dismissed EB-1A Case: Music

U.S. Department of lIomeland Security 
20 Massachusetts Ave., N.W.. Rm. 3000 
Wash~ngton, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 9 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
8 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
3 103.5(a)(l)(i). 
U 
hn F. Grissom, Act~ng Chief 
c 
Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petition 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)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1153(b)(l)(A), as an 
alien of extraordinary ability in the arts. 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. 
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 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 has risen to the very top of the field of 
endeavor. 8 C.F.R. 5 204.5(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. fj 204.5(h)(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 musician. 
The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, 
internationally 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. 
Page 3 
The petitioner has submitted evidence that he claims meets the following criteria.' 
Documentation of the alien's membership in associations in the field for which 
classzJication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
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. Membership requirements based on employment or activity in a given field, 
minimum education or work experience, standardized test scores, grade point average, 
recommendations by colleagues or current members, or payment of dues do not satisfy this 
criterion as such requirements do not constitute outstanding achievements. The overall prestige 
of a given association is not determinative. The issue is membership requirements rather than the 
association's overall reputation. 
The petitioner submitted documentation that reflects he is a member of the American Society of 
Composers, Authors and Publishers (ASCAP). According to the documentation submitted by the 
petitioner, to join ASCAP as a writer: 
[Ylou must be the writer or co-writer of a musical composition or a song that has 
been: 
commercially recorded (CD, record, tape, etc.); 
or, performed publicly in any venue licensable by ASCAP (club, live 
concert, symphonic concert or recital venue, college or university, etc.); 
or, performed in any audio visual or electronic medium (film, television, 
radio, Internet, cable, pay-per-view, etc.); 
or, published and available for sale or rental. 
In her May 9, 2007 letter accompanying the petitioner's response to the director's request for 
evidence (WE) dated February 15, 2007, counsel stated, "ASCAP is the most recognized 
organization in the field for musicians, authors, composers and publishers and it is only the select 
few who are accepted to its membership" and that "Their stringent criterion is a hallmark for 
their reputation." Nonetheless, the documentation submitted does not support counsel's 
assertions. The membership requirements do not establish any threshold of success for the 
applicant, merely that his or her work has received more than a private screening. 
On appeal, counsel again asserts that ASCAP has stringent criterion for membership and states 
that the organization "is dominated by well known and successful professionals in the field of 
music" and names several well-known artists such as Madonna, John Mayer, Lenny Kravitz, 
Usher, Coldplay and Jay-Z. However, the success of some of ASCAP's members does not 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
Page 4 
impute a requirement that all of its members must exhibit and maintain a similar level of success 
prior to becoming a member. The documentation submitted by the petitioner does not establish 
that ASCAP requires outstanding achievement as a condition of membership. 
With the petition and again on appeal, counsel asserts that the petitioner also meets this criterion 
based on his membership in EM1 and Drummer Zone. However, the petitioner submitted no 
documentary evidence of his membership in either of these organizations and provided no 
evidence as to their membership requirements. 
The evidence does not establish that the petitioner 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 classzfication is sought. 
Such evidence shall include the title, clate, and author of the material, and any necessary 
translation. 
In order to meet this criterion, published materials must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
In her letter accompanying the petition, counsel states: 
[The petitioner] and his work has [sic] been the subject of numerous artistic 
profiles, articles, magazine covers and reviews in major media throughout the 
world for his membership [in] the internationally famed Band "The Chelsea 
Smiles" as well as his former bands, Steel Prophet and Vindikation. 
The petitioner submitted a copy of an article about his band, , that he stated 
appeared in the August 25 to September 1, 2005 edition of LA Weekly We note that nothing in 
the article or in the document indicates that it was published in LA Weekly. Going on record 
without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of SofJici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). The petitioner, 
however, submitted another article from the March 10-16, 2006 edition of LA Weekly by the 
same writer. This article mentions a performance by the petitioner's band but does not name the 
petitioner or discuss his individual performance. The petitioner submitted copies of articles from 
other publications, such as Skratch Magazine reprinted on the website Myspace, 
Blabberrnouth.net, the Long Beach Union Weekly, and the Daily Forty-niner also reprinted on 
Myspace, all of which discuss performances of the petitioner's bands. However, none mentions 
the petitioner or his individual work. Other documentation includes reviews of the recordings 
Page 5 
released by groups in which the petitioner played. However, none discussed the specifics of the 
petitioner's work as the drum player with the groups. 
In res onse to the director's RFE, the petitioner submitted a copy of a press kit for his group, = 
. As noted by counsel, "the publications are released as publications about the 
band itself and not [the petitioner] alone." The documentation includes several articles written in 
foreign languages that were not accompanied by English translations. Because the petitioner 
failed to submit certified translations of the documents, the AAO cannot determine whether the 
evidence supports the petitioner's claims. See 8 C.F.R. 5 103.2(b)(3). Accordingly, the evidence 
is not probative and will not be accorded any weight in this proceeding. 
On appeal, counsel asserts: 
Music Bands, no matter how popular or large scale their reputation is, is 
oftentimes referred to by the name of the lead singer. U2, one of the most popular 
music group[s] in the world since [the] mid-80's composed of 4 members is 
usually referred to by its lead vocalist, Bono. The Supremes, a Motown all female 
singing group and most successful african-american [sic] musical act is often 
referred to as Diana Ross. The same is true in the case of petitioner's band(s). 
Publications featured the band as a whole and not its members individually. 
Although, names and brief description of members were mentioned, focus of the 
publication was on the band. 
As counsel stated, the articles focused on the group and does not single out any specific 
individual, either as the leader or otherwise. The articles refer to the groups by their band names 
and not by that of the lead singer. The point of counsel's argument is therefore unclear. The 
evidence does not establish that the petitioner meets this criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major signtficance in thejeld. 
Counsel asserts that the petitioner meets this criterion based on his full-time membership as a 
member of the band - and his status as a founding member of the band 
. Counsel asserts that the petitioner wrote songs for the bands and "created original 
lyrics and music on all of the albums which garnered rave reviews from international music 
critics." The petitioner submitted a copy of his band's compact disc and a copy of an agreement 
with Warner Brothers Entertainment for use of his music on a television show. 
In response to the director's RFE, counsel asserts that the petitioner's talent as a drummer is an 
integral part of the sound and success of -. The petitioner submitted several 
letters, including those of his band mates, attesting to his talent and his contribution to the group. 
However, neither the petitioner nor those who wrote letters on his behalf attest to any 
contribution of major significance made by the petitioner to the field of music. 
Page 6 
In denying the petition, the director stated that the petitioner submitted "no evidence which 
demonstrates the petitioner has provided any original contributions to the field such as a new 
drumming methodology or technique which has been adopted [by] others." On appeal counsel 
asserts that "it is not required that petitioner be able to show some original work or techniques 
which has been adopted by others," and that the petitioner "was able to establish during the 
initial filings that he has had artistic and business related contributions of major significance." 
Counsel then again outlines the petitioner's success as a musician, delineating the tours made by 
the groups and the commercial success of the albums they released. Counsel asserts, "The wide 
scale nature of [the petitioner's] contributions undoubtedly suggest that they are significant in 
scope." 
Counsel's arguments are completely without merit. We note first and significantly that counsel 
attempts to truncate the language of the criterion by omitting the words "in the field." She then 
attempts to correlate the petitioner's commercial success, which is the subject of another 
criterion discussed further below, with that of a major contribution. The petitioner provided no 
documentation to establish that any of his work, whether adopted by others or not, constituted a 
contribution of major significance to the field of music. 
The evidence does not establish that the petitioner meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
In her letter accompanying the petition, counsel states that the petitioner's "artistic talent as a 
drummer [I has been showcased tremendously," and submitted copies of contracts with Warner 
Brothers Television, the petitioner's band tours and a contract with Warner Brothers 
Entertainment, Inc., for inclusion of one of his songs on the soundtrack of a television show. 
Counsel reasserts these claims in her letter accompanying the petitioner's response to the RFE, 
and argues on appeal that the petitioner has "worked with big corporations" and on productions 
and recordings that are "prestigious and reputable." We note that the contracts with Warner 
Brothers are, in fact, one contract for use of a single composition co-written by the petitioner. 
Nonetheless, the plain language of this criterion reveals that it relates to the visual arts. The 
petitioner submitted no documentation that he has been the subject of any production that 
showcased his specific work or his talents as a drummer. His work with Warner Brothers and his 
various bands are more appropriately considered under the criterion that follows. 
The evidence does not establish that the petitioner meets this criterion. 
Evidence that the alien has pevformed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that he performed a leading or critical role for an 
organization or establishment and that the organization or establishment has a distinguished 
reputation. 
Page 7 
The petitioner claims to meet this criterion based, in part, on his contract with Warner Brothers 
Entertainment. As discussed previously, the contract is for the use of one song co-written by the 
petitioner for which he and his partner were paid $1,000. The petitioner submitted no 
documentation to establish that the use of this composition played a leading or critical role for 
Warner Brothers. 
Counsel also asserts that the petitioner meets this criterion as his band has been the opening act 
for bands such as the Red Hot Chili Peppers, Social Distortion, the New York Dolls and The 
Cult, and that his band has played in prestigious venues such as the Roxy, Key Club and the 
Viper Room. However, the petitioner submitted no evidence that his band's opening for these 
various groups was in a leading or critical role for them, or that he himself played a leading or 
critical role for the various groups. 
Counsel states that the petitioner meets this criterion based on the record contracts that his band 
has with recording labels such as Capitol Records, Atlantic Records and Warner Brothers. 
Letters submitted by the petitioner attest to his band's recording contract with Capitol Records; 
however, no documentation of record supports counsel's statements that the band had recording 
contracts with Atlantic Records or Warner Brothers. Further, the petitioner submitted no 
documentation to establish that these recording contracts were in a leading or critical role for 
either of the recording labels. 
The petitioner also claims to meet this criterion based on his leading role with the various bands 
with which he has been associated. While the evidence establishes that the petitioner has played 
a leading role in the bands, including founding one and writing music for the groups, the 
evidence does not sufficiently establish that any of these bands have a distinguished reputation. 
The evidence establishes that the bands have enjoyed some commercial success and critical 
acclaim; however, the petitioner submitted no documentation to establish the reputation of these 
groups within the music industry. 
We withdraw the director's determination that the petitioner meets this criterion. The petitioner 
must establish that he played a leading or critical role for an organization or establishment and 
that the organization or establishment enjoys a distinguished reputation. The petitioner cannot 
meet this criterion by establishing only one prong of the criterion. The evidence does not 
establish that he meets this criterion. 
Evidence that the alien has commanded a high salary or other signzjcantly high 
remuneration for services, in relation to others in thejeld. 
In her letter accompanying the petition, counsel stated that the petitioner "is remunerated per 
performance, talent fee for composition, and royalties." However, except for the contract with 
Warner Brothers Entertainment, the petitioner submitted no documentation of any compensation 
that he received. The Warner Brothers contract indicates that the petitioner and his co-writer 
would be paid $1,000 for the use of the composition. The petitioner submitted no documentation 
Page 8 
to establish that this fee was significantly high compared to others in the field. In her May 9, 
2007 letter accompanying the petitioner's response to the WE, counsel stated that "the contract 
with Warner Brothers and Capitol Records is evident of high remuneration due to the long 
standing reputation of the establishments whose list of talented artists and musicians marks their 
hallmark." Counsel's arguments are without merit. Simply because a recording label has success 
is not evidence that all of its artists enjoy that same level of success, and the petitioner again 
submitted no documentation to establish any other remuneration that he received or to establish 
that his compensation is significantly high in relation to others in his field. 
Counsel repeats these assertions on appeal, and states that the petitioner's success "made him 
one of the sought after talents in the industry" and that "[c]onsequently, the amount of 
compensation and other kinds of remuneration that [he] stands to get is high." A visa petition 
may not be approved based on speculation of future eligibility or after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Michelin Tire Corp., 17 
I&N Dec. 248 (Reg. Comm. 1978); Matter ofKatigbak, 14 I&N Dec. 45,49 (Comm. 1971). 
The petitioner has not submitted evidence to establish that he meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts 
or record, cassette, compact disk, or video sales. 
In her May 10. 2006 letter accompanying the petition, counsel asserts that the petitioner's 
"commercial success in the performing arts is ubiquitous as illustrated in his long list of 
achievements," and that he "has enjoyed sustained commercial success not only by his 
performance as the percussionist with the but with other successful bands." As 
evidence, the petitioner relies primarily upon the contract with Warner Brothers Entertainment, 
Inc. and the positive reviews of the band's music and performances. 
In response to the WE, the petitioner submitted the results of a May 9, 2007 Google search of 
-. - 
his bands combined with the search term " 
 ." The search indicates, according 
to counsel, that the petitioner's band, - had sold 3.2 million copies of its 
debut album (the archive date of the report was October 14, 2006, but the document did not 
indicate the album's release date). The Google search also indicated other units or copies sold 
and references s and the petitioner's previous band, However, the 
search returns were not clear as to what the numerical numbers actually referred and counsel did 
not address them in her letter. In his decision, the director stated that a review of the website 
indicated that the 3.2 million copies of the petitioner's record allegedly sold actually referred to 
an album by Guns 'N Roses, and that the other numbers referred to albums by other artists and 
not to any work by the petitioner or his bands. 
Counsel does not address this discrepancy on appeal and reverts to her previous argument that 
the petitioner's list of achievements is evidence of his commercial success. Counsel asserts that 
s record "Nowhere Ride" "topped the rock charts and [was] voted number one 
pick," and was chosen by Sony Playstation and Microsoft X-Box to be featured in one of their 
video games. Counsel also asserts that the record was featured in the movie "Annapolis," which 
grossed $17 million in the United States. 
Nonetheless, the petitioner submitted no evidence of the actual sales of records by either of his 
bands as required by the criterion, and therefore has failed to establish 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 his 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 is talented, successful and respected musician and 
drummer, but is not persuasive that the petitioner's achievements 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. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 9 1361. Here, the petitioner has not sustained that burden. Accordingly, the 
appeal will be dismissed. 
ORDER: The appeal is dismissed.