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 
FILE: Office: VERMONT SERVICE CENTER Date: 3UN 1 4 2005 
PETITION: Immigran Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l) 1 A) of the Immigration and Nationality Act, 8 U.S.C. 5 1153(b)(I)(A) 
INSTRUCTIONS: 1 
Thin is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
r 
the office that originally d cided your case. Any further inquiry must be made to that office. 
i/ 
J Robert P. Wiemann, 
Administrative 
DISCUSSION: The em immigrant visa petition was denied by the Director, Vermont Service 
Center, and is now Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks clas ification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nation lity Act (the Act), 8 U.S.C. 5 1153(b)(l)(A), as an alien of extraordinary ability in 
the arts. The director det mined the petitioner had not established the sustained national or international acclaim 
necessary to qualify for cl i. sification as an alien of extraordinary ability. 
Section 203(b) of the Act (tates, in pertinent part, that: 
(1) Priority Workers. Visas shall first be made available . . . to qualified immigrants who are aliens 
described in any of the subparagraphs (A) through (C): 
(A) Aliens with ~4traordinar~ Ability. -- An alien is described in this subparagraph if -- 
has extraordinary ability in the sciences, arts, education, business, or 
has been demonstrated by sustained national or international acclaim 
have been recognized in the field through extensive 
seeks to enter the United States to continue work in the area of 
n's entry to the United States will substantially benefit prospectively the 
As used in this section, term "extraordinary ability" means a level of expertise indicating that the 
individual is one of that percentage who have risen to the very top of the field of endeavor. 8 C.F.R. 
$ 204.5(h)(2). The for supporting documents to establish that an alien has sustained 
national or in his field of expertise are set forth in the regulation at 
be addressed below. It should be reiterated, however, that 
national or international acclaim at the very top level. 
This petition, filed on Aug st 17,2002, seeks to classify the petitioner as an alien with extraordinary ability as 
a "musician." On appeal, ounsel states: "The [petitioner] is a musician specializing in a specrfic area of 
traditional Indian music: d 1 umming, particularly the Tabla." 
The statute and regulation require the petitioner's acclaim to be sustained. The record reflects that the 
petitioner has been the United States since 1991. Given the length of time between the petitioner's 
arrival in the this petition's filing date, it is certainly reasonable to expect the petitioner to 
the United States during that time. The petitioner has had ample time to 
a tabla drummer in this country. 
The regulation at 8 .R. $ 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim evidence of a one-time achievement (that is, a major, international recognized 
award). Barring the of such an award, the regulation outlines ten criteria, at least three of which 
must be satisfied establish the sustained acclaim necessary to qualify as an alien of 
extraordinary has submitted evidence pertaining to the following criteria. 
Docunzentirtion the alien's receipt of lesser nationally or internationally recognizedprizes or 
nce in thejield of endeavor. 
We note here that the wording of this criterion requires "nationally or internationally recognized" prizes 
or awards for the field. The burden is on the petitioner to demonstrate the level of recognition 
with his individual prizes and awards. 
The petitioner submitted thk following: 
ment Award from a school in Kalamandir, New Jersey 
ary Award from a school in Sangeetangan, New York 
abla Player" Award Certificate from the "Bengali Community of Los Angeles" 
Award for Achievement in Excellent Performance" from the Department of 
of Maryland, Baltimore County 
cate of Achievement for participation in a music show in the "Greater 
ecognition for "Outstanding Performance in lndian Music" from the 
"Sadarang Annual Program" 
ievement in excellent Tabla performance during the Durga Puja 
o the director's request for evidence). On appeal, the petitioner 
er from the "Government of Tripura State of India" stating: "In 
ed Sangeet Visharad for the best tabla Performance in Durga Puja 
Cultural Relation, Government of Tripura." 
eal) published in Ekhon Somoy in New York on December 28, 
his lesson at the age of eight . . . . Later he used to accompany 
his elder sister in tabla and achieved the gold tnedal 31 the 
Afier the high school, he got training from the maestro 
Ilalder." The record contains no contemporaneous 
10. May 23,2004 issued by the Sadarang School of Music, New York and New 
request for evidence) 
Items 1 through 8 above reflective of local, institutional, or regional recognition, rather than national or 
international recognition. note that several of the certificates presented to the petitioner were issued on pre- 
printed, fill-in-the-blank, -style documents, suggesting multiple recipients. In regard to item 9, it appears 
that the petitioner faced limited to his approximate age group (school age children) rather than 
from throughout his a competition offers no meaningful comparison between the petitioner 
and the most experience and practiced musicians in the field. In regard to item 10, this evidence came into 
existence subsequent to e petition's filing date. A petitioner, however, must establish eligibility at the time 
of filing. 8 C.F.R. 9 (b)(12); see Matter of Katigbak, 14 I&N Dec. 45 (Comm. 197 1). 
The significance and of the awards presented by the petitioner are not self-evident. The petitioner 
offers no supporting that his awards constitute top honors in the music field at the national 
level. It should be petitioner must submit documentary evidence showing the degree of 
recognition evidence provided does not indicate the number of other musicians 
awards, the criteria used in determining recipients, or the level 
presentations. We note here that section 203(b)(l)(A)(i) of the 
national or international acclaim. Pursuant to the statute, 
establish that his awards enjoy significant national or 
is nationally or internationally recognized cannot suffice 
has not shown that his awards are widely recognized 
Documentation alien's membership in associations in the field for which classzjkation is 
outstanding achievements of their members, as judged by recognized 
experts in their disciplines or3elds. 
In order to demonstrate th t membership in an association meets this criterion, the petitioner must show that 
the association requires o tstanding achievement as an essential condition for admission to membership. 
Membership requirements based on employment or activity in a given field, minimum education or 
experience, standardized est scores, grade point average, recommendations by colleagues or current 
members, or payment of d es, do not satisfy this criterion as such requirements do not constitute outstanding 
achievements. In additio , it is clear from the regulatory language that members must be selected at the I 
national or international le rather than the local or regional level. Therefore, membership in an association 
that evaluates its applications at the local or regional chapter level would not qualify. Finally, 
the overall association is not determinative; the issue here is membership requirements 
On appeal, counsel states: "The Center Director accurately found the record contains no evidence that the 
[petitioner] holds members ips which require outstanding achievements of their members." h 
Published the alien in professional or major trade publications or other major 
work in the Jield for which clrss$cation is sought. Sztch evidence 
author of the material, und any necessaty translation. 
In general, in order for material to meet this criterion, it must be primarily about the petitioner and, as 
stated in the in professional or major trade publications or other major media. To qualifjl 
have significant national or international distribution. An alien would not 
level from a local publication or from a publication in a language that 
Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of significant national distribution, unlike small local 
community papers.1 
The petitioner submitted several local articles appearing in Bengalese language newspapers published in New 
York. It has not been shown that any of these publications have a substantial national readership beyond the 
Bengali community of New York. There is no specific data regarding their volume of U.S. readership. 
Because the overwhelming majority of the U.S. population does not read or comprehend Bengalese, it has not 
been shown that articles appearing in such publications constitute published material in the "major media." 
On appeal, the petitioner submits two articles from Ekhon Somoy, a Bengalese language weekly newspaper 
published in New York. These articles were both dated December 28, 2004. The petitioner also submitted an 
English language article dated February 23, 2005 appearing in the Weekly Bangla Times, which is also published 
in New York. The petitioner also provided a ten-sentence about him and a person 
named "Chandan" appearing in Bikeler Pratadin. A letter from irculation Manager, Pratadin 
Publication Private Limited, states that this Bengali circulation of "80,000 
according to the latest report of the Newspaper Society of India." We note here that the preceding articles all 
came into existence subsequent to the petition's filing date. 8 C.F.R. 8 103.2(b)(12); see Matter of Katigbak 
at 45. Evidence that did not exist as of the filing date cannot retroactively establish eligibility as of that date. 
Even if we were to accept the 2005 article in Bikeler Pratadin (which we do not), it has not been shown that this 
publication has significant national distribution throughout the country of India (rather than circulation limited to 
a particular region). 
In this case, there is no evidence showing that the petitioner has earned sustained acclaim in the national 
media of the United States or India. 
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 alliedfield of specification for which class$cation is sought. 
To satisfy this criterion, the competition or contest must be on a national or international level and involve 
accomplished music professionals. For example, judging professional musicians at a national competition is of 
far greater probative value than judging a regional youth competition. 
Certified that [the petitioner] . . . was an examiner of Tabla and other Drum instruments in our All- 
Bengal examinations held during April '87 & June '89. 
He also acted as a Judge in the All-India competitions held in the years 1990 & 1991 and earned a good 
reputation in performing his duties both as an examiner and a judge of our organization. 
Even with 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, cannot 
serve to spread an individual's reputation outside of that county. 
On appeal, the petitioner submits a letter fro-ecretary, Mallhar Institute of Music Dance & 
Art, who states: "I am pleased to confirm that [the petitioner] . . . participated as a Judge in Tabla competition 
in both children and adult categories in our All Bengal Music Competition held on January 29,2002." 
le sentence in the letter offere he two sentences in the letter from 
contains no further above competitions. We cannot 
for "extensive documentation" of sustained national or international acclaim. The 
record contains no contemporaneous evidence of the petitioner's involvement as a judge at these 
competitions. We note the absence of published material or publicity surrounding these competitions. 
Evidence in existence prior to the preparation of the petition is of greater weight than letters of support 
prepared especially for submission with the petition. We further note that the above letters lack significant 
details about the competitive events judged by the petitioner. While the letter fro-pecifically 
states that the petitioner evaluated "adult categories," it does not indicate the level of expertise of the adult 
participants evaluated by the petitioner (i.e.- novice, amateur, or professional). Without evidence showing 
that the preceding competitions involved professional musicians and were national in scope, we cannot 
conclude that the petitioner meets this criterion. 
Evidence of the alien's original scientzjc, scholarly, artistic, athletic, or business-related 
contributions of major signijkance in the field. 
The petitioner initially submitted several letters of support, mostly from individuals from South Asian cultural 
groups in the northeastern United States. These letters describe the petitioner as a talented performer. 
On appeal, the petitioner submits additional letters of support from musicians verifying that they have 
performed with the petitioner at one time or another, from Bengali cultural groups in cities such as London, 
Montreal, New York, and Singapore, and from others in New York familiar with the petitioner's music. 
This letter confirms that [the petitioner], a highly professional rhythm (Tabla, i.e. Indian Drums) player 
well known in the New York, New Jersey, and Connecticut tri state rer 
sponsored by me, with the legendary music director and singe1 
Corpus Christi Church, Queens, New York. I 
The petitioner, however, must demonstrate that his reputation extends beyond the tri-state region mentioned - 
in the above letter to the national level as well. oes not indicate that the petitioner is nationally 
or internationally acclaimed, nor does he refer as "legendary" in the same manner as he does 
with- 
The brief witness letters provided in support of this petition describe the petitioner as an accomplished 
musician, but they offer no information as to how the petitioner's individual contributions have significantly 
influenced the music industry. For example, the petitioner's performances have not been shown to have 
greatly influenced other successful Indian or American musicians. The issue here is not the skill level, 
professional experience, or quality of the music performed by the petitioner, but, rather, whether his past 
endeavors would qualify as a contribution of major significance in the performing arts. In this case, there is 
no evidence showing the extent of the petitioner's influence on other professionals in the music industry. 
The letters of support verifying the petitioner's performances at various geographic locations may 
demonstrate a degree of interest in his music, but such performances are certainly not unusual for a 
professional musician. Because performing at a variety of venues is a routine expectation of a professional 
musician. such activity is not adequate to significantly distinguish the petitioner from almost all others in his 
field at the national or international level. An individual with sustained national or international acclaim 
should be able to produce ample unsolicited materials reflecting that acclaim. Without extensive 
documentation showing that the petitioner's work has been unusually influential or acclaimed at the national 
or international level, we cannot conclude that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The AAO has consistently found that this particular criterion is more appropriate for visual artists (such as 
sculptors and painters) rather than for those in the performing arts. The ten criteria in the regulations are 
designed to cover different areas; not every criterion will apply to every occupation. 
Even if we were to accept the petitioner's performances under this criterion (which we do not), in order to 
demonstrate sustained national acclaim as a musician, the petitioner must provide evidence showing that he 
has regularly performed at top national venues (such as, for example, the Lincoln Center) as a featured 
musician. The majority of the petitioner's performances occurred in the region where he resides and in most 
cases he does not appear to have headlined those concerts or shows as the featured artist. In the music 
industry, acclaim is generally not established by the mere act of appearing in public, but rather by being a 
primary participant in performances that attract a substantial national audience. In this case, the petitioner has 
not provided adequate evidence to demonstrate that his performances enjoy a national or international 
reputation. 
We find that the petitioner's musical performances are far more relevant to the "commercial successes in the 
performing arts" criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
estab1ishment.r that have a distinguished reputation. 
In order to establish that the alien performed in a leading or critical role for an organization or establishment 
with a distinguished reputation, the petitioner must establish the nature of his role within the entire 
organization or establishment and the reputation of the organization or establishment. 
On appeal, counsel asserts that the petitioner satisfies this criterion, but she does not specifically identify the 
distinguished organizations for which the petitioner has played a leading or critical role. Without citing 
specific documentary evidence in the record to support her claim, the assertions of counsel will not satisfy the 
petitioner's burden of proof. The unsupported assertions of counsel do not constitute evidence. Matter of 
Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The evidence of record does not indicate that the 
petitioner has consistently exercised substantial control over creative or business decisions executed on behalf 
of any organization in the music industry. Nor is there any indication of the relative importance of the 
petitioner's role to that of the other individuals employed by the organizations for which he has worked. 
After reviewing the letters of support and the local newspaper articles provided in support of the petition, we 
find no evidence to support the conclusion that the petitioner has earned national or international acclaim by 
performing in a leading or critical role for a distinguished organization or establishment. 
Evidence of commercial successes in the performing arts, as shown by box ofice receipts or 
record, cassette, compact disk, or video sales. 
The regulation calls for commercial success in the form of "sales" or "receipts"; simply documenting the 
petitioner's participation in a musical recording or concert cannot meet the plain wording of the regulation. The 
record contains no evidence of documented "sales" or "receipts'' to show that that the petitioner's 
performances drew record crowds, were regular sell-out performances, or resulted in greater audiences than 
other similar performances that did not feature the petitioner. 
In regard to "sales" of the petitioner's cassettes and compact discs, the petitioner submitted a letter from 
Music 2000 of Calcutta, India dated April 2, 2005 indicating that from April 2004 to March 2005 one of the 
petitioner's music compilations sold 6,780 compact discs. This evidence, however, came into existence 
subsequent to the petition's filing date. 8 C.F.R. $ 103.2(b)(12); see Matter of Katigbak at 45. New 
circumstances that did not exist as of the filing date cannot retroactively establish eligibility as of that date. Even 
if we were to accept this evidence (which we do not), when one considers the sheer size of the Indian and U.S. 
populations, there is no indication that 6,780 compact discs sold constitutes commercial success in the music 
industry. In this case, the petitioner has not submitted any evidence of record, cassette, or compact disc sales 
of his music prior to the petition's filing date. 
In conclusion, we find the petitioner has failed to demonstrate that he meets at least three of the criteria that must 
be satisfied to establish the sustained national or international acclaim necessary to qualify as an alien of 
extraordinary ability. 
Review of the record 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 is not persuasive that the petitioner's achievements set him 
significantly above almost all others in his field at a national or international level. Therefore, the petitioner has 
not established eligibility pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed. 
ORDER: The appeal is dismissed.