dismissed EB-1A Case: Music

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PIJRLTC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
 OCT 2 1 2009 
LIN 07 131 51127 
IN RE: 
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. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
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. 5 103.5 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. 5 103.5(a)(l)(i). 
erry Rhew 
uhie f, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) 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. 5 1 153(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 submits a brief and additional evidence. For the reasons discussed below, we 
uphold the director's finding that the petitioner has not established his eligibility for the exclusive 
classification sought. 
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. 
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 56 Fed. Reg. 60897, 60898-9 (Nov. 29, 
1991). 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. 5 204.5(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. 
The AAO notes that the petitioner is currently in the United States as a P-3 nonimmigrant, a visa 
classification that requires the alien to perform as an internationally recognized entertainer. See section 
214(c)(4)(B) of the Act, 8 U.S.C. 5 1184(c)(4)(B). While USCIS approved at least one P-3 
nonimmigrant visa petition filed on behalf of the petitioner, the prior approval does not preclude USCIS 
from denying an immigrant visa petition based on a different, if similarly phrased standard. First, the 
evidentiary standards set forth at 8 C.F.R. 5 214.2(p)(iii) are not identical to those set forth at 8 C.F.R. 
$204.5(h)(3). Moreover, 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, 2004 WL 1240482 (5th Cir. 2004) (finding that prior approvals do not preclude 
USCIS from denying an extension of the original visa based on a reassessment of petitioner's 
qualifications). In light of the above, we will review the evidence under the standards for the 
immigrant classification sought, set forth at 8 C.F.R. fj 204.5(h)(3). 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a keyboardist. 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 quali@ 
as an alien of extraordinary ability. The petitioner has submitted evidence that, he claims, meets the 
following criteria under 8 C.F.R. 5 204.5(h)(3).' 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in theJield of endeavor. 
The petitioner submitted several certificates of participation and appreciation. 
 In response to the 
director's request for additional evidence and on appeal, the petitioner does not claim that these 
certificates constitute lesser nationally or internationally recognized prizes or awards and we find that 
they do not. At issue are the following certificates that, on their face, are awards: 
1. Best Keyboardist Award at the 1994 NEPA:POP Contest; 
2. Best Performance as a keyboardist at the Music for Peace event in 1998; 
3. Best Keyboardist Award at the 1999 Tuborg Music Festival and 
' The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
4. Achievement of "Excellent (keyboardist) position" at Musical Fair 2002 
organized by the Educators Group in Nepal. 
In response to the director's request for additional evidence relating to the petitioner's awards, the 
petitioner submitted a letter from ! at the radio station Image 
that the petitioner won Best Keyboardist at the 8" Tuborg Image Award 
further asserts that the award "is the most awaited and respected award 
function in the Nepalese Music Industry organized by the Image Networks as its annual event to 
recognize and appreciate the popular musical personalities of the country." of Everest 
Exhibitions further asserts that the weeklong event is attended by 200,000 people and 400 bands. 
attests that 400 bands attend, he then states that only 50 bands participate and only ten 
to compete for awards. The petitioner also submitted his nomination certificate for 
the Tuborg Image Award. 
In addition, the petitioner submitted a letter from NEPA's Program Coordinator, . 
explains that NEPA is a cultural exchange forum and that the NEPA:POP Contest was a 
competition of Newari songs from different groups to promote the language. 
 does not 
explain how many musicians in Nepal perform Newari songs or how many artists competed in this 
competition. 
Finally, 
 of Educators Group, explains that the group is a 
compilation of different musical professionals involved in teaching music. 
 In 2002, the group 
organized Musical Fair 2002 in Kathmandu with 40 institutions and music shops displaying their 
"stalls" and 46 musicians competing in different categories. oncludes that the petitioner 
was "declared first in the keyboardist category." 
The director concluded that the petitioner had not demonstrated the national scope of the above awards 
and, regardless, they could not establish sustained acclaim after 1999. On appeal, counsel asserts that 
- - - 
the director erred in characterizing the awards as regional. The petitioner submits a letter from 
- of the Tuborg Music Festival Organizing Committee advising that the festival 
has been ongoing "since 1990 A.D. (Write appropriate year here)." The parenthetical statement 
suggests that whil- may have signed the letter, the content was primarily authored by 
someone else. further asserts that the competition is national in scope and that 1999 was an 
especially competitive year. 
In addition, the petitioner submits a letter from 
 of Educators 
Group. 
 asserts that the Musical Fair was established in 1991 and is national in scope. 
further asserts that there are "stiff and challenging tests and evaluation by experts in 
- 
the musical field" prior to being invited to compete. 
The petitioner did not submit any evidence to support the attestations pertaining to the significance of 
the above festivals, such as media coverage of the events. The NEPA:POP Contest appears limited to 
musicians singing in a specific language. 
 Without additional evidence regarding the scope and 
recognition of this competition, we cannot conclude that it is nationally or internationally recognized. 
We acknowledge the letters attesting to the significance of the Tuborg and Musical Fair 2002 
competitions. 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 (Comrn'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 letters from experts 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. USCIS may even give less weight to an opinion 
that is not corroborated, in accord with other information or is in any way questionable. Id. at 795; 
see also Matter of SofJici, 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)). Without supporting evidence, such as 
promotional materials for the competitions, official rules or media coverage of the selection of the 
awardees, the petitioner cannot establish that the above awards are qualieing. 
Finally, counsel does not address the director's concern that the most persuasive award is from 1999, 
eight years before the petition was filed. Such evidence cannot demonstrate that the petitioner 
enjoyed sustained acclaim in 2007 when the petition was filed. 
In light of the above, the petitioner has not established that he meets this 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 classiJication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
Initially, the petitioner submitted (1) an article about the petitioner in an undated issue of The Rising 
Nepal; (2) a promotion of "Nepal Fest," which included a performance by the petitioner's band, in a 
March 2007 issue of Vishwa Sandesh; (3) two articles about a tour of Nepali musicians in the United 
States in the September 20, 2006 issue of The Rising Nepal and the August 29,2006 CityPost edition 
of the Kathmandu post and (4) an article about a U.S. tour by a Nepali band listing the petitioner as the 
keyboardist in an undated, unidentified newspaper. 
The director's request for additional evidence specified that the petitioner must submit published 
material primarily about the petitioner and evidence that the material appeared in professional or major 
trade publications or other major media. In response, the petitioner asserted that he had submitted such 
evidence and affirmed the significance of the media in which the material appeared. Specifically, the 
petitioner asserted that The Rising Nepal is one of the oldest national daily newspapers of Nepal and is 
widely circulated and read in Nepal and abroad. In addition, the petitioner asserts that Kantipur and the 
Kathmandu Post enjoy a large audience. The petitioner references the website Wikipedia in support of 
The publication name and date were only established in response to the director's request for additional 
evidence. 
his assertions. Finally, the petitioner submitted a letter fiom r of 
The Mystic, asserting that the magazine printed an article about the petitioner in its MarcWApril 2000 
edition. 
The director concluded that the petitioner had not documented published material about himself 
appearing in professional or major trade journals or other major media and noted that the petitioner had 
not provided a copy of the article that purportedly appeared in The Mystic. 
On appeal, the petitioner provided a November 18, 2008 article about his tour in The Rising Nepal, 
which counsel asserts is Nepal's oldest English-language widely circulated daily newspaper. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 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). 
The November 18, 2008 article postdates the filing of the petition and cannot be consider evidence of 
the petitioner's eligibility as of that filing date. See 8 C.F.R. 5 103.2(b)(l), (12); Matter of Katigbak, 
4 I&N Dec. 45, 49 (Reg'l. Comrn'r. 1971). The accuracy of the article is also problematic. The article 
states that the petitioner has won the Tuborg Image Award and the Tuborg Musical Fair Award. The 
record, however, only documents a Tuborg Image Award and a Musical Fair 2002 award that is not 
sponsored by Tuborg. In addition, the article indicates that the petitioner won a Police Academy 
Award. According to the record, however, the petitioner merely received a certificate for his 
completion of band basic training organized by the National Policy Academy in Center Police Band. 
The petitioner has not provided any evidence regarding the publications that have carried articles 
mentioning the petitioner. With regard to information from Wikipedia, there are no assurances about 
the reliability of the content from this open, user-edited internet site.3 See Lamilem Badasa v. 
Michael Mukasey, 540 F.3d 909 (gth cir. 2008). Moreover, only one of the articles predating the filing 
of the petition is "about" the petitioner. A single undated article in a newspaper of undocumented 
3 
 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 http://en.wikipedia.ordwiki/Wikipedia:General disclaimer, accessed on October 15, 2009, a copy of 
which is incorporated into the record of proceeding. 
significance cannot be considered indicative of or consistent with national or international acclaim. 
Thus, the petitioner has not established that he meets this criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same or an alliedJield of speciJication for which classijkation is sought. 
The petitioner submitted several certificates recognizing his services as a judge at events such as the 
22nd All Nepal Medical Conference, which included intercollegiate dance and cultural competitions; the 
M3 Festival; an inter-house music competition at the Next Generation Residential Academy and the 
Jhamsikhel Youth Club's music contest. In response to the director's request for additional evidence, 
the petitioner submitted a letter fiom f Dot Nepal Pvt., Ltd., asserting that 
the M3 Festival, initiated in 2002, was a two-day event including "Momo" stalls, movies and musical 
performances. of ANEMCON's All Nepal Medical Conference, asserts 
that the competitors of the dance and cultural competitions were medical students. 
The director concluded that the events where the petitioner served as judge were not commensurate 
with extraordinary ability. On appeal, the petitioner submits a letter from 
 Past 
President of JCI Kathmandu - Nepal, asserting that the petitioner served as a judge for the Miss Teen 
Nepal Cultural Talent Show. Whil- asserts that the contest evaluates contestants based on 
cultural understanding as well as beauty, does not state that the contestants were musical 
performers. 
The regulation at 8 C.F.R. 5 204.5(h)(3)(iv) requires evidence of judging the work of others in the same 
or an allied field. Medical students, even if competing in a dance or cultural competition, are not within 
the petitioner's field. Similarly, it is not clear that judging the Miss Teen competition involved judging 
the work of other keyboardists or musicians. Moreover, the evidence submitted to meet this criterion, 
or any criterion, must be indicative of or consistent with national or international acclaim. Accord 
Yasar v. DHS, 2006 WL 778623 *9 (S.D. Tex. March 24,2006); All Pro Cleaning Services v. DOL 
et al., 2005 WL 4045866 * 1 1 (S.D. Tex. Aug. 26, 2005). Judging in-house and youth competitions is 
not indicative of or consistent with national or international acclaim. Without additional information 
about the M3 Festival, such as promotional material, media coverage or programs listing the petitioner 
and other judges, we cannot determine the significance of the petitioner's services for this festival. 
In light of the above, the petitioner has not established that he meets this criterion. 
Evidence of the display of the alien's work in the Jield at artistic exhibitions or showcases. 
While the petitioner has never claimed to meet this criterion, we acknowledge that the record contains 
evidence that the petitioner, a performing artist, performs at various venues. This criterion, set forth at 
8 C.F.R. 5 204.5(h)(3)(vii), relates to visual artists. Regardless, the petitioner has not demonstrated that 
the venues where he has performed are exclusive artistic exhibitions or showcases. Thus, the record 
does not establish that the petitioner meets this criterion. 
- Page 8 
Evidence ofcommercial successes in the performing arts, as shown by box oflce receipts or record, 
cassette, compact disk, or video sales. 
The petitioner submitted a letter from of Sunshine Music, asserting that his 
company produced and distributed two albums by that "enjoyed a huge success and 
still fetch good demand in the market." The credits for these com~act discs list the ~etitioner as the 
" 
keyboardist and arranger. In a letter dated December 19, 2004, 
 Executive 
Director for Dexo Music Center, asserts that Dexo distributed "Folk Tunes in Piano I and 11" in 1999 
and 2002. 
 further asserts that these albums were composed and arranged by the petitioner 
and have sold more than 8,000 copies. 
 does not imply that these sales numbers are for 
each compact disc rather than in the aggregate. The director concluded that the petitioner had not 
demonstrated his own commercial success in the sales of albums and questioned 
whether 8,000 copies are indicative of commercial success. 
On appeal, the petitioner submits a new 
 affirming that 8,000 copies "count 
as very high sales in our music industry." 
 does not support this assertion with data 
regarding the sales of 
 in Nepal. The petitioner has not submitted evidence 
supporting the letters from 
 such as evidence that his albums have been certified gold or 
platinum or the 
The record contains no specific information re arding the sales of 
 albums. Moreover, 
while the petitioner is credited on -albums, they are promoted as work, 
not as the arrangements of the petitioner as performed by Thus, we are not persuaded 
that the sales of these albums demonstrate the petitioner's personal commercial success. The letters 
regarding the sales of Folk Tunes in Piano I and I1 are insufficient. Without additional data regarding 
album sales in Nepal, we are not persuaded that 8,000 copies of two compact discs in the aggregate 
over five years is indicative of or consistent with commercial success or sustained national or 
international acclaim. Thus, we concur with the director that 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 
keyboardist 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 keyboardist, 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. 
' Page 9 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.