dismissed EB-1A Case: Music

PUBLIC COPY 
U.S. Department of Homelaad Secrrrity 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER Date: ET im 
SRC 05 063 5 1824 
IN RE: Petitioner: 
Beneficiary: 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203@)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. 4 11 53(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. A11 documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
kJ 
aobert P. Wiemann, Chief 
w 
Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa petition, 
which is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or international acclaim necessary to qualify 
for classification as an alien of extraordinary ability. 
On appeal, counsel asserts that the matter should be remanded to the director for a new request for additional 
evidence (WE) because the RFE issued did not relate to the petitioner. The RFE did indicate that the petitioner 
had not claimed a criterion that he did, in fact, claim and does, in three instances, refer to the petitioner as a 
female martial artist. Overall, however, the RFE was clear regarding the type of evidence required for the 
classification sought. Moreover, the final decision was specific to the petitioner. The best remedy for the 
director's error would be to consider on appeal any evidence that might have been submitted in response to an 
RFE specific to the petitioner. The petitioner, however, submits no new evidence on appeal and does not assert 
that additional evidence is available that could be submitted in the longer response time for an RFE. Thus, the 
petitioner has not established that remanding the matter would serve as a useful remedy. Counsel's assertions 
regarding the specific conclusions by the director will be considered below. In general, however, we note that 
the petitioner did not submit complete translations for all of the foreign language documents and that none of the 
translations submitted are certified as required under the regulation at 8 C.F.R. 5 103.2(b)(3). As such, the 
foreign language documents and translations have little evidentiary value. 
Section 203(b) of the Act states, in perbnent 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 to the United States will substantially benefit prospectively 
the United States. 
As used in this section, the term "extraordinary ability" means 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 specific requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F.R. 
Page 3 
5 204.5@)(3). The relevant criteria will be addressed below. It should be reiterated, however, that the petitioner 
must show that he has sustained national or international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a b'professional musician, 
composer and producer." The regulation at 8 C.F.R. 8 204.5@)(3) indicates that an alien can establish sustained 
national or international acclaim through evidence of a one-time achievement (that is, a major, international 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least 
three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of 
extraordinary ability. The petitioner has submitted evidence that, he claims, meets the following criteria.' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards for 
excellence in the field of endeavor. 
Initially, the petitioner submitted the following evidence alleged to relate to this criterion: 
1. A November 25,2001 letter from 
 Executive Director of Capif, asserting 
that an album by Bravo, for whom the petitioner played bass guitar, produced by RKO 
and distributed by BMG Argentina went Platinum in 1993 upon the sale of 60,000 
units. 
2. Information about the New York festivals Radio Programming and Promotion for 2004. 
The information indicates that the festival awards Grand, Gold, Silver and Bronze 
awards and recognizes "Finalists." The petitioner included a copy of a brochure page 
entitled "Certificate of Distinction, Finalist Winner" listing six individuals and 
companies, including the petitioner. The text under each listing is illegible on the copy 
submitted. 
3. An uncertified translation of information about the Lapiz de Oro Competition 
discussing the objective of the Argentine competition. The translation indicates that 
the petitioner won this competition while working for Raya Productions. The original 
Spanish text does not include the petitioner's name. The award certificate indicates 
that in 2000 Raya Design of Music and Sound won the Lapiz de Oro in the "Jingles" 
category. The award does not list the petitioner in the credits. 
4. A certificate of appreciation issued to the beneficiary in appreciation and recognition 
for volunteering at the Special Olympics. 
5. Evidence that Zubi Advertising won a 2003 local Silver ADDY from the Ad Federation 
of Greater Miami. The beneficiary is credited with the original musical score. Also 
included were materials about the Cleveland ADDY awards, limited to ads within the 
Cleveland area. 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
- 
Page 4 
In the RFE, the director requested evidence of the prestige of the awards documented. In response, the 
petitioner submitted evidence that Zubi Advertising won a national Silver ADDY for a four-color brochure for 
Ford and a print campaign for the Florida Lottery. The record contains no evidence that the beneficiary, a 
musician, worked on either print campaign. The petitioner also submitted evidence from the website 
www.animalmiami.com reflecting Zubi's television campaigns for Ford. The record contains no evidence that 
these television campaigns won national ADDY awards. 
The director concluded that the petitioner had not established that he had ever personally won a national award. 
On appeal, counsel reiterates that petitioner submitted the evidence discussed above, asserting for the first time 
that Capif is a major South American Record Company. Counsel further asserts that the ADDY award 
competition is very "tough." 
Counsel does not resolve the director's concern that the petitioner did not personally receive the Lapiz de Oro or 
an ADDY award. We concur with the director's analysis. The statute requires evidence of personal national or 
international acclaim. The regulation at 8 C.F.R. $204.5@)(3)(i) requires evidence of the alien's "receipt" of a 
nationally or internationally recognized award. The petitioner has not even established that he worked on the 
project that received the Lapiz de Oro. Even assuming he did so, we reiterate that the petitioner's alleged 
employer, not the petitioner, received both the Lapiz de Oro and the ADDY award. Moreover, as stated above, 
the only ADDY award for a project on which the petitioner clearly worked is the local Miami ADDY. The 
national ADDY awards won by Zubi were print campaigns to which the petitioner, a musician, is not presumed 
to have contributed. An award limited to marketing campaigns in Miami is not a nationally or internationally 
recognized award. 
Despite a specific conclusion by the director that the New York festivals information did not clearly establish 
that the petitioner won an award at this festival, the petitioner submits no clariflmg evidence on appeal, such as 
the award certificate itself. A "Finalist" is not an award winner in a competition that issues Grand, Gold, Silver 
and Bronze prizes. We concur with the director that the record contains no evidence that the petitioner won a 
Grand, Gold, Silver or Bronze prize at the festival. 
Further, the petitioner does not explain why the president of another record label, Capif, is the appropriate 
individual to verify that Bravo's 1993 album, produced by RKO and distributed by BMG Argentina, went 
platinum. The petitioner did not submit the sales records or official designation of the album as platinum or 
even confirmation from RKO or BMG Argentina. Regardless, platinum designation is based solely on sales 
numbers. It is not a prize or award for excellence awarded to a small number selected from a pool of 
competitors. As such, it is best considered under the criterion set forth at 8 C.F.R. 5 204.5@)(3)(x). 
Finally, a certificate issued in recognition of participation as a volunteer at the Special Olympics is not an award 
or prize for excellence in the petitioner's field of endeavor, music and music production. 
In light of the above, the petitioner has not established that he meets this criterion. 
Documentation of the alien's membership in associations in the fieId for which class~jication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or fields. 
The petitioner initially submitted an untranslated financial statement from Sindicato Argentino de Musicos 
listing the petitioner and his group, Bravo. The petitioner also submitted an uncertified translation of Internet 
materials about Sindicato Argentino de Musicos indicating that it "guards artists rights and informs them of the 
minimal fees they can charge regarding any aspect of their work, [for] example: TV appearances, CD's, Films, 
Recitals, etc." The petitioner submits another untranslated financial statement issued to the petitioner by the 
Asociacion Argentina de Interpretes. 
 An uncertified translation of Internet materials indicates that the 
association "is an organization that protects and enforces the rights of artists and producers regarding their 
work." Finally, the petitioner submitted his membership card for the Screen Actor's Guild of the Associated 
Actors and Artistes of America. The materials for this association reflect that it is an umbrella organization for 
nine unions. 
The director's RFE erroneously asserted that the petitioner did not claim to meet this criterion. The RFE also 
stated, however: 
Please send a copy of any membership bylaws for the associations to which you are a member. 
In order to demonstrate that membership in [an] association meets this criterion, the petitioner 
must show that the association requires outstanding achievement as an essential condition for 
admission to membership. 
The petitioner submitted no new evidence relating to tlus criterion in response to the RFE. In the final decision, 
the director stated that memberships based on employment or activity in a given field, minimum education or 
experience, recommendations by colleagues or current members or payment of dues are insufficient. The 
director further noted that the overall prestige of the association is not determinative. Rather, we must evaluate 
the membership criteria. The director concluded that the petitioner had not submitted the bylaws or official 
membership requirements and, thus, could not establish that the associations of which he is a member require 
outstanding achievements of their members. 
On appeal, counsel asserts that the petitioner submitted "concrete evidence" of his memberships. Counsel 
makes no attempt to address the director's concerns regarding the absence of evidence regarding the 
membership criteria of these associations. 
 We concur with the director. The membership criteria are a 
fundamental element of this criterion pursuant to the plain language of the regulation at 8 C.F.R. 
$204.5(h)(3)(ii). Without such evidence, the petitioner cannot meet his burden of establishing that he meets 
this criterion. We note that the Screen Actor's Guild appears to be a union. A union typically requires only 
employment in the field. As stated by the director, employment in one's field, even a competitive field, is not an 
outstanding achievement that set the alien apart from others in the field. 
In light of the above, the petitioner has not established that he meets this criterion. 
Published materials about the alien in professional or major trade publications or other major media, 
relating to the alien's work in the field for which classzjkation is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
The etitioner submitted the following published materials: (1) a 1992 article in Nueva! Chicas about 
noting that Bravo had recently replaced Rick. Martin on the FM 105.5 Chart, (2) two undated one- 
paragraph articles in unidentified newspapers announcing a new release by a newly formed Bravo that includes 
the petitioner, (3) undated magazine articles about Bravo, some with only a summary translation, naming the 
petitioner as a member of the band, (4) undated articles in Querida and Yes naming the petitioner as a band 
member, (5) a 1992 article in Nueva! Chicas about Bravo naming the petitioner as a member of the band, (6) an 
undated article in Musico Pro naming the petitioner as a vocalist at an unidentified event and (7) a profile of the 
petitioner's solo work on www.garageband.com. 
In the RFE, the director advised that it was the petitioner's obligation to provide not only the articles, but 
evidence that they appeared in publications with a significant national circulation. In response, counsel asserted 
that the petitioner had provided references to his work "published in a variety of national and international 
magazines, newspapers and the internet." The director concluded that the published materials were not 
primarily about the petitioner and did not appear in media established as major media. 
On appeal, counsel merely reiterates that the petitioner submitted references to his work published in a variety of 
national and international magazines. The appeal is not responsive to the director's concerns. The record 
remains absent evidence of the national circulation of any of the publications that featured articles on Bravo. 
The unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 
(BIA 1988); Matter of laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 
506 (BIA 1980). Moreover, some of the publications were not even identified. Further, we concur with the 
director that the articles are not primarily about the petitioner. Finally, with regard to www.garageband.com, the 
petitioner has not established that ths represents independent journalistic coverage of the petitioner. Rather, the 
profile appears to be initiated and maintained by the petitioner as a promotion of his recent work. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the alien's original scientiJic, scholarly, artistic, athletic, or business-related contributions of 
major signijfcance in the field. 
The director acknowledged the submission of several recommendation letters but concluded that they did not 
explain how the petitioner has already impacted the field of music or advertising. Counsel does not address this 
criterion on appeal. 
According to the regulation at 8 C.F.R. 4 204.5(h)(3)(v), an alien's contributions must be not only original 
but of major significance. We must presume that the phrase "major significance" is not superfluous and, 
thus, that it has some meaning. The Ietters all provide general praise of the petitioner and list advertising 
campaigns on which he worked. The Ietters fiom successful artists do not explain the petitioner's influence in 
the field. The remaining letters are all from fellow band members and employers in Florida and Buenos Aires. 
Such letters cannot establish the petitioner's influence beyond his immediate circle of colleagues. Thus, the 
petitioner has not established that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or establishments that 
have a distinguished reputation. 
In response to the RFE, counsel asserted that the petitioner had been a chief musical producer and sound 
engmeer for Animal Music and that he works for large and prestigious advertising firms, such as Zubi 
Advertising. The petitioner submitted Internet materials from Animal Music's website listing several 
advertising campaigns and clients, including Zubi. These materials do not credit the petitioner as a chief 
musical producer. The letter from Animal Music does not provide the petitioner's position with the company. 
Page 7 
The petitioner is credited with the original music scoring for Zubi Advertising's television campaign that won a 
local Silver ADDY award, but this credit does not provide the petitioner's job title with Zubi. Moreover, 
without an organizational chart, we cannot determine how the petitioner's role compares with others at Zubi. 
The director did not address this criterion and, on appeal, counsel merely reiterates the claim that the petitioner 
served as chief musical producer. As stated above, the unsupported assertions of counsel do not constitute 
evidence. Mutter of Obaigbena, 19 I&N Dec. at 534; Matter of Laureano, 19 I&N Dec. at 1; Matter of 
Rumirez-Sanchez, 17 I&N Dec. at 506. 
At issue for this criterion are the role the petitioner was hired to fill and the reputation of the entity that hired 
him. The petitioner did not submit such evidence to support counsel's assertions relating to this criterion. As 
such, the petitioner has not established that he meets this criterion. 
Evidence of commercial successes in the pegomzing arts, as shown by box ofice receipts or record, cassette, 
compact disk, or video sales. 
As discussed above, the petitioner submitted evidence that Bravo's album went platinum in 1993 but the letter is 
not from a record company that was involved with producing or distributing the album. The director determined 
that the petitioner had not submitted evidence that allowed a comparison with other artists in Argentina. On 
appeal, counsel reiterates that the petitioner's albums is alleged to have gone platinum and asserts that the 
petitioner is able to demonstrate recent commercial success through his work on nationally and internationally 
televised commercials for Toyota, Coca Cola, Volkswagen, Nike, Renault, Ford and others. The petitioner 
submitted letters fiom Florida-based and Argentine studios confirming the petitioner's work on various 
advertising jingles. Commercial success does not mean successfully working on a commercial. As is evident 
from the plain language of the regulation, 8 C.F.R. 5 204.5(h)(3)(x), the type of evidence required to meet this 
criterion includes box office receipts and unit sales data. Commercials are not sold to consumers and cannot 
produce ticket or unit sales numbers. As such, the petitioner's work on commercials cannot serve to meet this 
criterion. Diego Jinkus, President of the J Project in Florida, asserts that in 2002 the petitioner gained acclaim 
for the production of a musical anthem for the Volleyball "World Cup." The record contains no evidence of 
such acclaim, such as articles in music or volleyball trade journals noting the popularity of the anthem. 
Without evidence that any acclaim in 1993 was sustained through 2005, the platinum sales numbers by 
themselves cannot serve to establish eligibility. In light of the above, the petitioner has not established that he 
meets this criterion. 
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. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a musician to 
such an extent that he may be said to have achieved sustained national or international acclaim or to be within 
the small percentage at the very top of his field. The evidence indicates that the petitioner shows talent as a 
musician, but is not persuasive that the petitioner's achlevements set him significantly above almost all others in 
his field. Therefore, the petitioner has not established eligibility pursuant to section 203(b)(l)(A) of the Act and 
the petition may not be approved. 
Page 8 
Finally, while Citizenship and Immigration Services (CIS) approved at least one 0-1 nonimmigrant visa 
petition filed on behalf of the petitioner, the prior approval does not preclude CIS from denying an immigrant 
visa petition based on a different, if similarly phrased standard. The regulatory requirements for an immigrant 
and non-immigrant alien of extraordinary ability in the arts are dramatically different. 8 C.F.R. Ej 214.2(0)(3)(ii) 
defines extraordinary ability in the arts (including the performing arts) as simply "distinction," which is further 
defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree of slull 
and recognition substantially above that ordinarily encountered to the extent that a person 
described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation relating to the immigrant classification, 8 C.F.R. 8 204.50(2), however, defines extraordinary 
ability in any field as "a level of expertise indicating that the individual is on of that small percentage who have 
risen to the very top of the field of endeavor." While the ten immigrant criteria set forth at 8 C.F.R. 
9 204.5(h)(3) appear in nonimmigrant regulations, 8 C.F.R. 9 214.2(0)(3)(iii), they refer only to aliens who seek 
extraordinary ability in the fields of science, education, business or athletics. Rather, separate criteria for 
nonimmigrant aliens of extraordinary ability in the arts are set forth in the regulation at 8 C.F.R. 
9 214.2(0)(3)(iv). The distinction between these fields and the arts, which appears in 8 C.F.R. § 214(0) does not 
appear in 8 C.F.R. 5 204.5(h). As such, the petitioner's approval for a non-immigrant visa under the lesser 
standard of "distinction" is not evidence of his eligibility for the similarly titled immigrant visa. Regardless, 
each petition must be adjudicated on its own merits under the regulations which apply to the benefit sought. 
It must be noted that many 1-140 immigrant petitions are denied after CIS 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 CIS spends less time reviewing 1-129 nonimmigrant petitions than 1-14 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 AM Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that 
prior approvals do not preclude CIS from denying an extension of the original visa based on a reassessment of 
beneficiary's qualifications). 
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, 19 I&N Dec. 593,597 (Comm. 1988). It would be absurd to suggest that CIS 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 had approved the nonimmigrant petitions on behalf 
of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service center. 
Louisiana Philhamzonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), 
cert. denied, 122 S.Ct 5 1 (2001). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. 8 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
Page 9 
ORDER: The appeal is dismissed.