dismissed EB-1A Case: Music And Arts Education

(b)(6)
,. 
DATE: APR 1 5 2013 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Iminigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) ofthe Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find 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 originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal 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. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
.. 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www .uscis.gov 
(b)(6)
I . 
Page2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and 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. § 1153(b)(l)(A) as a 
Maska:nda musician and an. arts and culture ed\fcator. The director determined that the petitioner had 
not established the requisite extraordinary ability and failed to submit extensive documentation of her 
sustamed national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(l)(A)(i) of the Act and 
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 
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 categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner 
must submit qualifying evidence under at least three of the ten regulatory categories of evidence to 
establish the basic eligibility requirements. 
' ) . 
On appeal, counsel asserts that the petitioner meets the regulatory categories of evidence at 8 c:F.R. 
§§ 204.5(h)(3)(iii) - (v), (vii), and (viii). The AAO acknowledges that the standard of proof is 
preponderance of the evidence, as noted by counsel on appeal. The "preponderance of the evidence" 
standard, however, does not relieve the petitioner from satisfying the basic evidentiary requirements 
of the statute and regulations. Therefore, if the statute and regulations require specific evidence, the 
petitioner is required to submit that evidence. See section 203(b)(1)(A)(i) of the Act, 8 U.S.C. 
§ 1153(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(2) and (3). The most recent precedent decision related to 
the preponderance of the evidence standard of proof is Matter of Chawathe, 25 I&N Dec. 369 (AAO 
201 0). This decision, and this standard, focuses on the factual nature of a claim; not wh~ther a claim 
satisfies a regulatory requirement. !d. at 376. The preponderance of the evidence standard does not 
preclude USCIS from evaluating the evidence. The truth is to be determined not by the quantity of 
evidence alone but by its quality. /d. The Chawathe decision also stated: · 
[T]he "preponderance of the evidence" standard does riot relieve the petitioner or applicant 
from satisfying the basic evidentiary requirements set by regulation. There are no regulations 
relating to a corporation's eligibility as an "American firm or corporation" under section 316(b) 
of the Act. Had the regulations required specific evidence, the applicant would have been 
required to submit that. evidence. Cf 8 C.F.R. § 204.5(h)(3) (2006) (requiring that specific 
objective evidence be submitted to demonstrate eligibility as an alien of extraordinary ability). 
25 l&N Dec. at 375 n.7. The final determination of whether the evidence meets the plain language 
requirements of a regulation lies with USCIS, not with counsel. ·See Matter of Caron International, 19 
I&N Dec. 791, 795 (Comm'r 1988) (finding that the appropriate entity to determine eligibility is 
USCIS in a scenario whereby an advisory opinion or statement is not consistent with other information 
that is part of the record). The. documentation submitted by the petitioner fails to demonstrate by a. 
preponderance of the evidence that she meets at least three of the ten regulatory categories of evidence. 
at 8 C.F.R. § 204.5(h)(3). 
(b)(6)
Page 3 
For the reasons discussed below, the AAO will uphold the director's decision. 
I. LAW 
Section 203(b) of the Act states, in pet:tinent 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, art~, 
education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in 
the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue 
. work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citiz_enship 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 H.R. 723 101 ~ Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability'' 
refers only to those individuals in that small percentage who have risen to the ver:/ top of the field of . . 
endeavor. /d.; 8 C.ER. § 204.5(h)(2). 
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 her· achievements in the field. Such acclaim must be established either 
through evidence of a one~time l;lChievement (that is, a major, internationally recognized award) or 
through the s_ubmission of qualifying evidence under at least three of the ten categories of evidence 
list~ at 8 C.F.R. § 204.5(h)(3)(i)-(x); 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
· petition filed under this classification. Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009) aff'd in part 
596 F.3d 1115 (9th Cir. 201 0). Although the court upheld the AAO's decision to deny the petition, the 
court took issue with the AAO's evaluation of evidence 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 USCIS may have. raised legitimate concerns about the significance of the evidence submitted to 
. . . 
1 Specifically, the court stated that the AAO had uiulaterally imposed novel substantive 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). 
(b)(6)
\ 
Page4 
meet those two criteria, those concerns should have been raised m 
a subsequent "final merits 
determination." !d. at 1121-22. 
The court stated ·that the AAO's evaluation rested on an improper underStanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that ''the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, ''the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." !d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). 
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, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As 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. 
II. ANALYSIS 
~· Eviden~ary Criteria2 
Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, 
as judged by recognized national or international experts in their disciplines or 
fields. 
The director discussed the evidence submitted for this regulatory criterion and found that the 
petitioner failed to establish her eligibility. On appeal, the 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 v. U.S. Att'y Gen., 401 F.3d 1226, 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 plaintiffs claims to be ·abandoned as he failed to raise them on appeal to the AAO). 
Accordingly, the petitioner has not established that she meets this regulatory criterion. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the aliens work in.thefieldfor which classification is sought. 
Such evidence shall include the title, date, and author of the material, and any 
necessary translation. 
The petitioner submitted a July 22, 2005 article entitled "Sharon Katz Steams Back" and a July 12, 
2007 article entitled "Zulu Jazz Lounge" posted at www.artsmart.co.za, but the author of the articles 
was not identified as required by the plain language of 14is regulatory criterion. In addition, the 
articles are not about the petitioner. Instead, the July 22, 2005 article focuses on Sharon Katz and 
the July 12, 2007 article lists multiple music acts performing at the Zulu Jazz Lounge from July 12-
21, 2007. The plain language of the regulation at 8 C.F .R. § 204.5(h)(3 )(iii) requires that the published 
2 On appeal, the petitioner does not claim to· meet any of the regulatory categories of evidence not discussed in this 
decision. 
(b)(6)
Page 5 
material be "about the alien ... relating to the alien's work in the field." Thus, an article that mentions 
the petitioner but is "about" someone or something else cannot qualify under the plain Iangtiage of this 
regulation. See Norooziv. Napolitano, II 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. 8, 2008) (upholding a finding that articles about a show or a character within a show are not 
about the performer).. Moreover, there is no objective readership data showing that 
www. qualifies as a major trade publication or some other form of major media. 
The petitioner submitted a July 7, 2005 article about herself entitled ' posted 
at , but there is no documentary· evidence showing that the preceding 
website is a major trade publication or some other form of major media. 
The petitioner submitted an article about ' 
from the online encyclopedia Wikipedia. The article lists more than 
twenty ' including the petitioner. The article is not about the 
petitioner ·and its author was· not identified as required by the plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(iii). Further, with regard to information from Wikipedia, there are no 
assurances about the reliability of the content from this operi, user-edited internet site. 3 See 
Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 {81h Cir. 2008). Accordingly, the AAO will not 
assign weight to information for which Wikipedia is the source. 
The petitioner submitted a March 2007. article .in 
newspaper produced by the Department of Journalism 
entitled " ," is not about the petitioner. 
on the music group and the 
" The article, 
Instead, the article focuses 
\ 
In addition, there is no 
· documentary evidence demonstrating that 
form of major media .. 
qualifies as a major trade publication or some other 
. The petitioner submitted an online article entitled 
_ that was posted at r The conclusion of the article states: 
"Published on the web by on 
August 5, 2005." There is no evidence showing that 
the article appeared in the print version of the . · newspaper; only that the article was 
"[p]ublished on the web." While the. petitioner's appellate submission includes 2009-2011 
3 Online content from Wikipedia is subject to the following general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. Wikipedia is an online open-content collaborative 
encyclopedia, that is, a voluntary association of individuals and groups working to develop a common resotirce 
. of human knowledge: The structure of the project allows anyone with an Internet connection to alter its 
content. Please be advised that nothing found here has necessarily been reviewed by people with the expertise 
required to provide you with complete, accurate or reliable information. . . . Wikipedia cannot guarantee the 
. validity of the information found here. The content ?f any given article may recently have been changed, 
vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the 
relevant fields. 
See http://en.wikipedia.org/wiki/Wikipedia:General disclaimer, accessed on March 29, 2013, copy incorporated into the 
record of proceeding. 
(b)(6)
Page6 
readershi'p statistics for the from the 
th.ere is no documentary evidence showing that the online "web" version 'Of the -------qualified as a form of major media in 2005. 
The petitioner submitted an article entitled: " ' but the title of the publication 
and the date of the materia] were not identified as required by the plain language of the regulation at . . 
8 C.F.R. § 204.5(h)(3)(iii). Further, there is no documentary evidence showing that the article was in 
a professional or major trade publication or some other form of major media. 
The petitioner submitted an article entitled ' " but 
the article was unaccompanied by an English translation as required by this regulatory criterion and 
the regulation at 8 C.F.R. § 103.2(b)(3). Any document containing foreign language submitted to 
USC IS shall be accompanied by a full 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 translate 
from the foreign language into English. !d. ·In addition, the title of the publication, the date of the 
material, and its author were not identified as required by the ·plain language of the regulation at 
8 C.F.R. § 204.5(h)(3)(iii). Further, there is no documentary evidence showing that the article was in 
a professional or major trade publication or some other form of major media. 
The petitioner submitted an article entitled ' " b~t the title of the 
publication, the date of the material,· and its author were not identified as required by the plain 
language of this regulatory criterion. Further, there is no documentary evidence showing that the 
article was in a professio.nal or major trade publication or some other form of major media. 
The petitioner submitted a ·September 19, 20 I 0 article entitled " 
" posted on an online blog written by Dr. The 
article is about Dr. experiences on an excursion to South Africa; it is not about the petitioner. 
In addition, there is no documentary evidence showi~g that Dr; ' internet blog is a professional 
or major trade publication or some other form of major rpedia. 
( . . 
In response to the director's request for evidence, the petitioner submitted a captioned photograph 
(four sentences) in the September 26, 2010 issue of entitled' _ _ 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires 
"published material about the alien" including "the title, date and author of the material." The 
captioned photograph does not meet these requirements. The petitioner also submitted an August 
29, 2010 article about herself in entitled" 
On appeal, the petitioner submits objective evidence from the 
demonstrating that . is a major newspaper in South Africa. While 
qualifies as a major medium, the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii) requires published material about the. alien "in professional or major trade 
publications or other major media" in the plural. The use of the plural is consistent with the statutory 
· requirement for extensive evidence. Section 203(b)(l)(A)(i) of the Act. Significantly, not all of the 
criteria at 8 C.F.R. § 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 C.F.R. 
§§ 204.5(h)(3)(iv) an~ (ix) only require service on a single judging panel or a single high salary. 
When a regulatory criterion vvishes to include the singular within the plural; it expressly does so as 
when it states at 8 C.F.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of 
"letter(s)." Thus, the AAO can infer that 'the plural. in the remaining regulatory criteria has 
(b)(6)
Page 7 
I 
meaning. In a different context, federal courts have upheld USCIS' ability to interpret significance 
from whether the singular or plural is used in a regulation. See Matamjaya v. USCIS, Civ. Act. No. 
06-2158 (RCL) at *1, *12 (D.C. Cir. March26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 
3491005 at *1, *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory 
requirement for "a" bachelor's degree or "a" foreign equivalent degree at 8 C.P.R. § 204.5(1)(2) 
requires a single degree rather than a combination of academic credentials). Therefore, qualifying 
published material limited to only one major medium, does not meet the plain 
language requirements of this regulatory criterion. 
·In light of the above, the petitioner has not established that she meets this regulatory criterion. 
Evidence qfthe alien's participation, either individually or on a panel, as a judge of the 
work of others in the same or an allied field of specification for which classification is 
sought. 
The AAO affirms the director's finding that ~e petitioner's evidence meets this regulatory criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field.· 
In the director's decision, he determined that the petitioner failed to establish eligibility for this 
regulatory criterion. The plain langtJage of the regulation at 8 C.P.R. § 204:5(h)(3)(v) requires 
"[e]vidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field." [Emphasis added.] Here, the evidence must be 
reviewed to see whether it rises to the level of original scholarly or artistic contributions "of major 
significance in the field." The phrase "major significance" is not superfluous and, thus, it has some 
meaning. Silverman V. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28,31 (3rd Cir. 1995) quoted 
in APWU v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 2003). 
The petitioner submitted letters of support discussing her work. 
Associate Professor of Music and Music Education Coordinator at 
states: 
I became aware of the· musical talents and abilities of [the petitioner] last year, when a 
colleague recommended that I listen to her CD. Upon doing so, I realized that. [the 
petitioner] is a mature and accomplished musician, whose traditional songs and modem style 
of presentation are combined as a new voice of celebration for South Africa's 
reconstruction. Her pride in her Zulu heritage resonates throughout her music and provides 
an excellent role model for both her own countrymen and Americans from ·diverse· 
backgrounds. 
The clarity and power in [the petitioner's] vocal work is unique, and the combination of 
African messages with western musical genres makes her music stand out, as she stands out 
above her musical peers. · Her involvement in the works of many well known South African 
musicians, speaks to her level of excelle~ce in performance; and she is also well versed in 
the teaching of arts and cultural skills representative of South Africa. 
(b)(6)
Page 8 
comments that the petitioner "is a mature and accomplished musician," but she fails to 
provide specific examples regarding how the petitioner's work has significantly impacted the field 
or otherwise equates to· original artistic contributions of major significance in the field: 
also asserts that the petitioner's "vocal work is unique" and that she is "well versed in the teaching 
of arts and cultural skills." The AAO notes that having a diverse or unique skill set is not a 
scholarly or artistic contribution of major significance. Rather, the record must be supported by 
. evidence that the petitioner has already used her unique skills to impact the field at a significant 
level in an original way. ·Furthermore, assuming the petitioner's skills are unique, the classification 
sought was not designed merely to alleviate skill shortages in a given field. In fact, that issue 
properly falls under the jurisdiction of the Department of Labor through the alien employment labor 
certification process. See Matter of New York State Dep't. of Transp., 22 I&N Dec. 215, 221 
(Comm'r 1998). 
Department of the Arts at 
Vice President for Student Life and Professor of Practice m the 
states: 
[The petitioner] is clearly a jewel and needs to have the opportunity to shine in America. 
Earlier this year [the 
petitioner] sent me two of her CDs as well as a video of one of her 
performances. I have reviewed all of [the petitioner's] materials and am extremely 
impressed with her e~traordinary talent as a musician. 
· The number and caliber of artists from whom she ha.S letters of support is .remarkable. The· 
· South African artists who have given [the petitioner] recommendations are some of the top 
musical artists in her home country and some are known throughout the world. For 
example, _ has sold over 500,000 copies and 
the group won three South African traditional Music Awards and two South African Music 
Awards (SAMA), the equivalent qfthe Grammy. 
sold over one million copies of his 23 albums, won a SAMA in 
and earned several SAMA nominations, including Best Male artist in before he passed 
away, _ m Sputh Africa. 
* * * 
Of all the artists from whom [the petitioner] has letters of recommendations, the best known 
in the United States is of The band 
gained worldwide fame through produced 
the b~d's' album which won a Grammy for Best Traditional Folk Recording 
in and another in for Best Traditional World Music Recording in The group also 
won SAMAs in and again in earned a SAMA nomination for his solo 
work with his own band in 
* * * 
The artists who considerTthe petitioner] their peer are musicians at the pinnacle of the music 
industry in South Africa. . . . Based on her unique skills and past achievements, [the 
petitioner] has a great deal to contribute to music in America and we will be richer for it. 
(b)(6)
Page 9 
While notes the caliber of the references who support the petition, he does not provide 
specific examples of how the petitioner's musical accomplishments have impacted the field in the 
same manner as those of . the 
influential artists specifically mentioned by or of how the petitioner's works were 
otherwise of major significance in the field. For example, there is no documentary evidence 
showing the extent of the petitioner's influence on other musicians in the field or that the field has 
somehow changed as a result of her original work, so as to demonstrate the major significance of 
her original contributions. · · 
a jazz performer and Assistant Professor of Music at 
states: 
I learned of [the petitioner] when she mailed me a copy of her latest CD recording and 
requested that I attest to her musical ability and write a letter of support for her immigration 
paperwork. [The petitioner] is a performer of music, a style of music unique to 
South Africa but recognized fnternationally. Her music is grounded in the traditi9nal Zulu 
culture and combines traditional Zulu instruments and human voice. From her recording, it 
is evident that [the petitioner] is an accomplished performer in this style of music. Her 
resume indicates that she has performed and recorded with some of the greatest South 
African performers of this style of music and other traditional musical styles. [The 
petitioner] has a growing reputation for being a high level performer with several recordings 
and concerts to her credit. Clearly she has a solid grasp of the_ musical style and may be 
viewed as an accomplished performer_ of music. 
It is ~y opinion that [the petitioner] is making a valuable contribution to 'the growth and. 
fostering of this unique style of music abroad. Her series of concerts and workshops across 
the U.S. are paving the way for greater awareness of this indigenous musical style. Having 
talked· to [the petitioner] over the phone, I am impressed with her drive and ambition to 
spread her musical talent with individuals in the U.S. and in South Africa. I believe she is 
making a valuable contribution to the vocal literature while also expanding the cultural 
bo~ndaries of music as it is practiced in the U.S. · 
states that she learned of t~e petitioner when the petitioner mailed her a copy of the 
petitioner's latest compact disc recording and requested that she attest to the petitioner's musical 
ability and write a letter of support for the petitioner's immigration paperwork. The AAO notes that 
letterS from independent references who were previously aware of the petitioner through her 
reputation in the music field and who have already been influenced by her work are far more 
persuasive than lett.ers from independent references who were not previously aware of the petitioner 
and are merely responding ·to a solicitation to review the petitioner's resume and work and to 
provide an opinion based solely on this review. While _ asserts that the petitioner "is 
making· a· valuable contribution to the growth of music" and "making a valuable 
contribution to the vocal literature while also expanding the cultural boundaries or'music as it is 
practiced iiJ. the U.S.," fails to provide specific examples of how the petitioner's music 
or instructional workshops have significantly impacted the field at large or otherwise constitute 
original contributions of major significance in the field. 
(b)(6)
Page 10 
Director, --,--------- ' states: 
I have worked with [the petitioner] in the capacity of performing artist as well as producer 
since December 2004 when she joined my tour as a backing vocalist. I soon discovered that 
[the petitioner] was a highly talented and experienced professional in her own right and I 
began 
to produce her work both in the studio and on stage. 
* * * 
She has dedication, stamina and is extremely talented as a vocalist and composer.. On stage 
she is electric and dynamic and can command any audience's a~tention and adoration. In 
addition to her vocal skills and brilliant composition skills, [the petitioner] also has the gift 
of knowing deep traditional Zulu dance and she is able to share these skills easily with other 
dancers and students. 
[The petitioner] has demonstrated that she can teach and educate very effectively also. In 
short, she is a tremendous jewel for South Africa and she should be nurtured and assisted in 
any way possible by the movers and shakers in the music industry of South Africa. 
[The petitioner] has performed with her own band as well as with 
South Africa as well as in America and Dubai. · 
all over 
states that the petitioner is "a highly talented and experienced professional," "extremely 
talented as a vocalist and composer," and an effective teacher of traditional Zulu dance. It is not 
enough to be highly skillful and knowledgeable and to have others attest to those talents. An alien 
must have demonstrably impacted her field in order to meet this regulatory criterion .. Vague, 
solicited letters from colleagues that do not specifically identify original contributions or provide 
specific examples of how those contributions influenced the field are insufficient. Kazarian, 580 
F .3d at 1036. In 2010, the Kazarian court reiterated that the AAO's conclusion that "letters from 
physics professors attestiiJ.g to [the alien's] contributions in the field" were insufficient was "consistent 
with the relevant. regulatory language." Kazarian, 596 F.3d at 1122. The record lacks documentary 
evidence showing that the petitioner has made original scholarly or artistic contributions that have 
significantly influenced or impacted others in the field at a level indicative of contributions of 
"major significance." 
, 
a member· of music group, states: 
I met [the ·petitioner] in 2001 when her band, was 'the opening act for 
in the town of I was immediately impressed with 
her powerful, extraordinary, and beautiful voice. That day she performed her original 
compositions in the traditional style. [The petitioner] is more than an entertainer 
offering an energetic performance, her lyrics tell listeners to take pride in their culture, no 
matter who they are. This is a strong message for people of all countries, but especially 
important for today's South Africans, many of whom have forgotten their culture. 
[The petitioner] and her band are well qualified to represent South Africa and share the stage 
with 
(b)(6)
Page 11 
states that the petitioner's band opened for at a 
concert in 2001, but he does not provide specific examples of how the petitioner's concerts and 
·music recordings have substantially influenced the . field or otherwise equate to ·original 
contributions of major significance in the field. 
___ _, a Grammy award-winning musician, ~tates: 
I have released over 25 records, one of which, 
and sold over 4 million copies. · 
* * * 
won a Grammy Award. 
I first met [the petitioner] .in the early 1990s while working on a recording project for which 
she auditioned. Out of 1 OOs of girls, I picked four and [the petitioner] was one of them. Her 
voice is unique, extraordinary; strong and beautiful. 
[The petitioner] is a professional musician with skill equal to and surpassing many well 
known South African musicians. Currently, she manages her band, 
, for which she composes original songs il). the traditional style. 
She also teaches young people about their culture through traditional singing and dancing. 
[The petitioner] hopes to 'reach young people and remind them not to forget about and to 
value their culture. It is a message of strength adults cari gain from as well. She is one of 
the few carrying on traditional South African culture offering a positive message in a time of 
our country's struggles. [The petitioner] is a gifted individual. 
asserts that thepetitioner's voice "is unique, extra~rdinary, strong and beautiful." He 
also comments that the· petitioner "is a professional musician with skill equal to and surpassing 
many well known South African musicians." As previously discussed, itcannotsuffice to state that 
the petitioner possesses useful skills, or a ''unique background." Assuming the petitioner's skills 
·and experience are unique, the classification sought was not designed merely to alleviate skill 
shortages in a given field. In fact, that issue properly falls under the jurisdiction of the Department 
. of Labor through the alien employment labor certification process. See Matter of New York State 
Dep 't. ofTransp., 22 I&N Dec. at 221. In addition, discusses the petitioner's efforts 
to carry on,South African culture by teaching traditional singing and dancingto young people, but 
he fails to provide specific examples of how her work has impacted the field at a level indicative of 
original contribu~ions of "major significance" in the field: F<;>r instance, there is no documentary 
evidence showing the widespread adoption of the petitioner's original methods of in~truction by 
numerous music or dance schools, or that her work is otherwise recognized as of major significance 
in her field as a whole. 
, a style guitar player, states: 
As we share the hometown of South Africa, I have been able to follow [the 
. petitioner's] career. She has an extraordinary voice that she uses to lead and shape one ·of 
best bands. Her dance movements are based on Zulu traditions and 
(b)(6)
Page 12 
help to transmit cultural values to the next generation. Her CD 
received with critical acclaim and sold out the first printing. 
---~-- was 
While asserts that the petitioner's CD was received with critical 
acclaim and sold out the first printing,. he does not point to specific examples of critical acclaim or 
specify the actual sales for the petitioner's compact disc. Regardless, fails to explain 
how the petitioner's music recordings have significantly impacted the field or otherwise constitute 
original contributions of major significance in the field. also comments that the 
petitioner's "dance movements are based on Zulu traditions and help to transmit cultural values to 
the next generation," but he does not indicate how the petitioner;s dance movements were both 
original and of major significance in the field: 
_, a South African guitarist, states: 
I would like to acknowledge anq appreciate [the petitioner] for her wonderful work she is 
doing in our community as a musician artist who go_ [sic] extra mile in trying to develop our 
young stars, teaching them artistic skills, how to be professional in what they do best 
especially in music. She specializes in teaching th~ how to conduct themselves on stage, 
voice training and ·most importantly discipline because ·they can go far if they are 
disciplined, that _include [sic] punctuality in rehearsals, good listening skill, . show respect 
towards themselyes and good behavior. 
Another thing that amazed me in her ability ... was the ability to form a men band which is 
very hard to do as a young lady. I also saw their performance at in 
which was ·excellent and satisfying to watch, that encouraged me to continue 
working with her because I could see that she's a very dedicated person and very passionate 
about what $he does. In 1999 I approached her to come and put her brilliant voice in my 
album called ' · and she did an amazing job .. 
comments on the petitioner's work as music teacher, but he does not specify how the 
petitioner's work is original or equates to original scholarly. or arti~tic contributions of major 
significance in the field. There 1s no documentary evidence showing that the petitioner's teaching 
techniques have significantly impacted the field beyond those under her immediate tutelage. 
Contributions limited to the institutions and communities where the petitioner has taught do not 
equate to original contributions of major' significance to.the field as a whole. 
, lead singer and guitarist of the South African , states: "I am 
writing to recommend [the petitioner] as a traditional Zulu singer, dancer and musician of 
·extraordinary ability in the style ..... I respect [the petitioner] for using her great skill to 
. carry on music and Zulu Culture." · asserts that the petitioner is "a traditional 
Zulu singer,. dancer and musician of extraordinary· ability in the style," but merely 
repeating the language of the statUte or regulations does not satisfy the petitioner's burden of proof. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. 
Cir. 1990); Avyr Associates, Inc. v. Meissn'er, No. 95 civ 10729, 1997 WL 188942 at *1, *5 
(S.D.N.Y.). · fails to explain how the petitioner's work was both original' and of major 
significance in the music fi~ld. 
(b)(6)
Page 13 
Ari unidentified member of the South African band Imithenthe states: "It is difficult for women to 
gain recognition in maskanda music. This is. one reason why [the petitioner's 1 achievements ar~ to 
be comm.ended. Other reasons include her incredible voice, her style of hat updates· yet 
remains true to its roots." While it may be "difficult for women. to gain recognition· in 
music," there is no evidence demonstrating that the petitioner was the first or only woman to 
perform such music. Moreoyer, ari individual's gender is not a·qualifying factor for employment­
based immigration benefits. The fact that the petitioner is female is not automatic evidence that she 
has made original artistic contributions of major significance in her field. The member of the 
Imithenthe band fails to provide specific examples of how the petitioner's original contributions 
were of major significance in the field. 
, a member of the three-person Zulu band states: 
We know [the petitioner] as an style singer and traditional dancer who is not 
afraid to show the world our Zulu culture. She is proud on stage. Like 
us. 
* * * 
We are happy [the petitioner] can keep the music alive in the new generation that 
loves new styles of music. She creates a new sound by mixing with a little 
mbaqanga and little blues to make today's audiences dance. 
_ : states that the petitioner has created "a new sound," but there is no evidence showing 
that the petitioner's music has drawn unusually large audiences, generated substantial record sales, 
influenced the work of other professional musicians, or otherwise equates to original contributions 
of major significance in the field. · 
Director of international Programs, 
, states: 
Recently, I -have had the pleasure to witness [the petitioner's] extraordinary musical abilities 
at a conference on South Africa to which she was invited. Not only did her musical 
contributions stir audience participation; but her introduction to the culture of indigenous 
groupsin South Africa became the high point of the conference. 1 
[The petitioner] has serenaded groups of students in the community on other visits to the 
United States. She has taught them South African dances and encouraged .them to 
appreciate cultural practices that celebrate the heritage of a society. However, her 
involvement in the South Africa. conference at has provided the campus 
with a unique opportunity to see her engage very young children in a day care facility as 
well as college students and cominunity members in an evening event. As a result of [the 
petitioner's] short visit to students are speaking out about their interest in 
developing projects in South Africa. Listening to their enthusiasm is heartwarming to 
educators who are searching for ways to promote study abroad activities and increase 
cultural competence. 
(b)(6)
. Page 14 
It should be clear to international professionals who have traveled extensively that exposing 
the public to the musical and cultural talents possessed by [the petitioner] can do more to 
enhance cross-cultural understanding than politicking can. There is no doubt that [the 
petitioner] touches young, disadvantaged children as much as she impresses adults young 
and old. She is a woman with rare gifts. 
states that the petitioner introduced the culture of indigenous groups in 
South Africa at a conference she attended, serenaded groups of students in the community, taught 
children South African dances, and interacted with young children at a day care 
facility, but there is 
no documentary evidence demonstrating that the petitioner's work was of major significance in the 
field. fails to provide specific examples of how. the petitioner's work has 
impacted the field at a level indicative of original contributions of major significance in the field 
(such as through the widespread adoption of her original methods of instruction by reputable music 
or dance schools). Mastering and subsequently teaching music techniques and darices developed by 
others are not demonstrative of "original" contributions to the field. While the petitioner has earned 
the admiration of her audiences, the record does not establish that she has ·made original artistic 
contributions of major significance in the field. · 
Professor and Chair of the Early Childhood Department, 
states: 
I came to know [the petitioner] in January 2010 when she was visiting in the area. We 
met 
to discuss her South African culture, her musical abilities, and most importantly her work as 
a performing arts ·educator. We discussed a professional early childhood conference I was 
planning for the college to highlight issues affecting children in South Africa and how early 
childhood professionals can advocate. [The petitioner] offered to come back to New York 
in March to. perform and speak at the conference as well as teach South African music and 
dance 
to campus preschoolers and college students. 
As I observed her work with college students and preschoolers, I was impressed with her 
musical talent and her rapport and effectiveness as a teacher. [The petitioner] exhibited a 
natural ability to engage young adults and young children and teach them South African 
traditions, using developmentally appropriate music and movement activities. . She used 
varying techniques depending on the age and experience of her student groups. 
[The petitioner] also 'presented a Power Point slide show to the . audience about her 
background, children's issues in her community, and her 
mission as a cultural educator. Her 
ability to use her extraordinary musical talents to develop cultural understanding was 
impressive and likely unique. She created a lear:ning environment in which students are 
most likely to remember what they have le~ed. 
In my professional opinion [the petitioner] has unique talents and skills as a teacher of arts 
and culture, effectively and positively representing her native Zulu traditions. Her vocal and 
· musical talents seem to enthrall her stUdents of any age. 
planned by 
states that that the petitioner performed and spoke at an early childhood conference 
and taught South African music and dance to campus preschoolers and 
(b)(6)
Page 15 
college students at but she fails to provide specific examples regarding how the 
field has been influenced by the petitioner's work. The AAO notes that many occupational fields 
regularly hold. conferences to present. new work, discuss new trends, and to network with other 
professionals. These conferences are promoted and sponsored by professional associations, 
businesses, educational institUtions, and government agencies. Participation in such events does not 
equate to original contributions of major significance in the field. There is no documentary 
evidence showing that any of the petitioner's specifjc presentations have significantly impacted the 
field at large or have otherwise risen to the level of contributions. of major significance in the field. 
While presentation of the petitioner's work demonstrates that her ideas and talents were shared with 
others, the AAO is not persuaded that presentation of the petitioner's work at an early childhood 
· conference is sufficient evidence establishing that her work is of "major significance" to the field at 
large and not limited to the specific forum in which her talents were on display. The petitioner has 
failed to establish, for example, the impact or influence of .her presentation beyond those in 
attendance so as to establish that her work was of major significance in the field .. 
also comments on the petitioner's ''unique talents and skills as a teacher of arts and culture." Once 
again, it cannot suffice to state. that the petitioner possesses useful skills or a unique. background. 
Assuming the petitioner's skills ·and experiences are unique, the classification sought was not 
designed merely to alleviate skill shortages in a given field. In fact, that issue properly falls under 
the jurisdiction of the Department of Labor through the alien employment labor certification 
process. See Matter of New York State Dep 't. of Transp~. 22 I&N Dec. at 221. 
Head of Mvumelwano Traditional Council, , states: 
I confirm that [the petitioner] is a person who works with the communities. She helps to 
develop rural communities. As an artist she performs African Music directed to the African 
culture. The aim is to see to it that Africans do not lpse their culture, and have to appreciate . 
it thrqugh music industry. So most importantly job creation opportunities help to reduce 
crime, developing skills, help the. youth to do something out oftheir talent. 
She also appreciates and honours Calendar events e.g. _ _ . . 
1, Heritage day or investigating about heritage sites. She is a person who likes to keep 
good relations with the stakeholders, domestic tourists and sharing ideas with all groups. 
She is a generous kind of a person. She does not discriminate people, for example people in 
the community know her by name ahd they love her. Previously she assisted schools (with 
provision of computers) in the .province ·of 
i asserts that the petitioner helps to develop and improve rural communities and to . 
promote African culture, but fails to explain how the petitioner's work was both 
original and of major .significance in the music field. 
I . . 
Distinguished Professor· of Ethnomusicology, 
states: ' 
[The petitioner] takes deep Zulu traditions and refashions them for new audiences. 
I understand that a good example of this refashioning of traditions is 
track two of·the CD Zulu communi.ties in the past .praised 
(b)(6)
Page 16 
the Zulu Goddess of Prosperity, while they planted crops. In this song [the petitioner] tells 
young people to continue this practice in order to foster community. 
* * * 
The track · refashions rural traditions to an urban setting in 
which people often face unemployment and poverty. The lyrics state " 
_ She also tells the young 
people they must ' _ _ and build community. Zulus must first take care of 
themselves spiritually, before they can solve the problems that the community faces. 
* * *' 
Using' as an example again; [the petitioner] modernizes traditional male­
female relationships and addresses HIV directly. Using Zulu words that mean "virgin" for 
both boys and girls, the lyrics state that both genders are responsible for stopping the spread 
ofHIV and should keep themselves formarriage. 
* * * 
This song, along with others from ~he CD, plays on community radio stations 
.... While these stations aren't at the top of the radio hierarchy, they have a large· audience 
within their limited regions. This is one conduit through which [the petitioner's] music 
reaches its audience. 
. . 
[The petitioner] has also created a nonprofit organization to reach people, especially young 
people. [The petitioner] teaches children the style of music, but also songs 
and dances for celebrations that are very old. . . . [The petitioner] introduces young people . 
to traditional Zulu and African instruments such as the Zulu bass drum, makhweyana (a bow 
of wire with a gourd), whistle, shakers, frog, and calabash. These instruments are not 
featured in most Maskanda music or popular music so many people have forgotten them. 
[The petitioner] is committed to her culture, her community, and especially to young people. 
With high rates of HIV. infection, unemployment and poverty, South Africans can gain 
strength from remembering who they are and from where they came. . . . There must be 
some continuity with the past as a way of guiding people in the present and future. [The 
petitioner] is doing this through choosing music rather than pop music, by 
imbedding messages of hope and guidance rather than simply discussing relationships, by 
including traditional instruments in her that plays on the radio and, most 
importantly for the South African community by having the vision to start a non-profit and 
take on the role of director. 
comments on the petitioner's song track ' but there is no 
documentary evidence showing that the song had a significant impact in the recording industry, has 
significantly influenced. the work of other musicians in the field, or otherwise equates to an original 
contribution of major significance in the field. also states that the petitioner "created a 
· nonprofit organization to reach people, especially young people" in her community. There is no 
(b)(6)
Page 17 
documentary evidence demonstrating that the _petitioner's work as a non-profit director was 
recognized beyond her organization and the municipality it served such that her work constitutes 
artistic or scholarly contributions of major significance in the field. The plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(v) requires that the petitioner's original contributions be "of 
major significance in the field" rather than limited to a particular educational center or municipality. 
Further, there is no documentary evidence showing that rates of HIV infection, unemployment, and 
poverty substantially decreased as a result of the petitioner's original work or that her educational 
concepts otherwise equate to original contributions of major significance in the field. 
.-
founder and curator of music and dance productions for states: 
[The petitioner] is an extraordinary performer and a unique talent. 
[The petitioner] performs the traditional Zulu music. . 
. . As a female bandleader 
in music, [the petitioner] is unusual. Historically has been a genre in 
which men have found expression. The fact that she has the respect of her male band 
members is a testament to her skills as an artist. 
She is also an educator and has dedicated her life to working with children. As is true of . 
many types of World Music, traditional values are embedded in music. [The 
petitioner] is using this music to educate South Africans via the radio and by establishing a 
Non-Profit to educate all people, but especially young people, the next generation. [The 
petitioner] demonstrates her determination to help the people of her country and real courage 
when she tackles potentially controversial topics such as HIV. 
' . 
asserts that the petitioner "is an extraordinary perfomier and a unique talent." In the 
field§ of music and cultural education, it is not enough to be talented and to have others attest to that 
talent. As previously discussed,_ an alien must have demonstrably impacted her field in order to 
meet this regulatory criterion. In addition, comments that becoming a female bandleader 
in t music "is unusual." While USCIS recognizes the importance of maintaining diversity 
in any occupation, the issue for this regulatory criterion is whether the petitioner has made original 
contributions of major significance in the field. ·The record lacks documentary evidence showing that 
the petitioner has made original scholarly or artistic contributions·that have significantly influenced or 
impacted her field. further states that the petitioner is using "music to educate South 
Africans via the radio and by establishing a Non-Profit to educate all people," but there is no 
evidence demonstrating that the petitioner's :work has impacted the field in a significant manner· 
beyond the locality of As previously discussed, the plain langliage of the regulation at 8 
C.F.R. § 204.5(h)(3)(v) requires.that the petitioner's contributions be "of major significance in the 
field" rather than limited to a particular municipality or non-profit organization. also 
comments that the petitioner has worked to tackle "potentially controversial topics suchas HIV," 
but does not cite to any specific national health studies to demonstrate that the 
petitioner's work or song lyrics were of major significance m preventing the spread of HIV 
· infections. 
founder and producer of 
program, states: 
radio 
(b)(6)
Page 18 
/ 
[The petitioner] is a female band leader, as well as a composer, arranger, and lyricist in 
_ a male dominant genre of music. She is also an innovator in her use of traditional 
instruments and lyrics. For all of these reasons, [the petitioner] has made and is making 
significant contributions to mustc. 
music, the type of music [the petitioner] performs with her band, is 
considered by some to be Zulu Folk music. It has roots in the Apartheid era of South Africa, 
when men traveled from their rural homelands to Johannesburg to find work, often in the 
mines. . . . As a consequence of, this history, music is a male dominated 
field even toda:y. 
* * * 
The fact that [the petitioner] leads an all-male band and produced the CD of 
her original music is rare indeed. . . . Many songs of the top female . bands 
are not original compositions or lyrics written by the women, but are formulaic and are 
written by male producers. In addition, while the women of . bands only sing lyrics 
· written by meh, [the petitioner] plays traditional Zulu bass drum, makhweyana (a bow of 
wire with. a gourd), whistle, shakers, frog, and calabash. Moreover, these instruments are not 
featured in most music. These four things are significant contributions and inno­
vations that [the petitioner] has made to music: she leads her own band, she 
writes her own music and lyrics, she has produced her own CD, and plays instruments.when 
women typically only sing, and these traditional instruments are not featured in most 
music. She is a genuine artist who has chosen a difficult, but creative path of her 
own. 
[The petitioner's] music is rooted in traditional but she takes this form and 
invents something altogether new. One way that she does this; the traditional instruments 
mentioned above, are unique to [the petitioner's] music .... On track 4 _ _ _ 
of the' 'CD, [the petitioner] plays both the frog and the makhweyana (the bow 
ofwire instrument) .... Also the humming is reminiscent of a village woman ofa long tiine 
ago going to the river talking to the crocodiles and listening to the frogs. The elements of the 
song reach back to the countryside and the rural roots of l but are new to young 
people and audiences of today. This is just one detailed example of [the petitioner's] 
tradition-based innovation. 
* * * 
This ·song is on community radio stations and young people like it. Not only does [the 
petitioner] perform live, her music is on radio stations across the country: In South Africa 
there are commercial radio stations, community radio stations and government radio 
stations. The first two tracks -of each of [the petitioner's] CDs play on part of 
the i _ . . . . While it is primarily 
for Zulu speakers, the : 'reaches throughout the whole country of South 
Africa, not just the province of where the majority of Zulu speakers reside. 
(b)(6)
·---. 
Page 19 
Many more of [the petitioner's] songs play on community radio stations. While these 
stations are local and are an entryway into the music business, many people listen to them -
because they play new music. · -
_asserts that the petitioner is an "innovator in her use of traditional instruments and 
lyrics," but does not provide specific examples of how her original music has substantially impacted 
_ the field or otherwise equates to artistic contributions of major significance in songwriting or music 
production. In addition, states that the petitioner "leads her own band, she writes her 
own music and lyrics,. she has produced her own CD, and plays instruments when women typically 
only sing, and these traditional instruments are not featured in most musk" The AAO is 
not persuaded by the assertion, offered by several references, that the petitioner's gender is a 
qualifying factor because she works in -a · field of music in which women are generally 
underrepresented. As previously discussed, there is no evidence demonstrating that the petitioner 
was the first or only woman to perform music. The fact that the petitioner is female is 
not automatic evidence that she has made original artistic contributions of major significance in her 
field. Moreover, without evidence demonstrating the significant impact of her music performances, 
the petitioner has not established that her ability to play a .rare instrument and to add creative 
elements to her songs are indicative of original contributions of major significance in the field. 
also states that the petitioner's songs have been played by radio stations targeting Zulu 
speakers, but there is no documentary evidence differentiating the petitioner's songs from those of 
the numerous other musicians whose songs were similarly broadcasteo. l comments 
are not sufficient to demonstrate that the petitioner's songs have significantly impacted the field at 
large or otherwise constitute artistic contributions of major significance in the field.' 
Director and Producer, states: 
[The petitioner] is an upper-echelon South African· performing artist. She is topnotch; an 
artist at the height of her powers. I have heard her music and seen her perform. · 
* * *-
/ 
Not only South African, [the petitioner] is a Zulu. As we are Norwegian American, 
Mexican American, Japanese American, African American, et al., her unique point of view 
as a South African tribal person hold significant relationship to our country's Native 
Americans. Her knowledge, skills; and abilities to communicate, through her art, holds a 
direct comparison to the situation and struggle faced by many American Indians in the 
United States, and gives her voicte an additional degree of importance. [The petitioner's] 
inusic fills the space between the indigenous and the national, the old and the new, and links 
them as one in today's global _society. She takes deep Zulu perfonhance traditions, 
refashions thein for contemporary -audiences, and relates them to a world ethnicity that 
comprises the very best oftoday's American society. 
[The petitioner] is committed to her culture/her community, and especially to young people. 
She is likewise committed to sharing the message of her people with us. 
' 
praises the petitioner as "an upper-echelon South African performing artist" with 
unique talents, but he fails to explain how the music field has been influenced by the petitioner's work. 
(b)(6)
Page 20 
does not provide specific examples of how the petitioner's music has substantially 
impacted the field or otherwise equates to original artistic contributions of major significance in the 
field. 
Managing Member, ! . 
I personally met [the petitioner] in 2005 in my capacity as a 
states: 
a accredited service provider 
rendering various services and capacity building programmes to the public and private 
sector ... , During that year [the petitioner] was· enrolled for a 1 year Learnership 
Programme "National Certificate in Music Business Management, NQF Level 4." I have 
kept in touch with her since this time through our professional contacts in arts and culture. 
· Through the duration of a leamership program [the petitioner] stood outas a mature learner 
who aiready had real world exp~rience and knowledge of the music industry. She managed 
to juggle the recording and release of her first CD ' 
.1 with performances, class attendance and being a mother. 
* * * 
Not only did she manage to squeeze the course into an already busy life, she took what she 
learned in the class and acted on it. For example, after learning the importance of 
registering her original music with 1, she 
has since registered both ofher recordings. 
* * * 
Since taking the course, [the petitioner] has created a career of her own and become a leader 
of her band composed of men. In addition to live performances, [the petitioner's] music 
plays on radio stations across and even across the country She 
produced her second CD in and gained the support of 
in this endeavor. 
* * * 
[The petitioner] has increased her commitment· to her commuility and tradition by 
establishing a non-profit with the primary goal of teaching traditional arts and culture .... 
People are drawn to her and it is her stature 'in the COfl1I11Unity that made her non-profit 
possible. 
While states that the petitioner has registered her music recordings with 
he falls to explain how the petitioner's songs are of major significance in the field. In addition, 
asserts that the petitioner's "music plays on radio stations across and even 
across the country," but there is no documentary evidence demonstrating that her songs equate to 
original contributions of major significance in the field. Regarding the petitioner's compact disc 
music recordings, although such works may certainly be considered original, the record contains no 
evidence such as her songs' influence on other performing artists, their specific impact on society, . . ' 
(b)(6)
Page 21 
or an unusually large number of units sold, to demonstrate that her recordings are considered to be 
of major significance to the field. further states that the petitioner established "a non­
profit with the primary goal of teaching traditional arts and cultUre." There is no documentary 
evidence demonstrating that the petitioner's work for this non-profit center equates to scholarly or 
artistic contributions of major significance in the field .. As previously discussed, the plain language 
of the regulation at 8 C.F;R. § 204.5(h)(3)(v) requires that the petitioner's contributions be "of 
major significance in the field" rather than limited to a particular educational center or municipality. 
Although the petitioner has earned the admiration of the preceding references, the record doe.s not 
establish that she has made original scholarly or artistic contributions of major significance in the 
field. For example, the record does not indicate the extent of the petitioner's ·influence on other 
singers, musicians, or dancers, nor does it show that the field has specifically changed as a result of . 
her 
work, so as to demonstrate the major significance of her original contributions. Thus, the AAO 
concurs with the director's determination that the reference letters submitted by the petitioner did 
not meet the elements of this regulatory criterion. The opinions of the petitioner's references eire 
not without weight and have been considered by bo'th the director and the AAO. USCIS may, in its 
discretion, use as advisory opinions statements submitted as expert testimony. See Matter of Caron 
International, 19 I&N Dec. 791, 795 (Comm'r 1988). USCIS is ultimately responsible for making 
the final determinat~on regarding an alien's eligibility for the benefit sought. !d. The submission of 
reference letters supporting the petition is not presumptive evidence of eligibility; USCIS may 
evaluate the content of those letters as to whether they support the alien's eligibility. See id. at 795-
·796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) (noting that expert opinion 
testimony does not purport to be evidence as to "fact"). Thus, the content of the references' 
statements and how they became aware of the petitioner's reputation are important considerations. 
Even when written by independent experts, letters solicited by an alien in support of an immigration 
petition are of less weight than preexisting, independent evidence that one would expect of a 
musician or an educator who has made original contributions of major significance in the field. 
On appeal, the petitioner submits the following: 
1. Various excerpts from the publicatiQn 
2. An online profile of 
who was awarded ' 
3. An article .entitled '' ---,, 
' 
''· ' 
.,, 4. An article entitled '' 
5. An artiCle entitled .. ~=======================::=-:-======= ' '· ' 6. An article entitled ' 
7. A compact disc entitled' 
8. An article entitled "' 
constructions of masculinity in 
9. A Ph.D. dissertation by 
10. A document entitled ' 
in Sub-Saharan Africa; 
' featuring ten songs performed by the petitioner; 
"· ' entitled' 
1'. :>. 
" providing information about HIV and AIDS 
(b)(6)
Page 22 
11. Statistics prepared by the 
12. A document entitled" 
13. Lyrics from various songs by the petitioner; 
14. An article entitled " 
15. An article entitled ' 
entitled " 
" 
'· ' 
";and 
' ''· ' 
With regard to items 7 and 13, the AAO notes that the regulations contain a separate criterion 
regarding commercial successes in the performing arts. 8 C.F.R. § 204.5(h)(3)(x). The AAO will not 
presume that evidence relating to or even meeting the commercial successes criterion is presumptive 
evidence that the petitioner also meets the criterion at 8.C.F.R. § 204.5(h)(3)(v). Here it should be 
emphasized that the regulatory criteria are separate and distinct from one another. Because separate 
criteria exist for commercial successes in the pefforming arts and original contributions of major 
significance, USCIS clearly does not view the two as being interchangeable. To hold otherwise 
would render meaningless the statutory requirement for extensive evidence or the regulatory 
requirement that an alien meet at least three separate criteria. Regarding the remaining items, none of 
these documents focus on the petitioner and her specific contributions of major significance in the 
field. Without additional, specific evidence showin·g that tlie petitioner's original work has been 
unusually influential, has substantially impacted her field, or has otherwise risen to the level of 
artistic or scholarly contributions of major significance, the AAO cannot conclude that she meets 
this regulatory criterion. 
Evidence of the display of the alien 's work in the field at artisti~ exhibitions or 
showcases. · 
The AAO withdra\Vs the director's finding that the petitioner meets this regulatory criterion. The 
petitioner submitted documentation of her musical performances as evidence for this regulatory 
criterion. Neither the petitioner nor counsel has explained how music performances equate to visual art 
exhibitions or showcases. The petitioner's work as a musician is audible in nature and is 
enjoyed for its sound, not its visual aspects. Therefore, her music performances do not satisfy the 
regulatory requirements under 8 C.F.R. § 204.5(h)(3)(vii). The plain language of the regulation at 
8 C.F.R. §204.5(h)(3)(vii) requires "[e]vidence of the display of the alien's work in the field at 
artistic exhibitions or showcases." The petitioner is a musician. When she sings and dances on 
stage, she is not displaying her 
music i~ the same sense that a painter or sculptor displays his or her 
work in a gallery or museum. The petitioner is performing her work, she is not displaying her work. 
In addition, to the extent that the petitioner is a musician, it is inherent to her occupation to perform 
in public. The AAO notes that the ten criteria in the regulations are designed to cover different 
areas; not every criterion will apply to every occupation. 
The interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and 
has been upheld by a federal district court. Negro-Plumpe V. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 
(D. Nev. Sept. 8; 2008) (upholding an interpretation that performances by a performing artist do not 
fall under 8 C.F.R. § 204.5(h)(3)(vii)). As the petitioner is not a visual artist and has not created 
tangible pieces of art that were on display at exhibitions or showcases, she has not submitted 
qualifying evidence that meets the plain language requirements of the regulation at 8 C.F.R. 
(b)(6)
I ' 
Page 23 
§ 204.5(h)(3)(vii). Accordingly, the petitioner ·has not established that she meets this regulatory 
criterion. 
Evidence ·that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The petitioner submitted a July 27, 2009letter from the Director and the Youth Development Manager 
of stating: "I have known [the petitioner] for the past four 
months while she worked as a Performing Arts instructor in the _ _ _ 
The petitioner also submitted letters of support discussing her role as founder and director of the 
In discussing the evidence submitted for this regulatory criterion, the director's decision stated: 
USCIS acknowledges that your role with is leading and critical, howeve~, the 
record does not demonstrate that the non.:.profit organization has a distinguished reputation. 
In addition, the record does not establish that your role with · is leading or critical 
compared to other Performing Arts Instructors at nor does it demonstrate that 
has a distinguished reputation. 
The AAO affirms the director's findings. In general, a leading role is evidenced from the role itself, 
and a critical role is one in which the alien is responsible for the success or standing of the 
organization. The petitioner failed to submit an organizational chart or similar documentary evidence 
to demonstrate where her role fit within the overall hierarchy of the. Further, the letter from the 
Director and the Youth Development Manager of the fails to explain how the petitioner's role 
was leading relative to that of the other instructors, let alone the center's administrators. 
Moreover, ·the submitted evidence does not establish that the petitioner was responsible for the 
. success or standing to a degree consistent with the meaning of "critical. role." Accordingly, the 
petitioner has failed to demonstrate that her role for the was leadin~ or critical. In addition, there 
is . no documentary evidence showing that the and the. have a distinguished 
reputation relative to . other schools and non-profit organizations. Going on record without 
supporting documentary evidence is not suffiCient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of 
Treasure Craft ofCalljornia, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
On appeal, counsel asserts that "evidence contained in the petitioner's affidavit clearly meets both 
points raised by the director." Counsel then quotes various statements from the petitioner's June 7, 
2011 affidavit that was submitted with the petition at the time of filing. In the affidavit, the 
petitioner discusses her work . for the and the The oetitioner's self-serving 
statements, 
however, fail to demonstrate that the and the have a distinguished 
reputation and that her role for the was leading or critical. USC IS need not rely on self-serving 
·documents. See Braga v. Poulos,~ No. CV 06 5105 SJO, aff' d 317 Fed. Appx. 680 (C.A.9) (concluding 
that the AAO did not have to rely on self-serving assertions on the cover of a magazine as to the 
magazine's status as major media). Further, as previously discussed, going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. at 165. 
(b)(6)
Page 24 
In light of the above, the petitioner has not established that she meets this regulatory.criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. ' 
The regulatory criterion at 8 C.P.R. § 204.5(h)(3)(x) focuses on volume of sales and box office 
receipts as a measure of "commercial successes in the ·performing arts." In this instance, the 
. petitioner has fait'ed to submit 
documentary evidence of "sales" or "receipts" showing that she has 
achieved ·commercial successes· in the performing arts. The director discussed the evidence 
submitted .for this regulatory criterion and found that the petitioner failed to establish her eligibility. 
On appeal, the 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; Hristov, 2011 WL 4711885, at *9. Accordingly, the petitioner has not established that she 
meets this regulatory criterion. 
R Summary· 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
/. C. Comparable Evidence Under 8 C~F.R. § 204.5(h)(4) 
In Part 3 of Form I-290B, counsel states: "Since the above standards do not readily apply to the 
Petitioner's occupation, comparable evidence establishes th.e petitioner's eligibility in accordance 
with 8 C.P.R. § 204.5(h)(4)." Form I-290B and counsel's appellate brief do not include any further 
discussion of this issue. A passing reference without substantive arguments is insufficient to raise 
that ground on appeal. Desravines v. ·US. Atty. Gen., 343 Fed.Appx. 433, 4~5 (11th Cir. 2009). 
The regulation at 8C.F.R. § 204.5(h)(4) allow·s for the submission of"comparable evidence" only if 
the ten categories of evidence "do not readily apply to the beneficiary's occupation." Thus, it is the 
petitioner's burden to demonstrate why the regulatory criteria at 8 C.P.R. § 204.5(h)(3) are not readily 
applicable to the alien's occupation and how the evidence. submitted is "comparable" to the specific 
objective evidence required at 8 C.P.R. §§ 204.5(h)(3)(i)- (x). The regulatory language precludes the 
consideration of comparable evidence in this case, as there is no indication that eligibility for visa 
preference in the petitioner's occupation cannot be established by the ten criteria specified by the 
regulation at 8 C.F .R. § 204.5(h)(3 ). In· fact, as indicated ·in this decision, the petitioner submitted 
evidence that specifically addressed more than half of the categories of evidence set forth in the 
regulation at 8 C.P.R. § 204.S(h)(3). Where an alien is simply unable to satisfy the plain language 
requirements of at least three categories of evidence at 8 C.P.R. § 204.5(h)(3), the regulation at 
8 C.P.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. On appeal, 
counsel fails to explain why the regulatory criteria are not readily applicable to the petitioner's 
occupation. For instance, the petitioner has not established that the high salary criterion at 8 C.P.R. 
§ 204.5(h)(3)(ix) is not applicable to musicians or educators. Moreover, counsel fails to identify the 
petitioner's documentary evidence that is "comparable" to any specific objective evidence required at 
8 C.P.R.§§ 204.5(h)(3)(i)-:-(x);. . . 
(b)(6)• 
Page 25 
III. CONTINUING WORK IN THE AREA OF EXPERTISE IN THE UNITED STATES. 
Beyond the decision of the director, the statute and regulations require that the petitioner seeks to 
. continue work in her area of expertise in the United States. See section 203(b )(1 )(A)(ii) of the Act, 
8 U.S.C. § 1153(b)(1)(A)(ii); 8. C.F.R. § 204.5(h)(5). Such evidence may include·letter(s) from 
prospective employer(s), evidence of prearranged commitments such as contracts, or a statement 
from the petitioner detailing plans on how she intends to continue her work in the United States. ld. 
On the Form I-140, under Part 6, "Basic information about the proposed employment," the 
petitioner failed to provide a specific address where she will work in the United States. On page 13 
ofthe petitioner's June 7, 2011 affidavit accompanying the petition, she states:· · 
I will be working with in the coming months. It is fitting that this should be so. 
I have come full circle since the first time I worked with . Before, I was in my 
twenties and just starting out. Now I am a. grown woman who has gained great success in 
music which I am using to bring hope to the next generation of young people 
in South Africa and America. 
·The petitioner's affidavit does not provide specific· details regarding the nature of her work with 
in the United. States. Further, the affidavit is unsupported by any documentary evidence 
· from confirming their upcoming musical collaboration. Without more sufficient details 
. of the petitioner's plans or other "clear evidence" of where and how she will continue to work in her 
area of expertise in the United States, the AAO cannot conclude that she satisfies the requirements 
of the regulation at 8 C.F.R. § 204.5(h)(5): 
IV. CONCLUSION 
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. 
Even if the petitioner had submitted the requisite evidence under at least three evidentiary categories,"in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the-petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" arid (2) ''that the alien has sustained nation~ or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at ·1119-20. While the AAO concludes that the 
evidence is not indicative of. a level of expertise consistent with the small percentage at the very top of 
the field or sustained national· or international acclaim, the AAO need not explain that ·conclusion in a 
final merits determination.4 Rather~ the proper conclusion is that the petitioner has failed to satisfy the 
. . . . 
4 The AAO maintains de novo review of all questions offact and law. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 
2004). In any future proceeding, the AAO mailltains the jurisdiction to conduct a final merits determination as the office 
that made the last decision in this matter. 8 C.F.R. § 103.5(a)(l)(ii). See also section 103(a)(1) of the Act; section 204(b)of 
the Act; DHS Delegation Number 0150.1 (effective March 1,, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) 
(2003); Matter of Aurelio, .19 I&N Dec. 458, 460 (BIA 1987-) (holding that legacy INS, now USCIS, is the sole 
au-thority with the jurisdiction to decide visa petitions). 
(b)(6).. 
' \ 
Page 26 
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 petition that fails to comply with the technical requirements 
of the law even if the Service Center does not identify all of the grounds ·for denial in the initial 
decision. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), aff'd, 345 F.3d 683 (91h Cir. 2003); see also Soltane 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 sustained that burden. Accordingly, the appeal 
will be dismissed. -
ORDER: The appeal is dismissed. 
,' 
,