dismissed EB-1A Case: Music

J)A TE DEC 0 4 2012 
OIliee: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.~. DCjJ:Jrllllcnt of UOlUdllnd Sccurit)' 
U.S. ('ilin:n:-.hir and Illlrnigr;llioll Service .... 
Adlllinislrali\'l: Appl'al~ Office (AAO) 
~O Ma . ..,sachuscl'S A~'c., N.W .. MS 20t)O 
Washinglon, DC 20S29-20(j() 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition 1m Alien Worker as an Alien 01 Extraordinary Ability Pursuant tn Sect inn 
203(b)(1 )(A) 01 the Immigration and Nationality Act, 8 U,S,C * 1153(b )\1)( A) 
ON 13EHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed plcasc rind the decision of the Administrative Appeals Olfice in your case, All DI the documents 
related to this matter have heen returned to the oiTicc that originally decided your C{JSc.. Plea~e he advised that 
any further inquiry.' that you might have concerning your case must be made to that uilicc. 
If you helieve [he AAO inappropriately applied the law in reaching its dccision. or you have additional 
information that you wish to have considered, you may file a motioll to reconsider or a motion to rcopen in 
accordance with the instructions Dn Form 1-29013, Notice 01 Appeal or Motion, with a Ice 01 S63(), The 
specific requirements for filing such a motion can be lound at K C.F,R, ~ 103's' Do not file any motion 
directly with the AAO. Please be aware that H C.F,R, ~ 103,5(a)(I)(i) requires any motion to he filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
:;;:2r= 
/CY-- 'r-
Ron Roscnherg 
Acting Chic!, Administrative Appeals Office 
www.uscis.gO\ 
-Page 2 
DISCUSSION: The Director, Texas Service Center, denied the cmployment-hased immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal ,viII be 
dismissed. 
The petitioner seeks c1assitieation as an "alien of extraordinary ability" in the arts, specifically as a 
musician, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 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 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 CF.R. § 204.5(h)(3). The implementing regulation at 8 CF.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 CF.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. 
On appeal, counsel submits a brief and additional evidence. Counsel asserts that the petitioner 
submitted sufficient qualifying evidence under five of the ten regulatory categories. Considering the 
evidence in the aggregate, the petitioner has not established eligibility for the bcndit sought by' a 
preponderance of the evidence. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(I) Priority workers. -- Visas shall first be made available ... to qualified immigrants who are 
aliens described in any of the i()lIowing subparagraphs (A) through (e): 
(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 beneJit 
prospectively the United States. 
Page 3 
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. 723 101" Cong .• 2d Sess. 59 
(1990); 56 Fed. Reg. 60~97. 60~9~-99 (Nov. 29,1991). The tem1 "extraordinary ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. Id.; 
tl C.F.R. * 204.5(h)(2). 
The regulation at ~ CF.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 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 ~ CF.R. * 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals lor the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USUS, 596 F.3d IllS (9th Cir. 2(10). Although the court 
upheld the AAO's decision to deny the petition, thc court took isslIe with the AA(Ys evaluation of 
evidence submitted to meet a given evidentiary criterion.' With respect to the criteria at ~ CF.R. 
* 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate conceJllS 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent .. tinalmerits determination." Id. at 1121-22. 
The cOUl1 stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the signilieance of' evidence as part of the initial inquiry. the court stated that "the 
proper procedure is to count the t:pes 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)." Id. at 1122 (citing to 
t\ 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. 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 
regulatory requirement of three types of evidence. lei. 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at R C.F.R. * 204.5(h)(3 )(iv) and 8 C.F.R. 
* 204.5(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Prior 0- I Visa 
While U.S. Citizenship and Immigration Services (USCIS) has approved at least one 0-1 
nonimmigrant visa petition filed on behalf of the petitioner, the prior approval does not preclude 
USCIS from denying an immigrant visa petition based on a difkrent, if similarly phrased, 
standard. First, the regulatory requirements for an immigrant and non-immigrant alien of extraordinary 
ability ill the arts arc dramatically ditlerent. 8 C.F.R. § 214.2(0)(3)(ii) defines extraordinary ability in 
the arts (including the peri(xming arts) as simply ··distinction." whieh is further defined as tollows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation relating to the immigrant classification, K C.F.R. ~ 204.5(h)(2), however, (It-fines 
extraordinary ability in any tield as"a level of expertise indicating that the individual is on olthat sl~lall 
percentage who have risen to the very top of the field of endeavor," While the ten immigrant criteria set 
forth at ti C.F.R. § 204.5(h)(3) appear in nonimmigrant regulations, K C.F.R. § 214.2(0)(3)(iii), they 
refer only to aliens who seek extraordinary ability in the fields of science, education, business or 
athletics. Rather, separate criteria for nonimmigrant aliens of extraordinary ability in the arts are set 
forth in the regulation at 8 C.F.R. ~ 2l4.2(o)(3)(iv). The distinction between these fields and the arts, 
which appears in S C.F.R. ~ 214(0) does not appear in 8 C.F.R. § 204.5(h). As such. the petitioner's 
approval tilf a non-immigrant \isa undcr the lesser standard of "distinction" is not evidence of his 
eligibility for the similarly titled immigrant visa. Regardless, each petitioll must be adjudicated on its 
own merits under the regulations which apply to the benetlt sought. Thus. the petitioner's eligibility 
will be evaluated under the ten regulatory criteria relating to the immigrant classification, discussed 
below. 
Moreover, it must be noted that many 1-140 immigrant petitions are denied after USCIS approves 
prior nonimmigrant petitions. See, e.g, Q Data Consuitinl{, Inc. v. INS. 293 F. Supp. 2d 25 (D.D.C. 
20(3): IKLA US v. US /)epl. o[.Imliei'. 4K F. Supp. 2d 22 (D.D.C. 1999): Fedill Brothers Co. Lui. v. 
S{/I'll, 724 F. Supp. 1103 (E.D.N.Y. l'!ti9). Because USCIS spends less time reviewing 1-12'! 
nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are simply 
approved in error. Q Dllta COl1sultillg, Inc. 1'. INS, 2'!3 F. Supp. 2d at 29-30; see also Texas A&M 
Univ. v. Upchurch, '!'J Fed. Appx. 556, 2004 WL 1241J4K2 (5th Cir. 2()04) (finding that prior 
approvals do not preclude USCIS from denying an extension of the original visa basee! on a 
reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petllIons where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Mauer qf 
Church Scieiliologl' Illternatiollal. 19 I&N Dec. 593, 597 (Comm'r. 1988). It would be absurd to 
Page 5 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. SlIssex 
Engg. Ltd. I'. MonlgolllC'r.\'. K25 F.2d IOK4, 1090 (6th Cir. I'm7), ccrl. denied, 485 U,S, 1008 (I 98K). 
Furthermore. the AAC)" s authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the petitioner, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic ()rchesl/'{[ I'. INS, 2000 WL 
2827K5 (E.O, La,), aff'd, 248 F.3d 1139 (5th Cir. 2(01), cal. denied, 122 S,O, 51 (20tll). 
B. Evidentiary Criteria 2 
f)"clll11entatioll oj'the alien's receipt oj'lesser nationally or internotionallv recognized prizes or 
({wards fiJI' excellence ill thefleld o/endeavor, 8 CF,R. § 204.5(h)(3)(i). 
The director determined that the petitioner did not satisfy the requirements t(Jr this criterion. On appeal, 
counsel, on behalf of the petitioner, maintains that the majority of the competitions in the music field 
have age and or other limitations. Along with thc appeal brief, in an effort to substantiate this claim, 
counsel attached information about three separate music competitions. The information is not 
probative, as the petitioner docs not allege that he has won any of the compctitions and three examples 
are insufficient to represent the ficld. Moreover, in assessing the submitted evidence to cstablish this 
criterion. the AAC)"s ultimate linding is based on whether or not the petitioner met the plain language 
requirements of the regulation. The petitioner submitted the following evidence: 
I. Evidence of participation in the Young Austrian Philharmonic: 
2. Evidence of participation in the International Youth Orchestra Academy; 
3. Inclusion of a piece in the Millennial Masters II CD; 
4. Evidence indicating the petitioner was a finalist for a fellowship in the Sundance Composers 
Lab; 
5, Polish National Jazz Musicians Meeting - winner of the national jazz competition; 
6. National Solfege Competition - Honorable Mention for excellence in musical hcaring; and 
7. Jazz Department competitive audition for admission into the Academy of Music in Katowice 
Itellls I, 2, 3. 4. and 7 arc not prizes or awards, While this subset of the numbered evidence tends to 
demonstrate that thc petitioner was involved in various competitive processes, which resulted in various 
types of achievements, those achievements arc not awards or prizes, 
Acceptances into the Jazz Department of the Academy of Music in Katowice, the Young Austrian 
Philharmonic, or the International Youth Orchestra Academy. as well as an inclusion lor the CO 
project. while potentially selective. constitute admission to training programs and employment 
opportunities. They arc not awards or prizes for excellence, Similarly. to be a finalist for a fellowship 
~ The petitioner d{)c~ not claim to meet or suhmit evidence relating 10 the regulatory categories or evidence 
1101 discussed in this decision. 
Page 6 
for the Sundance Composers Lab. is insufficient. The only document in the record related to item 4 was 
an email from a purported organizer who states that the petitioner was a finalist. There is insufficient 
background information to determine whether the fellowship would qualify as a prize or award. The 
fact that the petitioner was merely a finalist for a fellowship fails to substantiate that the petitioner 
received a prize or award for purposes of the regulation. 
In addition, to qualify under the regulation, the prize or award must also be nationally or internationally 
recognized. For above items numbered 5 and 6, it appears from the record that they could be deemed as 
,hen,ttp," a letter from 
attesting to the petitioner's 
Win. The AAO finds that where the regulations require specific, objective evidence of achievements, 
such as awards. the primary evidence of such awards would be copies of the awards themselves. 
Secondary evidence might be newspaper reports of the competition results. Affidavits attesting to 
awards, therefore, would need to "overcome the unavailability of both primary and secondary 
evidence." The petitioner has not demonstrated that the required evidence is unavailable or cannot be 
obtained, and therefore the petitioner is presumed ineligible pursuant to K CF.R. § 103.2(b)(2). 
Furthermore, while the record contains a translated copy of a certificate of award for item 6. there is no 
supporting documentary evidence showing that either item 5 or 6 is an award that is nationally 
recognized. The AAO will not presume the national recognition of an award or prize from the name of 
the competition; the petitioner must document that the field, nationally or internationally, recognizes the 
award. Consequently. the AAO concludes that the petitioner failed to meet the plain meaning 
requirements of the regulation and affirms the director's decision in this regard. 
Published lIIaterial about the alien in professional or lIIajor trade publications or other major media, 
relating to the alien's work in the field for which classijication is soughl. Such evidence shall 
include the title, dille, and author of the lIIaterial, and allY Ilcces,\arv tmllSlatioll. 8 CF.R. 
§ 204.5(h)(3)(iii). 
The AAO allirrns the director's finding that the petitioner satisfied this criterion. 
Fl'iilenn' oj rhe alien's original scienlijie. scholarly. arrisrie. arh/eric. or />usinns-rf'iared 
ClJlllrillluioll.\ o/Illajor ,\igllific({fICe ill rhefield. 8 CF.R. § 204.5(h)(J)(v). 
The director determined that the petitioner failed to meet this criterion. On appeaL counsel, in asserting 
that the petitioner established his eligibility as an alien of extraordinary ahility, refers tD a series of 
unpublished AAO decisions sustaining other petitioners' claims. While 8 CF.R. § 103.3(c). provides 
that precedent decisions of uscrs arc binding on all its employees in the administration of the Act, 
unpublished decisions are not similarly binding. Precedent decisions must be designated and published 
in bound volume> or as interim decision. See 8 c.F.R. § 103.IO(b). Moreover. most of the decisions 
relate to individuals who are in completely different fields of endeavor than the petitioner and are 
neither relevant nor probative to the current appeaL CounseL in his appeal briet', identifies an 
unpublished decision approving the petition of another violinist and observes that that alien submitted 
over fifty letters of support. Moreover, counsel asserts that like the officer in Muni v. ftnmiKration and 
Page 7 
Nilillruliwlio/l Serl'ice, 1N I F. Supp. 440 (N.D. III. 1995), the director in this instance did not give 
sufficient weight to the testimonial evidence in the record. Upon a thorough review of the testimonial 
evidence, the AAO finds that the director properly weighed the evidence. The petitioner in this instance 
submitted over twenty letters from cxperts and colleagues attesting to, illler alia, his original artistic 
contributions. However, USCIS determines the truth not by the quantity of evidence alone but by its 
quality. Malter of'Clzawatlze, 25 I&N Dec. 369, 376 (AAO 2(10) citing Matter of'E-M, 20 I&N Dec. 
77,80 «('omm'r 1989). 
While the petitioner in this instance submitted a great deal of evidence relating to the original 
contributions criterion in terms of quantity, the AAO observes that the evidence is not of sufficient 
probative value to the issue of the signiticance of the petitioner's contributions to satisfy the plain 
language requirements of the regulation. 
complimentary of the petitioner's talents and work, they fail to detail the significance ot'the petitioner'S 
work in the field as a whole or the . that the work has had on the fldd. The letters 
from discuss the importance of 
petitioner's contributioll to particular projects, but also fail to sufficiently discuss the petitioner's. 
impact in thc field at large such that his work constitutes a contribution of majm significance in the: 
field. The letters of support from are vague and conc1usory. USeIS 
need not accept primarily conc1usory assertions, 1756, Inc, v. The AI/orney General of the United 
Stales, 745 F. Supp. 9, 15 (D.C. Dis!. 1990). In evaluating the above reference letters, the AAO notes 
that letters containing mere assertions of widespread acclaim and vague claims of contributions are less 
persuasive than letters that specifically identify contributions and provide specific examples of how 
those contributions have influenced the fidd. 
r appears to 
to review a sckctioll of his work or a specific project. Letters of inckpendent rderences who were 
previously aware of the petitioner through his reputation and who have been influenced by his work are 
more persuasive than letters frolll independent references who were not previously aware of the 
petitioner and arc merely responding to a solicitation to review the petiticll1cr's clIITicuium vitae or work 
and provide an opinion based solely on this review. Ultimately, evidence in existence prior to the 
preparation of the petition carries greater weight than new materials prepared especially for submissions 
with the petition. 
In addition, in the appeal brief. counsel maintains that the petitioner's work is "being implemented by 
others" and generally refers to testimonies and documentary evidence. Critically. counsel does not 
indicate which specific letters or documents substantiate this claim. A thorough review of the record 
docs not indicate that there arc individual testimonies or other documents attesting to broader 
implementation of the petitioner's work. The unsupported assertions of counsel do not constitute 
Page X 
evidence. Malter oIO/JaiRiJClla. 19 I&N Dec. at 534 n.2; Matter o/l.LlllreaI10, 19 I&N Dec. at 3 n.2; 
Malter of Ramirez-Sanchez, 17 I&N Dec. at 506. Inasmuch as counsel asserts that the petitioner's 
contracts with various companies constitutes evidence of "implementation," they appear to be standard 
artist or recording contracts and the companies do not indicate that they are offering a contract to 
"implemmf" the petitioner's methodologies for other artists in their company. 
Counscl also asserts that the documentary evidence from the U.S. Copyright Office showing that during 
the last 2 years the petitioner composed and copyrighted over 250 pieces of music helps satisfy this 
regulator) criterion. While the ,,,idcnec of copyrights docs illustrate that the petitioner's work is 
original, the copyrights, in and of themselves, do not necessarily demonstrate impact in the field. This 
office has previously stated that patents arc not necessarily evidence of a track record of success with 
some degree of inOuence over the field as a whole. See, e.g, Malia ol.Ve1l' York Siale lJep'l of 
Tramp., 221&N Dec. 215. 221 n.7. (Comm'r 1998). In the same way that a patented device's impact 
must be documented, a copyrighted piece of music, in addition to the evidence of copyright. should be 
accompanied by supplemental documentation showing its impact. The record includes some favorable 
reviews of some of the petitioner's indi\'idualmusieal work, but the reviews arc insufficient to establish 
impact in the field. 
For all of the above reaSons. the AAO concludes that the petitioner failed to satisfy the requirements of 
this criterion and affirms the director's findings in this regard. 
E"idence o("lhe display o/"the alien"s work il1 Ihefield al artislic exhihiliol1s or showcases. 8 C.F.R. 
~ 204.5(h)(3)(vii). 
Upon a thorough review of all of the evidence of record supporting this criterion as it relates to the 
petitioner's multimedia (music and image) project ··lIello." the AAO is satisfied that the petitioner 
submitted evidence Ihat meets Ihis criterion. 
i'-"idence tha! !he aliell has per/iJl"llled ill a leading or crilical role F" orR({llizaiiOIlJ or 
eswhlishmcllts tli(/{ have (J di.l/iIlR"ished replllatioil. 8 c:.F.R. * 204.5(h)(3)(viii). 
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 hom the petitioner's impact on the organization or the establishment's activities. 
The petitioner's performance in this role should establish whether the role was critical for 
organizations or establishments as a whole. The petitioner must demonstrate thai the organizations 
or establishments (in 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 by eminence, distinction. or excellence."] Dictionaries are not of 
themselves evidence, but they Illay be referred to as aids to the memory and understanding of the 
court. Nix v. Heddell. 14LJ U.S. at 30!>. Therefore. it is the petitioncr's burden to demonstrate that 
Page <-) 
the organizations or establishments claimed under this criterion are marked by eminence, distinction, 
excellence, or a similar reputation. The petitioner must submit evidence satisfying all of these 
clements to meet the plain language requirements of this criterion. 
The director determined that the petitioner failed to satisfy the requirements of this criterion. The 
AAO observes that on appeal, counsel largely advances the same arguments and refers to the same 
evidence that the director considered under this criterion. 
Initially, the AAO agrees with the director that much of the evidence submitted under this criterion 
does not qualify as work for an organization or an establishment. Work for individual art nrf);I'rt 
are not eq to a leading or 
critical role for an orWll1izati(J/l or estahlishments. For some of the above mentioned projects, the 
petitioner notes that some of the sponsors of the projects have distinguished reputations, and some of 
those sponsors constitute an organization or an establishment. For instance, the Polish Theatre, the 
sponsoring theatre behind ·.fa w podrozy' is an organization and even if the AAO accept, .. llrgllcndo, 
that the theatre enjoys a distinguished reputation, the petitioner has failed to submit evidence 
showing that his role for one performance was a critical o' Tile 
individual projects associated with and 
can be disqualified for purposes of this criterion for the same reasons. 
As for the petitioner's \vork in while it is plausible that a television 
series can constitute an organization or an establishement, depending on specific facts and 
circumstances, the petitioner has failed to submit evidence that the show is an 
or an establishment. Again, even accepting, arRlIelldo, 
organization. the petitioner has failed to include evidence demonstrating that the show 
distinguished reputation. 
Similarly, the petitioner has failed to esa 
in or led. including 
distinguished reputation. 
'Redlinc.' The record' 
enjoyed a 
docUlme'ntation relating to the reputation of 
nf(,"n,~t;on on the individual artists who play for the 
but there is no similar information available in the 
Therefore, the AAO affinllS the decision of the director and concludes that the petitioner htiled to meet 
the requirements of tl C'.F.R. R 204.5(h)(3)(viii). 
Page I () 
B. Summary 
The petitioner has failed to submit sufficient relevant, probative evidence to satisfy the 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 suiJmitted 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: (I) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of thelirJ field of endeavor" and (2) ··that the alien has sustained national or international 
acclaim and that his or her achievements havc been recognized in the field of expertise." I) C.F.R. 
§§ 204.5(h)(2) and (3); see als() Kazariall, 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." Rather, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. It!. 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 291 of the 
Act. I) U.s.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismisseci. 
'The AAO maintains de novo review of all questions of fact and law. Sce So/talle l'. DO.!, 3~1 F.3d 143, 145 
(3d Cir. 2(04). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination '" the oniee that made the last decision in this matter. S CF.R. ~ 103.5(a)(l)(ii). See a/so section 
103(a)(I) of the Act: section 204(11) of the Act; DHS Delegation Number 0150.1 (effective March 1,20(3); 
X C.F.R. * 2.1 (20m); S CF.R. * Im.I(J)(3)(iii) (2()(J3); Matter ofAlIrelio, IY L-&-N, Dec. 45R, 460 (I3IA 
I YX7) (holding that legacy INS. now USCIS, is the sole authority with the jurisdiction to decide visa 
petitions).