dismissed EB-1A Case: Music

PUBLIC COpy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAo) 
20 Massachusetts Ave .. N.W., MS 20l)() 
Washin~ton. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: APR U 4 2012 Office: NEBRASKA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you,_ 
Perry Rhe* 
Chief, Administrative Appeals Office 
www.uscis.gov 
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 (AAO) on appeal. 
The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A), as an 
alien of extraordinary ability in the arts. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of his 
sustained national or international acclaim. 
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 )(1 )(A)(i) of the 
Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel asserts that the petitioner meets at least three of the ten regulatory categories of 
evidence at 8 C.F.R. § 204.5(h)(3). For the reasons discussed below, the AAO will uphold the 
director's decision. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue 
work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
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 WIst 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 CF.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim and the recognition of his 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 8 CF.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion.} With respect to the criteria at 
8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate 
concerns about the significance of the evidence submitted to meet those two criteria, those concerns 
should have been raised in a subsequent "final merits determination." Id. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to 
satisfY the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 
(citing to 8 CF.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. Id. 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria 
This petition, filed on March 15, 2010, seeks to classify the petItIoner as an alien with 
extraordinary ability as a professional musician and composer. The petitioner has submitted 
documentation pertaining to the following categories of evidence under 8 c.F.R. § 204.S(h)(3).2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
The petitioner submitted documentation showing that his five-member music group_ 
received a World Academy of Arts, Literature, and Media (W AALM) Persian Golden Lioness 
Award for Traditional Persian Music in 2008. The petitioner also submitted a December 26, 
2008 article entitled "Barbat nearly lost in cultural upheaval" published in North Shore News, his 
local community newspaper in North Vancouver, British Columbia. The article states: 
North Vancouver's [the petitioner] is leaving behind a piece of history for future 
generations to enjoy. 
* * * 
As for himself, [the petitioner] has two additional barbats from Ghanbari Mehr, which he 
can use while performing solo and with the Dastan Ensemble. 
The five-member group was established in 1991 and has toured all over the world. 
This year, the men picked up a Persian Golden Lioness Award for best Persian classical 
ensemble at the third World Academy of Arts, Literature and Media Awards held In 
London in October. 
Whil~ 2008 WAALM Persian Golden Lioness Award is briefly mentioned in his local 
community newspaper, the petitioner did not submit evidence of the national or international 
recognition of the award. The plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(i) 
specifically requires that the petitioner's award be nationally or internationally recognized in the 
field of endeavor and it is his burden to establish every element of this criterion. In this case, there 
is no documentary evidence demonstrating that the petitioner's ensemble's W AALM award for 
best Persian classical ensemble is recognized beyond the presenting organization or his local 
community and therefore commensurate with a nationally or internationally recognized prize or 
award for excellence in the field. 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
The petItIoner submitted a printout from www.jpfolks.comindicating that his album "From 
Stone to Diamond" placed second among the albums entered in the "Middle Eastern" music 
category at the 2009 Just Plain Folks (JPF) Music Awards. The AAO notes that more than three 
hundred other recTients in various musical genres were similarly recognized as winners of JPF 
"Album" awards. The AAO cannot conclude that selection for an award that is annually 
conferred upon such a large number of entries is indicative of national or international recognition 
for excellence in the field of music. The petitioner also submitted a December 15, 2009 e-mail 
from the petitioner to counsel discussing the selection process for the 2009 JPF Music Awards. 
The e-mail states: "In the category of Middle Eastern music, among the final 10 nominees for 
Best Album was [ the petitioner] and his album 'From Stone to Diamond.'. .. When the final 
votes were tabulated, [the petitioner's] album finished in second overall." The closing of 
the e-mail includes an unsigned valediction from the e-
mail was sent from the petitioner's yahoo.com e-mail address (as provided in Part 8 of Form 1-
140, Immigrant Petition for Alien Worker) rather than from Mr. _aol.com e-mail 
address.4 Accordingl~O cannot determine whether or not the full content of the message 
was prepared by Mr. __ Doubt cast on any aspect of the petitioner's proof may, of course, 
lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in 
support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Regardless, 
the petitioner did not submit evidence of the national or international recognition of his album's 
JPF award for second place in the Middle Eastern music category. There is no documentary 
evidence demonstrating that the petitioner's second place JPF award is recognized beyond the 
presenting organization and therefore commensurate with a nationally or internationally 
recognized prize or award for excellence in the field. 
The petitioner submitted an extensive list of more than one thousand "2009 Just Plain Folks 
Music Awards Song Nominees" printed from indicating that his song 
"Diamond" was among 23 "nominees" in the "Middle Eastern Song" category. There is no 
documentary evidence showing that the petitioner's song "Diamond" ultimately received a JPF 
"Song" award. The plain language of the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(i) 
specifically requires evidence of "the alien's receipt" of nationally or internationally recognized 
"prizes or awards" for excellence in the field of endeavor. Earning a nomination does not equate 
to receipt of a prize or an award. Regardless, the petitioner has not established that being 
included among more than four hundred JPF "Song Winners" constitutes receipt of a nationally 
or internationally recognized prize or award for excellence in the field.5 
In response to the director's request for evidence, the petitioner submitted a certificate from the 
Academie Charles Cros issued in the French language. The preceding certificate was not 
3 See http://www.jpfolks.com/09albumwinncrs.html. accessed on March 21, 2012, copy incorporated into the record 
of proceeding. 
4 Although the closing of the e-mail identifies Mr. _ e-mail address as ' the 
information about the 2009 JPF Music Awards was clearly sent from the petitioner's yahoo. com e-mail address. 
5 The AAO notes that more than four hundred recipients in various musical genres were recognized in 2009 as JPF 
"Song Winners." accessed on March 21, 2012, copy incorporated 
into the record of proceeding. 
Page 6 
accompanied by a certified English language translation as required by the regulation at 
8 C.F.R. § 103.2(b)(3). Any document containing foreign language submitted to USCIS shall be 
accompanied by a full English language translation that the translator has certified as complete 
and accurate, and by the translator's certification that he or she is competent to translate from the 
foreign language into English. Id. The petitioner also submitted information about the Academie 
Charles Cros from Wikipedia, an online encyclopedia. With regard to information from 
Wikipedia, there are no assurances about the reliability of the content from this open, user-edited 
internet site.6 See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (8th Cir. 2008). 
Accordingly, the AAO will not assign weight to information for which Wikipedia is the source. 
There is no documentary evidence showing that the non-translated certificate from the Academie 
Charles Cros reflects the petitioner's receipt of a nationally or internationally recognized prize or 
award for excellence in the field. 
In counsel's February 25, 2010 letter accompanying the petition, she asserts that the petitioner 
received a "First Order of Arts" from the "Iranian Ministry of Culture" in 2003. The petitioner, 
however, failed to submit evidence of his receipt of the award. 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 ofObaigbena, 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). On appeal, the petitioner submits a 
September 23, 2010 printout from http://www.cdbaby.com/cdlbehroozinial indicating that his 
album "From Stone to Diamond" is available for purchase online. The "Album Notes" section 
of the submitted internet printout states: "Countless distinguished members of our cultural 
society regard [the petitioner] as a leading figure in the preservation of Iran's traditional music. 
Consequentially in 2003 the Ministry of Culture decorated him with its highest honor, the 'First 
Order of Arts. '" The author of the "Album Notes" section is not specified, but it is likely that the 
petitioner himself prepared and submitted the content posted on the cdbaby.com website. 7 The 
6 Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to develop a 
common resource of human knowledge. The structure of the project allows anyone with an Internet 
connection to alter its content. Please be advised that nothing found here has necessarily been reviewed by 
people with the expertise required to provide you with complete, accurate or reliable information .... 
Wikipedia cannot guarantee the validity of the information found here. The content of any given 
article may recently have been changed, vandalized or altered by someone whose opinion does not 
correspond with the state of knowledge in the relevant fields. 
See hUp..Ji~D,\y.iKiwi~,QJ.g!~Tiki~}YjJsip.~Qi~:Qf.DfrDLQi!KIgill)_~[, accessed on March 21, 2012, copy incorporated into 
the record of proceeding. 
7 "Artist Services" information posted on the cdbaby.com website states: "Your musician website is where you 
have complete control. . .. HostBaby provides all the tools and designs you need to create an awesome and 
professional website." See http://membc.rs.cdbaby.col1l!websites-for-bands.aspx, accessed on March 21, 2012, copy 
incorporated into the record of proceeding. 
Page 7 
petitioner also submitted a copy of his four-page resume listing the 2003 First Order of Arts 
award. Rather than submitting primary evidence of his 2003 First Order of Arts award from the 
Iranian Ministry of Culture, the petitioner instead submitted material from a website promoting 
his album and a copy of his resume mentioning the award. The self-serving claim in the 
petitioner's resume and posted on the cdbaby.com website that the petitioner received a First 
Order of Arts award is not sufficient to meet the burden of proof for this regulatory criterion. 
Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 
1972)). A petition must be filed with any initial evidence required by the regulation. 8 C.F.R. 
§ 103.2(b )(1). The nonexistence or other unavailability of primary evidence creates a 
presumption of ineligibility. 8 C.F.R. § 103.2(b )(2)(i). According to the same regulation, only 
where the petitioner demonstrates that primary evidence does not exist or cannot be obtained may 
the petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be 
unavailable may the petitioner rely on affidavits. Where a record does not exist, the petitioner 
must submit an original written statement on letterhead from the relevant authority indicating the 
reason the record does not exist and whether similar records for the time and place are available. 
8 C.F.R. § 103.2(b)(2)(ii). The claim in the petitioner's resume and posted on the cdbaby.com 
website that the petitioner received 2003 First Order of Arts award does not comply with the 
preceding regulatory requirements. Regardless, there is no supporting documentary evidence 
showing that the First Order of the Arts award equates to a nationally or internationally 
recognized prize or award for excellence in the field. 
In light of the above, the petitioner has not established that he meets the plain language 
requirements of this regulatory criterion. 
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. 
In general, in order for published material to meet this criterion, it must be primarily about the 
petitioner and, as stated in the regulations, be printed in professional or major trade publications or 
other major media. To qualify as major media, the publication should have significant national or 
international distribution. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of significant national distribution, 
unlike small local community papers.8 
The petitioner submitted an article about him entitled "Persian Melodies" in the 
January/February 2009 issue of The Walrus. The petitioner also submitted general information 
about The Walrus posted on the magazine'S website. USCIS need not rely on self-promotional 
8 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, 
Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Page 8 
material. See Braga v. Poulos, No. CV 06 5105 SJO (c. D. CA July 6, 2007) aff'd 2009 WL 
604888 (9th Cir. 2009) (concluding that the AAO did not have to rely on self-serving assertions on 
the cover of a magazine as to the magazine's status as major media). There is no circulation 
evidence showing that The Walrus qualifies as a form of major media in Canada or any other 
country. 
The petitioner submitted articles about him in North Shore News, a local community newspaper 
distributed in North and West Vancouver, entitled "Barbat nearly lost in cultural upheaval" 
(December 26, 2008), "Realms of Eloquence Dastan Ensemble" (January 30, 2004), "Ava 
Ensemble opens tour in Vancouver" (May 2, 2008), and "Dastan join Sima Bina back on tour" 
(November 26, 2004). There is no circulation evidence showing that this local community 
newspaper qualifies as a form of major media in Canada or any other country. 
The petitioner submitted an article in The Atlanta Journal-Constitution entitled "This authentic 
music of Iran luring listeners in America," but the date of the article was not identified as required 
by the plain language of this regulatory criterion. Further, the article is not about the petitioner as it 
only briefly mentions him. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) 
requires that the published material be "about the alien." See, e.g., Accord Negro-Plumpe v. Okin, 
2:07-CV-820-ECR-RJJ at *1,*7 (D. Nev. Sept. 8,2008) (upholding a finding that articles about a 
show are not about the actor). Moreover, there is no circulation evidence showing that The 
Atlanta Journal-Constitution qualifies as a form of major media. 
The petitioner submitted a January 31, 2008 article in Munstersche Zeitung entitled "Music aus 
dem Morgenland," but he failed to submit a certified English language translation of the article 
as required by this regulatory criterion and the regulation at 8 C.F.R. § 103.2(b)(3). Further, the 
author of the article was not identified and there is no circulation evidence showing that 
Munstersche Zeitung qualifies as form of major media. 
The petitioner submitted a direct mail concert announcement from the World Music Institute, "a 
not-for-profit concert presenting organization founded in 1985," promoting an upcoming concert for 
th~nsemble and Salir Aghili at the Peter Norton Symphony Space in New York. The 
petitioner also submitted the World Music Institute's February-April 2000 "Calendar" that lists a 
March 3, 2000 concert of the Dastan Ensemble at Symphony Space. The petitioner's initial 
evidence also included an event program from the San Francisco World Music Festival Presentation 
"at St. John's Presbyterian Church" that includes two sentences about the petitioner. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "published material about the 
alien in professional or major trade publications or other major media" including "the title, date 
and author of the material." A promotional mailer, an event calendar, and an event program 
from a performance at a church that only briefly mention the petitioner do not meet the 
requirements of this regulatory criterion. 
In response to the director's request for evidence, the petitioner submitted his biographical entry 
appearing on the Kodoom website, an online "information hub" dedicated to Iranian/Persian 
culture and media. The date and author of the online material were not identified as required by the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Further, there is no documentary 
Page 9 
evidence (such as online readership data) showing that the Kodoom website qualifies as a 
professional or major trade publication or some other form of major media. 
In light of the above, the petitioner has not established that he meets the plain language 
requirements of this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The petitioner submitted material posted at oud.eclipse.co.uk that includes a profile of the 
petitioner and his music. The material refers to the petitioner as "the greatest living barbat player 
from Iran." The petitioner also submitted the monthly program for the Orange County 
Performing Arts Center dated M~. The "About the Artist" page in the Center's monthly 
program profiles "Parissa and _Ensemble" and includes only two sentences about the 
petitioner. The material states that the petitioner "has played a key role in restoring Persian 
musical identity to the ancient Persian barbat." The petitioner's evidence also included the event 
program for the W AALM 3rd Persian Golden Lioness Awards (2008) that includes four 
sentences about the _ Ensemble and refers to the ensemble as "the most prominent classical 
Iranian music group of today." The preceding materials do not specify how the petitioner's work 
was original, nor do they provide specific examples of how his work has impacted the field such 
that his work rises to the level of artistic contributions of "major significance in the field." 
As previously discussed, the petitioner submitted a direct mail concert announcement from the 
World Music Institute promoting an upcoming concert for the_ Ensemble and Salir Aghili at 
the Peter Norton Symphony Space in New York. The promotional material includes four sentences 
about the ~nsemble stating that the group is comprised of "virtuoso instrumentalists." The 
petitioner also submitted the World Music Institute's February-April 2000 "Calendar" that lists a 
March 3, 2000 concert of the _ Ensemble at Symphony Space. The paragraph about the 
_ Ensemble in the promotional calendar includes a partial quote from the New York Times 
stating that "the _ Ensemble found an elegance and rhythmic swing that made the music 
levitate." The record, however, does not include a copy of the original New York Times article 
mentioning the ~nsemble. The nonexistence or other unavailability of primary evidence 
creates a presumption of ineligibility. 8 C.F.R. § 103.2(b )(2)(i). The petitioner also submitted an 
event program from the San Francisco World Music Festival Presentation "at St. John's 
Presbyterian Church" that includes two sentences about the petitioner. The material states that the 
petitioner "is the world's greatest Persian barbat player, teacher, concert musician and improviser of 
traditional Iranian music." The preceding materials praise the petitioner's musical skills and 
performances, but they do not provide specific examples of how the petitioner's original work has 
significantly impacted the field at large or otherwise constitutes original contributions of major 
significance in the field. 
On appeal, the petitioner submits a September 23, 2010 printout from http:Uwww.cdbaby.com/ 
cd/behroozinial. The "Album Notes" section of the submitted internet printout includes 
information about the petitioner's accomplishments stating: 
Page 10 
Integrated amongst the aforementioned accomplishments are publications of two etudes 
for the Barbat and numerous recorded works encompassing: Barbat, Kouhestan, 
Yadestan, Vajd, Dastan Trio and scores of accompaniments on: Bamdad, Booy-e­
Norouz, Ofogh-e-Mehr, Sarv-e-Simin, Sfar Be digar Sou, Saz-e-Nou Avaz-e-Nou, 
Hanaee, Shab Sokoot Kavir, Shourideh and Gol-e Behehsht. 
The petitioner, however, failed to submit copies of his two etude publications. As previously 
discussed, going on record without supporting documentary evidence is not sufficient for 
purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 
165. The nonexistence or other unavailability of primary evidence creates a presumption of 
ineligibility. 8 C.F.R. § 103.2(b )(2)(i). Further, the regulations contain a separate criterion 
regarding the authorship of scholarly articles. 8 C.F.R. § 204.5(h)(3)(vi). The AAO will not 
presume that evidence relating to the scholarly articles criterion is presumptive evidence that the 
petitioner meets this criterion. Publication and presentations are not sufficient evidence under 
8 C.F.R. § 204.5(h)(3)(v) absent evidence that they were of "major significance." Kazarian v. 
USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010). In 2010, 
the Kazarian court reaffirmed its holding that the AAO did not abuse its discretion in finding that 
the alien had not demonstrated contributions of major significance. 596 F.3d at 1122. Thus, there is 
no presumption that every publication is an original contribution of major significance in the field; 
rather, the petitioner must document the actual impact of his published work. In this instance, there 
is no documentary evidence showing the extent to which the petitioner's two etude publications are 
utilized by music schools or evidence indicating that his publications are widely viewed by 
independent music scholars as majorly significant to the field. 
The petitioner also submitted letters of support praising his talents as a musician and discussing 
his activities in the field. 
Owner, 7/8 Music Productions, San Francisco, states: 
[The petitioner] is a unique musician not only because he plays an ancient and rare 
instrument, barbat, but also because of his mastery of the traditional music of Iran. His 
improvisational skills, technique, and performance with deep feelings are a joy to listen 
and learn. I strongly believe that he will enrich the musical culture of this great country 
with his presence, and concerts, both live and on the radio . 
••• 2.; does not provide specific examples of how the petitioner's work has significantly 
impacted the music industry or otherwise equates to original artistic contributions of major 
significance in the field. Talent and experience in one's field are not necessarily indicative of 
original artistic contributions of major significance in the musical field. Assuming the 
petitioner's musical skills are unique, the classification sought was not designed merely to 
alleviate skill shortages in a given field. In fact, that issue properly falls under the jurisdiction of 
the Department of Labor through the alien employment certification process. See Matter of New 
York State Dep't. oj Transp. , 22 I. & N. Dec. 215, 221 (Comm'r 1998). It is not enough to be 
skillful and knowledgeable and to have others attest to those talents. An alien must have 
demonstrably impacted his field in order to meet this regulatory criterion. Vague, solicited 
Page 11 
letters from colleagues that do not specifically identify contributions or provide specific 
examples of how those contributions influenced the field are insufficient. Kazarian v. USCIS, 
580 F.3d at 1036 aff'd in part 596 F.3d at 1115. In 2010, the Kazarian court reiterated that the 
AAO's conclusion that "letters from physics professors attesting to [the alien's] contributions in the 
field" were insufficient was "consistent with the relevant regulatory language." 596 F.3d at 1122. 
The record lacks documentary evidence showing that the petitioner has made original musical 
contributions that have significantly influenced or impacted his field. 
Chief Financial Officer and Producer, Nima Entertainment Inc., Fremont, 
California, states: "[The petitioner] is an extremely talented artist in the field of traditional 
Persian music. He is known to be the most prestigious Barbat (lute) player in the world; he holds 
the highest ranking possible for this instrument according to the public and historical eye." 
While M~ describes the petitioner as a talented Barbat player, there is no documentary 
evidence demonstrating that his work equates to original contributions of major significance in 
the field. 
Chief Executive Officer, Persian Arts Group of Atlanta, states: 
One type of art that we present is Persian traditional music concerts among others. In this 
line of work I contract entertainers to perform Persian concerts in various locations of the 
United States. 
* * * 
[The petitioner] is one of the artists that I have worked with for nearly two decades from 
the time he resided in Iran and now that he lives in Vancouver, Canada. He is an 
extremely talented artist in the field of traditional music. In fact he is known to be the 
utmost best musician at playing the Barbat; the instrument that he is most commonly 
known for. He is known as a Barbat virtuoso and one can see his name on the best 
traditional music CD's produced in Iran and abroad. He is a team player and has been 
able to work with the best musicians and vocalists throughout the years. In fact he has 
been a part of absolutely the best Persian traditional music concerts that have ever been 
produced and performed in the U.S., Canada, European countries and many other 
countries worldwide. 
There is no evidence showing that the petitioner's music recordings and performances have 
significantly influenced or impacted his field, or otherwise equate to original contributions of 
major significance in the field. The AAO notes that the regulations include a separate criterion for 
"commercial successes in the performing arts" at 8 C.F.R. § 204.5(h)(3)(x). Here it should be 
emphasized that the regulatory criteria are separate and distinct from one another. Because 
separate criteria exist for commercial successes in the performing arts and original contributions 
of major significance, USCIS clearly does not view these criteria as being interchangeable. To 
hold otherwise would render meaningless the statutory requirement for extensive evidence or the 
regulatory requirement that a petitioner meet at least three separate criteria. The AAO will fully 
Page 12 
address the petitioner's musical recordings and performances under the regulatory criterion at 
8 C.F.R. §§ 204.5(h)(3)(x). 
Fazi Riahi, President of M&D Marketing and Executive Producer of Chicago Persian Events, 
states: 
[The petitioner] is an extremely talented artist in the field of traditional Persian music, not 
only in Iranian community, but very well known in American traditional music lovers. 
He is well in the top of his colleagues in the field and has been for the past 10 years. 
[The petitioner] is the greatest living Barbat player from Iran and noted for his brilliant 
compositions and powerful improvisations on this ancient lute. He has also performed 
and collaborated with many of the prominent music ensembles in Iran including Aref and 
Mowlana and joined Dastan Ensemble in 1992. 
_ praises the petitioner's talent as a traditional Persian mUSICIan, composItIons, 
improvisations, and performances, but Mr_ does not provide specific examples of how the 
petitioner's original music has influenced the field at large. There is no supporting documentary 
evidence demonstrating that the petitioner has made original contributions of major significance 
in the field. 
Director, Persian Language Program, Arlington, Virginia, states: 
I have had the pleasure of working with [the petitioner], manager of Ava Ensemble for 
the past two years. My organization was responsible for organizing concerts in the 
Washington Metropolitan area wherein [the petitioner] performed. 
The first concert performance was on May 30, 2008 at the George Mason Center for the 
Arts in Fairfax, Virginia. [The petitioner] performed along with "Ensemble and this 
concert was very well attended and received. 
The second performance took place on March 7, 2009 at the John C. Albohm Auditorium 
in Alexandria, Virginia. At this concert [the petitioner] performed with the _ 
group," one of the leading musical ensembles in Kurdistan and Iran today. This concert 
was sold out and we expect to feature this ensemble with [the petitioner] in the near 
future. 
Finally on May 8, 2009 we had the pleasure of working with [the petitioner] again at the 
George Mason Center for the Arts in Fairfax, Virginia, this time with the ••• 
Ensemble. As always this performance drew a large crowd and was very well received. 
There is no evidence showing that the petitioner's performances at the George Mason Center for 
the Arts and at the John C. Albohm Auditorium of T. C. Williams High School have 
significantly influenced or impacted his field, or otherwise constitute original artistic 
contributions of major significance in the field. Regardless, the regulations include a separate 
Page 13 
category of evidence for "commercial successes in the performing arts" at 8 C.F.R. 
§ 204.5(h)(3)(x) where the petitioner's performances will be further addressed. 
Programming Director, World Music Institute, New York, states: 
Our concerts take place in the City'S most prestigious venues including Carnegie Hall, 
Lincoln Center and City Center. In addition, WMI organizes a series of major tours and 
other cultural and educational activities of visiting artists throughout the United States. 
In my professional capacity, I can confirm that I am familiar with [the petitioner's] work, 
and I can attest to his significant cultural achievements. 
letter does not indicate that the petitioner has performed at Carnegie Hall, Lincoln 
Center, or City Center. Moreover, she does not provide specific examples of the petitioner's 
"significant cultural achievements." 
_Executive Director, Small World Music Society, Toronto, Canada, states: 
This testimonial is written to confirm that the Canadian-Iranian musician [the petitioner] 
is an artist of extraordinary artistic ability. 
As Executive Director of Small World Music Society, a non-profit presenter of culturally 
diverse music, I have had the pleasure of working with [the petitioner] on numerous 
occaSIOns. I can attest to his significant cultural achievements and wish him well in his 
endeavors. 
that the petitioner "is an artist of extraordinary artistic ability," but USCIS 
need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of the 
United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). Further, does not specifically 
identify the petitioner's "significant cultural achievements" or explain how they equate to 
original artistic contributions of major significance in the field. 
a writer and author and a contributor to The Walrus, states: 
I recently had the pleasure of interviewing [the petitioner] for a feature which will appear 
in the January issue of Walrus. I was impressed by his musical skills and his vast 
knowledge of Persian music, as well as by his interest in crossing musical borders and 
working with classical Western musicians. 
In my professional capacity, I can confirm that I am familiar with [the petitioner's] work 
and his status as one of the most famous players of Persian lute or barbat in the world. I 
can attest to his prowess as a soloist and to his significant cultural achievements. 
praises the petitioner for his music skills, knowledge, and prowess as a soloist, but 
she does not provide specific examples of how the petitioner's original work has influenced the 
Page 14 
field at a level indicative of contributions of "major significance." According to the regulation at 
8 C.F.R. § 204.5(h)(3)(v), an alien's contributions must be not only original but of "major 
significance" in the field. The phrase "major significance" is not superfluous and, thus, it has 
some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3Td Cir. 
1995) quoted in APWU v. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15,2003). While the petitioner 
has earned the admiration of his references, there is no documentary evidence demonstrating that 
he has made original artistic contributions of major significance in the field. For example, the 
record does not indicate the extent of the petitioner's influence on other musicians working in the 
field, nor does it show that the field has significantly changed as a result of his work. 
The opinions of the petitioner's references are not without weight and have been considered 
above. USCIS may, in its discretion, use as advisory opinions statements submitted as expert 
testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). 
However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. Id. The submission of reference letters 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. See id. at 795-796; see also Matter of v­
K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion testimony does not purport to 
be evidence as to "fact"). Thus, the content of the references' 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 that one would expect of a musician and 
composer who has made original contributions of major significance in the field. Without 
additional, specific evidence showing that the petitioner's work has been unusually influential or 
has otherwise risen to the level of contributions of major significance, the AAO cannot conclude 
that he meets this regulatory criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The petitioner did not initially claim eligibility for this regulatory criterion or submit specific 
documentation and arguments addressing this criterion in response to~uest for 
evidence. On appeal, the petitioner submits an unsigned letter from _ Artistic 
Managing Director, Caravan World Rhythms Society, stating: 
I have known [the petitioner] for over three years, and he is considered one of the top 
Persian "oud" (Persian lute) soloists of traditional Persian music in the world. 
Caravan has presented [the petitioner] in the past as featured soloist with the _ 
Ensemble, and as accompanist for world-renown Iranian singer 
_ in May 2008 at the prestigious Orpheum Theatre in Vancouver. 
The petitioner also submits information about "Caravan World Rhythms" from 
www.oscillations.ca. an online "source for new music events and performances in Vancouver 
and the surrounding region," stating: "Caravan presents exciting and unique world music and 
Page 15 
dance events, featuring international and Canadian artists, performing at various venues in 
Vancouver and the Sunshine Coast regions." 
With regard to the above evidence submitted for this regulatory criterion for the first time on 
appeal, where a service center has requested specific evidence in a request for evidence, and the 
petitioner failed to comply with the request, that particular evidence will not be considered on 
appeal. Where a petitioner has been put on notice of a deficiency in the evidence and has been 
given an opportunity to respond to that deficiency, the AAO will not accept evidence offered for 
the first time on appeal or on motion. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see 
also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner seeks evidence to be 
considered, he must submit the documents in to the director's request for evidence. Id. 
Regardless, the unsigned letter from and the information posted at 
www.oscillations.ca fail to demonstrate that the petitioner has performed in a leading or critical 
role for Caravan World Rhythms and thl Ensemble, and that they have a distinguished 
reputation in the music industry. Accordingly, the petitioner has not established that he meets this 
regulatory criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
This regulatory criterion focuses on volume of sales and box office receipts as a measure of the 
petitioner's commercial success in the performing arts. Therefore, the mere fact that a petitioner 
has recorded and released musical compilations or performed before an audience would be 
insufficient, in and of itself, to meet this criterion. The evidence must show that the volume of 
sales and box office receipts reflect the petitioner's commercial success relative to others 
involved in similar pursuits in the performing arts. 
The petitioner submitted a November 30, 2009 letter ting: 
The attendance to our concerts ranges from 500 to 2000 people, depending on the Persian 
population of the location and the capacity of the venue rented. 
* * * 
In the past 20 years that we have produced concerts featuring [the petitioner], his concerts 
have mostly been sold out with average of 1200 attendees. Each concert has generated at 
least $20,000 .... 
that the attendance for Persian Arts Group of Atlanta concerts ranges upward 
to 2,000 people, but he indicates that the petitioner's concerts averaged only 1,200 attendees. 
Further, the petitioner failed to submit documentary evidence of sales or box office receipts for any 
particular concert to support Mr_ assertions. The nonexistence or other unavailability of 
primary evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). 
The petitioner also submitted a letter from Fazi Riahi stating: 
Page 16 
Our concert are averaged at 300 to 1500 of persons, depending on the Persian population 
of the location and the capacity of the premises rented. 
* * * 
In the past 10 years that we have produced concerts featuring [the petitioner], once a year 
the concerts were most of the time sold out with average 500 of people. Each concert had 
revenue at least $15,000 dollars .... " 
_ states that the average attendance for Chicago Persian Events concerts ranges upward 
to 1,500 persons, but he indicates that the petitioner's concerts averaged only 500 attendees. 
Further, the petitioner failed to submit documentary evidence of sales or box office receipts for any 
particular concert to support _ assertions. The nonexistence or other unavailability of 
primary evidence creates a presumption of ineligibility. 8 C.F.R. § 103.2(b)(2)(i). 
The petitioner's evidence also included a November 17, 2009 letter stating: 
Our concert are averaged at 700 to 3000 number of persons, depending on the Persian 
population of the location and the capacity of the premises rented. 
* * * 
In the past 14 years that we have produced concerts featuring [the petitioner], most of the 
concerts were sold out with numbers averaging to 800 people. Each concert has revenues 
of at least 5000 dollars and in turn benefited our economy. 
states that the average attendance for Nima Entertainment Inc. concerts ranges 
upward to 3,000 persons, but he indicates that the petitioner's concerts averaged only 800 
attendees. Further, the petitioner failed to submit documentary evidence of sales or box office 
receipts for any particular concert to support . The nonexistence or other 
unavailability of primary evidence creates a presumption of ineligibility. 8 C.F.R. 
§ 103.2(b )(2)(i). 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) requires "[ e ]vidence of 
commercial successes in the performing arts, as shown by box office receipts or record, cassette, 
compact disk, or video sales." [Emphasis added.] According to Merriam-Webster, a 
commercial success is defined as "viewed with regard to profit" and "designed for a large 
market.,,9 Although the petitioner submitted the preceding documentation indicating that he 
participated in concerts averaging from 500 to 1,200 attendees and that the concerts generated 
minimum revenues ranging from $5,000 to $20,000, the documentary evidence fails to 
demonstrate the petitioner's commercial successes consistent with the meaning of the regulation 
9 See http://www.merriam-wehster.com/dictionary/commercial. accessed on March 22, 2012, copy incorporated into 
the record of proceeding. 
Page 17 
at 8 C.F.R. § 204.5(h)(3)(x). In this case, the petitioner has not established that the size and 
attendance of the venues where he performed are indicative of commercial success relative to 
other concerts in the music industry. Further, there is no documentary evidence of compact disc 
or record sales for the petitioner's music recordings showing that he has achieved commercial 
successes in the performing arts. Accordingly, the petitioner has not established that he meets 
this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
C. Prior 0-1 Nonimmigrant Visa Status 
The record reflects that the petitioner was the beneficiary of an approved 0-1 nonimmigrant visa 
petition for an alien of extraordinary ability in the arts. Although the words "extraordinary 
ability" are used in the Act for classification of artists under both the nonimmigrant 0-1 and the first 
preference employment-based immigrant categories, the statute and regulations define the term 
differently for each classification. Section 101(a)(46) of the Act states, "The term 'extraordinary 
ability' means, for purposes of section 10 1 (a)(15)(0)(i), in the case of the arts, distinction." The 
0-1 regulation reiterates that "[e]xtraordinary ability in the field of arts means distinction." 8 C.P.R. 
§ 214.2(0 )(3)(ii). "Distinction" is a lower standard than that required for the immigrant 
classification, which defines extraordinary ability as "a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of endeavor." 
8 C.F.R. § 204.5(h)(2). The evidentiary criteria for these two classifications also differ in several 
respects, for example, nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 
8 C.F.R. § 214.2(0)(3)(iv)(A), but the immigrant classification requires actual receipt of nationally 
or internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear statutory 
and regulatory distinction between these two classifications, the petitioner's receipt of 0-1 
nonimmigrant classification is not evidence of his eligibility for immigrant classification as an alien 
with extraordinary ability. Further, the AAO does not find that an approval of a nonimmigrant visa 
mandates the approval of a similar immigrant visa. Each petition must be decided on a case-by-case 
basis upon review of the evidence of record. 
It must be noted that many 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 
2003); IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. 
Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 1-
129 nonimmigrant petitions than 1-140 immigrant petitions, some nonimmigrant petitions are 
simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also 
Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556 (5th Cir. 2004) (finding that prior approvals do 
not preclude USCIS from denying an extension of the original visa based on a reassessment of 
the alien's qualifications). 
Page 18 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19I&N Dec. 593, 597 (Comm'r 1988). It would be absurd to 
suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO'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 has approved a 
nonimmigrant petition on behalf of the alien, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 
2000 WL 282785, *1, *3 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 
(2001). 
Ill. 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. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories, 
in accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While 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. 1o Rather, the proper conclusion is that the petitioner has failed to satisfy 
the antecedent regulatory requirement of three categories of evidence. Id. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b)(1)(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, 8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
10 The AAO maintains de novo review of all questions of fact and law. See Solfane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(I)(ii). See also section 103(a)(1) of the Act; section 
204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions). 
Page 19 
ORDER: The appeal is dismissed.