dismissed EB-1A Case: Music

DATE DEC 0 5 2012 
IN RE: Petitioner: 
l3eneficiary: 
OIliec: NEBRASKA SERVICE CENTER 
Li.S. Depar·tml'nt of IInmdund Sct:urity 
II S, (·ili/,I.'n~.;hil' :lnd !ll1migration ServiL'e~ 
I\d!lli(]i~lrativc Ar[lL'ab Ollic!.: (Ai\O) 
::.0 M;I~~;ll'hu~!.:lb I\\'L' .. N.W .. MS 2()9() 
\\,'d~.hi(]gl()n. DC 20."\29-2()()O 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alicn Worker as an Alien of EXlraorLiimlry Ability Pursuanll0 Section 
203(11)( 1)(A) 01 the Immigration and Nationality ACI, ~ U.s.C ~ IISJ(b)( I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your casco All uf the documents 
rl'iatcd to this matter have heen returned to the office that originally decided your case. Please hI: advised that 
any further inquiry that you might have cOllcerning your case must he mack to [il,H nllicc. 
If YOli believe the AAU 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 n:()pell in 
accmdance with the instructions on Form 1-29013, Notice of Appeal or Motion, with :, fec 01 $6.10. The 
specific requirements lor Iiling such a motilln can he found at X C.F.R. ~ 103.5. 00 not file any motion 
directly with the AAO. Pleasc he aware that K C.F.R. ~ 103.S(a)(I)(i) rcquires any nl(}[ion to he filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~(~ 
~- ~ 
Ron Rosenherg 
Acting Chici', Adlllinistf<ltivc Appeals Office 
WW\\.uscis.go\ 
Page .::; 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now behlfe the Administrative Appeals Office (AAO) OIl appeal. The appeal will be 
dismissed. 
The petitioner seeks c1assitication as an "alien of extraordinary ability" in the arts, pursuant to section 
203(h)(I)(A) of the Immigration and Nationality Act, g U.s.c. ~ 1153(b)(I)(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 sct a very high benchmark h)r 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 
g C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
ef,labli"h sUf,laim:d nalional or inlernalional acclaim through evidence of a one-lime achievemenl of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objcctive evidence. tl C.F.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evicknee under at kast three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
The petitioner's priority date established by (he petition filing date is March 2, 201l. On February ti, 
2012, the director served the petitiontr with a request for evidence (RFE). After receiving the 
petitioner's response to the RFE, the director issued his decision on July 2b, 2012. On appeal. the 
petitioner submits a brief with no additional documentary evidence. For the reasons discussed below, 
the 1\/\0 upholds the director's ultimate determination that the petitioner has not estahlished his 
eligibility for the classification sought. 
l. LAW 
Section 2\\3(b) of the Act states. in pertinent parI, thaI: 
(l) Priority workers. -- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (e): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph it-· 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstmted 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 arca of 
extraordinary ability, and 
Page J 
(iii) the alien's entry into the United States will substantially henefit prospecti vely 
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 I-I.R. 723 IOlst C(lng" 2d Sess. S9 
(1990); S6 Fed. Reg. 60t\97, 60WJS-99 (Nov. 29,1991). The tenn "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. hi.; 
b C.F.R. § 204.S(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 ficld, 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 S C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the US Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USClS, 596 E3d IllS (9th Cir. 2(10). 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.' With respect to the criteria at 8 CTR, 
§ 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 cOllcerns should have 
been raised in a subsequent "final merits detern1ination." Id. at 1121-22. 
The court stated that the AAC),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 ofevidcnce provided (which the AAO did):' and if the petitioner 
tailed to submit suf'lieient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requiremcnt of three types of evidence (as the AAO concluded)." Id. at 1122 (citing to 
t\ C.F.R. § 204.S(h)(3». 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in thc context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did 110t submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has railed to satisfy the 
regulatory requirement of three types of evidence. lei. 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive ()[ evidentiary 
requirements beyond those set forth in the regulations at K CF.R. * 204.S(h)(3)(iv) and H C.F.R. 
* 204.S(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Claims Relating to Comparable Evidence 
The regulation at S c:.r.R. ~ 204.5(h)( 4) allows an alien to submit comparable evidence if the alien is 
able to demonstrate that he or she is unable to qualify for this classification because the regulatory 
criteria at S c:.F.R. * 204.5(b)(3)(i)-(x) arc not directly applicable to the alien's occupation. It is the 
petitioner's burden to explain why the regulatory criteria are not readily applicable to his occupation 
and how the evidence suhmitted is "eomparable" to the objective evidence required at 8 c:.F.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 Cor visa preference in the petitioner's occupation as a 
music composer and producer cannot he established by the ten criteria specified by the regulation at 
S c:.r.R. * 204.)(h)(3). In faCt, as indicated in this decision, counsel mentioned evidence in the brief or 
at the time of the initial petition filing that specifically addressed four of the ten criteria at the regulation 
at S C.F.R. * 204.5(h)(3). Where an alien is simply unable to meet or submit documentary evidence of 
at least three of these criteria, the plain language of the regulation at t\ c:.F.R. ~ 204.5(h)(4) docs not 
allow for the submission of comparable evidence. As such, no evidence that tht: petitioner submitted 
will be considered as comparable evidence. 
B. Evidentiary Criteria 2 
I'\'idellce oj Ihe "liell \ original scienlific. scho/urll'. orlislic. alhielie or hllsiness-re/aled 
COlllrihllliolls ,,(mujor sigllii/ell/ICe ill thefleld. 
The plain language of this regulatory criterion contains multiple evidentiary clements 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 risc to the level of major significance in the field as a whole, rather 
than to a project or to an organi7.ation. The phrase "major signiticance" is not superfluous and. thus. it 
has some meaning. Si/wrmull 1'. Foslrich Mulliple Inveslor FUlld, L.I'., 51 F. 3d 21::, 31 (3'" Cir. ll)l))) 
'/llOleli ill Al'WU l'. Poller, 343 F.3d All), A26 (2nd Cir. Sep 15, 20(3). Contributions of major 
significance connotes that the petitioner's work has significantly impacted the field. The petitioner 
must submit evidcnce satisfying all of these elements to meet the plain language requirements of this 
criterion. 
The petitioner provided several !etters from experts in his field; most of which are his present or former 
collaborators. The director determined that the petitioner failed to meet the requircments of this 
criterion. 
~ The petitioner Lines not claim to Illeet Of submit (;vilicncc relating to the regulatory categories or evidence not 
discussed in this uccisioll. 
Pagt..:: 5 
Counsel" s appellate briet' indicates: 
[The director erred I I'I'ith [thel interpretation of the criterion stating ··the b,:netieiary"s 
work must be demonstrated by pre-existing, independent, and objective evidence:' As a 
music composer field, pre-existing, independent and objective standard are hardly 
acceptable standard [sicl. Mainly, reference or detailed pertllrlnanCe description of 
artistic abilities of the beneficiary from major role-players in the artistic field should be 
deemed "pre-existing, independent and objective standard" to judge "artistic 
contribution in [sic] major signilicance." 
The director's position was that a letter that the petitioner solicited, and that came into being primarily 
for the purpose of supporting this immigrant classification, is less probative than ('vidence that came 
into bcing independently from the preparation of the pctition. 
The petitioner's mentor. Associate Professor and Program Director Scoring for Film 
and Multimedia at New York University, listed several projects on which the petitioner has worked. 
_ also asserted the petitioner "is pioneering in curTent trends with contemporary music 
composition." but_ failed to describe the manner in which the petitioner was pioneering in his 
field. _ also provided general assertions that the petitionCf utilizes new scoring techniques in 
innovative ways. but his letter lacks any specifics relating to these claims. Moreover, not every original 
or novel technique is presumed a contribution of major significance in the field. _letter does 
not describe how the petitioner has significantly impacted his field. Significantly,_ concludes 
only that the petitioner "has the potential to rise to the vcry top of the field of music scoring and 
producing. " 
New York University Professor _ indicated that the petitioner has created his 
own style of music that is pioneering and that more and more music composers in the 
field are following. However, _ failed to provide any specific int(lfmation rehrting to these 
music composers that are following the petitioner's methods. _ cannot put forth such 
assertions without supporting documentary cvidence, as this is not sufficient 1iJr purposes of meeting the 
burden of proof in these proceedings. Maller orSottici, 221&N Dec. lSI\' 165 (Assoc. Cornlll'r 1998) 
(citing Matter ()(Treasure ('tali ,,(Clililimlia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
'r's tlmner professor at New York lJniversity. also supports the petition. 
Although describes the unique methods utilized by the petitioner, he too simply asserts 
that "more and more composers arc starting to employ" the petitioner's methods without going into 
greater detail regarding what music composers are employing the petitioner's methods and how Ihis has 
had a signilicant impact in the petitioner's lield. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Maller oI 
SlIttiei, 22 I&N Dec. at 16S. 
Pagt: 6 
The first letter from Chair of the Contemporary Writing and Production Department 
at Berklce College of Music. described the petitioner's unique methods and merelv stated that the 
petitioner's work had "inspired many other composers in the field" without describing the extent to 
which his work had impa~.ted the field and withou~ examples of other conlpostTs thaI the 
petitioner has so ·'1I1splred. The second letter trom_ dated Apnl 20. 2012. lurther descnbes 
the petitioner's unique methods and provided the name of two musicians that __ claimed had 
"followed in [the petitioner'sl footsteps in exploring the techniques he pioneered for their own musical 
production." That two musicians have adopted the petitioner's tec~y demonstrates that he 
has achieved a significant impact in his field. One of the musicians _referenced is ••••• 
_ Assistant Professor at Berklee. the institution where the petitioner obtained his Bachelor of 
Contemporary Writing and Production._letter did indicate that the petitioner's work inspired 
him and the he made his own mixture using a method similar to the pctitioner's I'll" one 11lll\'ie, That a 
single composer within the petitioner'S immediate circle of colleagues adopted the petitioner's method 
for a single film lillls Sh0l1 nl' demonstrating a signiticant impact in the petitioner's tield. 
The petitioner also submilled numerous other reference letters praising his talents as a musician and as a 
composer discussing projects he has worked on in the ticld. Talent and experience in one's tield. 
however. are not necessarily indicative of original artistic contributions of major significance in the 
petitioner's field. It is not enough to be skillful and knowledgeable and to have others attest to those 
talents. An alien must havc demonstrably impacted his field in order to meet this regulatory criterion. 
The reference letters submitted by the petitioner brieily discuss his musical skills. but they do not 
provide specitic examples of how the petitioner's work has signiticantl\' impaded the lield at large or 
otherwise constitutes original contributions of major significance. 
The Board of Immigration Appeals (BIA) has stated that testimony should not be disregarded simply 
because it is "sell~scrving." SCI'. e.g, Matter oj" S-A-, 22 I&N Dec. 1328, 1332 (BlA 200tl) (citing 
MllIta ofM-f)-. 21 I&N Dec. 1180 (B1A (998); Matter ofY-B-, 21 I&N Dec. 1136 (B1A 1998); Matter 
ofDllss, 20 I&N Dec. 120 (BlA 1989); see a/so Maller of A costa. 19 I&N Dec. 211. 218 (B1A 1(85)). 
The Board clarified, however: "\Ve not only encourage. but require the introduction of con'oborative 
testimonial and documentary e,idenee. where available." Matter of S-A -. 22 1& N Dec. at 1332. If 
testimonial evidence lacks specificity. detail. or credibility. there is a greater need for the petitioner to 
submit corroborative evidence. Maller olY-B-. 21 I&N Dec. at 113!J. 
Vague. solicited letters from local colleagues that do not specifically identify contributiolls or provide 
specific examples of how those contributions inlluenced the field arc insufficient. Kazarian v. USC/So 
580 F.3d 1030. 1036 ('J'h Cir. 2()O'J) a/rd in parI 596 F.3d 1115 (LJth Cir. 2010). In 2010. the Kazarian 
cOU1i reiterated that the AI\l)"s conclusioll that "Iellers from physics professors attesting to lthe alien'sl 
contributions in the lield" was insuflicient was "consistent with the relevant regulatory language." 
SlJh F.3d at 1122. The opinions of experts in the field are not without weight and have been considered 
above. While such letters can pro"ide important details about the petitioner's skills. they cannot lorm 
the cornerstone of a successful extraordinary ability claim. USCIS may. in its discretion. use as 
advisory opinions statements submitted as expert testimony. SCI! Maller oj" CarmI /flIemaliollu/. 
191&N Dec. 791. 795 «('om111'r 1988). However. USCIS is ultimately responsible for making the final 
determination regarding an alicn's eligihility for the henelit sought. Id. 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. SCl'it!. at 79): sec a/so Mal/er 
or V-K-, 24 I&N Dec. SOO, n.2 (I3IA 200tl) (noting that expert opinion testimony does not purport to be 
evidence as to "Llef' but rather is admissible only if it will assist the trier of fact to understand the 
evidence or to determine a fact in issue). USCIS may even give less weight to an opinion that is not 
corroborated, in accord with other information or is in any way questionable. Id. at 795; see also Matter 
oI So/]iei. 22 I&N Dec. at 165 (citing Matter or Treasure Crafi of" Calijfmlill, 14 I&N Dec. at 19(). 
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, lctters solicited by an alien in 
support of an immigration petition are of less weight than preexisting, independent evidence of original 
contributions of major significance. 
In view of the i(lregoing, the petitioner has not submitted evidence that meets the plain language 
requirements of this criterion. 
L\'idei1ce oflile dis!'/u\' of the ,,/iel1"s \l"Ork il1 Ihefield 01 urli.llic exilihiliolls or shlilrmses 
This criterion contains multiple evidentiary elements the petitioner must s'Hisfy. The plain language 
requirements of this criterion requires that the work in the field is directly attributable to the .diell. 
Generally, ti C.F.R. § 204.S(h)(3)(vii) is limited to the visual arts. This interpretation is longstanding 
and has been upheld hy a federal district court in Negro-I'll/Ill!," v. ()kill, 2:07-CV-K20-ECR-R.JJ at *7 
(D. Nev. Sept. 8, 200tl) (upholding an interpretation that performances by a performing artist do not fall 
under tI C.F.R. § 204.5(h)(3)(vii)). The alien's work also must haw appeared in a display at artistic 
exhibitions or showcases (in the plural). While neither the regulation nor existing precedent defines 
what is meant by a display, or what constitutes an exhibition or a showcase, Merriam-Wcbstcr's online 
dictionary defines the Iloun display as follows: 
/. a: (!): a setting or presentation of something in open view <a fireworks 
dill'/UI'> 
(2) : a clear sign or evidence: EXHIBITION <a disp!av of courage> 
h : ostentatious show 
c : type, composition, or printing designed to catch the eye 
d: an eye-catching arrangement by which something is exhibited <a dilplay of 
artifacts> --~often used with Oil <her e'arly paintings are currently on dilplal'> 
e: an electronic device (as a cathode-ray tube) that presents information in visual 
form; also: thc visual information 
2. a pattern of behavior cxhibited especially by male birds in the breeding season' 
The above definitions all have visual connotations. Mcrriam-Webster"s onlinc dictionary further 
defines showcase as, "a setting, occasion, or medium for exhibiting something or somconc cspecially in 
an attractive or bvorablc aspect."· These definitions contain visual implications and connote a visual 
aspect necessary in order to di.lplav one's work in the field at artistic exhibitions or showcases. 
Dictionaries are not of themselves evidence, but they may be referred to as aids to the memory and 
undcrstanding of the court. Nix \'. Hedden, 14<) U.S. 304, 30h (1~<)3). Thercl(Jre, it is thl' petitioner's 
burden to demonstrate that the visual 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 dements 
to meet the plain language requirements of this criterion, 
The petitioner claims eligibility under this criterion based on his music being presented at concerts and 
at an art exhibition. The director determined that the petitioner failed to meet the requirements of this 
criterion. 
Regarding the presentation ofthc petitioner"s music compilations at concerts. the petitioner's work was 
performed in an audible nature rather than in a visual one. Such performances do not satisfy the 
regulatory requirements under t\ CF.R. * 204,5(h)(3)(vii), Ct: Ncgro-I'llllnpe, 2:07-CV-820-ECR-RJJ 
at *7. In reference to the petitioner's music being presented at an art exhibition and posters Ii'om the 
exhibition crediting him for the music, the petitioner provided copies of the promotional materials and 
photographs of the art exhibition. The record lacks evidence indicating the petitioner's work was 
presented in a visual manner. Rather it appears that his work was played in the background and that the 
presentation of music at the exhibition was ancillary to the visual art. The /\AO maintains the 
interpretation that the criterion at ~ C.F.R. * 204.5(h)(3)(vii) is primarily limited to the visual :\Ilel not 
the performing ans. 
As the petitioner has not created tangible forms of art. that werc part of a display at artistic cxhibitions or 
showcases, he has not submitted 4ualifying evidence that meets the plain language requirements of the 
regulation at is CF.R. * 204.5(h)(3)(vii). 
fe'vidence that the alim has perfiJrmed in a Imding or critical role fiJI' orgllllizatiOlls or 
estahlisi7ments that hat", a distingaished replltation. 
This criterion anticipates that a leading role should be apparent by its POSItion in the overall 
organizational hierarchy and that it be accompanied by the role's matching duties. A critical role should 
be apparent from the petitioner's impact on the organization or the establishment's activities. The 
petitioner's pCrl(lfIl1anCe in this role should establish whether the role was critical it)r organizations or 
establishments as a whole. The petitioner must demonstrate that the organizations or establishments (in 
-' See hllJ:h~·/v'~~~_!\~JJJ~Iri.,un~\\'l'bstcr.CUl))i_lIi~_U1~L:\h ibiLiull, accessed on Novemher [J, 2012, a copy of which 
is incorporated into the record of proceeding . 
.f Sft' hUp:,.iW\\ \\'.l11crrian1-wc.b>lC.LCl1J.ll dicli(lllary/:-;ilowca:-,l:, accessed on Novemher 13, 20 (2. a C{ lilY or which is 
incorporated into the n:conl or procccuing. 
Page L) 
the plural) have a distinguished reputation. While neither the regulation nor precedent speak to what 
constitutes a distinguished reputation. Merriam-Wehster's online dictionary defines distinguished as. 
"marked hy eminence. distinction. or excellence.'" Dictionaries arc not ()f thcm,elvcs evidence. but 
they may be referrcd to as aids to the memory and understanding of the court. Nix l'. Hedden, 149 U.S. 
at 30h. Therefore. it is the petitioner" s burden to demonstrate that the organizations or establishments 
claimed under this criterion arc marked by eminence. distinction. excellence. or an equivalent 
reputation. The petitioner must submit evidence satisfying all of these clements to meet the plain 
language requirements of this criterion. 
The petitioner claimed eligibility under only one organization or establishment. The director 
determined that the petitioner failed to meet _the requirements of this crite~~.I, ~ounsel 
merely states: .. It was cVldenced that the benehclary played a crIllcal role lll_ Counsel 
failed to assert an error in law or in t~lct on thc director's part. 
First and foremost, the petitioner only claims eligibility based on a single organization or establishment. 
The plain language requirements of this criterion at ~ C.F.R. ~ 204.5(h)(3)(viii) requires evidence of a 
leading or critical role for "organizations or establishments" in the plur,r1. consistent with the statutory 
requirement for extensive documentation. See section 203(b)( I)(A)(i) of the Act. Therei(lfe, even if the 
petitioner demonstrated that his single claim of eligibility was a qualifving Olle, he would still Lril to 
satisfy the plain language requirements of this criterion. 
In addition, the submitted evidence fails to demonstrate that has built a diSTinguished 
reputation. While the organization has contributed to several projects 111 the industry. the record is. 
deficient that this establishment is marked by eminence. distinction, excellence, (If an equivalent 
reputation. In reference to the 2007 Peabody Award winning picture. the evidence reveals that Partisan 
Pictures. the producer of the film. won a "first in-depth investigation" of honeybee 
deaths. The record contains no evidence 0 such recognition. Consequently, 
even if the petitioner peri(lrllled in a critical role he failed to establish that this 
organization enjoys a distinguished reputation. 
Accordingly. the petitioner has not submitted evidence that meets the plain language requirements of 
this criterion. 
Fr'id,,"c!' o(coll1mercilll Sllecesst's ill the I'erj(mllillg IIrt\, as shOlt'll hv h()x oj]iee receipl.' or rt'corci, 
ca ...... ")t'tte, cOlllpact di.\'k, or video ,..,.{[Ie.\". 
This criterion anticipates a petitioner will establish eligibility through volume of sales or box office 
receipts as a mcasure of the petiti()ner' s commercial success in the perf()rming ar1s. The petitioner 
provided several forms of evidence relating to the movie,_ which the petitioner wrote five of the 
~ S('(' hilp' \\\\"lx.mcrri;!l11·\\"(:h"il'1',,,-'()lllliicli(1l1ar} 'di"'tingtJi~hcd. <lccco..;sed on Nnvemher 17" 2()12., a copy of 
which is incorporated illt() Ihe record ()f proceeding. 
Page 10 
lilm's songs. The director determined that the petitioner failed to meet the requirements of this 
criterion. 
The petitioner sut'lieiently addressed a discrepancy noted in the director's decision relaling to Ihe public 
versus the popular. or festival premier of Ihe film, _ Additionally, the petitioner submits 
evidence of box office sales from this same film. While it is an accomplishment to be a co-composer· on 
a national-level 111m and the director confirmed the importance of the music to the movie, Ihe petitioner 
failed to submit evidence to indicate that the film's sales may be atlributed to him sllch that the sales 
constitute evidence of his commercial success. The evidence presented does not reflect that the 
petitioner or even the music of the film was prominently featured in the prnmoliollal materials. or that 
he was otherwise singled out in any promotion. Only two of the many reviews in the record even 
menlion Ihe music. and one of Ihose specifically focuses on the sound design hy •••••• 
Therefore. the petitioner has not submitted evidcnce that meets thc plain language requirements of this 
criterion. 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
Ill. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustaincd national or international acclaim and is one of the small percentage 
who have risen to the very top of the field of endeavor. 
Had the petitioner suhmitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazar;an opinion, the next step would be a fiml 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 perccntagc who haw risen to the 
very top of thelirJ lield of endea\or" and (2) .. that the alien has sustainrd national or international 
acclaim and that his or her achievements have been recognized in Ihe field of expertise:' ); C.F.R. 
** 204.5(h)(2) and (3):1(,<' "Iso Kazarian, 596 F.3d at 1119-20. While Ihe AAO conciudes 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 - _concludes only that the petitioner 
"has the potential to rise to the \'ery top of the field of music scoring and producing," - the AAO need 
not explain that conclusion ill a final merits determination" Rather, Ihe proper conclusion is that the: 
"The AAO maintains de novo review of all questions of fact and law. See So/tune v, DOl, "SI F.Jd t43, 145 (3d 
Cir. 20(4). In any future proceeding. the AAO maintains the juriSdiction to conduct a final merits determination 
as the officc that made Ihe last decision in this maller. K C.F.R. § Im.S(a)(I)(ii). See uiso scetion H13(a)(I) of 
the Act: section 204(h) of the ACI: DHS Delegation Numhcr O1S0.1 (ellective March I. 20m); H C.F.R. ~ 2.1 
(2003): K C.F.R. § 103.I(f)(3)(iii) (20m): Mulrer o{Aurelio, 19 I&N Dec. 45~. 4AO (131/\ 19K7) (holding Ihal 
legacy INS, fl()\\' USCIS, i~ the .'.ulc auth()rity with tht.: jurisLiiclLO!1 to decide \'i~a pl'tttiun:..:.). 
Page 11 
petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. Id. 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. SectioCl 2<) 1 of the 
Act, 8 U.s.c. § 1361; Mat/er of Soriallo. 19 I&N Dec. 764, 766 (BIA 1988) (citing Maller of 
Bralltigall, 11 I&N Dec. 493 (BIA 19(6)). Here, the petitioner has not sustained that burden. 
Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.