dismissed EB-1A Case: Music

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals, MS 2090 
identifying data deleted to 
 Washington, DC 20529-2090 
Prevent clearly unwarranted U.S. Citizenship 
invasion of personal privac ~UBL~ cop 
 and Immigration 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
 AUG 2 6 2009 
SRC 07 800 265 18 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the lmmigration and Nationality Act, 8 U.S.C. 5 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 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 3 103.5(a)(l)(i). 
\dhn F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 8 1153(b)(l)(A). The director 
determined the petitioner had not established the sustained national or intemational acclaim necessary 
to qualify for classification as an alien of extraordinary ability. Specifically, the director concluded that 
the petitioner meets two of the ten regulatory criteria at 8 C.F.R. 8 204.5(h)(3), of which an alien must 
meet at least three. 
On appeal, counsel submits a brief and additional evidence. For the reasons discussed below, we 
uphold the director's ultimate decision. Moreover, while the petitioner did submit probative evidence 
relating to the awards and published material criteria at 8 C.F.R. 9 204.5@)(3)(i) and (iii), we must 
withdraw the director's favorable findings under these criteria. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. tj 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also Junk v. 
U. S. Dept. of Transp., NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 199 1). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). 
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 
intemational acclaim and whose achievements have been recognized in the 
field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
Page 3 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897,60898-9 (Nov. 29, 
1991). As used in this section, the term "extraordinary ability" means a level of expertise indicating 
that the individual is one of that small percentage who have risen to the very top of the field of 
endeavor. 8 C.F.R. 5 204.5(h)(2). The specific requirements for supporting documents to establish that 
an alien has sustained national or international acclaim and recognition in his or her field of expertise 
are set forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant criteria will be addressed below. 
It should be reiterated, however, that the petitioner must show that she has sustained national or 
international acclaim at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a musician, singer 
or composer. The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained 
national or international acclaim through evidence of a one-time achievement (that is, a major, 
internationally recognized award). 
Congress' example of a one-time achievement is a Nobel Prize. 
 H.R. Rep. No. 101-723, 59 
(September 19, 1990). The regulation is consistent with this legislative history, stating that a one-time 
achievement must be a major, internationally recognized award. 8 C.F.R. 5 204.5@)(3). Significantly, 
even a lesser internationally recognized award could serve to meet only one of the ten regulatory 
criteria, of which an alien must meet at least three. 8 C.F.R. 5 204,5(h)(3)(i). The selection of Nobel 
Laureates, the example provided by Congress, is reported in the top media internationally regardless of 
the nationality of the awardees, is a familiar name to the general public, and includes a large cash prize. 
While an internationally recognized award could conceivably constitute a one-time achievement 
without meeting all of those elements, it is clear from the example provided by Congress that the award 
must be internationally recognized in the alien's field as one of the top awards in that field. 
On appeal, counsel does not challenge the director's conclusion that the petitioner's awards at events 
for "aspiring performers and entertainers" and in recognition as a "most promising female artist" ckot 
constitute a one-time achievement. We concur with the director's analysis that awards that preclude the 
most experienced and renowned members of the field cannot constitute a maj& internationally 
recognized award. 
Barring the alien's receipt of such an award, the regulation outlines ten criteria, at least three of which 
must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of 
extraordinary ability. The petitioner has submitted evidence that, she claims, meets the following 
criteria under 8 C.F.R. $204.5(h)(3).' 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the$eld of endeavor. 
The petitioner submitted media reports that she won medals at the World Championships of 
Performing Arts (WCOPA), a Hollywood, California "Global" event for "aspiring performers and 
entertainers." The 2008 program submitted in response to the director's request for additional evidence 
states that there are four "senior" age groups and 14 styles within the "vocal" category. The judges 
award gold medals in every event category, style and age group and select overall champions in each of 
two age groups within the "senior" category and a single senior Grand Champion Performer of the 
world The Grand Champion "Hall of Fame" page identifies the sole Grand Champion of the World in 
2005 as . According to what appears to be a press release from Team Philippines, the 
petitioner individually won Overall Female Vocals World Champion, gold medals in Pop, Broadway, 
and "Original" styles and a silver medal in Rhythm and Blues. In addition, the petitioner and Mr. 
jointly won Overall DuetiGroup Vocals World Champion and gold medals in Pop and 
Broadway styles. The petitioner also submits photographs of herself receiving plaques and evidence 
that her success and that o- was covered in the Filipino media. 
The petitioner also submitted a letter from , Executive Director of the Philippine 
Association of the Record Industry's AWIT Awards, advising the petitioner that the 19~ AWIT Awards 
wanted to recognize "Pilipino" artists who had won in an international competition and that the AWIT 
Awards would therefore issue "an award" to the petitioner in recognition of her success at WCOPA. 
The petitioner did not submit a copy of the award itself. Rather, the petitioner submitted a list of 
finalists for the 19~~ AWIT Awards, none of whom are the petitioner. The letter from ., by 
itself, cannot establish that the petitioner won an AWIT award, especially given that the petitioner's 
name is not listed as a finalist for these awards. The letter is not primary or secondary evidence and 
does not constitute an affidavit. Even if it did meet the requirements of an affidavit, affidavits are 
acceptable in lieu of primary or secondary evidence only where the petitioner has demonstrated that 
primary and secondary evidence are both either non-existent or unavailable. 8 C.F.R. 5 103.2(b)(2). 
Finally, the petitioner submitted an award certificate recognizing her as a "most promising female 
artist" from the Asia-Pacific Awards Counsel at the 12~~ Annual Asia-Pacific Excellence Awards in 
2005. The petitioner, however, submitted no evidence of the significance of this event. 
The petitioner submitted insufficient evidence regarding the AWIT award she allegedly won, which is 
not even listed among the awards issued at the 19' AWIT Awards on the website materials she 
submitted. The record also contains insufficient evidence of the Asia-Pacific Excellence award, which 
appears to be limited, at least in the category the petitioner won, to novice artists. We acknowledge that 
the WCOPA competition included an international pool of contestants and garnered some attention in 
the Filipino media. Not every competition that includes competitors from multiple countries, however, 
is nationally or internationally recognized. We cannot ignore that the competition .is limited to 
"aspiring" performers, awards scholarships (suggesting that contestants are competing for further 
training opportunities in the field) and includes multiple awards in a single style based on age group. 
Given these factors, we are not persuaded that the WCOPA awards are nationally or internationally 
recognized awards or prizes for excellence in the field rather than recognition of future potential and an 
opportunity to qualifjr for additional training. 
In light of the above, we withdraw the director's finding that the petitioner meets hs criterion. 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The director concluded that the petitioner meets this criterion. We acknowledge the submission of 
significant media coverage of the WCOPA awards and events in which the petitioner participated. 
Some of the materials are more focused on the petitioner herself. Initially, counsel attested to the 
circulation of the publications covering the petitioner. The unsupported assertions of counsel, however, 
do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of 
Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 
1980). The petitioner failed to provide evidence of the circulation, distribution or other evidence of the 
significance of the publications in whch these articles appeared. It is the petitioner's burden to 
establish every element of a given criterion. The plain language of the regulation at 8 C.F.R. 
5 204.5(h)(3)(iii) requires that the published material appear in professional or major trade journals or 
other major media. The petitioner's failure to provide any information about the publications in which 
the published materials appear precludes a finding that she meets this criterion. Thus, we must 
withdraw the director's finding that the petitioner meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
While the petitioner submitted evidence of her performances in the Philippines, neither the petitioner 
nor counsel has ever asserted that the petitioner meets this ~riterion.~ We concur with the director's 
conclusion that the criterion set forth at 8 C.F.R. 5 204.5(h)(3)(vii) is applicable to the visual rather than 
the performing arts. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
Initially, counsel asserted that the petitioner has been "approached by the owner of a Las Vegas 
restaurant that had yet to open "to headline its first-class dinner theatre show." The petitioner 
On appeal, counsel discusses the petitioner's performances that postdate the filing of the petition or have 
yet to occur under the heading: "Evidence of the display of the alien's work in a leading or critical role for 
organizations." We presume this discussion relates to the leading or critical role criterion set forth at 8 
C.F.R. 5 204.5(h)(3)(viii). Regardless, the evidence discussed under this heading postdates the filing of the 
petition and need not be considered for the reasons discussed below. See 8 C.F.R. $5 103.2(b)(l), (12); 
Matter of Katigbak, 14 I&N Dec. 45,49 (Reg7]. Comm7r. 197 1). 
submitted a promotional flier for "Fever: The Musical" at the Melanja restaurant, characterized as the 
"most awaited real Dinner & Show on the Strip." In response to the director's request for additional 
evidence, the petitioner submitted a July 1, 2007 contract between Melanja Entertainment and the 
petitioner for the petitioner to perform as "a SINGER in "Fever: The Musical" with a "tentative start 
date" of September 27,2007, a little more than a month after the petition was filed. The petitioner also 
submitted a letter from chief Operating Officer (COO) for Marketing and Entertainment at 
Melanja advising that the petitioner "will be" performing five nights per week at the venue as well as 
additional promotional material for the show, including biographical notes about the six performers in 
the show, including the petitioner. The materials do not confirm that the restaurant and show had 
actually opened. 
The director stated that the petitioner's role in "Fever: The Musical" could not be considered because 
the show had yet to open as of the priority date. See 8 C.F.R. 8s 103.2(b)(l), (12); Matter of Katigbak, 
14 I&N Dec. 45,49 (Reg'l. Comrn'r. 1971). On appeal, counsel discusses ths role without addressing 
the director's concern that the show had yet to open. Counsel further asserts that the petitioner is the 
lead singer for the Chaze Band of Las Vegas, which covers the songs of other bands in various genres. 
The petitioner submits a biography of the band at u?Yw.definitiveialents.com, the band's schedule as 
listed on the same website and a letter from the band manager, Mr. - 
asserts that the petitioner has been performing with this band since August 2008, after the petition was 
filed. Counsel does not explain why another role that postdates the filing of the petition will overcome 
the director's concern that the petitioner has not submitted evidence relating to this criterion that 
predates the filing of the petition. 
The record still lacks evidence that the Melanja restaurant has opened or that "Fever: the Musical" has 
premiered. While the petitioner may have been hired for a leading or critical role in this show as of the 
filing date, neither the venue nor the show had opened as of that date. Thus, the promotional materials 
notwithstanding, the petitioner cannot establish that either enjoys a distinguished reputation as of that 
date. Specifically, neither the restaurant nor the show had been reviewed or otherwise garnered a 
reputation consistent with the restaurant's own predictions. 
The record contains no evidence that the petitioner was associated with the Chaze Band prior to the 
date of filing. Moreover, while the band may play at well-known casinos, the record lacks evidence 
that the casinos promote themselves as the venue of this band. For example, the petitioner submitted 
the promotional materials for Caesar's Palace boasting that it is the venue that hosts Jerry Seinfeld, 
Elton John's The Red Piano, Cher and Bette Midler but making no mention of the Chaze Band. Thus, 
the petitioner has not established that the Chaze Band enjoys a distinguished reputation. 
In light of the above, the petitioner has not established that she meets this criterion, especially as of the 
date of filing. 
Page 7 
Evidence that the alien has commanded a high salary or other signijcantly high remuneration for 
services, in relation to others in the field. 
In response to the director's request for additional evidence, the petitioner submitted the contract for her 
perfonnance with "Fever: The Musical." The contract provides that the petitioner will be paid $2,500 
per month for rehearsals, $5,500 per month for the first six months of the show, $6,500 per month for 
the second six months of the show, $7,500 for the third six months of the show and $9,000 per month 
for the final six months. The petitioner did not, however, submit evidence of high-end remuneration in 
the field nationally for comparison purposes. 
The director concluded that the petitioner had not established that her remuneration was high in relation 
to others in the field. On appeal, the petitioner submits a letter from President and 
Chief Executive Officer of Music Management International. advising that as of the summer of 2008. 
V 
the petitioner was a featured soloist at Lee of 
 concerts to provide 
with a "costume change break." The petitioner was paid $3,000 for each concert in addition to travel 
expenses and room and board. firther asserts that when a guest singer from the Philippines 
is used, pays up to $500 per concert and when a U.S. singer is used, she pays up to 
$1,000 per concert. This evidence relates to remuneration that postdates the filing of the petition and 
cannot be considered. See 8 C.F.R. $5 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. at 49. 
Regardless, while the petitioner may be a higher than usual paid guest performer for - 
that information does not allow us to conclude that the petitioner receives a significantly high 
remuneration in the field generally. 
 For example, 
 does not advise how much Ms. 
is paid. 
In light of the above, the petitioner has not demonstrated that she meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box o@ce receipts or record, 
cassette, compact disk, or video sales. 
While the petitioner submitted evidence that the petitioner had released an album and has performed at 
concerts, she did not previously claim to meet this criterion. The director noted the lack of box office 
receipts or evidence of record, cassette, compact disc or video sales. On appeal, counsel asserts for the 
first time that the petitioner meets this criterion. Specifically, counsel asserts that the petitioner 
performs with the Chaze Band at some of Las Vegas' largest casinos and is under a contract to perform 
in "Fever: The Musical." Counsel then references the letter from -. 
The regulation at 8 C.F.R. $ 204.5(h)(3)(x) requires the submission of very specific evidence: box 
office receipts or record, compact disc or video sales. Nothing submitted on appeal overcomes the 
director's conclusion that the record in this matter lacks such evidence. The performances referenced 
b counsel on appeal all postdate the filing of the petition or have yet to occur. Moreover, while Ms. 
m asserts that the petitioner draws her own fans to 
 concerts, it would appear that 
any commercial success enjoyed by those concerts would accrue to the headline act. 
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 herself as a 
singer to such an extent that she may be said to have achieved sustained national or international 
acclaim or to be within the small percentage at the very top of her field. The evidence indicates that the 
petitioner shows talent as a singer, but is not persuasive that the petitioner's achievements set her 
significantly above almost all others in her field. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.