language 
requirements of this criterion. Therefore, the AAO withdraws the director's determination as it relates 
to this 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. 
This criterion requires not only that the petitioner was selected to serve as a judge, but also that the 
petitioner is able to produce evidence that he actually participated as a judge. The phrase "a judge" 
implies a formal designation in a judging capacity, either on a panel or individually as specified at 
8 C.F.R. § 204.5(h)(3)(iv). Additionally, these duties must have been directly judging the work of 
others in the same or an allied field in which the petitioner seeks an immigrant classification within the 
present petition. The petitioner must submit evidence satisfying all of these clements to meet the plain 
language requirements of this criterion. 
The petitioner provided a letter describing how, for multiple years, he has judged children from 
kindergarten through eighth grade on behalf of WISE Charter School. The director determined that the 
petitioner failed to meet the requirements of this criterion. 
The director concluded that judging elementary school children is not judging "others in the same or an 
allied field" The petitioner does not contest or address the director's findings on appeal. Counsel 
merely asserts that the petitioner's performance judging the children satisfied the requirements of this 
criterion. The AAO does not concur with counsel's assertion. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaighena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503. S06 (BIA 
Page 7 
1980). The unsupported assertions of counsel in a brief are not evidence and thus are not entitled to any 
evidentiary weight. See INS v. Phinpalhya, 464 U.S. 183, 188-89 n.6 (1984). The petitioner provided 
no explanation describing how judging the performance of children in an elementary school constitutes 
judging "the work of others in the same or an allied field." The record is lacking evidence to 
demonstrate that the children who won these competitions moved on to additioral competitions outside 
of the WISE school that occurred at a level that could be considered to be in the field of music. 
Competitions limited to students at a single charter school who are not part of a "field" do not involve 
judging performances as contemplated by the regulation, and counsel failed to provide any legal 
analysis to support the position in the alternative. 
Therefore, the petitioner has not submitted evidence that meets the plain language requirements of this 
criterion. 
Evidence of the alien's original scientific. scholarly. artistic. athletic. or husiness-related 
contrihutions of major significance in the field. 
The plain language of this regulatory criterion contains multiple evidentiary elements that the petitioner 
must satisfy. The first is evidence of the petitioner's contributions (in the plural) in his field. These 
contributions must have already been realized rather than being potential, future contributions. The 
petitioner must also demonstrate that his contributions are original. The evidence must establish that the 
contributions are scientific, scholarly, artistic, athletic, or business-related in nature. The final 
requirement is that the contributions rise to the level of major significance in the field as a whole, rather 
than to a project or to an organization. The phrase "major significance" is not supertluous and, thus, it 
has some meaning. Silverman v. Eastrich Multiple investor Fund, L.P., 51 F. 3d 28, 31 (3'" Cir. 1995) 
quoted in Al'WU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep IS, 2(03). Contributions of major 
significance connotes that the petitioner's work has significantly impacted the field. The petitioner 
must submit evidence satisfying all of these elements to meet the plain language requirements of this 
criterion. 
As the petitioner failed to notify the director of which evidence should be applied under this criterion, 
the director determined that the numerous witness letters the petitioner provided should be considered 
here. The director determined that the petitioner failed to meet the requirements of this criterion. 
On appeal, counsel asserts that the director did not adequately consider the evidence submitted by the 
petitioner as the director made no mention of the petitioner's music. It is unclear how the director 
committed an error when she was not notified of the petitioner's intentions of where to consider the 
submitted evidence. Nevertheless. counsel does not refute the director's assessment that the witness 
letters were insufficient to demonstrate the petitioner's eligibility under this criterion. In reference to 
the witness letters the director indicated that the letters boasted about the petitioner's accomplishments, 
career, extraordinary ability and talent, but that letters alone cannot form the cornerstone of an alien's 
eligibility under this criterion and that the record lacked evidence of the petitioner's impact on his lield 
as a whole. 
Page H 
Regarding the petitioner's "music recorded for public consumption," the record contains evidence of the 
petitioner's recorded music with in addition to the 
petitioner's debut work in 2004. Although the counsel's appellate brief asserts: "[T]he music recorded 
for public consumption constitutes evidence of [the petitioner's] artistic contribution of major 
significance in the arts," the record lacks an indication of the manner in which the release of the 
petitioner's music impacted his field as a whole. The unsupported assertions of counsel do not 
constitute evidence. Matter ofOhaighena, 19 I&N Dec. at 534 n.2; Matter ofLaureallo, 19 I&N Dec. 
at 3 n.2; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. The unsupported assertions of counsel in a 
brief are not evidence and thus are not entitled to any evidentiary weight. See INS v. Phinpathya, 4M 
U.S. at 188-89 n.6. 
The regulations contain a separate criterion regarding commercial success, including evidence of album 
sales. 8 C.F.R. § 204.5(h)(3)(x). If the regulations are to be interpreted with any logic, it must be 
presumed that the regulation views contributions as a separate evidentiary requirement from the sale of 
music. The AAO will not presume that evidence directly relating to the commercial success criterion is 
sufficient to meet the contributions of major significance criterion without specific evidence of the 
petitioner's impact in the field. 
Most of the letters either thank the petitioner for his efforts or identify how the petitioner contributed to 
or impacted an individual organization rather than how the petitioner's work has had any impact in his 
field as a whole. The letters are primarily from school colleagues or officials with events where he has 
performed rather than from music experts. Accomplishments within single education programs 
affecting only those students in attendance is not the level of effect that carries the significant, 
measurable amount of "weight" that this regulation contemplates. Even those who claim to have 
worked with the petitioner for nearly a decade only comment on the petitioner's skill and abilities or the 
impact he had on small scale education programs. stated in 
his undat~vided on appeal that he has been working with the petitioner since 2000. 
However,_did not describe any impact the petitioner's achievements or contributions have 
had in the musical field. merely asserts that one of the petitioner's songs is •••• 
highest selling averaging approximately 1,0~er month. The petitioner 
did not provide documentary evidence that might corroborate_ claims. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). Even if true, commercial 
success is a separate criterion. 8 C.F.R. § 204.5(h)(3)(x). 
Talent and experience in one's field are not necessarily indicative of original artistic contributions of 
major significance in the musical field. It is not enough to be skillful and knowledgeable and to have 
others attest to those talents. An alien must have demonstrably impacted his field in order to meet this 
regulatory criterion. The reference letters submitted by the petitioner discuss his musical skills and 
cultural activities, but they do not provide specific examples of how the petitioner's work has even had 
a minor impact in the field at large or otherwise constitutes original contributions of major significance. 
Page l) 
The Board of Immigration Appeals (BIA) has held that testimony should not be disregarded simply 
because it is "selt:serving." See, e.g., Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000) (citing 
cases). The Board also held, however: "We not only encourage, but require the introduction of 
corroborative testimonial and documentary evidence, where available." Id. 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). 
Vague, solicited letters from local colleagues that do not specifically identify contributions or provide 
specific examples of how those contributions influenced the field are insufficient. Kazarian v. USc/S, 
580 F.3d 1030, 1036 (9th Cir. 2(09) aff'd in part 596 F.3d 1115 (9th Cir. 2010). In 2010, the Kazarian 
court reiterated that the AAO's conclusion that "letters from physics professors attesting to [the alien'sJ 
contributions in the field" was insufficient was "consistent with the relevant regulatory language." 596 
F.3d at 1122. The opinions of experts in the field are not without weight and have been considered 
above. While such letters can provide important details about the petitioner's skills, they cannot form 
the cornerstone of a successful extraordinary ability claim. US CIS may, in its discretion, use as 
advisory opinions statements submitted as expert testimony. See Matter of Caron International, 19 
I&N Dec. 79 L 795 (Comm'r 1988). However, USCIS is ultimately responsible lor making the final 
detennination regarding an alien's eligibility for the benefit sought. ld. The submission of letters from 
experts supporting the petition is not presumptive evidence of eligibility; USCIS may evaluate the 
content of those letters as to whether they support the alien's eligibility. See id. at 795; .Iee also Malter 
of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to be 
evidence as to "fact"). uscrs 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 795; see also Matter of Sojfzci, 
22 I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. at 190). Thus, the 
content of the writers' statements and how they became aware of the petitioner's reputation are 
important considerations. Even when written by independent experts, letters solicited by an alien in 
support of an immigration petition are of less weight than preexisting, independent evidence of original 
contributions of major significance. 
As such, the petitioner has not submitted evidence that meets the plain language requirements of this 
criterion. 
Evidence of/he dLlplay o/the alien 's work in thefield al arlislic exhibitions or showcase. I'. 
This criterion contains multiple evidentiary elements the petitioner must satisfy. The plain language 
requirements of this criterion requires that the work in the field is directly attributable to the alien. 
Additionally, 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-Plllmpe v. Okin, 2:07-CV-820-
ECR-Rll at *7 (D. Nev. Sept. 8, 20(8) (upholding an interpretation that performances by a performing 
artist do not fall under 8 C.F.R. § 204.5(h)(3)(vii». The alien's work also must have been displayed at 
an artistic exhibitions or showcases (in the plural). While neither the regulation nor existing precedent 
speak to what constitutes an exhibition or a showcase, Merriam- Webster's online dictionary defines 
Page 10 
exhibition as. "a public showing (as of works of art).'''' Merriam-Webster's online dictionary also 
delines showcase as, "a setting. occasion, or medium for exhibiting something or someone especially in 
an attractive or favorable aspeet."s Dictionaries are not of themselves evidence, but they may be 
referred to as aids to the memory and understanding of the court. Nix v. Hedden, 149 U.s. 304, 306 
(1893). Therefore, it is the petitioner's burden to demonstrate that the display of his work in the field 
claimed under this criterion occurred at artistic exhibitions or at artistic showcases. The petitioner must 
satisfy all of these elements to meet the plain language requirements of this criterion. 
The director's RFE stated that no evidence was submitted under this criterion. Within the RFE 
response, neither counsel nor the petitioner refuted this declaration by the director. On appeal is the first 
instance that the petitioner or counsel articulated that the petitioner could satisfy this criterion's 
requirements. Counsel claims the petitioner's concerts and musical performances qualify as 
participation in artistic showcases. 
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). 
Evidence of commercia I successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
This criterion anticipates a petitioner will establish eligibility through volume of sales or box office 
receipts as a measure of the petitioner's commercial success in the performing arts. 
On appeal the petitioner provided the letter from 
downloaded approximately 1,000 times per month. 
meet the requirements of this criterion. 
indicating that the petitioner's song is 
The director determined that the petitioner failed to 
The director's RFE stated that no evidence was submitted under this criterion. Within the RFE 
response, neither counsel nor the petitioner refuted this declaration by the director. On appeal is the first 
instance that the petitioner or counsel articulated that the petitioner could satisfy this criterion's 
requirements. Counsel claims the petitioner satisfies this criterion's requirements through the letter 
from ~ which lacks corroborating evidence to demonstrate the sales of the petitioner's music, 
in addition to several contracts that the petitioner has entered into with various entities. This criterion 
requires the petitioner to demonstrate his eligibility through either "box office receipts or record, 
cassette, compact disk, or video sales." uscrs may not utilize novel substantive or evidentiary 
requirements beyond those set forth at 8 c.F.R. § 204.5. Kazarian, 596 F.3d at 1221, citing Love 
Korean Church v. Chertojf, 549 F.3d 749, 758 (9th Cir.2008). While the petitioner provided evidence 
4 See http://ww\v,merriam·wc!JstCr.CDJ11/dictiunarviexhibil!DJl, [accessed on July 10,2012, a copy of which is 
incorporated into the record of proceeding. I 
; See http:jhvvv\\!,lllerri~m,,,,,~bstcI,c()mL,li<1i]l]!'iryb!)\2\\!CJ:l,'ic, [accessed on July 10,2012, a copy 01 which is 
incorporated into the record 01 proceeding. I 
Page 11 
showing that he has his own album or songs that are available for sale, he failed to provide sufficient 
evidence demonstrating the level of sales for any of his work. 
Consequently, the petitioner has not submitted evidence that meets the plain language requirements of 
this criterion. 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (l) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[irl field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes 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, the AAO need not explain that conclusion in a 
final merits determination. 6 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. [d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(I)(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 2'i1 of the 
Act, 8 U.s.c. § 1361; Matter of Soriano, l'i I&N Dec. at 766 (citing Matter of Bralltigan, II I&N Dec. 
493 (BiA 1'166)). Here, the petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
" The AAO maintains de novo review of all questions of fact and law. See So/tane v. DO}, 381 F.3d 143, 145 (3d 
Cir. 2004). 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)(I)(ii). See a/so section 103(a)(1) of 
the Act; section 204(h) of the Act; DHS Delegation Number 0150.1 (effective March 1, 20m); il C.F.R. § 2.1 
(2003); il C.F.R. § 103.I(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BlA 1987) (hOlding that 
legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions). 
· . 
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ORDER: The appeal is dismissed.