dismissed EB-1A Case: Music

(b)(6)
DATE:AUG 2 5 2014 
INRE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-
290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~~ 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A). The director 
did "not find the beneficiary to be an individual 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)(l)(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 beneficiary's basic eligibility requirements. 
On appeal, the petitioner submits a brief. For the reasons discussed below, we uphold the director's 
ultimate conclusion that the petitioner has not established eligibility for the exclusive 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 are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability.-- An alien is described in this subparagraph if--
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national or 
international acclaim and whose achievements have been recognized in the 
field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
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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 10151 Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. !d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his achievements in the field. Such acclaim must be established either 
through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld 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.
1 
With respect to the criteria at 8 
C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate 
concerns about the significance of the evidence submitted to meet those two criteria, those concerns 
should have been raised in a subsequent "final merits determination." !d. at 1121-22. 
The court stated that 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 sufficient 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, we will review the evidence under the 
plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. !d. 
II. ANALYSIS 
A. Comparable Evidence 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that evidence of sustained national or international 
acclaim "shall" include evidence of a one-time achievement or evidence of at least three of the ten 
1 
Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(iv) and 8 C.P.R. 
§ 204.5(h)(3)(vi). 
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regulatory categories of evidence to establish the basic eligibility requirements. The ten categories in 
the regulations are designed to cover different areas; not every criterion will apply to every 
occupation. For example, the criterion at 8 C.P.R. § 204.5(h)(3)(vii) implicitly applies to the visual 
arts, and the criterion at 8 C.P.R. § 204.5(h)(3)(x) expressly applies to the performing arts. 
Moreover, the regulation at 8 C.P.R. § 204.5(h)(4) provides "[i]f the above standards do not readily 
apply to the [petitioner's] occupation, the petitioner may submit comparable evidence to establish the 
[petitioner's] eligibility." It is clear from the use of the word "shall" in 8 C.P.R. § 204.5(h)(3) that 
the rule, not the exception, is that the petitioner must submit evidence to meet at least three of the 
regulatory criteria. Thus, it is the petitioner's burden to explain why the regulatory criteria are not 
readily applicable to his occupation and how the evidence submitted is "comparable" to the objective 
evidence required at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
The regulatory language precludes the consideration of comparable evidence in this case, as there is 
no indication that eligibility for visa preference in the petitioner's occupation as a music producer 
and arranger cannot be established by the ten criteria specified by the regulation at 8 C.P.R. 
§ 204.5(h)(3). In fact, as indicated in this decision, the petitioner asserts that he meets seven of the 
ten criteria at the regulation at 8 C.P.R. § 204.5(h)(3). Where an alien is simply unable to meet or 
submit documentary evidence of three of these criteria, the plain language of the regulation at 
8 C.P.R.§ 204.5(h)(4) does not allow for the submission of comparable evidence. 
B. Prior 0-1 
The petitioner indicated on Form 1-140, Immigrant Petition for Alien Worker, that he was last 
admitted to the United States, as an 0-1 nonimmigrant. Although the words "extraordinary ability" 
are used in the Act for classification of artists under both the nonimmigrant 0-1 and the first 
preference employment-based immigrant categories, the statute and regulations define the term 
differently for each classification. Section 101(a)(46) ofthe Act states that "[t]he term 'extraordinary 
ability' means, for purposes of section 101 ( a)(15)(0)(i), in the case of the arts, distinction." The 0-1 
regulation reiterates that "[ e ]xtraordinary ability in the field of arts means distinction." 8 C.P.R. 
§ 214.2(o)(3)(ii). "Distinction" is a lower standard than that required for the immigrant 
classification, which defines extraordinary ability as "a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of endeavor." 8 
C.P.R. § 204.5(h)(2). The evidentiary criteria for these two classifications also differ in several 
respects, for example, nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 8 
C.P.R. § 214.2(o)(3)(iv)(A), but the immigrant classification requires actual receipt of nationally or 
internationally recognized awards or prizes. 8 C.P.R. § 204.5(h)(3)(i). Given the clear statutory and 
regulatory distinction between these two classifications, the petitioner's receipt of 0-1 nonimmigrant 
classification is not evidence of his eligibility for immigrant classification as an alien with 
extraordinary ability. Further, an approval of a nonimmigrant visa does not mandate the approval of 
a similar immigrant visa. Each case must be decided on a case-by-case basis upon review of the 
evidence of record. 
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Many I-140 immigrant petitions are denied after USCIS approves prior nonimmigrant petitions. See, 
e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of 
Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd. v. Sava, 724 F. Supp. 1103 
(E.D.N.Y. 1989). 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 USCIS from denying 
an extension of the original visa based on a reassessment of the alien's qualifications). 
Applications or petitions are not required to be approved where the petitioner has not demonstrated 
eligibility 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). Agencies need not 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, our authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of the alien, we would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, *1, *3 
(E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that does not comply with the technical requirements of the law may be 
denied by the AAO even if the Service Center does not identify all of the grounds for denial in the 
initial decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. 
Cal. 2001), affd, 345 F.3d 683 (91h Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
C. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The petitioner submitted photographs and certificates of a variety of awards that do not include the 
petitioner's name with the initial petition. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) requires "[d]ocumentation ofthe alien's receipt" of prizes or awards. The petitioner 
did not submit primary evidence of his receipt of any of the claimed awards, which would consist of 
the award certificates or trophies the awarding officials issued to the petitioner as the named 
recipient. Submitting photographs of awards that do not list the petitioner, or anyone else, or that list 
another individual as the recipient are insufficient to establish that the petitioner satisfies this 
criterion. 
2 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
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In response to the director's request for evidence, the petitioner submitted a letter from Mr. 
a member of the jury for the which states that the 
producer, arranger, composer, etc. are all recipients of the awards fm 
There is no supporting 
evidence, however, that the petitioner was a named recipient for any of the awards. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter 
of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
The regulation at 8 C.F.R. § 103.2(b)(2)(i) provides that the non-existence or unavailability of 
required evidence creates a presumption of ineligibility. According to the same regulation, only 
where the petitioner demonstrates that primary evidence does not exist or cannot be obtained may the 
petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be 
unavailable may the petitioner rely on affidavits. Regardless, the petitioner did not submit secondary 
evidence of the beneficiary's receipt of any awards, such as media accounts of his receipt of awards. 
Rather, the petitioner submitted letters which generally assert that the petitioner was responsible in 
some part for the awards, but did not submit any documentary evidence demonstrating that primary 
evidence and secondary evidence do not exist or cannot be obtained. Regardless, the provided letters 
are not affidavits as they were not sworn to or affirmed by the declarant before an officer authorized 
to administer oaths or affirmations who has, having confirmed the declarant's identity, administered 
the requisite oath or affirmation. See Black's Law Dictionary 58 (9th Ed., West 2009). Nor, in lieu 
of having been signed before an officer authorized to administer oaths or affirmations, do they 
contain the requisite statement, permitted by Federal law, that the signer, in signing the statement, 
certifies the truth of the statements, under penalty of perjury. 28 U.S.C. § 1746. 
On appeal, the petitioner states that "the Service failed to consider the petitioner's critical and 
significant role as a pr.oducer and arranger in the collaborative efforts of creating [] award winning 
songs." USCIS may not utilize substantive or evidentiary requirements beyond those set forth at 8 
C.F.R. § 204.5. See Kazarian, 596 F.3d at 1221, citing Love Korean Church v. Chertoff, 549 F.3d 
749, 758 (9th Cir.2008). An inability to meet a criterion is not necessarily evidence that the criterion 
does not apply to the petitioner's occupation such that a petitioner may rely on comparable evidence 
pursuant to 8 C.F.R. § 204.5(h)(4). The petitioner relies on a non-precedent AAO decision to assert 
that awards granted to individuals other than the petitioner should be considered comparable evidence. 
While the regulation at 8 C.F.R. § 103.3(c) provides that AAO precedent decisions are binding on all 
USCIS employees in the administration of the Act, unpublished decisions are not similarly binding. 
Furthermore, as the petitioner was nominated in 2004 as 
awards in the petitioner's field do exist. Moreover, the petitioner has not established 
that working on an award winning song is comparable to personally receiving a lesser nationally or 
internationally recognized prize or award for excellence as a named recipient. An award for which 
the petitioner is not a named recipient is not tantamount to the petitioner's receipt of a nationally or 
internationally recognized award, as required by the plain language of the regulation. 
In light of the above, the petitioner has not established that he meets this criterion. 
(b)(6)
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Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The petitioner asserts that he meets this category based upon published articles with no listed authors 
and published interviews in Armenian publications and television appearances. The plain language 
of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[p ]ublished 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." In general, in order for published material to meet this criterion, 
it must be 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. Some newspapers, such as the 
nominally serve a particular locality but would qualify as major media because of significant national 
distribution, unlike small local community papers? Furthermore, the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that "[ s ]uch evidence shall include the title, date, 
and author of the material, and any necessary translation." Regarding the television appearances, the 
petitioner has not established how a television show equates to "published material," as required by 
the plain language of the regulation. 
According to information the petitioner submitted from ejc.net, '"ordered articles,' also called 
indirect advertising ... are clearly noticeable in Armenian print media." Advertisements are not 
independent, journalistic coverage that constitute published material. Without evidence that the 
submitted articles are not "ordered articles," the petitioner has not established that he meets 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. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires "[e]vidence 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." A review of the record of proceeding, 
however, reflects that the petitioner submitted sufficient documentary evidence establishing that he 
was a judge for the in 2012 and, thus, meets the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
Accordingly, the petitioner meets this criterion. 
3 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, for instance, cannot serve to spread an individual's reputation outside of that county. 
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Evidence of the display of the alien's work in the field at artistic exhibitions or showcases 
The director determined that the petitioner established eligibility for this criterion. The plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(vii), however, requires "[e]vidence of the 
display of the alien's work in the field at artistic exhibitions or showcases." The petitioner is a 
music producer and arranger. When singers are performing songs, which the petitioner produced or 
arranged, on stage or on the radio, their work is not on display in the same sense that a painter's or 
sculptor's work is on display in a gallery or museum. The interpretation that 8 C.P.R. 
§ 204.5(h)(3)(vii) is limited to the visual arts is longstanding and has been upheld by a federal 
district court and is not an abuse of discretion. SeeNegro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 
*1, *7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing artist 
do not fall under 8 C.P.R. § 204.5(h)(3)(vii)). The ten criteria in the regulations are designed to 
cover different areas; not every criterion will apply to every occupation. As the petitioner is not a 
visual artist and has not created tangible pieces of art that were on display at exhibitions or 
showcases, the petitioner has not submitted qualifying evidence that meets the plain language 
requirements of the regulation at 8 C.P.R. § 204.5(h)(3)(vii). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(viii) requires "[e]vidence that the alien has 
performed in a leading or critical role for organizations or establishments that have a distinguished 
reputation." A review of the record of proceeding, however, reflects that the petitioner submitted 
sufficient documentary evidence, including letters attesting to the leading and/or critical role the 
petitioner played in producing and arranging award-winning songs in Armenia, establishing that he 
meets the plain language ofthe regulation at 8 C.P.R. § 204.5(h)(3)(viii). 
Accordingly, the petitioner meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field 
The plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(ix) requires "[e]vidence that the alien 
has commanded a high salary or other significantly high remuneration for services, in relation to 
others in the field." Contrary to the petitioner's assertion on appeal that there is no requirement that 
the "petitioner demonstrate that he has commanded a high annual or monthly salary or 
remuneration," the petitioner must submit evidence of his own salary or remuneration. In addition, 
he must submit documentary evidence of the earnings ofthose in his occupation performing similar 
work at the top level of the field. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994) 
(considering professional golfer's earnings versus other PGA Tour golfers); see also Crimson v. INS, 
934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL 
enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 1995) (comparing salary of NHL 
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defensive player to salary of other NHL defensemen). We note that in Matter of Racine, 1995 WL 
153319 at *1, *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is 
not a comparison of Racine's ability with that of all the hockey players at all levels of 
play; but rather, Racine's ability as a professional hockey player within the NHL. 
This interpretation is consistent with at least one other court in this district, Crimson 
v. INS, No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 
8 C.P.R. § 204.5(h)(2), and the discussion set forth in the preamble at 56 Fed. Reg. 
60898-99. 
Although the present case arose within the jurisdiction of another federal judicial district and circuit, 
the court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.P.R. § 204.5(h)(2) 
is reasonable. 
The director's RFE listed a variety of types of evidence, including "copies of the[] [petitioner]'s W-
2 or 1099 forms ... [or] foreign tax documents" and "media reports of notably high salaries earned by 
other's in the [] [petitioner]' s field," which could establish the earnings of both the petitioner and 
those in his occupation performing similar work at the top level of the field. The petitioner asserts 
that letters from friends and colleagues which state that the petitioner is highly paid satisfy this 
criterion. The record, however, does not contain any evidence to support the claims made in the 
letters. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 
1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). In 
addition, the petitioner asserts that an article printed in which states that the petitioner "is a 
~very expensive' specialist," is "an objective review" that the petitioner is highly paid. The record 
does not contain any information regarding the publication and the article does not list an 
author. As discussed previously, according to information the petitioner submitted, the Armenian 
media includes "ordered articles." The petitioner has not established that this article represents 
independent, journalistic coverage. 
As previously stated, the regulation at 8 C.P.R. § 103.2(b )(2)(i) provides that the non-existence or 
unavailability of required evidence creates a presumption of ineligibility. Primary evidence of 
income would include, but is not limited to, bank statements or tax records. The petitioner has not 
established that primary evidence or secondary evidence which would establish the petitioner's 
income or the high salaries or significantly high remuneration for producers and arrangers in the 
media does not exist and is unavailable and, thus, may not rely on affidavits. Furthermore, the letters 
in the record are not affidavits as they were not sworn to or affirmed by the declarant before an 
officer authorized to administer oaths or affirmations who has, having confirmed the declarant's 
identity, administered the requisite oath or affirmation. See Black's Law Dictionary 58 (9th Ed., 
West 2009). Nor, in lieu of having been signed before an officer authorized to administer oaths or 
affirmations, do they contain the requisite statement, permitted by Federal law, that the signers, in 
--~-~-~~~~~ 
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signing the statements, certify the truth of the statements, under penalty of perjury. 28 U.S.C. § 1746. 
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. 
The plain language of the regulation at 8 C.P.R.§ 204.5(h)(3)(x) requires "[e]vidence of commercial 
successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or 
video sales." In other words, as stated by the director in his decision, this regulatory criterion 
requires "evidence of commercial successes in the form of 'sales' or 'receipts."' 
The record does not contain any documentary evidence of "box office receipts" or "sales." Rather, the 
petitioner relies on letters, including ones from recording artists and a music distributor, to assert that he 
satisfies this criterion. Although the petitioner submitted evidence to establish that he has worked as 
a music producer and/or arranger for a number of songs, concerts and albums, the record does not 
contain independent evidence which establishes that the albums were commercial successes and that 
the petitioner was responsible for that success. USCIS need not accept primarily conclusory 
assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 
1990). 
Furthermore, as previously stated, the regulation at 8 C.P.R. § 103.2(b )(2)(i) provides that the non­
existence or unavailability of required evidence creates a presumption of ineligibility. In the instant 
petition, the petitioner did not submit any documentary evidence demonstrating that neither primary 
evidence, nor secondary evidence, such as references to the sales of the records in the media, exists 
and is available and, thus, may not rely on affidavits. Regardless, the letters in the record are not 
affidavits as they were not sworn to or affirmed by the declarant before an officer authorized to 
administer oaths or affirmations who has, having confirmed the declarant's identity, administered the 
requisite oath or affirmation. See Black's Law Dictionary 58 (9th Ed., West 2009). Nor, in lieu of 
having been signed before an officer authorized to administer oaths or affirmations, do they contain 
the requisite statement, permitted by Federal law, that the signers, in signing the statements, certify 
the truth of the statements, under penalty of perjury. 28 U.S.C. § 1746. 
Without documentary evidence of "box office receipts" or "sales," the petitioner has not met the 
plain language of this regulatory criterion. 
D. Summary 
As the petitioner did not submit qualifying evidence under at least three criteria, the proper conclusion is 
that the petitioner has failed to demonstrate that she satisfies the antecedent regulatory requirement of 
three types of evidence. 
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III. CONCLUSION 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While we conclude that the evidence 
is not indicative of a level of expertise consistent with the small percentage at the very top of the field 
or sustained national or international acclaim, we need not explain that conclusion in a final merits 
determination.4 Rather, the proper conclusion is that the petitioner failed to demonstrate that he has 
satisfied the antecedent regulatory requirement of three types of evidence. !d. at 1122. 
The petitioner has not established his eligibility pursuant to section 203(b)(1)(A) of the Act and the 
petition may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that 
burden has not been met. 
ORDER: The appeal is dismissed. 
4 
The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 P.3d at 145. 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.P.R. § 103.5(a)(l)(ii). See also section 103(a)(l) of the Act; 
section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.P.R. § 2.1 (2003); 
8 C.P.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy 
INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).