dismissed EB-1A Case: Music

(b)(6)
DATE: JUL 2 7 2015 
IN RE: Petitioner: 
Beneficiary: 
FILE# : 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service s 
Administr
ative Appeals Offic e (AAO) 
20 Massachu setts Ave., N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION RECEIPT# : 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) ofthe Immigration and Nationality Act , 8 U.S.C. § ll53(b)(I)(A) 
ON BEHALF OF PETITIONER: 
Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our 
decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 1 03.5. 
Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this 
decision . The Form I-2908 web page (www .uscis .gov/i-290b) contains the latest information on fee , filing 
location , and other requirement s. Please do not mail any motions directly to the AAO . 
Thank you, 
{#3~ ,--
Ron Rosenberg 
Chief, Administrative Appeals Office 
REV 3/2015 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition. The petitioner filed an appeal to the Administrative Appeals Office (AAO). The 
appeal will be dismissed. 
The petitioner seeks classification as an alien of extraordinary ability as a musician specialized in the 
"jinghu " musical instrument, pursuant to section 203(b)(l)(A) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1153(b)(l)(A), which makes visas available to petitioners who can 
demonstrate their extraordinary ability through sustained national or international acclaim and whose 
achievements have been recognized in their field through extensive documentation. Section 
203(b )(1 )(A)(i) of the Act limits this classification to petitioners with extraordinary ability in the 
sciences, arts, education, business, or athletics. The director determined that the petitioner had not 
satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which requires 
documentation of a one-time achievement or evidence that meets at least three of the ten regulatory 
criteria. 
On appeal, the petltwner asserts that he meets the criteria under the regulations at 8 C.F.R. 
§ 204.5(h)(3)(ii), (vi) and (viii). For the reasons discussed below, we agree with the director that the 
petitioner has not established his eligibility for the exclusive classification. Specifically, the 
petitioner has not submitted qualifying evidence of a one-time achievement pursuant to 8 C.F.R. 
§ 204.5(h)(3), or evidence that satisfies at least three of the ten regulatory criteria set forth in the 
regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x) . As such, the petitioner has not demonstrated that he is 
one of the small percentage who is at the very top in the field of endeavor, and that he has sustained 
national or international acclaim. See 8 C.F.R. § 204.5(h)(2), (3). Accordingly, we will dismiss the 
petitioner's appeal. 
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 
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(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st 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. Id.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can 
demonstrate his sustained acclaim and the recognition of his achievements in the field through 
evidence of a one-time achievement (that is, a major, internationally recognized award). If the 
petitioner does not submit this evidence, then he must submit sufficient qualifying evidence that 
meets at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USC IS, 596 F .3d 1115 (9th Cir. 20 I 0) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination) ; see also Rijal v. 
USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of 
Kazarian) , [{[f'd, 683 F.3d. 1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F . Supp. 3d 126, 131-32 
(D.D.C. 2013) (finding that USCIS appropriately applied the two-step review) ; Matter ofCha wathe, 
25 I&N Dec. 369, 376 (AAO 2010) (holding that the "truth is to be determined not by the quantity of 
evidence alone but by its quality" and that USCIS examines "each piece of evidence for relevance, 
probative value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true"). 
II. ANALYSIS 
A. P-3 Nonimmigrant Visa 
As the petitioner noted, and the record shows, USCIS has granted at least one P-3 nonimmigrant visa 
on the petitioner's behalf. The regulation at 8 
C.F.R § 214.2(p)(6) provides: 
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(A) A P-3 classification may be accorded to artists or entertainers, individually or as a 
group, coming to the United States for the purpose of developing, interpreting, 
representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, 
musical, theatrical, or artistic perfmmance or presentation. 
(B) The artist or entertainer must be coming to the United States to participate in a 
cultural event or events which will further the understanding or development of his 
or her art form. The program may be of a commercial or noncommercial nature. 
A grant of a P-3 nonimmigrant visa indicates that the beneficiary, while in the United States, will be 
involved in a "unique or traditional ... performance or presentation." To be eligible for the 
immigrant classification sought in the instant petition, however, the regulation requires a showing of 
the petitioner's extraordinary ability, which is defined 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). Whether the petitioner demonstrates extraordinary ability is not a 
consideration for a grant of a P-3 nonimmigrant visa. As such, the petitioner's approval for the 
nonimmigrant P-3 visa is not evidence of his eligibility for the immigrant visa under the 
classification of an alien of extraordinary ability. See 203(b )(1 )(A) of the Act; 8 C.F.R. § 
204.5(h)(2). 
B. Evidentiary Criteria' 
Under the regulation at 8 C.F.R. § 204.5(h)(3), the petitioner , as initial evidence, may present 
evidence of a one-time achievement that is a major, internationally recognized award. In this case, 
the petitioner has not asserted or shown through his evidence that he is the recipient of a major, 
internationally recognized award at a level similar to that of the Nobel Prize. As such, as initial 
evidence, the petitioner must present at least three of the ten types of evidence under the regulations 
at 8 C.F.R. § 204.5(h)(3)(i)-(x) to meet the basic eligibility requirements. 
Documentation of the alien 's membership in associations in the field for which class(fication is 
sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
On appeal, the petitioner asserts that he meets this criterion because he is the 
_ On appeal, the petitioner 
asserts that the following evidence establishes that he meets this criterion: ( 1) a Certificate of 
Appointment, appointing the petitioner as the '' 
'; (2) a May 16, 2013 letter from Vice President 
1 We have reviewed all of the evidence the petitioner has submitted and will address those criteria the 
petitioner claims to meet or for which the petitioner has submitted relevant and probative evidence. 
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; (3) an August 17, 1997 , 
Senior, Qualification Certificate of Specialty and Technology; and ( 4) a September 6, 2014 letter 
from 2 The evidence in the record does not establish that the petitioner meets this 
criterion. 
First, the petitiOner has not shown that 
According to the Certificate of Appointment, the 
the - -While the 
constitutes an association. 
is a committee within 
may constitute an association under the criterion, the petitioner has not shown that a 
committee within an association, which has an unspecified number of committees and other 
components, also constitutes an association under the criterion. Moreover, an appointment to a 
committee is not a membership in an association. 
Second, the 2014 letter from · does not establish that to become the Director 
for the , "recognized national or international experts in their disciplines 
or fields" must judge the petitioner's "outstanding achievements," as required under the plain 
language of the criterion. The letter provides that "upon recommendation of [the petitioner's] master 
who is the vice chairman of the I , [the 
petitioner] was admitted to join the society after careful examination as a director of the 
2008." The letter does not provide information on who evaluated the 
petitioner's qualifications before selecting him as a director or whether the individual(s) who 
evaluated his qualifications are "national or international experts in their disciplines or fields." 
On appeal, the petitioner asserts that to require him to show national or international experts had 
judged his qualification for membership "would create an endless cycle" because he "would need to 
submit outstanding ability documentation to document each support letter." The petitioner must 
document that he meets each element in the plain language of the criterion. While the petitioner 
need not provide extensive documentation pertaining to each individual who reviewed his 
credentials for the director position, he must provide some documentation from the society relevant 
to the nature of who is responsible for making the appointments. 
Moreover, the record lacks evidence that corroborates the nine selection requirements for the 
Director of the that listed in his September 6, 2014 letter. 
drafted the September 6, 2014 letter in response to the director's request for evidence 
(RFE), in which the director informed the petitioner of the deficiency in the record as relating to this 
criterion. In his RFE, the director specifically requested the society's constitution or bylaws that 
discuss membership requirements and the qualifications of membership application reviewers. The 
petitioner has not submitted the requested documents. Significantly, the record lacks evidence 
2 the author of the May 2013 letter, appears to be the same person as the the 
author of the September 2014 letter. Specifically , on page two of the petitioner 's appellate brief, the 
petitioner refers to · , the author of the May 2013, as 
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showing that the nine selection requirements listed in his September 2014 letter came 
from any official documents , such as the society's constitution or bylaws. 
Third, the petitioner has submitted a Qualification Certificate, showing that in 1997, he received an 
"Instrumentalist of Grade II" qualification from the Personnel Department of 
This evidence shows that the petitioner has achieved a certain level of proficiency as a musician. It 
does not, however, establish that the petitioner's selection as the 
was the result of "recognized national or international experts in their disciplines or 
fields" judging the petitioner's "outstanding achievements." In addition, the petitioner has not 
shown that his "Instrumentalist of Grade II" qualification, without more, meets this criterion. 
Specifically , the record does not include evidence showing that the petitioner's musical proficiency 
constitutes his membership in an association . 
Accordingly, the petitioner has not submitted documentation of his membership in associations in 
the field for which classification is sought, which require outstanding achievements of their 
members, as judged by recognized national or international experts in their disciplines or fields. The 
petitioner has not met this criterion . See 8 C.F.R. § 204.5(h)(3)(ii). 
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. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
The director concluded that the petitioner did not meet this criterion. On appeal, the petitioner has 
not specifically challenged the director 's conclusion as relating to this criterion . As such, the 
petitioner has abandoned this issue, as he did not timely raise it on appeal. Sepulveda v. United 
States Att'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005); Hristov v. Roark, No. 09-CV-27312011, 
2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the United States District Court found the 
plaintiffs claims to be abandoned as he failed to raise them on appeal). In addition, the record lacks 
evidence showing that , the newspaper that published the materials the petitioner 
submitted in support of this criterion, is a professional or major trade publication or other major 
media. According to an October 13, 2014 letter from _ the 
newspaper "is the largest Chinese-language Newspaper in the US." We need not rely on self­
promotional assertions of a publication to find that the publication is major media. See Braga v. 
Poulos, No. CV 06-5105 SJO 10, 2007 WL 9229758 , at * 1, 6-7 (C. D. Cal. July 6, 2007), aff'd, 317 
F. App'x 680 (9th Cir. 2009) (concluding that). Moreover, the petitioner has not shown that this 
foreign language newspaper in the United States constitutes "other major media" in the country. 
Accordingly , the petitioner has not submitted published material about him in professional or major 
trade publications or other major media, relating to his work in the field for which classification is 
sought. The petitioner has not met this criterion. 
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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 ofspec?fication for which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The director found in his decision that the petitioner met this criterion. The evidence in the record 
does not support this finding. We may deny an application or petition that does not comply with the 
technical requirements of the law even if the director 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), aff'd, 345 F.3d 683 (9th Cir. 2003); see also Soltane v. Dep 't of Justice, 381 F.3d 
143, 145-46 (3d Cir. 2004) (noting that we conduct appellate review on a de novo basis). 
The petitioner has submitted a 
a judge for the 
"Citification Letter" from 
Invitation Certificate, inviting the petitioner to serve as 
According to a May 29, 2013 
. President of 
the " _ has been recognized as the super important youth talent award in 
artist world, and has been used for important basis of upgrade or promotion for every art 
worker." The letter provides that the _ invited the 
petitioner to serve as a judge in "in the category of Drama Music." The petitioner has also 
submitted documents showing that he has been invited to serve as a reviewer for the 
Review on Drama Performers in Civil and Military Fields, the 
Key Drama - Performer A ward Competition and the 
Amateur Performer Competition. The evidence in the record shows that the 
petitioner has been invited to judge and/or to serve as a reviewer, but the evidence does not show 
that the petitioner has actually judged or reviewed others in the same or an allied field. Evidence of 
an invitation to judge, without evidence verifying actual judging, is not sufficient to meet the plain 
language of the criterion. 
Accordingly, the petitioner has not submitted evidence of his 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 petitioner has not met this criterion. See 8 C.F.R. § 204.5(h)(3)(iv). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
On appeal, the petitioner asserts that he meets this criterion because he has played the jinghu for the 
_ _ for many years. On appeal, the petitioner asserts that reference letters 
and a certificate issued by the Ministry of Culture establish that he meets this criterion. The 
evidence in the record has not established that the petitioner meets this criterion. 
The petitioner has submitted evidence showing that as a senior jinghu performer, he performs a 
critical role for the According to a September 7, 2014 letter from 
Director of the the petitioner joined the troupe in June 
1984. The letter provides that the petitioner's skills as ajinghu performer "help present actors' best 
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level" of performance. "In particular, [t]he outstanding performance of the several excellent young 
actors for whom [the petitioner] rendered accompaniment earned the acknowledgment and praise of 
the experts in the assessment of national key theaters and troupes organized and held by Ministry of 
Culture and experts m " The record includes a Ministry of Culture certificate, 
designating the ' 
" 
Although the petitioner has shown that he has performed a critical role for the 
he has not shown that the organization has a distinguished reputation. Specifically, the 
petitioner has not shown that the which is recognized as a "provincial 
level" organization, has a distinguished reputation. According to a September 12, 2014 letter from 
and of the . before , the 
_ _ was "a municipal level cultural organization." In the Ministry of 
Culture designated the troupe as a "key provincial" level troupe. According to 
September 7, 2014 letter, the Ministry of Culture named the _ _ as "a key 
provincial theater." According to an April 22, 2013 letter from the petitioner's "good friend," 
Director of First Troupe, in the 
_ ~ "became [a] Provincial level key Theater-School." The petitioner has not 
shown that a provincial level organization has a distinguished reputation. In addition, the petitioner 
has submitted documents on the selection process for " which 
appears to indicate that there are national-level troupes ranked above those at the provincial level. 
Moreover, the evidence in the record, including evidence on the ' 
' selection process, does not establish that a provincial level organization is of the same 
caliber as a national level organization, or that a provincial level organization has a distinguished 
reputation. 
According to the reference letters, including those from ,, and the 
has award-winning actors. The record, however, does not include the 
award certificates or trophies or published material about those awards. As such, these statements 
constitute unsupported assertions and are insufficient to establish that the 
has a distinguished reputation. Going on record without supporting documentary evidence 
is not sufficient for the purposes of meeting the burden of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. at 165. 
Although states that the is "one of 10 top 
in China," he has not provided specific evidence to support this claim. For 
example, he has not indicated the criteria under which he has relied to conclude that the 
_ is one ofthe top 10 schools in the country. For example, he has not explained 
whether his ranking is based on the theater's attainment of key provincial status. The record lacks 
information relating to how many provincial-level exist in China and 
indicates there is a higher level, the national key level. _ the theater's director, does not 
rank the school in his May 10, 2013 letter or his September 7, 2014 letter. Going on record without 
supporting documentary evidence is not sufficient for the purposes of meeting the burden of proof in 
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these proceedings. Matter of Soffici, 22 I&N Dec. at 165. USCIS need not accept primarily 
conclusory assertions. See 1756, Inc. v. United States Att'y Gen., 745 F. Supp. 9, 17 (D.C. Dist. 
1990). In addition, the record lacks more independent evidence, such as, but not limited to, 
independent journalistic coverage of the or its performances in 
nationally circulated publications, which may demonstrate the organization's distinguished 
reputation. 
Accordingly, the petitioner has not presented evidence that he has performed in a leading or critical 
role for an organization or establishment that has a distinguished reputation. The petitioner has not 
met this criterion. See 8 C.F.R. § 204.5(h)(3)(viii). 
C. Summary 
The record includes a number of reference letters, including those from musicians who have worked 
with the petitioner, who know his work, and reference letters from the petitioner's students. The 
letters praise the petitioner's skill and talent as a jinghu performer and instructor. The petitioner has 
also submitted evidence showing that he has worked as a jinghu performer in China and the United 
States. These types of evidence provide general information about the petitioner's ability as a jinghu 
performer. They do not, however, establish the petitioner's eligibility for the exclusive 
classification. Specifically, the petitioner has not shown that these types of evidence meet any of the 
criteria under 8 C.F.R. § 204.5(h)(3)(i)-(x), under which the petitioner must meet three to 
demonstrate he meets the initial evidentiary requirements for the classification. 
In addition, conclusory statements are insufficient to show the petitioner's eligibility for the 
classification. For example, according to letter, the petitioner "is among the best of 
very few young and mid-aged jinghu performers in the whole field of _ " and 
"rank[s] at least within top 5 among all performers in China." According to 
letter, "[a]mong the mid-age and youth Instrument performers, [the 
petitioner] should be in the top 5 in whole China." The letters do not provide specific evidence that 
supports the authors' conclusion. The letters do not state the criteria under which the authors 
concluded that the petitioner is a top jinghu performer in China. Repeating the language of the 
statute or regulations, however, does not satisfy the petitioner's burden of proof. See Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 905 F. 2d 41 (2d Cir. 1990); Avyr 
Associates, Inc. v. Meissner, No. 95 Civ. 10729, 1997 WL 188942 at * 1, 5 (S.D.N. Y. Apr. 18, 1997). 
Similarly, USCIS need not accept primarily conclusory assertions. See 1756, Inc., 745 F. Supp. at 
17. 
As such, even if the information provided in the letters are true, the letters do not establish the 
petitioner's status in the entire field of Jinghu performance, which includes performers of all age 
groups. 
Notwithstanding evidence showing that the petitioner has been a professional jinghu performer for 
many years, for the reasons discussed above, we agree with the director that the petitioner has not 
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submitted the requisite initial evidence, in this case, evidence that satisfies three of the ten regulatory 
criteria. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the petitioner has achieved sustained national or international acclaim and is one of the small 
percentage who have risen to the very top of his or her field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: ( 1) 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," 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. As the petitioner has not done so, the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of 
presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) 
and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final 
merits determination referenced in Kazarian, a review of the evidence on which the petitioner relies, 
including the evidence the petitioner references on appeal in the aggregate supports a finding that the 
petitioner has not demonstrated, through the submission of extensive evidence, the level of expertise 
required for the classification sought.3 
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. 
We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep "t of Justice, 38 I F.3d 
143, 145 (3d Cir. 2004). In any future proceeding , we maintain the jurisdiction to conduct a final merits determination as 
the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii) ; see also INA §§ l03(a)(1) , 204(b); DHS 
Delegation Number 0150 . 1 (effective March I, 2003) ; 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1 (t)(3)(iii)(2003) ; Matter of 
Aurelio, 19 l&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now USCIS, is the sole authority with the 
jurisdiction to decide visa petitions).