dismissed EB-1A Case: Music Production

(b)(6)
DATE: NAR 0. 6 2014 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Admini strative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529 -2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act ; 8 U.S .C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:ljwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F .R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
(' '\ Ron Rosen berg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on August 13, 2013, and is now before the Administrative Appeals Office (AAO) on 
appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien 
of extraordinary ability as a music producer. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of his 
sustained national or international acclaim. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner demonstrate "sustained national or international acclaim" and present 
"extensive documentation" of his or her 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, 
specifically a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific 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 claims that the petitioner meets at least three of the regulatory criteria at 8 C.F.R. 
§ 204.5(h)(3). 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enterthe 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. 
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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 vis(:}S as aliens of extraordinary ability. See H.R. 723 101
51 
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 very top of the field of 
endeavor. !d.; 8 C.P.R. § 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 his or her achievements in the field. Such acclaim must be 
established either through evidence of a one-time achievement (that is, a major, international 
recognized award) or through the submission of qualifying evidence under at least three of the ten 
categories of evidence listed at 8 C.P.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, 596 F.3d 1115 (9th Cir. 2010). 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.P.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 meet those two criteria, those 
concerns should have been raised in 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.P.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. TRANSLATIONS 
The record of proceeding reflects that the petitioner submitted numerous non-certified English 
language translations and foreign language documents without any English language translations. 
The regulation at 8 C.P.R. § 103.2(b) provides in pertinent part: 
1 Specifically, the court stated that the AAO had unilaterally 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)
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NON-PRECEDENT DECISION 
(3) Translations. Any document containing foreign language submitted to USCIS 
shall be accompanied by a full English language translation which 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. 
Although the petitioner submitted a single certified translation at the initial filing of the petition, in 
response to the director's request for evidence, and on appeal, it is unclear which documents, if any, 
to which the certifications pertain. The submission of a single translation certification at each 
submission that does not identify the document or documents it purportedly accompanies does not 
meet the requirements of the regulation at 8 C.P.R. § 103.2(b )(3) . The petitioner did not comply 
with the regulation at 8 C.P.R. § 103.2(b )(3). Accordingly, the evidence is not probative and will 
not be accorded any weight in this proceeding. 
III. ANALYSIS 
A. Evidentiary Criteria 2 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prize s or awards for excellence in the field of endeavor. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the alien's 
receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field 
of endeavor. " Moreover, it is the petitioner's burden to establish that the evidence meets every 
element of this criterion. Not only must the petitioner demonstrate his receipt of prizes and awards, 
he must also demonstrate that those prizes and awards are nationally or internationally recognized 
for excellence in the field of endeavor, which, by definition, goes beyond the awarding entity. 
In response to the director's request for evidence, counsel claimed that the petitioner's song, 
· · ~ · · · ~~~~. A review of the record of proceeding 
reflects that the petitioner submitted a letter from stating that he worked with 
the petitioner in writing, arranging, and composing the song, " ," which was performed by 
I - · _ The petitioner also submitted screenshots from 
reflecting that "[r]egional Mexican singer/songwriter 1 is nominated for Best Regional 
Mexican Song for ' _ 1 (emphasis in original). 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires the petitioner 's receipt of 
prizes or awards. The petitioner has not demonstrated that he was nominated for a Latin Grammy 
Award. According to the screenshot mentioned above, was nominated for the Latin 
Grammy Award rather than the petitioner. Moreover, the petitioner has not established that a 
nomination equates to a prize or an award consistent with the plain language of the regulation at 8 
2 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed 
in this decision. 
(b)(6)
NON-PRECEDENT DECISION 
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C.P.R. § 204.5(h)(3)(i). The petitioner has not submitted documentary evidence reflecting his 
receipt of a Latin Grammy Award. 
In addition, counsel claimed that the petitioner has "written the musical scores for various television 
productions that have been nominated for multiple national entertainment awards." The petitioner 
submitted a letter from .. ~-· ... _ ::... : _ .J ____ -~ - - :=- ____ · _, ~ ' · . who stated that the petitioner 
"developed the score of our production entitled _ _ ___ _ _ which went on to receive multiple 
nominations at the luuw \...-i:lli:llUla n. vvru U;) Hl '--"UllU.t;vuu. , -=:v:, .... u:., :~." The petitioner also submitted an 
uncertified translation of a letter from .LJU HU '-''-''-''-''-! u~• ~u-~~ .. , ~ ~ ··- -·-- -- ~--- - • •• , who stated that 
the petitioner worked on the musical score for '' that obtained six nominations at the 
. Further, the petitioner submitted an uncertified translation of a letter from 
who stated that "["Despimplote"] was internationally awarded and was 
released in the city of ' but did not identify any specific award. Finally, counsel 
claimed that the petitioner "won 
Argentina." The petitioner submitted an 
indicating that "[t)he award for the best 
payasos')." 
~ · - . . 
uncertified translation of an article from . 
music was presented to ~ · __ _ 
The regulation at 8 C.P.R. § 103.2(b )(2)(i) provides that the non-existence or unavailability of 
required evidence creates a presumption of ineligibility. According to the same regulation, only 
where the petitioner demonstrates that primary evidence does not exist or cannot be obtained may 
the petitioner rely on secondary evidence and only where secondary evidence is demonstrated to be 
unavailable may the petitioner rely on affidavits. While the petitioner submitted letters and an 
uncertified translation of an article, the petitioner did not submit any documentary evidence 
demonstrating that primary evidence and secondary evidence does not exist or cannot be obtained. 
Regardless, the letters that have been provided are not affidavits as they were not sworn to or 
affirmed by the declarant before an officer authorized to administer oaths or affirmations who 
has, 
having confirmed the declarant's identity , administered the requisite oath or affirmation. See Black's 
Law Dictionary 58 (9th Ed., West 2009). Nor, in lieu of having been signed before an officer 
authorized to administer oaths or affirmations, do they contain the requisite statement , permitted by 
Federal law , that the signers, in signing the statements, certify the truth of the statements, under 
penalty of perjury. 28 U.S.C. § 1746. 
In addition to this deficiency, the letters do not reflect that the petitioner was nominated for his work; 
instead the letters indicate that specific television shows were nominated. Regardless, as indicated 
above, the petitioner has not established that nominations equate to prizes or awards. As it relates to 
the claim that the petitioner received the best music award at the < l, the 
petitioner failed to submit documentary evidence demonstrating that the award is nationally or 
internationally recognized for excellence in the field. 
The lack of primary evidence and specific information regarding the claimed awards and their 
national or international recognition is insufficient to establish that the petitioner has received 
nationally or internationally recognized prizes or awards for excellence in the field pursuant to the 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
regulation at 8 C.P.R. § 204.5(h)(3)(i). Accordingly, the petitioner did not establish that he meets 
this criterion. 
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 determined that the petitioner did not establish eligibility for this criterion. In counsel's 
brief submitted on appeal, counsel did not contest the findings of the director for this criterion or 
offer additional arguments. Therefore, the petitioner abandoned this issue. See 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) (plaintiffs claims considered to be abandoned 
when he failed to raise them on appeal). 
Accordingly, the petitioner did not establish that he meets this cr.iterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases. 
The director determined that the pet1t10ner established eligibility for this criterion. 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." As will be discussed, the documentary 
evidence submitted in support of this criterion is not sufficient to meet the plain language of the 
regulation at 8 C.F.R.· § 204.5(h)(3)(vii). Therefore, as discussed below, the director's decision will 
be withdrawn. 
The petitioner submitted documentary evidence reflecting that he composed and arranged music for - - - .. . - ,.. . 
Florida. In this case, the petitioner's collaboration constitutes evidence of the display of the 
petitioner's work consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii). 
However, the petitioner did not submit any documentary evidence reflecting that his work has been 
displayed at any other exhibitions or showcases. Section 203(b)(1)(A)(i) of the Act requires the 
submission of extensive evidence. Consistent with that statutory requirement, the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires the petitioner's work to be displayed at more 
than one exhibition or showcase. 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.P.R. §§ 204.5(h)(3)(iv) and (ix) only 
require a single instance of service as a judge or a single high salary. When a regulatory criterion 
wishes 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 plural 
in the remaining regulatory criteria has meaning. In a different context, federal courts have upheld 
USC IS' ability to interpret significance from whether the singular or plural is used in a regulation. 
See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at *1, *12 (D.C. Cir. March 26, 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 
(b)(6)
NON-PRECEDENT DECISION 
Page 7 
degree at 8 C.P.R. § 204.5(1)(2) requires a single degree rather than a combination of academic 
credentials). Therefore, the petitioner's decision for this criterion is withdrawn. 
Accordingly, the petitioner did not establish that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[ e ]vidence that the alien has 
performed in a leading or critical role for organizations or establishments that have a distinguished 
reputation [emphasis added]." In general , a leading role is evidenced from the role itself, and a 
critical role is one in which the alien was responsible for the success or standing of the organization 
or establishment. A review of the record of proceeding reflects that the petitioner claimed eligibility 
for this criterion based on his work with FoxTelecolombia, Destino Musical, and Rafael Rodriguez 
Bencid. 
Regarding FoxTelecolombia, the petitioner submitted the previously mentioned letter from Martha 
L. Goyeneche Pardo who stated that the petitioner developed the musical scores for some of its 
productions such as Sin Retorno, La Beca, Los Fantasmas de Das, and Cruces. The petitioner also 
submitted a letter from David Cuasquer Chacon who stated that the petitioner participated on the 
series, Sin Retorno, for FoxTelecolombia. Although the letters indicated that the productions were 
nominated for the India Catalina Awards, the letters do not provide specific information 
demonstrating how the petitioner's role in composing musical scores was leading or critical to 
FoxTelecolombia. Although Ms. Goyeneche Pardo discussed the importance of musical scores in 
television productions, the issue for this criterion is whether the petitioner's specific work was 
considered as a leading or critical for FoxTelecolombia. The petitioner has failed to establish how 
his work was critical to FoxTelecolombia and failed to submit evidence such as an organizational 
structure to demonstrate that the petitioner's role was a leading role. 
Regarding Destino Musical, the petitioner submitted a letter from Enrique Ramirez, CEO of Destino 
Musical, who stated that the petitioner has produced more than 400 different songs and collaborated 
on more than 50 different albums for Destino Musical. Moreover, Enrique 
Ramirez claimed that the 
petitioner has been "invaluable to productions and have directly impact[ ed] their successes in term of 
sales and popularity ." However, the letter does not provide specific examples demonstrating that the 
petitioner's role was leading or critical to Destino Musical. There is no evidence, for instance, 
comparing the sales of songs and albums that were produced by the petitioner to other producers or 
employees at Destino Musical. Although the letter indicated that the petitioner and his work was 
"critical," the documentary evidence does not reflect that the petitioner has performed in a leading or 
critical role consistent with the plain language of the regulation at 8 C.F.R . § 204.5(h)(3)(viii). In 
fact, Enrique Ramirez's position reflects that he performs in a far more leading or critical role than 
the petitioner. The petitioner did not submit any organizational charts, for example, to demonstrate 
that his roles were leading or critical when compared to other employees at the organizations. 
Vague, solicited letters that simply repeat the regulatory language but do not explain how the 
(b)(6)
NON-PRECEDENT DECISION 
Page 8 
petitioner's roles were leading or critical is not persuasive evidence. 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), ajfd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, 
Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Furthermore, although the petitioner submitted 
copies of numerous compact disc covers, the petitioner did not submit any other documentation 
establishing that _ . · · l has a distinguished reputation as required pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
Finally, regarding _ , the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii) requires that the petitioner perform in a leading or critical role "for organizations 
or establishments. " As ~ - - - · · = ~ · · is not an organization or an establishment, the 
petitioner's role with him does not meet the plain language of this regulatory criterion. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that 
the alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." The burden is on the petitioner to establish that he meets every element of 
this criterion. Without documentary evidence demonstrating that the petitioner has performed in a 
leading or critical role for organizations or establishments that have a distinguished reputation, the 
petitioner has not established that he meets the plain language of this regulatory criterion. 
Accordingly , the petitioner did not establish that he meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(x) requires "[e]vidence of commercial successes 
in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video 
sales." 
A review of the record of proceeding reflects that the petitioner submitted the previously mentioned 
letter from - . . - . - . ' r • 1 and several uncertified translations of letters 
thatlisted the petitioner's work but did not provide any evidence of box office receipts or sales. As 
cited above, this criterion requires the petitioner to demonstrate his eligibility through either "box 
office receipts or record, cassette, compact disk, or video sales." Although the petitioner provided 
evidence showing that he has produced songs and albums that are available for sale, he failed to 
provide evidence demonstrating the level of sales for any of his work. 
On appeal, in referring to . > letter, counsel claimed that "[ w ]hile this is not 'box 
office receipts or record, cassette, compact disk or video sales,' this is comparable evidence." It is 
the petitioner's burden to explain why the regulatory criteria are not readily applicable to his 
occupation and how the evidence submitted is "co mparable" to the objective evidence required at 8 
C.F.R. § 204.5(h)(3)(i)-(x). In this case, counsel has failed to establish that the regulatory criteria are 
not applicable to the petitioner. Further, the proffered letter lacks documentary evidence to support 
(b)(6)
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NON-PRECEDENT DECISION 
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the claim that the petitioner has "directly impacted" the success of "in terms of 
sales and popularity. " 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 of California, 14 I&N Dec. 190 (Reg'l 
Comm 'r 1972)). In addition , the letter contains no specific information comparable to this 
criterion's requirement, such as the amount of claimed sales or percentage of money that can be 
attributed to the petitioner. 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that evidence of sustained national or international 
acclaim "shall" include evidence of a one-time achievement or evidence of at least three of the ten 
regulatory categories of evidence to establish the basic eligibility requirements. The ten categories 
in the regulations are designed to cover different areas; not every criterion will apply to every 
occupation. For example, the criterion at 8 C.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual 
arts, and the criterion at 8 C.F.R. § 204.5(h)(3)(x) expressly applies to the performing arts. The 
regulation at 8 C.F.R. § 204.5(h)( 4) provides "[i]f the above standards do not readily apply to the 
[petitioner's] occupation , the petitioner may submit comparable evidence to establish the 
[petitioner's] eligibility ." It is clear from the use of the word "shall" in 8 C.F.R. § 204.5(h)(3) that 
the rule, not the exception, is that the petitioner must submit evidence to meet at least three of the 
regulatory criteria. 
An inability to meet a criterion, however, is not necessarily evidence that the criterion does not apply 
to the petitioner's occupation. Throughout this proceeding counsel specifically addressed five of the 
ten criteria at the regulation at 8 C.F.R. § 204.5(h)(3). Further , although the petitioner did not claim 
these additional criteria, a music producer could submit documentary evidence regarding the 
published material criterion, the judging criterion, the original contributions criterion , and the high 
salary criterion. Counsel provided no documentation as to why these provisions of the regulation 
would not be appropriate to the profession of a music producer. Where an alien is simply unabie to 
meet or submit documentary evidence of three of these criteria , the plain language of the regulation 
at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence. Again, counsel 
does not explain why the petitioner could not submit documentary evidence of his commercial 
successes. 
Without documentary evidence reflecting the commercial successes of the petitioner, the petitioner 
did not establish that he meets the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(x). 
Accordingly, the petitioner did not establish that he meets this criterion. 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
(b)(6)
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IV. CONCLUSION 
The documentation sqbmitted 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 expetiise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor " and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been 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. 3 Rather, the proper conclusion is that the petitioner has failed to 
satisfy the antecedent regulatory requirement of three types 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. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
3 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ , 381 F.3d 143, 145 
(3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(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 authority with the jurisdiction to decide visa petitions).