dismissed EB-1A Case: Music

(b)(6)
' -~ \ 
DATE: MAR 0 7 2013 Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
· U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washinirton. DC 20529-2090 
-u.S. Citizenship 
and Immigration 
Services 
.--------- ~ -
INRE: Petitioner: 
Beneficiary:. 
PETITION: Immigrant Petition for Alien Worker as an I Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality A~t, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please fmd the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that orikinally decided your case. Please be advised 
that 
any further inquiry that you might have concerning your dse must be made to that office. . 
If you believe the AAO inappropriately applied the law in leaching its decision, or you have additional 
information that you wish to have considered, you may file a botion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-29QB, Notice ofjAppeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. §
1
103.5
1
(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or r~open. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The employment-based immigrant visa p
1
etition was denied by, the Director, Texas 
Service Center,. and is now before the Administrative ApP,eals 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. § 1153(b)(l)(A), ·as an 
alien of extraordinary ability as a singer, songwriter;· and tnusician. The director determined that the 
petitioner had not established the requisite extraordin~ ability and failed to submit extensive 
documentation of his sustained national or international acclaim. The director also found that the 
petitioner had not established that his entry into the United States wjll substantially benefit 
prospectively the United States. · 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained natibnal or international acclaim" and present . I 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and . I 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can I . 
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 catego~es of .sp~cific ~bjective evidence. 8 C.F.R. §1204.5(h)(3)(i) through (~). The ~etitioner 
must subtmt qualifying evidence under at least three of tfu.e ten regulatory categones of eVIdence to 
establish the basic eligibility requirements. . . · I . . . 
On appeal, the petitioner asserts that he meets the categories of evidence at 8 C.F.R. § 204.5(h)(3)(i) 
- (iv) and that he will substantially benefit prospecti~·dy the United States. For the reasons 
discussed below, the 
AAO will uphold the director's decisi~n. 
I. tAW 
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 sutiparagraphs (A) through (C): 
(A) Aliens· with extraordinary ability. -- L alien is described. in this 
subparagraph if--
(i) the alien has extraordinary abiliry in the sciences, arts, 
education, business, or athletids · which has been 
demonstrated by sustained natibnal or international 
acclaim and whose achievements h~ve been recognized in 
the field through extensive documerltation, · 
. I . 
(ii) the alien seeks to enter the U~ted States to continue 
work in the area of extraordinary ability, and 
(iii) the alien's entry into thJ United States· will 
I . 
substantially benefit prospectively the United States. 
I 
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U.S. Citizenship and Immigration Services (USCIS) an<i legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congres~ intended to· set a very high standard for 
individuals seeking irnrillgrant visas as aliens of extraordultary ability. See H.R. 723 101 st Cong., 2d 
I 
Sess. 59 (1990); 56 Fed. Reg. 60897,.60898-99 (Nov. 2~, 1991). The term "extraordinary ability'' 
refers only to those individuals in that small percentage wfuo have risen to the very top of the field of 
endeavor. ld.; 8 C.F.R. § 204.5(11)(2). I. . 
The regulation at 8 C.F.R. § 204.5(h)(3) requires 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, Ia major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). . . · I . . . 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classificiJ.tion. Kazarian v. USCIS, S80 F.3d 1030 (9th Cir. 2009) aff'd in part 
· 596 F.3d 1115 (9th Cir. 2010). Although the court upheld fue AAO's decision to deny the petition, the 
oouri: took issue with the AAO's evaluation of evidenJe 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 USC IS may have raised legitimate concerns about ilie significance of the evidence submitted to 
meet those two criteria, those concerns should have bl
1
een raised in a subsequent "final merits 
determination." Id. at 1121-22. · . 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
I 
Instead of parsing the significance of evidence as part ofj the initial inquiry, the court stated that ''the· 
proper procedure is to count the types of evidence providoo (which the AAO did)," and if the petitioner 
failed·to submit sufficient evidence, ''the proper conclusioh is that the applicant has failed to satisfy the 
regulatory requirement of three types .of evidence (as ilie AAO concluded)." ld. at 1122 (citing to 
8 C.F.R. § 204.5(11)(3)). . . . I . 
Thus, Kazarian sets forth a two-part approach ·where the evidence is first counted and then considered in 
the context of a final merits determination. In this matter ,I the AAO will review the evidence under the 
plain language requirements of each criterion claimed. jAs the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. !d. I 
... II. ANALYSIS 
I 
A. Evidentiary Criteria 2 
Documentation of the alien's receipt of les1er nationally or internationally 
recognized prizes or awards for excellence in the fleld of endeavor. 
The AAO withdraws the director's fi~ding t11.at the petitidner meets this regulatory criterion . 
. 1 Specifically, (he court stated that the AAO had unilarerally imp~ novel substantiv: or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R § 204.5(h)(3)(vi). 
I . 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in. this 
decision. 
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. The petitioner submitted the following: 
1. A July 5, 2004 article in Panorama stating that th~ "13 members of the Group Sampao" 
(including the petitioner) won the Award" (2003) "for being the 
most popular band in , (one of the 23 states i~ Venezuela); 
2. A 2004 Mara Award for ' in the 
category; I · 
3. A 2006 Mara Award for (or the song "Quisiera"; 
4. A 2006 Mara Award for category; and 
5. A 2008 Mara International Award for "Songwriter of the Year" in the "Tropical Music" 
category. 
Any document containing foreign language submitted to USCIS shall be accompanied by a full 
I 
English language translation that the translator has certified as complete and accurate, and by the 
translator's certification that he or she is competent to I translate from the foreign language into 
English. 8 C.F.R. § 103.2(b)(3). Although the petitioner's initial evidence includes a September 
I 
29, 2010 translator certification stating "I hereby certify that I have accurately translated, to the best 
of my knowledge, the attached document, from Spani
1
sh into English" [emphasis added], it is 
unclear which of the above awards (items 1 - 5), if by,. to which the translator certification 
pertains. Th,e submission of a single translation certific~tion that does not specifically identify the 
document or documents it purportedly accompanies tloes not meet the requirements of the 
regulation at 8 C.F.R. § 103.2(b)(3), which requires that ~y document containing foreign language 
submitted to USCIS shall be accompanied by a certified English langliage translation. · 
With regard to item 1, the petitioner submitted a June 30l2010 letter from Romulo Zabala Raggio, 
General Director of the Metropolitan Cultural Foundatioh, Falcon State, Venezuela, stating: "The 
importance ofthe national award 'Gran Aguila de Venezhela' [emphasis added] is a highly coveted 
reward for artists, musicians and musical groups in our bountry, becoming a great encouragement 
for recognition and achievement, arid being recognized ~s the best of their genre." ·The petitioner 
also submitted a June 28, 2010 letter from President of the Foundation 
for the Academy of Galta Ricardo Aguirre of the State of Zulia (FUNDAGRAEZ), Venezuela, 
stating: 
We know of the prestige of the award Gran Aguila de Venezuela 'at the national and 
international level, thanks to its effective and rigoroJs methodology utilized to select those 
who are granted the important award, making it an :exclusive award for those outstanding 
artists and. musicians in the country. It constitutes the most important award in Venezuela 
that recognized the excellence of the arts and/or mu
1
sic and it is compared to international· 
awards like the Grammy and Emmy awards. 
[Emphasis added.] The English langtiage translations accompanying the preceding letters from Mr. 
Zabala Raggio and Mr. Aguirre ·Gonzalez were not cetJified by the· translator as required by the 
regulation at 8 C.F.R. § 103.2(b)(3). . Further, neithe~ of the preceding letters states that the 
petitioner himself received a "Gran Aguila de Venezuela" award. Moreover, the July 5, 2004 
article in Panorama (item 1) states: "For being the mJst popular band in Zulia, Group Sampao, 
with its contagious vallenato, won the Aguila de Verlezuela Award 2003." According to the 
aforementioned article, the petitioner's 9and won "the A~ila de Venezuela Award," not the "Gran 
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Aguila de Venezuela" award described in the letters from and 
. Moreoyer, the article in Panorama indicates that the Aguila de Venezuela award received 
by the petitioner's band equates to regional recognitidn in the state of " " rather than a 
nationally or internationaliy recognized award for excelltfuce in the field of endeavor. In addition, 
the pl~in language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) specifically requires evidence of ''the 
alien's receipt" of nationally or internationally recogniz~ prizes or awards. The AAQ notes that 
the award was specifically presented to "Group j' and it cannot suffice that the petitioner 
was part of a large music group ( 13 members) that earned rollective recognition. . . . 
In regard to the petitioner's Mara Awards (items 2 
- 5), j the petitioner submitted a letter from the 
"Mara de Oro of Venezuela Foundation" providing general information about the foundation and 
stating that the "Mara de Oro" award "is the highest awarti granted by Venezuela at an international 
level." The preceding letter, however, does not state that the petitioner received a "Mara de Oro" 
award. Further, according to the plain language of the n9n-certified English translations submitted 
by the petitioner,. none of his "Mara Awards" from 2004, 2006, and 2008 were "Mara de Oro" 
awards. Specifically, none of the petitioner's awards (iterhs 2- 5) include the words "de Oro." The 
petitioner also submitted photographs of various "MarJ de Oro" recipients whose awards were 
different in appearance than those of the petitioner and w~ose awards include the specific words "de 
Oro... . I . . 
In addition, the petitioner submitted a letter from stating that the petitioner received 
"the award of Songwriter of the Year, by the Mara de O~o of Venezuela Foundation"; a letter from 
Lie. stating that the petitioner wrote a song entitled "l _ " that "was awarded in 
. 2006 with various important recognitions"; a letter from fhe President of the "Municipal Institution 
for the 
Gaita" discussing the importance of the "Mara de Oro of Venezuela"; a letter from the Editor 
of El Venezolano (a Venezuelan newspaper published iri Miami) stating that the "Mara de Oro of 
Venezuela" is . "one of the m~s~ promi~ent awards in I Latin. Am~ca~'; · and a Iette~ from Luis 
Moncho Martmez of Venevtsion statmg the "Mara de Oro IS Important nationally and 
internationally." The English language translations accbmpanying the preceding letters were not 
certified by the translator as required by the regulation at 8jc.F.R. § 103.2(b)(3). Further, none of the 
preceding letters specifically states that the petitioner received a "Mara de ()ro" award. 
While the petitioner's Mara Awar~s (items 2- 5) indicJte that he was recognized by the· Mara de 
Oro of Venezuela Foundation, there is no documentary eyidence showing that his particular awards 
from the foundation equate to nationally or internationally recognized prizes or awards for 
excellence in the field. The petitioner did not submit evidence of the national or international 
recognition of his particular Mara Awards, such as national or widespread local coverage of his awards 
in arts, entertainment, or general me<fia. The plainjlanguage of the regulation at 8 C.F .R. 
§ 204.5(h)(3)(i) specifically requires that the petitionerjs awards be nationally or internationally 
recognized in the field of endeavor and it his burden to establish every element of this criterion. There 
I 
is no documentary evidence showing that the petitioner(s specific Mara Awards were recognized 
beyond the presenting organization and therefore commensurate with nationally or internationally 
recognized prizes or awards for excellence in the field. I · . . . 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
Documentation of the alien's membership in aksociations in the. field for which 
classification is sought, which require outstandihg achievements of their members, I . 
(b)(6)
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as judged by recognized national or international experts in their disciplines or 
fields. 
The petitioner did not initially claim eligibility for this regulatory criterion. In response to the 
director's request for evidence, the petitioner submitted a letter from Jesus· Colmenares, President, I . . 
Venezuelan Association of Performers and Producers of Phonograms (AVINPRO), stating that the 
I 
petitioner has been a member of AVINPRO since March 2009. The petitioner also submitted a 
document bearing AVINPRO's logo and entitled "What i~ AVINPRO" that states: 
I . To be part of this organization a musician or an artist has to be a recognized figure with not 
less than 50 musical recordings. 
In addition, the candidate has to preseri.t letter from .companies that have contacted him and 
certificates of the records. As a Phonographic Prod4cer all executors who have fixed and 
commercialized at least 150 records can become member of A VINPRO. 
The English language translations accompanying the lettL from Mr. Comenares and the "What is 
AVINPRO" document were not certified by the translato~ as required by the regulation at 8 C.F.R. 
§ 1 03_.2(b )(3). Although the petitioner's resp~n~e to the 'director's request. for evidence contai~s a 
"Certificate of Translator's Competence" certifying "that 1the attached Enghsh language translations 
are· accurate translations of the documents in the Spanish language," it is unclear which of the 
I 
submitted documents, if any, to which the translatorjs certification pertains. As previously 
discussed, the submission of a single translation certification that does not specifically identify the 
document. or documents it purportedly accompanies tloes not meet the requirements of the 
regulation at 8 C.F.R. § 103.2(b)(3), which requires that ky document containing foreign language 
submitted to USCIS shall be accompanied by a full Engtish language translation that the translator 
has certified as complete and accurate, and by the tr~slator's certification that he or she is 
competent to translate from the foreign language. into English. . 
Regardless, the petitioner has failed to demonstrate thaJ being "a recognized figure with not less 
than 50 musical recordings" or that being a record producbr who has produced "and commercialized 
at least 150 records" constitute outstanding achievementsjin-the field. Moreov~r, while the "What is 
AVINPRO" document lists the association's mailing address in Venezuela and provides an internet 
link of http://www.avinpro.com/index.php, the doc~ent is unsigned by an officer of the 
association and the preceding internet address does j not link to the "What is A VINPRO" 
information. 3 It is incumbent upon the petitioner to resolve any inconsistencies in the record by 
. . I . . 
3 According to Chap~er II, Section 6 of the "Statutes" of AYIMjRO dated July 2007, the "Association has three 
categories of members": 1) "Partnerperformer'' who "are actors, singers, musicians, dancers and other persons who act, 
sing, deliver interpret, or otherwise perform literary, artistic or ~xpressions of folklore, who have published their 
I 
interpretations phonograms whose name or pseudonym appears linked to the different media that reproduce," 2) 
"Partner of Phonogram" who "are natural or legal persons, who Wee the initiative and are responsible for the first 
fixation of sounds of a performance or interpretation and pu~lication of individual carriers, which · reproduce 
phonograms whose rights belong to them, or which are assigned o~ licensed in the country," and 3) "Adherents" who 
are " na~l or leg~l ~ersons not be~g ~embers, registe~ with .the rsociation and accept the provisions of ~e Statute 
to represent Wl.thin the ObjeCtives for which lt ras ~created." See 'http://www.avmpro.com/ 
descargas/Estatutos%202007.pdf, accessed on February 6, 2013, 1copy incorporated into the record of proceeding. 
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independent objectiv~ ~vidence. ~y attempt to e~pl~in lor. ~econcile .su~h inconsistencies will ~ot 
suffice unless the petitioner submtts competent obJective evidence pomtmg to where the truth hes. 
Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Deubt cast on any aspect of the petitioner's 
proof may, of course, lead . to a reevaluation of the rel~ability and sufficiency of the remaining 
evidence offered in support of the visa petition. /d. · Th~re is no reliable documentary evidence 
establishing that A VINPRO requires outstanding achibvements of its members, as judged by 
reoognized national or international experts in the petitiorler's field. . . 
The petitioner's response to the director's request for Lide~ce also included a letter from Jose 
Sifontes, Secretary General, Society of Authors and cmhposers of Venezuela (SACVEN), stating 
that the petitioner has been a member of SACVEN since 1April2008. ·The petitioner also submitted 
a document bearing SACVEN's logo and entitled "Society of Authors and Composers of Venezuela 
(SACVEN)" that states: 
Qualifications to be a member 
1 -As an author/composer 
1.1 - Having more than 20 works in the nati9nal or international music & entertainment 
m1 2arkect 'fi f · · f k h N\ · 11 D' fC . ·gh· . . - ert1 . cate o registratiOn o wor s at t e a tiona trectorate .o opyn t 
1.3 -Scores (melodic scripts) of the works with whic~ to affiliate · 
2 
- As a music publisher. This application i~ for a jusic. publisher that has or represents a 
catalog of 1000 or more works. It must fill it out the. entry form that says active editor 
(upper yellow stripe). 
The English language translations accompanying the letter from Mr. Sifontes and the SACVEN 
document were not certified by the translator as required ~y the regulation at 8 C.F.R. § 103.2(b)(3). 
The petitioner has failed to demonstrate that "having j more than 20 works in the national or 
international. music & entertainment market";~ submitting "a certificate of registration of works" 
from the National Directorate of Copyright; providing thb musical scores of the works; or having or 
representing "a catalog of 1000 or more works" as k music publisher constitute outstanding 
achievements in the field. While the SACVEN documeri.t lists the association's mailing address in 
Venezuela and provides an il).ternet link of http://wJw.sacven.org/usuarios/convenios.php, the 
document .is unsigned by an officer of the association ahd the preceding internet address does not 
link to the above "QUalifications to be a member''. inftnnation. 4 As previously discussed, it is 
Nowhere in A VINPRC>'s Statutes does the association require outs~ding achievements of its members, as judged by 
recognized national or international experts. . I . 
4 According to SACVEN's "Requirements for membership" as P,Osted on the association's website, an individual 
seeking to become a musical member must: "Declare in CD format lor other type DEMO as mp3, audio or video files a 
minimum of two (02) works, original creation of aspiring partner; one of which, at least, must have been publicly 
exploited by any means or procedure." In addit~on, "a) The works Jubmitted must contain the lyrics and melody guide 
in a r:eadable format, and signed ~th the name of the author and I ~r composer. b) If the works are registered with the 
national leadership copyright, submit a copy of the relevant registration. c) Submit a photocopy of all music publishing 
contracts, assignment or representation of their works, if any." Se~ http://www.sacven.org/socios/reguisitos, accessed 
on February 6, 2013, copy incorporated into the record ofproceedin~. . 
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incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective 
evidence. Any attempt to· explain or reconcile such iJconsistencies will not suffice unless the 
petitioner submits competent objective evidence pointing! to where the truth lies. Matter of Ho, 19 . . I 
I&N Dec. at 591-92. Doubt cast on any aspect of the petitioner's proof may, of course, lead to a 
reevaluation of the reliability and sufficiency of the re~aining evidence offered in support of the 
I 
visa petition. Id. There is no reliable documentary evidence establishing that SACVEN requires 
outstanding achievements of its members, as judged by rbcognized national or international e~perts 
in the petitioner's field. 
In light of the above, the petitioner has not established that he meets this regulatory criterion. 
· · · Published ma(erial about the alien in professional ~r major trade publications or other 
major media, ·relating to the aliens work in the field for which classification is sought. 
Such evidef!ce shall include the title, date, and author of the material, and any 
necessary translation. 
The AAO withdraws the director's finding that the petitioner meets this regulatory criterion. 
· In general, in orde.r forpublished material to meet this critLon, it must be about the petitioner and; as 
stated in the regulations, be printed in professional or majbr trade publications or other major media. 
To qualify as major media, the publication should have si~ficant national or international distribution. 
Some.newsp~pers, such as ~e f!ew York .Times,. no~~ly ism:e a particular locality b~t would qualify 
as maJor medta because of stgruficant national dtstnbution, Unlike small local commuruty papers. 5 
The petitioner submitted the following: 
1. ·A July 5, 2004 article in Panorama entitled' prepares to tour Venezuela." The 
article, while mentioning the petitioner as a band member of is. about the music 
group generally ra~er than focusing on the petition~. 
2. A September 2010 article entitled "[The petitiorler] recording album in Miami" in the 
"Obituaries" section of Panorama and posted onlin¢ at Panorama. com. ve. 
3. A June 12, 2004 article in Panorama entitled' plays ' ."' The article 
is about the band in general and does not focus on the petitioner. 
4. A March 3, 2008 article in Panorama entitled 
1 
comes back recharged with their 
song '1 ·• "' Again, the article is about the oand and does not focus primarily on the 
petitioner. . I 
5. A February 23, 2008 article in Panorama entitled' renews its music." Once again, 
the article is about ~e b~d in general and_ does notlfocus on the petitioner. . 
6. A Jtme 25, 2002 article m Panorama entitled "The essence of the Guataka style." Agam, 
although the article mentions the petitioner as a bbd member of it is about the 
music group generally rather than focusing on the detitioner. 
5 Even ~th nationally-circulated newspapers, consideration must be given to the placement of the article. For example, 
an article that appears in the Washington Post, but in a section that is distributed only in Fairfax County, Virginia, for 
instance, cannot serve to spread an individual's reputation outside offbat county .. 
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7. A June 10, 2008 article in Mi Diario entitled "Stiut losing. those inches, [the petitioner] 
.from : , sweated a lot with Mi Diario." I 
8. A February 29,2008 article inMi Diario entitled" _ ' 
9. A September 14, 2010 article in Version. Final entitled "Songwriter [the petitioner], from 
. is now 't "' . I 
10. An October 16,2005 article in La Verdad entitled 'jGroup: comes back recharged." 
The article is about the band in general and does not focus on the.petitioner. 
11. An October 20, 2008 article in Hoy entitled ' among the cameras." Again, the 
article is about the band and does not focus primarily on the petitioner. 
12. A March 4, 2008 article in Hoy entitied "They remam £ ' Once again, the article is 
about the band in general and does not focus on the ~etitioner. 
13. A September 23, 2010 article in El Regional entitfed "[The petitioner] prepared his debut 
production." The author of the article was not iderltified as reqUired by the plain language· 
of the regulation at 8 C.F.R. § 204.5(h)(3)(iii). j . · 
14. An article in Stimulo magazine entitled "A new image." The date and author of the article 
were not identified as required by the plain languag~ of this regulatory criterion. 
15. An article in Stimulo magazine entitled 'Again, the date and author of the article 
were not identified as required by the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). . . 1 . . 
16. A September 22, 2010 article in El Periodiquito entitled "Singer [the petitioner] shows off 
his new image." Once again, the author of the artible was not identified~ required. by the 
plain language of this re~latory criterion. ~ ---~-
17. A · December 2008 online article entitled that was posted at 
http://basadovoresenteLblogspot.com/2008/12, .html." Again, the author of the 
article was not identified as required by the plain, language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii). . . . . 
18. A September 2010 online article entitled " music group" that was posted at 
www.portadadigital.net. The article, while mentiorung the petitioner as a band member of 
. I 
. · , is about the music group generally rather than focusing on the petitioner. 
~ith r~gard to items 1 - 18, the English language transitions accompanying the articles were not 
certified by the translator as requir~ by the regulation at 8 C.F.R. ·§ 103.2(b)(3). Further, the partial 
English language translations submitted for items 1, 3 ~ 6, 9- 13, and 16- 18 were not full and 
compl~e tr~lations as required by the regulation at 8 C.,.R. § 103 .2(b )(3 ). . . 
Regardmg Items 1, 3 - 6, 10 - 12, and 18, the plam language of the regulatton at 8 C.F.R. 
§ 204.5(h)(3)(iii) requires that the published mat~al be "afuout the alien ... relating to the alien's work 
in the field.'' Thus, an article that mentions the petitionef but is "about" someone or something else 
cannot qualify under the plain language of this regulation/ See Noroozi v. Napolitano, 11 CV 8333 
PAE, 2012 WL 5510934 at *1, *9 (S.D.N.Y. Nov. 14, 2012); also see generally Negro-Plumpe v. 
Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. Nev. Sept.l8, 2008) (upholding a finding that articles 
about a show or a character within a show are not about the performer). 
In regard to items 1 - 6, while the petitioner submitted ~eneral. information about Panorama from 
the newspaper's own website, the English language translation of the information was incomplete 
·and was not certified by the translator as required byj the regulation at 8 C.F.R. § 103.2(b)(3). 
Further, USCIS need not rely on self-promotional material. See Braga v. Poulos, No. CV 06 5105 \ . . 
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Page 10 .• 1 
SJO (C. D. CA July 6, 2007) aff'd 317 Fed. Appx. 680 (9r Cir. 2009) (concluding that the AAO did 
not have to rely on self-serving assertions on the cover ofj a magazine as to the magazine's status as 
major media). The petitioner has failed to submit any independent, objective circulation evidence 
establishing that Panorama is a form of major media . 
. With regard to items 7 and 8, while the petitioner submitt~d information from Mi Diario stating that 
the newspaper is "~ popular regional newspaper," the English· language translation of the 
information ·was not certified by the translator as r~uired by the· regulation at 8 C.F.R. 
§ 103.2(b)(3). The petitioner has failed to submit any independent, objective evidence establishing 
that Mi Diario is a form ofmajor media. As previousl~ discussed, USCIS need not rely on self­
promotional materl.ai. See Braga v. Poulos, at 680. 
Regarding. item 9, there is no · documentary evidence snowing that Version Final qualifies as a 
professional or major trade publication or some other fordt of major media . 
. In regard to item 10, the petitioner submitted information! from La Verdad's website stating that the 
newspaper is marketed in ''the State of Zulia." The Engltsh language translation accompanying the 
online information was incomplete and was not certified by the translator as required by the 
I 
regulation at 8 C.F.R. § 103.2(b)(3). The petitioner failed to submit any independent, objective 
evidence establishing that La Verdad is a form of major niedia. Again, US CIS need not rely on self­
. promotional material. See Braga v. Poulos, at 680. 
. . ; 
With regard to items 11 and 12, there is no doctimental)j evidence showing that Hoy qualifies as a 
professional or major trade publication or some other fo1 of major media. · . 
Regarding item 13, the petitioner submitted information from El Regional's own website stating that 
I 
the newspaper has the "largest circulation in the state o~ Zulia." Once again, USCIS need not rely 
on self-promotional material. See Braga v. Poulos, at 680. The petitioner has failed to submit any 
independent, objective evidence establishing that El RegiJnal is a form of major media. 
In regard to items 14 and 15, there is no do~entary ~dence showing that Stimulo q1.1alifies as a 
professional or major trade publication or some other form of major media. . . I 
. I . 
With regard to item 16, while the petitioner submitted information from El Periodiquito stating that 
I 
the publication focuses on "the population of the state of,Aragua and the center of the country,'.' the 
petitioner failed to submit any independent, objective circulation evidence establishing that El 
Periodiquito is a form of major· media. . As previous I~ discussed, US CIS need not rely on self­
promotional material. See Braga v. Poulos, at 680. 
Regarding items 17 and t 8, the petitioner failed. to submit any independent, objective evidence 
. establishing that the websites qualify as professional o~ major trade. publications or other major 
media. 
In light of the above, the petitioner has not established .th~t he meets this regulatory criterion. 
(b)(6)
. r 
Page 11 
Evidence of the alien's participation, either individually or on a panel, as a judge of the 
work of oihers in the same or an allied field of spehi_ficati~n for which classification is 
sought. 
The petitioner did not initially claim eligibility for this r~gulatory criterion. In response to the 
director's request for evidence, the petitioner submitted 311 undated letter from Head 
of Production and Programing, stating: "For his recognition as 
one of the best young voices of Venezuela, and for his extraordinary vocal, musical and interpretative 
apility, invited [the petitioner] to be an integral! part of the Jury of the twenty-sixth edition 
of the _ 2008." [Emphasis added.] A statement indicating that the petitioner 
was merely "invited" to be part of a jury does not constitute evidence oflhis actual ''participation, 
either individually or on a panel, as a judge of the work ofjothers." ·[Emphasis added.] For instance, 
the petitioner failed to submit documentary evidence pf an event program from 
or published material about the festival identifyi,ng him as a participating judge. Thus, the 
AAO affirms the director's finding that the petitioner's participation in the festival has not been 
documented. 
The petitioner also submitted a January 2010 letter from President of 
, stating: "For his .musical qualification~, artistic skills and his acclaimed national 
prestige, invited [the petitioner] to joid the prestigious J\rry for the· 2007 'Gaita' 
National Competition and 'Gaitero' Festival, achieving ~ith his support the overall success of the 
event." 
The English language translations accompanying the preceding letters from and 
were not certified by the translator as required by the regulation at 8 C.F.R. § 103.2(b)(3). 
·Regardless, merely submitting statements asserting that tlie petitioner was invited to judge the work 
. of others without ·evidence showing who, he judged ana their particular field of specification is 
insufficient to establish eligibility for this regulat~ry criterion. Rather than submitting 
contemporaneous documentary evidence of the petitionerjs participation as a judge in the 
in 2008 and in the "Gaita" National Competition and "'Gaitero" Festival in 2007, the 
petitioner instead submitted brief statements from submitted in 
response to the director's request for evidence that attest to the petitioner's invitation. Further, there 
is no documentary evidence showing the petitioner's specific assessments and the names of the 
artists whose work he evaluated. Going on record without supporting documentary 
evidence is not 
sufficient for purposes of meeting the burden of proof i~ these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg'1 Comm'r 1972)). If testimonial evidence lackJ specificity, detail, or credibility, there is a 
. I 
greater need for the petitioner to submit corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 
(BIA 1998). The record does not include primary Jevidence demonstrating the petitioner's 
participation as a judge for either festival. . A petition must be filed with 
any initial evidence 
required by the regulation. 8 C.F.R. § 103.2(b)(1). rle nonexistence or other unavailability of 
required evidence creates a presumption of ineligibility.J 8 C.F.R. § 103.2(b)(2)(i). When relying 
on secondary evidence, the petitioner must provide documentary evidence that the primary evidence 
I 
is either unavailable or does not exist. /d. When relying on. an affidavit, the petitioner must 
demonstrate that both primary and secondary evidence 
1
are unavailable. /d. In this instance, the . I . 
petitioner has not demonstrated that primary evidence ofjhis participation as a judge from 2007 and 
(b)(6)
Page 12 · · 
2008 does not exist or cannot be obtained. Accordingly, the statements from 
do not comply with the preceding regulatory requirements. · . 
In light of the above, the petitioner ha8 not established thJ he meets this regulatory criterion. · 
Evidence of the alien ·s· original scientific, scholLly, artistic, athletic; or business-1 • 
related contributions ofmajor significance in· the field . 
, The director discussed the evidence submitted for thij regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, thb petitioner does not contest the director's 
I . . 
findings for this criterion or offer additional arguments. 1fhe AAO, therefore, considers this issue to 
be abandoned. Sepulveda v. US. Att'y Gen., 401 F.3d 12!26, 1228 n. 2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1! *9 (E.D.N.Y. Sept. 30, 2011) (the court 
found the plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). 
Accordingly, the petitioner has not established that he m1 this regulatory criterion. 
Evidence of the display of the alien 's work in the field at artistic exhibitions or 
showcases. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, th~ petitioner does not contest the director's 
findings for this criterion or offer additional arguments. The AAO, therefore, considers this issue to 
be abandoned. Sepulveda, 401 F.3d at 1228 n.2; Hristo~, ftl1l WL 4711885, at *9. Accordingly; 
the petitioner has not established that he meets this regulatory criterion . 
. Evidence that the alien has peiformed in a leadin)or critical role for organizations or 
establishments that have a distinguished reputation. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish his eligibility. On appeal, th~. petitioner does not contest the director's 
findings for this criterion or offer additional arguments. The AAO, therefore, considers this issue to 
be abandoned. Sepulveda, 401 F.3d at 1228 n.2; Hristo~, 2011 WL 4711885, at *9 . . Accordingly, 
the petitioner has not established that he meets this regulatory criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regu).atory requirement of three categories of 
evidence. 
C. Prior P-1 Nonimmigrant Visa Status . 
The AAO notes that the petitioner has been in the Uniled States as a P-1 nonimmigrant, a visa 
classification that requires him to perform "with an entertainment group that has been recognized 
internationally as being outstanding in the discipline for~ sustained and substantial period of time." 
See section 214(c)(4)(B) of the Act, 8 U.S.C. § 1184(c)(~)(B). While USCIS has approved a prior 
P-1 nonimmigrant visa petition filed on behalf of the petitioner, this prior approval ·does not preclude 
users from denying an immigrant visa petition based o~. a different, if similarly phrased standard'. 
I 
(b)(6)
Page 13 
. _, 
Each case must be decided on a case-by-case basis upon review of the evidence of record. Many 1-140 
immigrant petitions are denied after USCIS approves pHor nonimmigrant petitions. See, e.g., Q - I . 
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.lsava, 724 F. Supp. 1103 (E.D.N.Y. 1989). 
Because USCIS spends less time reviewing 1 ... 129 nonihunigrant petitions than 1-140 immigrant 
petitions, some nonimmigrant petitions are simply apprdved in error. Q Data Consulting, Inc. v. 
INS, 293 F. Supp. 2d at 29-30; see also Texas A&M UniJ. v. Upchurch, 99 Fed. Appx. S56 (5th Cir. 
I 
2004) (finding that prior approvals do not preclude USCIS from denying an extension of the 
I . 
original visa based on a reassessment of the alien's qualifications). 
The AAO is not required to approve applications or petitions where· eligibility has not been 
demonstrated, merely because of prior approvals that maYj have been erroneous. See, e.g.,-Matter of 
Church Scientology International, 19 I&N Dec. 593, 591 (Comm'r 1988). It would be absurd to 
-suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex Eng 'g 
Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), c~rt. denied, 485 U.S. 1008 (1988). 
·Furthermore, the AAO's authority over fue service centers ~s comparable to the relationship between a 
court of appeals and a district court. Even if a service cehter director has approved a nonimmigrant 
petition on behalf of the alien, the AAO would not be bou.hd to follow the contradictory decision of a . I 
service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, * 1, *3 
. I . 
(E.D. La.), a.ff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
I 
III. SUBSTANTIAL PROSPECTIVE BENEiiT TO THE UNITED STATES 
The statute requires that the petitioner's ~·entry into tqe United States will substantially benefit 
prospectively the United States." See section 20~(b)(l)(A)(iii) of the Act, 8 U.S.C. 
§ 1153(b)(l)(A)(iii). The petitioner submitted a June 11, 2011 letter stating: 
This is to notify you that I am planning to continue working in my field of expertise as a 
performer singer, musician, songwriter and singing anC:.t voice teacher. 
Since the Music Industry field is so extensive I am confident to contribute to the United 
States of America and the Music Industry and Entertainment Business, as: 
Performing singer ~or the best Latin and Intemationll entertainment show rooms, theaters, 
pub, clubs, fairs, and spectacles around the United States and abroad. 
Recording studio session singer to provide backing ~cks for other musicians and singers in 
recording studios and live performances; recording for advertising, _film and television; or 
theatrical productions. 
Songwriter, songwriter/producer and staff writer fo~ music publishers, record companies, 
producers, and other production or recording groups among others. · 
Singing & voice training teacher working on singinJ-related jobs, such as vocal coaching, 
voice lessons, a choral director in a school, church, et9. 
(b)(6)
Page 14 
In addition, due to my background as . musician and songwriter I am confident to 
prospectively benefit the Music and Entertainment industries ofthe United States, being part 
of the rising numbers of Latinos artists in the U. SA Jho create new markets for genres like 
Rock en Espanol, Salsa and Latin Jazz to name just a few genres to which the Latino singer, 
artist and musicians have made a significant contribution during the last years, in addition to 
the folkloric rhythms of each Latin-American couritries represented in the multicultural 
environment of the United States. · I 
The petitioner also submitted a letter of support from a South Florid~ musician, stating 
that the petitioner is an important member· of music production staff. In addition, the 
petitioner submitted a letter from (Doral, Florida) 
stating that his company "decided to promote and booi( events for [the petitioner] in the United 
States," but letter does not specify the music !venues where the events took place. The 
petitioner's evidence also included a letter from m 
Miami, Florida stating that has utilized the petitioner's talent 
at its shows. · 
Tlie director detennined that the petitioner had failed to ~emonstrate that his entry into the United 
States will substantially benefit prospectively the United States. Specifically, the director's decision 
stated: 
In addition, when requesting classification as an ali'en of extraordinary ability, you must 
establish that your entry into the United States will
1
substantially benefit prospectively the 
United States. Although you may have achievJd some national recognition as a 
singer/musician in your native country, the record ddes not contain evidence that you have 
I 
maintained that recognition. If you were recognized for a particular achievement several 
years ago, USCIS must determine whether you hav~ maintained a level of acclaim in the 
field of expertise since you were originally afforded that recognition. An individual may 
have achieved extraordinary ability in the past but theh failed to maintain a comparable level 
of acclaim thereafter. The requirement that your entcy{ substantially benefit prospectively the 
United States indicates that Congress does not intend for individuals with extraordinary 
ability to immigrate to the United S~ates and remaid idle. In this case, you have failed to 
satisfy the burden of proof. . . . Therefore, you hare not shown .that your entry into the 
United States will substantially benefit prospectively the United States. · 
. . . . I . 
The record reflects that the petitioner entered the United States on January 29, 2010 as a P-1 
nonimmigrant. The Form I-140, Immigrant Petition fdr Alien Worker, was filed on October 2, 
2010, more than eight months after ·the petitioner's en~ into the United States. As discussed 
earlier in the AAO's decision, the petitioner has failed t9 establish the requisite extraordinary ability 
through extensive documentation and sustained national or international acclaim. Section 
203(b)(l)(A)(i), 8 U.S.C. § 1153(b)(i)(A)(i) and 8 C.F.R[ § 204.5(h)(3). Given his failure to satisfy 
these statutory and regulatory requir~ents, the petitioJer's substantial prospective benefit to the 
United States cannot be automatically assumed. Subsekuent to his entry in the United States in 
January 2010, there is no documentary evidence dembnstrating that he has performed, or will 
perform, at major music venues in the United States; ~at the recordings he will release in the 
United States are expected to generate substantial national sales; that he has heen invited to 
participate in film, television, or th~atrical productions! garnering national attention; that he has 
positioned himself to work as a songwriter for national !record labels or similar companies having 
national distribution in the United States; that the work ;he expects to perform as a vocal coach or 
(b)(6)
) 
Page 15 
choral director will significantly impact the field at large; or that his work will otherwise 
"prospectively benefit the Music and Entertainment indqstries of the United States." Instead, the 
documentation submitted by the petitjoner indicates that his impact as singer and musician is more 
likely than not to be limited to various music projects and! events in South Florida. Accordingly, the 
AAO affirms the director's finding that the petitioner h~s not demonstrated that his entry into the 
United States will substantially benefit prospectively the Udited 
States. 
. · . I 
. IV. CONCLUSION 
The documentation submitted in support of a claim of exlaordinary ability must clearly demonstrate 
that the alien has achieved sustained national or inteniational acclaim and is one of the small 
percentage who has risen to the very top of the field of endtkvor. · 
Even if the petitioner had submitted the requisite evidence 1der at le~t three e~identiary categories, in 
accordance with the Kazarian opinion, the next step wbuld be a final merits determination that 
considers all of the evidence in the context of whether orlnot the petitioner has demonstrated: (1) a 
"level of expertise indicating.that the individual is one of~at small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been.reookruzed in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at llj19-20. While the AAO concludes that the 
evidence is not ~dicativ~ of a lev_el of e~pertise co~sistent !with the small percen~ge at the v~ to~ of 
the field or sustained national or mternational acclann, the AAO need not explam that conclusiOn m a 
final merits detenfunation.6 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three categories 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 AAO may deny an application or p~tition that fails L comply with the technical requirements 
of the law even if the Service Center does not identify kn of the grounds for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United Statel, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), aff'd, 345 F.3d 683 (91h Cir. 2003); see also Solthne v. DOJ, at 145 (noting that the AAO 
conducts appellate review on a de novo basis). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. Here, the petitioner has not susthlned that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed. 
6 The AAO maintains de novo review of all questions offact and Ia,. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits determination as the office 
that made the last decisionin this matter. 8 C.F.R § 103.5(a)(l)(ii). ·sJe also section 103(a)(l) of the Act; .section 204(b) of 
the Act; DHS Delegation Number 0150.1 (effective March I, 2003)
1
;· 8 C.F.R § 2.1 (2003); 8 C.F.R. § I03.i(f)(3)(iii) 
(2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (llolding that legacy INS, now USCIS, is the sole 
authority with the jurisdiction to decide visa petitions). j . .