dismissed EB-1A Case: Music

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 1090 
Washington. DC 20529-2090 
FILE: Office: NEBRASKA SERVICE CENTER 
I LIN 07 064 50797 
 Date: MAR 3 1 2009 
IN RE: 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. $ 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. $ 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. $ 103.5(a)(l)(i). 
A~M%G, 
John Grissom 
T~ctin~ Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(l)(A), as an alien of extraordinary ability in the 
arts. The director determined that the petitioner had not established the sustained national or international 
acclaim required for classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(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 extraordmary 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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 
 8 C.F.R. § 204.5(h)(3). An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award)." Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight given to evidence submitted to fulfill the criteria 
at 8 C.F.R. 5 204.5(h)(3), or under 8 C.F.R. 204.5(h)(4), must depend on the extent to which such evidence 
demonstrates, reflects, or is consistent with sustained national or international acclaim at the very top of the 
alien's field of endeavor. A lower evidentiary standard would not be consistent with the regulatory definition 
of "extraordinary ability" as "a level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). 
This petition, filed on November 21, 2006, seeks to classify the petitioner as an alien with extraordinary ability 
as a folk singer. Initially, the petitioner submitted supporting evidence including award certificates, news 
articles, a membership decree for the Independent Association of Music Artists of Serbia, concert promotional 
materials, copies of her compact disc and record covers, and letters of recommendation. In response to a 
Request for Evidence ("RFE) dated December 19,2007, the petitioner submitted a copy of her latest compact 
disc and album cover, background information about "gypsy jazz," additional news articles, confirmation of 
concert broadcasts, information about television appearances, and additional letters of recommendation. We 
Page 3 
address the evidence submitted in the following discussion of the regulatory criteria relevant to the petitioner's 
case. The petitioner does not claim eligibility under any criteria not addressed below. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in thejield of endeavor. 
In the original submission, counsel stated that the petitioner "has won hundreds of awards . . . throughout 
Europe." However, the petitioner submitted evidence only of the following awards: 1993 Golden Sabor for the 
best interpretation in the Mesam International Music Festival; 1996 Sumadijski Sabor award for best 
interpretation; 1 997 award in the Moravski Biseri competition; the 1 995, 1996, 1997, and 1998 Zlatni Melos 
publishing award; and the 2000 Moravski Biseri publishing award. 
Although documentation of these various awards appears in the record, information about the significance of 
and national or international recognition of the festivals is notably absent. For example, the record contains no 
information about the contests, the number of participants in the event or the standing or recognition of the other 
participants. Counsel states that the 1993 Golden Sabor award "is the highest and most prestigious award 
granted at [the Mesam Music Festival] each year" and that the Mesam Music Festival "is comparable to the 
Grammy Awards in the US." A notation is found on the certificate for the Golden Sabor award which states that 
the Mesam Music Festival is equivalent to the United States Grammy awards, however, this notation does not 
appear on the original certificate and the origins of the notation are unclear. The petitioner submitted no 
evidence to support the claims of counsel. Without documentary evidence to support the claim, the assertions of 
counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I. & N. Dec. 533,534 n.2 (BIA 1988); Matter of laureano, 19 I. & N. Dec. 
1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503,506 (BIA 1980). 
The secondary evidence appearing in the record includes an article from 1995 entitled "Zlatni Melos to the 
Best." The article was not accompanied by a full translation nor did it indicate the author of the article or the 
publication in which the article appeared as required by 8 C.F.R. 3 103.2(b)(3). The petitioner submitted one 
other article entitled "Mesam - Anual [sic] Music Awards." The translation submitted was only of a portion of 
the article and also did not indicate the author of the piece as required by 8 C.F.R. 3 103.2(b)(3). Without a 
translation meeting the regulation's requirements, we are unable to conclude that the awards are nationally or 
internationally recognized. 
In the response to the RFE, counsel asserts that letters of recommendation in the record "evidence the 
significance and recognition" of the petitioner's awards, however, many of the letters identified by counsel 
merely verify that the petitioner won the awards claimed. The petitioner's receipt of the above awards is not in 
question, however, the petitioner failed to establish the recognition associated with the awards. The letter from 
- states that the Mesam Music Festival "was held from 1984 to 1996 . . . and on which 
participated the biggest music stars of popular music from former Yugoslavia nad [sic] about 30 more countries 
from all continents." The letter from stated that the "Festival 'Moravski Biseri' is the only 
festival that is still holding such a manifest about the traditional music in Serbia, and having such a high 
reputation, is recognized and validated by government institutions." Letters from the petitioner's colleagues are 
insufficient to establish national or international acclaim associated with the awards as they do not come from an 
impartial source and do not indicate how the authors learned of the information. 
Page 4 
On appeal, counsel states that in addition to these testimonials, "several of the articles in major media confirm 
. . . the importance of the awards." We are unable to find any articles in the record that discuss the festivals or 
their importance instead of merely noting the petitioner's receipt of the awards. Merely mentioning the 
petitioner's receipt of awards in an article not focused on the results of the competition is insufficient to show 
that the awards are nationally or internationally recognized. 
Lastly, we note that even if the petitioner had established that these awards are nationally or internationally 
recognized, the last award in the record is dated 2000, six years prior the filing of this petition and is thus 
insufficient to establish the sustained acclaim required for this highly restrictive classification. Section 
203(b)(l)(A)(i); 8 C.F.R. § 204.5(h)(3). 
Accordingly, the petitioner failed to establish that she meets this criterion. 
(iii) Published material about the alien in professional or major trade publications or other major media, 
relating to the alien's work in thejeld for which classification is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
The petitioner submitted a number of articles including the two referenced above, "In Fashion of Eurosong;" 
"The Song is also Making the Name" published in 1994; "[The Petitioner] - 
Petitioner]" and ' 
lthe 
published in 199 
 ine; "Those are Lies" published in Sabor in 1995; 
ublished in Sabor in 1996; "If Everything is the Pleasure" published on 
July 1 1, 1996 in 
 into the Dreams" published on August 5, 1996 in Sabor; "Songs 
from the Soul" published on February 20, 1997 in Politika Express; "In Estrade Mix" published on June 22, 
1998 in Sabor; "Folk Melodies in Urban Way" published on April 29, 1999 in Politika Express; '"The 
Petitioner] - [the Petitioner]" published in Novosti on July 7, 1999; "Deceptions not Excepted" 
published in Sabor on February 14, 2000; "He Doesn't have to be Rich, but Could be Handsome as Colic" 
published in OK0 on January 21,2001 ; "Fear's Beautiful Eyes" published in Sabor on April 23,2001 ; "A Lot 
of Work for Less Money" ublished on September 6,2001 in U focusu; "Mothers and Daughters" published on 
February 1,2002; and 'h is Crazy in Positive Way" published on July 1,2004 in TRN. We also note 
that a number of the translations submitted appear to be incomplete in that the translator only provides a 
translation of a portion of the article, which does not meet the requirements of 8 C.F.R. 8 103.2(b)(3). 
The petitioner did not submit evidence showing that any of these publications amount to professional or major 
trade publications or other major media. Instead, counsel directs us to certain letters that appear in the record. 
The letter fiom states that he was the executive director for Sabor magazine fiom 1991- 
2004 and "in that period of time, [Sabor] published huge ammount [sic] of articles, dedicated to the work and 
artist creativity of well known ethno music singer [the petitioner]." That letter said nothing about Sabor such as 
the usual circulation of this publication or any other evidence that the source of this article is a professional, 
major trade, or other major media publication. The letter from 
 states that she wrote "about 20 
articles about [the petitioner]" as a journalist for Sabor, but this letter also contains no information about Sabor 
as a publication. Similarly, the letter from 
 details his journalistic career with a multitude of 
Serbian publications and his feature of the petitioner in a number of those articles, however, his letter contains 
no information about the publications for which he worked. The letter from states that Vesti is 
the "bestselling Serbian newspaper aboard [sic]" that "reach[es] 19 countires [sic] in Europe, and also United 
States of America, Canada and Australia" and "print[s] 90.000 copies" daily. Although letter states 
that the petitioner has been featured in Vesti, no articles from that publication appear in the record. 
Finally, it is noted that the articles date from 1994-2004, at least 2 years prior to the filing of this petition. As 
stated above, the petitioner must demonstrate sustained acclaim according to 8 C.F.R. 5 204.5(h)(3). 
In response to the RFE, counsel stated that the petitioner also met this criterion by virtue of her appearance on 
television and radio programs. The petitioner submitted letters from radio and television directors confirming 
her appearances on these programs. We first note that appearances on radio and television programs are not 
"published" and that the plain language of this criterion also requires that an author's name be included which 
references a written article instead of participation in a television or radio program. In any case, the petitioner 
submitted no evidence about the regular viewing of these programs including whether they enjoy a significant 
national or international audience or otherwise constitute major media. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
(iv) 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 alliedfield of specification for which classzjication is sought. 
In response to the RFE, counsel stated that the petitioner was invited to judge other music performers through 
her selection as president "of the technical commission for the selection of new stars of Melos Marketing." The 
letter submitted in support of this assertion, authored by , verifies the petitioner's selection. 
The regulation at 8 C.F.R. 5 204.5(h)(3) provides that "a petition for an alien of extraordinary ability must be 
accompanied by evidence that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." Evidence of the petitioner's participation as a 
judge must be evaluated in terms of these requirements. The weight given to evidence submitted to fulfill the 
criterion at 8 C.F.R. 5 204.5(h)(3)(iv), therefore, depends on the extent to which such evidence demonstrates, 
reflects, or is consistent with sustained national or international acclaim at the very top of the alien's field of 
endeavor. A lower evidentiary standard would not be consistent with the regulatory definition of 
"extraordinary ability" as "a level of expertise indicating that the individual is one of that small percentage 
who have risen to the very top of the field of endeavor.'' 8 C.F.R. 9 204.5(h)(2). For example, judging a 
national competition for top artists is of far greater probative value than judging a regional youth or student 
competition. The record in this case does not include supporting evidence establishing the level of acclaim 
associated with the petitioner's position as president of the commission. Mr. 
 letter does not 
demonstrate that the petitioner judged artists already working in her or an allied field in a manner consistent 
with national or international acclaim. 
Consequently the petitioner has failed to establish that she meets this criterion. 
(v) Evidence of the alien S original scientific, scholarly, artistic, athletic, or business-related contributions of 
major significance in the field. 
We acknowledge the petitioner's submission of many reference letters praising her talent as an artist. These 
letters, while not without weight, cannot form the cornerstone of a successful extraor- ability claim, 
however. U.S. Citizenship and Immigration Services (USCIS) may, in its discretion, use as advisory opinion 
statements submitted as expert testimony. See Matter of Caron International, 19 I. & N. Dec. 791,795 (Comrn. 
1988). However, USCIS is ultimately responsible for making the final determination regarding an alien's 
eligibility for the benefit sought. Id. The submission of letters of support from the petitioner's personal contacts 
is not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether they 
support the alien's eligibility. See id. at 795. Thus, the content of the writers' statements and how they became 
aware of the petitioner's reputation are important considerations. Even when written by independent experts, 
letters solicited by an alien in support of an immigration petition are of less weight than preexisting, independent 
evidence of original contributions of major significance that one would expect of an artist who has sustained 
national or international acclaim at the very top of the field. 
A sampling of the letters submitted by the petitioner reveal that she is a respected vocalist in the field of Balkan 
folk music. For example, the November 13, 2006 letter fkom 
 a television journalist in 
Belgrade, states that the petitioner is a "true professional" that "show[s] a great level of interpretation, and [is] 
one of the most knowledgeable person [sic] in our ethno music." The November 1 1, 2006 letter from- 
a Belgrade musician, states that the petitioner is "one of the best vocal solist [sic] in [Serbia]." The 
November 4, 2006 letter from, a vocalist, states that the petitioner "is extraordin artist [sic] 
with great interpretation capabilities and vocal talent." The November 16, 2006 letter fkom h 
music artist, states that the petitioner is an "extraordinary artist" who has a "perfect voice, interpretation and 
amazing talent" and that he would award her "the highest professional grade." musician and 
producer, stated in a November 16, 2006 letter that the petitioner has "amazing vocal capabilities and 
extraordinary interpretation skills" and that she will "forever . . . be remembered for [her] exceptional music 
works." The October 24, 2006 letter from states that the petitioner "is for sure foremost artist. 
With her matchless vocals abilities and incredible and warm 'voice collor' fantastic sentiment, and knowledge 
of any style" that she is a "national diamond." The November 16, 2006 letter fromand 
journalists, states that the petitioner "is very respected artist in [Serbia]." A November 
15, 2006 letter from President of Birach Broadcasting Corporation, states that the petitioner is 
"very well known" and that she is quite popular in the United States "on . . . radio stations with mostly ethnic 
programs." - stated in a January 29,2008 letter that the petitioner is "one of the best vocal 
soloists of Ethno Balkan Music" who has "amazing talent and presence when she performs." The letter from 
journalist, states that the petitioner "is one of few singers that at the same time was receiving 
excellent revieews [sic] from criticas [sic] and from the fans." While the letters indicate that the petitioner is 
considered a successful singer, the record lacks evidence showing that she made original contributions that have 
significantly influenced or impacted the field. 
In the brief on appeal, counsel states that the petitioner met this criterion by having "a degree of recognition in 
her field" and that the petitioner has otherwise made an original contribution of major significance to the field. 
Recognition or success within the field does not demonstrate eligibility under this criterion as recognition and 
success are not contingent upon originality or significant impacts on the field. Counsel does not identify how 
the petitioner made an original contribution of major significance beyond her recognition or success and we find 
no evidence in the record to support counsel's assertion. Without documentary evidence to support the claim, 
the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of counsel 
do not constitute evidence. Matter of Obaigbena, 19 I. & N. Dec. 533,534 n.2 (BIA 1988); Matter oflaureano, 
19 I. & N. Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 1. & N. Dec. 503, 506 (BIA 1980). In the 
original submission, counsel seems to equate a significant contribution in the field by means of popularity or 
success, however, again, popularity or success does not convey eligibility under this criterion. 
Without extensive documentation showing that the petitioner's work has been unusually influential, highly 
acclaimed throughout her field, or has otherwise risen to the level of original contributions of major 
significance, we cannot conclude that she meets this criterion. 
(vii) Evidence of the display of the alien's work in thejeld at artistic exhibitions or showcases. 
This criterion generally applies to the visual, not performing, arts. However, because counsel claimed in the 
initial submission and in her brief on appeal that the petitioner's performances "throughout Serbia, Europe, and 
Australia" and on "the most popular music programs on television" fall under this criterion, we have considered 
the relevant materials as comparable evidence of the petitioner's eligibility pursuant to the regulation at 8 C.F.R. 
5 204.5(h)(4). Frequent performances are intrinsic to the musical profession just as display of art is inseparable 
from the profession of a visual artist. Yet the regulation requires that evidence under this criterion demonstrate 
sustained national or international acclaim, not simply document an alien's continued employment in her field. 
The advertisements for the petitioner's concerts date from 1994-1 999, the latest concert being seven years prior 
to the filing of this petition. As such, her concert performances do not evidence sustained acclaim in her field. 
Even if the concerts had been more temporally proximate, the advertisements submitted evidence that the 
petitioner was performing at restaurants, clubs, and other small venues. The petitioner submitted no information 
about these venues to show that performing at any of them would reflect national or international acclaim within 
the field. Even though the petitioner submitted evidence such as the letter from stating that she 
performed "in biggest venues in Serbia, as well as in other countries," she provided no objective evidence to 
support his claims. Similarly, the petitioner submitted letters from television executives concerning her 
performance on television shows, however, she submitted no evidence showing that appearing on any of these 
television shows conveys national or international acclaim. For example, she submitted no evidence that any of 
these television shows routinely receives high ratings, is highly regarded within the industry, or otherwise 
recognizes or conveys national or international acclaim. 
As a result, the petitioner failed to establish that she meets this criterion 
(x) Evidence of commercial successes in the perjorming arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
In the response to the RFE, counsel states that the petitioner demonstrates eligibility under this criterion by 
virtue of both "sales of her CD's as well as the chart placement of her songs." The petitioner submitted a letter 
from- a record store owner, which stated that the petitioner's CDs "are sell[ing] in big numbers." 
A letter from director of TV Galaksija 32, states that the petitioner "is at the top 10 list of most 
popular music artist that are present in media and uublic uerformances of intmretation of Serbian traditional 
- * 
music." A letter from, in ke buskss of selling mus;cal recordings, stated that the 
petitioner sold "12 to 15 thousand of copies on annual basis" in the United States and that such a number made 
the petitioner "one of the best and most popular artist of traditional ethno music from Serbia." The petitioner 
submitted no evidence showing how the sales figures contained in the letters from the store managers compare 
to the number of sales of other albums in her music's category or that the numbers presented otherwise show 
commercial success. In addition, the petitioner submitted no evidence of her commercial success within Serbia 
which is where she claims to enjoy acclaim. 
In the initial submission, counsel claims that the petitioner also met this criterion by virtue of her live 
performances and performances on radio and television. The petitioner submitted no box office receipts or any 
other evidence of the proceeds received from any of these performances as required by the plain language of this 
criterion. The copies of the petitioner's album covers do not provide evidence of commercial success as the 
availability of an album does not equate to commercial success or viability of that album. The top hits list 
submitted by the petitioner does not provide primary evidence of commercial success as the translation states 
that the petitioner achieved her number 5 ranking by receiving 16 votes but not specifying what the votes were 
based on, who was casting those votes, or whether the votes were based on some sort of commercial success. 
Accordingly, the petitioner failed to establish that she meets this criterion. 
On appeal, counsel cites Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994), for the proposition that we may 
not find that she does not meet a criterion by virtue of her failure to establish sustained national acclaim. First, 
we note that in contrast to the broad precedential authority of the case law of a United States circuit court, the 
AAO is only bound to follow the published decision of a United States district court in cases arising within 
the same district. See Matter of K-S-, 20 I. & N. Dec. 715 (BIA 1993). The reasoning underlying a district 
judge's decision will be given due consideration when it is properly before the AAO; however, the analysis 
does not have to be followed as a matter of law. Id. at 719. Regardless, the court's discussion of the alien's 
contributions in Buletini only expresses concern that the denial failed to even consider the evidence relating to 
those contributions. Buletini, 860 F.Supp. at 1232-1233. The plain language of the regulation at 8 C.F.R. 
5 204.5(h)(3)(v), which is binding on us, requires that the contributions be of "major significance." Thus, the 
argument that we cannot evaluate the significance of the contributions is not persuasive. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The evidence in 
this case indicates that the petitioner is a singer who has enjoyed some degree of success. However, the record 
does not establish that the petitioner achieved sustained national or international acclaim so as to place her at the 
very top of her field. She is thus ineligible for classification as an alien with extraor- ability pursuant to 
section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1153(b)(l)(A), and her petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. The petitioner here has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.