dismissed EB-1A Case: Music

(b)(6)
Date: DEC 0 ~ 2013 
iNRE: 
APPLICATION: 
U.S, Depar_tmeot ofH~mel~Jid S~ 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 M~a~hus_etts A,ve., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER FILE: 
Petitioner: 
aeneficia,ry: 
Irilmigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pur81.1alit to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 
§ 1153(b)(l)(A). 
ON BEHALF OF PETITIONER: 
SELF-REPR_ESENTEP 
INSTRUCTIONS: 
~ 
Enclosed please find th~ decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
you_r ca,se or if you seek to present new facts for consideration, you may file a motion to recon_sider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-Z90l_3) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R. § 103.5. Do not tile a motion directly with the MO. 
T:;;o~, d( 
~-~ 
Ron Rosenber~ 
Chief, Administrative Appeals Office 
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I)ISCUSSION: The Director, Texas Service Center, initially approved the employrnent-l:lased 
immigrant visa petition. Subsequently, the director issued a notice of irttertt to revoke the approval of 
the petition (NOIR). In a Notice of Revocation (NOR), the director ultimately revoked the approval of 
the Immigrant Petition forAUe:o Worker (Form 1-140). The ml!tteris now before the Administrative 
Appeals Office (AAO) ort appeal. The appeal will be dismissed. 
On appeal, the petitioner asserts that the director did not explain in the NOIR why the approval was 
·in error. Section 205 of the. Act, 8 U.S.C. § 1155, states, in. pertinent pLU1, t.hat the Secretary of 
HomelMd.Security "may, at any time, for what he deems to be good and sufficient Cl!USe, revoke the 
approval of arty petition approved by him Urtder section 204." 
Regarding the revocation on notice of an immigrant petition under section 205 of the Act, the Board 
of bnroigration Appeals has stated: 
IIi Matter of Estime, ... this Board stated that a notice of intention to revoke a visa 
petition is properly issued for "good and sufficient cause" where the evidence of 
record at the time the notice is issued, if unexplained and unrebutted, would warrant a 
denial of the visa petition based upon the petitioner's failure to meet his burden of 
proof. The decision to revoke will be sustained where the evidence of record at the 
time the decision is rendered, including any evidence or explanation submitted by the 
petitioner in rebuttal to the 11.otice of intention to revoke, would warrant such deniaL 
Matter of Ho, 19 I&N Dec. 582, 590 (BIA 1988) (citing Matter of Estime, 19 I&N Dec. 450 (BIA 
1987)). 
By itself, the director's realization that a petition Wl!S incorrectly approved is good and sufficient 
cause for the revocation of the approval of an immigrant petition. /d. The approval of a visa petition 
vests no rights in the beneficiary of the petition, as approval of a visa petition. is but a preliminary 
step in the visa application process. /d. at 589. The beneficiary is not, by mere approval of the 
petition, entitled to an immigrant visa. [d. In tbe NOIR, tbe directo.r explained that the petitioner 
Md Q.Ot sQbmitted the requisite evidence set forth in the pertinent regulations. 
The petitioner seeks classification as an "alien of extraordinary . ability" in the arts as a musidart, 
pwsci~t to section 203(b)(l)(A) of the Immigration and Nation~ity Acl (the Act), 8 U.S.C. 
~ 1153(b)(1)(A). The director determined the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as art alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
''extensive documentation'' of the alien's achievements. See section 203(b)(1)(A)(i) of the Act artd. 
8 C.P.R. § 204.5(b)(3), The implementing regulation at 8 C.P.R. § 204.5(b)(3) states t.bat an alie.n 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.P.R. § 204.5(h)(3)(i) through (x). The petitioner must 
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submit qualifying evidence under at leaSt three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
On appeal, the petitioner asserts that the director did not fully consider and properly weigh all tbe 
evidence of recti rd. 
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) Alie:tJ.S with extraordinary ability.-- An alien is described in this subparagraph if--
(i) tbe alien bas ext_raordiDMY ability in the SGiences, arts, education, 
business, ot athletics which has been demo:tJ.Sttated by sustained national or 
international acclaim and whose achievements have been rerognized ih 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. 
U.S. CitizeiiShip and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have corisisteDtly recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as alie-ns of extraordinary ability. See H.R. 723 101
51 
Cong., 2d Sess. 59 
(1990); 56 Fed. Reg~ 60897, 60898-99 (Nov. 29, 1991). The tenn "extraotdiilaty ability" refers only to 
those individuals in that small percentage who have risen to the very top of the field of endeavor. /d.; 
8 C.F.R. § 204.5(h)(2). . 
The regulation at 8 C.P.R. § 204.5(h)(3) teql.lires 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, in~emational recognized award) or 
through tbe submission of qt~alifying evidence ~nder at least three of the ten categories of evidence 
listed at 8 C.P.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 cou,rt took issue with the AAO's evahmt!on of 
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evidence submitted to meet a given evidentiary criterion. 1 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 signifiqmce of the evidence submitted to meet those·two criteria, those concerns shou;ld h~ve 
been raised in a subsequent "fmal merits determirtation." /d. at 1121-22. 
The court s~ted that the AAO's evail.JB.tion rested on an iinproper understanding of tbe regulations. 
Instead of parsing the significance of evidence as part of the initial irtquiry, 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 sufficjent evidence, ''the proper conclusion is that the applicant has failed to sati$fy the 
regulatory reqliitement of thtee types of evidence (as the AAO concluded)." Id. at 1122 (dtirtg to 
8 C.F.R.. § 204.5(h)(3)). 
Thu:s, Kazarian sets forth a two-part approach where the evidence is first taunted and then considered 
in the context of a final merits deteillJ.lnation. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not su.bii1it qu;alifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
re~latory requirement of three types of evidence. /d. 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien 's receipt of less(l!r nationally or internationally recognized prizes or 
awardsfor excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The petitioner previo11sly submitted evidence under this criterion, The director's revocation decision 
concluded that the petitioner did not meet this criterion and the petitioner does not identify any factual 
or legal error relating to this ,criterion on appeal. Consequently, USCIS concludes that the petitioner 
abandoned this claim. See Sepulveda v. US. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir, ZOOS), 
citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cit. 1998); Hristov v. Roark, No. 
09.,-CV~27312011, 2011 WL 4711885 at *1, *9 (E.D.N:Y. Sept. 30, 2011) (plaintiffs claims wete 
abandoned as he failed to raise them on appeal to the AAO). 
'P-ublished mQ.terial 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)(iil): 
" The petitioner initially submitted foreign language articles with incomplete translations in support of 
this criterion. In the NOIR, the director advised that the petitioner had not submitted proper translations 
-· .. 
1 
Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirem«nts. beyond those set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
·~ 204.5(h)(3)(vi). . . .• . . . . . . . . . . . . . 
The petlttoner does not clatm to m(!et or subrmt evtdence relatmg to the regulatory categones of I<Vtdence 
not discussed in this decision. 
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· or evidence that the publications constituted professional, major trade publication or other major media. 
ihe petitioner's response did not address this criterion ;:utd in the fmal NOR the director reiterated the 
concerns from 
the NOIR. The petitioner does not raise this issue oil appeal. USCIS, therefore, 
detetmines that the petitioner abandoned this claim .. See Sepulveda, 401 F.3d at 1228; Hristov, 2011 
WL 4711885 at *9. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in the field. 8 C.P.R.§ 204.5(h)(3)(v). 
The director determined in the NOIR and NOR that the petitioner did not satisfy the requirements of 8 
C.F.R. § 204.5(h)(3)(v). On appeal, the petitioner asserts that the director did not properly weigh the 
evic:J.ence subrni~ted under this criterion, which included letters from experts, and evid.ence of his 
participation in two Georgian ballet troupes. 
The petitioner submitted multiple groups of support letters during various stages of these proceedings, 
some of which do not appear on letterhead. Along with the Form I-140 petition, the petitioner 
submitted a set of lett~rs from the following individuals: (1) Bandmaster of the 
company (2) Head of the ·Folklore Depa:rtillent at the 
(3) a musician; ( 4) Director of the 
(5) _. _. a director and actor; jointly with 
general director and actor (both associated with Municipal Depa..rtment 
of Social Serviees and Culture) ; (6) head of and (7) a letter beating an 
illegible signature that does not otherwise identify the author.3 The regulation at 8 C.P.R.§ 103.2(b)(3) 
requires that: "Any document containing foreign language submitted to USCIS shall be aCCoiilpanied 
by a full English language translation which 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." The submitted letters in this group all required translations, but the translations either 
contain the Stamp of a translation service with no certification from the translator, or are 
accompanied by a single blanket certification that does not identify any specific document. Because 
these translations do not comply with 8 C.P.R. § 103.2(b)(3), they lack probative value. Even if the 
translations satisfied the regulation, the authors of the letters appear to be the petitioner's immediate 
rolleagues who provide vague praise of the petitioner's talents as a musician. Vague, solicited 
letters from local colleagues that do not specifically identify contributions or provide specific 
e~_aroples of bow those contributions influenced the field are insufficient. Ka:?.arian v. USCIS, 580 
P..3d 1030; 1036 (9th Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cit. 2010).4 
ihe petitioner submitted another group of letters along with his response to the director's Notice of 
Intent to Revoke, which included letters· from the following individuals: Art Director 
of the General Manager at 
a folk musician; Director of the 
- ~- .. -
3 As neither the relationship to the petitioner nor the alleged expertise of the unidentified author in the field is 
~pparent, tbe letterl~cks probat~ve value. . . . . . . . . · . 
In 2010, the Kazarzan court rettera,ted that the AAO's conclusion th.at "letters from phystcs professors attestmg 
to [the alien's] contributions in the field" were insufficient was "consistent with the relevant regulatory language." 
596 F.3d at 1122. 
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a folk musician for the 
Organizer of the festival Chief Conductor of the 
President of the Professional 
Union of Director of the 
a musiCian; artd - . . . . . . a nmsician.5 The majority of the letters 
from this group (8 of 12 letters) lack probative value because the translator did not comply with the 
certification requirements of 8 C.P.R. § 103.2(b)(3). Regardless, the translated letters simply pr;lise 
the peti~ionet's talent and professionalism but do not identify any original contributions by"the 
petitioner and· explain their impact· in the field. The remaining letters are in English. but also do not 
_ assist the petitioner in satisfying the requirements of this criterion. Regarding the letters from 
_ ~hile they are complimentary of the petitioner's skills as a 
musician, the two authorS represent the petitioner's employers and solely attest to the petitioner's 
contributions to their organization and not to his contributions in the field, Sin!ill!rly, 
appear to be local· musician colleagiles and their letters 
primarily contain bare assertions of acclaim and vague claims of contributions. users need not 
!!ccept primarily conclusory.assertions. 1756, Inc. v. TheAttorney General of the United States, 745 
F. Supp. 9, 15 (D.C. Dist. 1990). 
The petitioner · also claims that his participation in two Georgian ballet t:roqpes, and 
·demonstrates his eligibility under this criterion. The record, however, does not 
substantiate the petitioner's cl~@s. While the petitioner asserts that both ballet troupes are world 
class and obtained global acclaim, the only evidence that the petitioner provides relating' to the 
reputation and recognition of is a Wikipedia entry. However, there ate no assurances about 
the relil!bi.lity of the content from this open, \lSer-edited internet site.6 See Lamilem Badasa v. 
Michael Mukasey, 540 F.3d 909, 910 (8th Cir. 2008). For Sukhishvili, the petitioner submitted a 
pamphlet about the troupe that the - issued. users need not rely on the 
self-promotionlil material of the publisher. See/3raga v, Poulos, No. CV 06 5105 SJO (C. b. CA July 
6, 2007) a.ff'd2009 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). Regardless, 
the petitioner does not· expll!in how performing with two ballets, one of which he claims has a lengthy 
history, is an original contribution of major significance in the fjeld. Specifically, the record contains no 
5 who submitted a letter with this group also appears to have submitted a letter with the 
previous group under the name, 
Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEi:>IA MAKES NO GUARANTEE OF VAL1DtrY. Wikipedia is an online open-content 
collaborative eilpyclopedia, that is, a voluntary assoCiation of individuals and. groups wotking to 
develop a COJ:WI10Q resource of hum!ln knowledge. The structure of t.he pr.oject allows anyone with .a.n 
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 infotination ... · . 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 s.omeone 
whose opinion does not correspond with the state of knowledge in the relevant fields. 
See http://en.wikipedia.org/wiki/Wikipedia:General disclaimer, accessed on November 7, 2013, a copy of 
which is i.ncotpomted into the tecotd of proceeding. 
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evidence that the petitioner's perfqrmances are novel and have impacted his field at a level consistent 
with art original contribution of major significance. 
Accordingly, for all of the above reasons, the petitioner has not satisfied the plain language 
requirements of this criterion. 
Evidence of the display of the alien's work in the field at artistic e:xhibitions or showcases, 8 C.P.R. 
§ 204.5(h)(3)(vii). 
The director determined that the evidence the petitioner submitted in support of this criterion met the 
requirements of the regulation. Petitioner's submissions relating to this regulatory criterion 
consisted of docuro.~ntary evidence of various musical perfon:p.a,nces. However, the interpretation 
' . _) . 
that 8 C.P.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and has been upheld by a 
federal district court. See Negro-Plumpe, 2:07-CV -820-ECR-RJJ at *7 (upholding an interpretation that 
perfounances by a performing artist do not fl:lll under 8 C.P.R. § 204.5(b)(3)(vii)). As the petitioner is 
not a Visual artist and has not created tangible pieces of art that were on display at exhibitions or 
showcases, and is instead a musician, the petitioner has not submitted qualifying evidence that meets the 
plain language requirements of the regulation at 8 C.P.R. § 204.5(h)(3)(vii). ·Accordingly, the petitioner 
has not satisfied the regulatory reqUirements and the AAO withdraws the director's finding with regard 
to this criterion. 
Evidence ofcommercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 8 C.P.R. § 204.5(h)(3)(x). 
.. 
In the NOIR, the director noted that while the petitioner had submitted evidence of audio and video 
discs, he had not submitted sales data. In response, the petitioner referred to Erisioni's "global acdmn" 
as apparent from a Wikipedia page and, in the following pari:lgraph, clajmed that an show, 
' '' had an audience of 150,000 and sold 100,000 compact discs. The director 
conclude<} in the NOR that the petitioner did not est(lblish this criterion because while he submitted 
compact discs and listed the audience statistics for a 
live performance, the record did not include 
evidence of the nwnber of sales or revenues that substantiated the claim of commercial success. On 
appeal, the petitioner notes that he included the Wikipedia web address that provided the number of 
ticket sales and compact disc sales that the director failed to consider. 
As noted above, with regard to information from Wikipedia, there are no assurances about the 
reliability of the content from this open, user-edited internet site .. See Badasa, 540 F3d at 910. 
Moreover, the record contains no evidence regarding the petitioner's specific role for this 
pedonnance such that the audience and compact ·disc sales could be considered evidence of tbe 
petitioner's cOIIllfietcial success rather than the success of a large ensemble. For exam.ple, the record 
contains no evidence that he was featured prominently on the promotional material or comparable 
evidence of his contribution to the ensemble's commercial success. 
Accordingly, the petitioner has not met the regulatory requirements under 8 C.P.R.§ 204.5(b)(3)(v). 
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B. Summary 
The petitioner has failed to submit sufficient relevant, probative evidence to satiSfy the regulatory 
requirement of three types of evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly. demonstrate 
that the alien has achieved sustained national or international acclaim and is 
one of the small peteentage 
who has risen to the very top of the field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accord(lllce with the l(azarian 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 endef1vor" a.nd (2) ''t®t the alie11 h~ sustained national or international 
acclaim and that his ot 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 il1dicative 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 
fulal :rner.its determination. 7 Rather, tl_le proper conclusion is that the petitioner has failed to satisfy. the 
regulatory requirement of three types of evidence. /d. 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 appeal will be dismissed fot 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 lllet. 
OIWER: Tbe appeal is dismissed. 
' 7 'The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F .3d 143, 145 
(3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to eonduct a final merits 
determination as the office that made the last decision in·'this matter. 8 C.F.R. § 103.:5(a)(1)(ii), See also section 
103(a)(1) of the Act; s~tion 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(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).