dismissed EB-1A Case: Music

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: A~R 1 8 2003 . .. 
LTN 03 202 501 56 
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. § 11 53(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 
cided your case. Any further inquiry must be made to that office. 
4 
/ Robert P. Wiemann, Director 
! Administrative Appeals Office 
d 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1 153(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. 
On appeal, counsel asserts that the director failed to consider evidence of the petitioner's accomplishments in 
Cuba and failed to consider his work as a musical director. We will consider all of this evidence below, but note 
that a petitioner must demonstrate sustained acclaim as of the date of filing. Nevertheless, we acknowledge that 
the petitioner continued to enjoy success in his career after entering the United States, making his 
accomplishments in Cuba more relevant. For the reasons discussed below, however, we find that the petitioner 
has only established that he meets two of ten regulatory criteria; a petitioner must meet three in order to 
establish eligibility. While counsel's assertions and the petitioner's resume and press releases hint at other 
accomplishments worthy of consideration, the petitioner has failed to support these assertions with the type of 
evidence necessary to establish eligibility.2 
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 have risen to the very top of the field of endeavor. 8 C.F.R. 8 204.5(h)(2). 
I As noted by the director, the immigrant classification sought has different criteria from the nonimmigrant 
classification of the same name for which the petitioner has been approved. 
2 The assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 
1988); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. 
Matter of Treasure Craft, 14 I&N Dec. 190, 193-1 94 (Reg. Comm. 1972), broadened in Matter of Soflci, 22 
I&N Dec. 158, 165 (Comm. 1998) Ad Matter of Ho, 22 I&N Dec. 206,2 1 1 (Comm. 1998). 
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. While counsel criticizes 
the director for failing to consider some of the petitioner's older accomplishments, we note that the petitioner 
must demonstrate that he has sustained any prior acclaim up until the date of filing. Nevertheless, given the 
regional success and upward trend of the petitioner's career in the United States, we will consider all of the 
evidence below.3 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a musician. We concur with 
counsel that the petitioner has worked and continues to work as a music director in addition to playing piano and 
that the two responsibilities are very related in the type of work he performs. Thus, we will consider all of his 
accomplishments below. 
, The regulation at 8 C.F.R. 4 204.5(h)(3) indicates that an alien can establish sustained national or international 
acclaim through evidence of a one-time achievement (that is, a major, 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   rite ria.^ 
Documentation of the alien 's receipt of lesser nationally or internationally recognized prizes or awards for 
excellence in theJield of endeavor. 
The petitioner does not claim to meet this criterion and the director does not discuss it. We note, however, that 
Alberto Nacif, a Latin Music show host for the Michigan radio station WEMU, asserts that the petitioner won 
"numerous awards in Cuba." An article posted at www.allaboutjazz.com asserts that while musical director for 
Bakuleye, he won the Cuban Nobel Prize of the Year for Best Orchestra. An article on Bakuleye, posted at 
www.ahinama.com, however, makes no mention of this award. Without the award itself, listing the petitioner as 
the recipient, and evidence of its significance, we cannot conclude that this award can serve to meet this 
criterion. 
The record also suggests that the petitioner's prior group, Cubanismo, was nominated for a Grammy at some 
point, although the director found no evidence of this nomination. The only evidence we could find was in the 
discography for Cubanismo, which includes a various artist compact disc with a song by Cubanisimo's 
bandleader that was nominated for a Grammy in 1998. The record, however, lacks evidence an album on which 
the petitioner performed or otherwise worked was nominated for a Grammy as of the date of filing. 'Thus, the 
petitioner has not established that he meets this criterion. 
3 Far from being limited to performing at local cultural festivals, small restaurants, libraries and schools, the 
petitioner perfonns in a nationally known jazz club, generates regional media coverage and released a solo 
compact disc reviewed in a national magazine. 
4 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Documentation of the alien's membership in associations in the jeld for which classi$cation is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or$elds. 
The director did not address this criterion. On appeal, counsel asserts that the petitioner has submitted sufficient 
evidence to meet it. We acknowledge that the petitioner submitted a letter from the President of the Music 
Association and Union of Writers and Artists of Cuba (UNEAC) confirming the petitioner's membership based 
on "his optimum qualities as a pianist, arranger and producer, which is referenced by his artistic trajectory in 
multiple international tours with other great musicians." The petitioner did not provide the bylaws or other 
official documentation of the union's membership requirements. In general, union membership requires 
employment in one's field. Being able to work in one's field, regardless of how competitive that field may be, is 
not an outstanding achievement. Thus, the petitioner's union membership cannot serve to meet 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 Jeld for which classifcation is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
The petitioner submitted coverage of his music in the Star Tribune and a preview of his performance at the New 
York jazz club Birdland posted at www.allaboutjazz.com. The petitioner also submitted another preview of the 
petitioner's performance at Birdland posted on Babelogue, part of the Twin Cities Babelogue Community; an 
interview with the petitioner posted at www.urbanpoineer.org; the original article from Urban Pioneer 
indicating it appeared in the first issue of this "literature for locals" publication; a review of his compact disc in 
the JuneIJuly 2003 issue of Latin Beat and reviews of Cubanismo, some of which mention the petitioner briefly. 
The director concluded that the published materials were either not primarily about the petitioner or did not 
appear in major media. 
On appeal, counsel cites Racine v. INS, 1995 WL 1533 19 (N.D. Ill. 1999, and Muni v. INS, 89 1 F. Supp. 440 
(N.D. 111. 1995), for the proposition that the director took too restrictive an approach to the above materials. 
First, in contrast to the broad precedential authority of the case law of a United States circuit court, the AAO 
is not bound to follow the published decision of a United States district court in cases arising within the same 
district. See Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). The reasoning underlying a district judge's 
decision will be given due consideration when it is properly before the AAO; however, the analysis does not 
have to be followed as a matter of law. Id. at 719. Second, the court in the above cases was concerned that 
the legacy Immigration and Naturalization Service (INS), now Citizenship and Immigration Services (CIS), 
was requiring that the articles identi6 the alien as one of the best in the field. Racine 1995 WL 1533 19 at 
*6; Muni 891 F. Supp. at 445. The court did not find that we cannot examine whether the article is primarily 
about the alien and whether it appears in major media, both explicitly required by 8 C.F.R. 3 204.5(h)(3)(iii). 
At the outset, we note that while the petitioner challenges the director's failure to consider whether the petitioner 
had national acclaim in Cuba, the petitioner has submitted no Cuban media coverage of the petitioner. 
Regarding the remaining evidence, all evidence must be evaluated as to whether it is indicative of or consistent 
with international acclaim, the ultimate standard for the classification sought. The press package from the 
petitioner's agent contains very similar information and language to the posting on www.allaboutjazz.com, 
suggesting that the posted article was the result of a press release, and not independent journalistic coverage. 
Independent journalistic coverage is far more persuasive evidence of national or international acclaim than the 
reprinting of a press release. Similarly, reviews of an album in a magazine that reviews much of the new music 
in a genre and reviews of concerts in local papers are not as persuasive as journalistic coverage of the petitioner 
and his work in general. Finally, while the petitioner has received some journalistic coverage, it appears to be 
limited to the MinneapolisISt. Paul, Minnesota area. In light of the above, we must concur with the director that 
the media coverage in the record is not indicative of national or international acclaim and, thus, cannot serve to 
meet this criterion. 
Evidence of the alien 3 participation, either individually or on apanel, as a judge of the work of others in the 
same or an alliedfield'of specification for which classification is sought. 
Counsel asserts for the first time on appeal that the petitioner meets this criterion. Counsel notes that the 
petitioner "included on his resume that he was a member of the National Music Evaluation Committee, Cuba, 
evaluating other bands to represent Cuba on tours to other countries." The assertions of counsel do not 
constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BLA 1988); Matter of Ramirez-Sanchez, 17 
I&N Dec. 503, 506 (BIA 1980). The record, including the letter from the President of UNEAC, does not 
confirm this responsibility. Thus, the petitioner has not established that he meets this criterion. 
Evidence of the alien S original scientific, scholarly, artistic, athletic, or business-related contributions of 
major significance in the field. 
er submits several reference letters from jazz and music professionals praising his talent. = 
freelance writer in the Minneapolis area specializing in jazz reviewing, asserts that the petitioner 
ranks at "the top of my list of extraordinary jazz performers." ~r.- continues that the petitioner "has 
no limits as a pianist" and that he is "booked regularly to play premier jazz venues." ~r.oncludes 
that the petitioner's "contributions to music education, as well as to jazz composition and live performance, have 
been invaluable." 
Director of the School at MacPhail Center for the Music in Minneapolis, asserts that he recruited 
teach at MacPhail afier seeing him perform. He hrther asserts that some of the piano faculty 
have indicated that the petitioner has the best techni ue they have ever seen. The petitioner's performance fir 
the faculty resulted in a standing ovation. Mr. & concludes: 
[The petitioner] brings an incredible insight to the world of jazz music. With [his] presence at 
MacPhail we are significantly growing our jazz and world music programming as well as 
achieving a higher level of recognition in the area. 
oner submitted additional letters in response to the director's request for additional evidence. 
producer of a weekly jazz program on Minnesota Public ~adio,~ compares the petitioner 
Afro-Cuban artists of the 1950s that brought Latin music be ond the "Latin crowd." ~r.= 
indicates that he added the petitioner's music to his own program. Mr. Y recounts the petitioner's career 
erts that Mr. mprogram, Jazz Image, is broadcast nationwide, but the interview with 
included in the record only indicates that it airs on Minnesota Public Radio. The assertions of 
counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
and notes that the petitioner imparts his knowledge to others through teaching, Mr. further asserts that 
the petitioner has "played in the top venues around the world." 
Music Director and Conductor for the Eugene Symphony Orchestra in Minnesota, praises 
the petitioner's performance as Music Director for the Latin Renaissance, a fund raiser for the Women's 
~ss&iation of the Minnesota Orchestra and a women's shelter. ~r. indicates that the petitioner 
inspired the other musicians to a higher level and was hired on the spot to serve as Music Director the following 
year. Mr. s that he has conducted the petitioner's compositions. 
co-music director of the Minnesota Youth Symphonies and a member of the Minnesota 
Orchestra, asserts that working with the petitioner at the Latin Renaissance "was a most enjoyable experience 
due to the sheer joy that he pu& into whai he does." ~rconcludes that the "can contribute 
to the variety of music heard by Minnesotans in a very big way." 
While the above letters are general in nature and mostly from individuals in the St. Paul, Minnesota area, the 
record contains other information worth noting. A review of another artist's album reflects that he "pays 
particular tribute to some of Cuba's most talented artists," including the petitioner, and lists the petitioner as the 
composer and arranger of two of the songs. The petitioner also served as music director for a local Minnesota 
group, Sabor Tropical, that was nominated for a Latin Grarnrny. Given the record as a whole, we find that the 
petitioner has submitted sufficient evidence to meet this criterion. 
Evidence of the display of the alien 3 work in theJield at artistic exhibitions or showcases. 
We will not consider the evidence of the petitioner's participation at the St. Lucia Jazz Festival after the date of 
filing, submitted on appeal, as it does not relate to his eligibility as of the date of filing. See 8 C.F.R. 
5 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). Nevertheless, the petitioner lists 
several jazz festivals where he performed with Cubanismo in 1997, such as the Montreal Jazz Festival, the 1997 
North Sea Jazz Festival and the 1997 Montreaux Jazz Festival. The record confirms the petitioner's 
performance at the Montreal Jazz Festival before a crowd of 120,000. Thus, the petitioner appears to meet this 
criterion, albeit with evidence from several years prior to the filing of the petition. 
Evidence that the alien has performed in a leading or critical role for organizations or establishments that 
have a distinguished reputation. 
The petitioner claims to have served as music director for Cubanismo in addition to performing as their pianist. 
The director did not contest Cubanismo's distinguished reputation. Rather, the director concluded that the band 
enjoyed its biggest success prior to the time the petitioner joined the band and that his role as pianist was not 
more critical than other members of the group. The press materials about Cubanismo and the album credits only 
identify the petitioner as the solo pianist on most songs and arranger of a single song who joined the group after 
their first successful album. While the petitioner appears to have played a more significant role for Bakuleye, 
the record contains less persuasive evidence of that group's distinguished reputation. Specifically, while the 
petitioner submitted a "biography" of the group on www.ahinarna.com, the record does not contain the original 
press coverage of the group. Moreover, the petitioner must demonstrate sustained acclaim. While the group 
released albums in 1998 and 2001, the petitioner does not list the 2001 album on his resume. 
Finally, while the petitioner clearly played a leading role for the Latin Renaissance in Minnesota, the record 
contains no evidence that this festival enjoyed a distinguished reputation nationally. Specifically, there is no 
evidence that it generated national media attention. 
Evidence that the alien has commanded a high salary or other sign$cantly high remuneration for services, 
in relation to others in the$eld. 
While the petitioner does not claim to meet this criterion, we simply note that the contracts submitted and the 
documentation reflecting that he was approved for "second level of salary" in Cuba does not reflect that he has 
ever commanded high remuneration comparable with those at the top of the field. Specifically, the record 
contains no evidence of what constitutes high remuneration in the field to which we can compare his 
remuneration. 
Evidence of commercial successes in the performing arts, as shown by box oflce receipts or record, cassette, 
compact disk, or video sales. 
In response to the director's request for additional evidence, the petitioner submitted the JuneIJuly 2003 issue 
of Latin Beat Magazine listing the petitioner in the top 20 Hit Parades for San Francisco and Puerto Rico. 
The petitioner has not demonstrated that appearing on a "hit parade" is indicative of high record sales. 
Similarly, the petitioner did not explain the significance of the "KFAI Top Jazz Releases." We note that 
KFAI Radio is a St. Paul, Minnesota station. 
As noted by the director, Cubanismo's first album apparently "broke record sales in Europe and the US, 
naturally making it the Top 10 List of Billboard and Latin Beat magazine" according the press materials 
about the group. The record clearly establishes that the petitioner did not perform on that album. Despite 
counsel's assertion that the director ignored "sales figures" for the more recent Cubanismo albums, the 
record contains no such figures for the albums on which the petitioner performed. That information is not 
included in the reviews, press releases, or materials from www.amazon.com. The record does not contain 
ticket sale information for the petitioner's tours, not all of which were in the United states6 Thus, 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 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. 
6 
We acknowledge that the embargo prevents Cuban musicians from making money on their U.S. tours, but 
the record does not establish that the petitioner was under similar restrictions in Canada and Europe, where 
he also toured. 
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.