dismissed EB-1A Case: Music

(b)(6)
DATE: JAN 0 9 2014 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 Immigration 
Services 
FILE: 
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.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
;;FfL-_ rr Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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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 to classify the beneficiary as an employment-based immigrant pursuant to 
section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), as 
an alien of extraordinary ability as a tabla musician. The director determined that the petitioner had 
not established the requisite extraordinary ability and failed to submit extensive documentation of 
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)(1)(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 claimed that the beneficiary meets at least three of the regulatory criteria at 
8 C.F.R. § 204.5(h)(3) and asserts that the director did not consider the comparable evidence that the 
petitioner submitted. On June 18, 2013, the AAO issued a notice of derogatory evidence. The 
petitioner responded on July 12, 2013 and the response is now part of the record of proceeding. 
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 enter the United States to continue 
work in the area of extraordinary ability, and 
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(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See 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.F.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.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, 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.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 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.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. 
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.P.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
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II. ANALYSIS 
A. Comparable Evidence 
Counsel claims in his brief that the director did not consider the petitioner 's comparable evidence 
pursuant to the regulation at 8 C.P.R. § 204.5(h)( 4) regarding the beneficiary 's conferment of the 
title "Pandit" by his guru. Moreover, counsel claims that the beneficiary's reference letters can be 
used as comparable evidence pursuant to the membership criterion pursuant to the regulation at 8 
C.P.R. § 204.5(h)(3)(ii) and the published material criterion pursuant to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(iii). 
The regulation at 8 C.P.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. See 56 Fed. Reg. 60897, 60898 (Nov. 29, 1991). For example, the criterion at 8 C.P.R. 
§ 204.5(h)(3)(vii) implicitly applies to the visual arts, and the criterion at 8 C.P.R. § 204.5(h)(3)(x) 
expressly applies to the performing arts. Further, the regulation at 8 C.P.R. § 204.5(h)(4) provides 
"[i]f the above standards do not readily apply to the beneficiary 's occupation, the petitioner may 
submit comparable evidence to establish the beneficiary's eligibility." It is clear from the use of the 
word "shall" in 8 C.P.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. Thus, it is the petitioner's burden to 
explain why the regulatory criteria are not readily applicable to the beneficiary's occupation and how 
the evidence submitted is "comparable" to the objective evidence required at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). 
In counsel's brief, he does not explain why the regulatory criteria at 8 C.F.R. § 204.5(h)(3) are not 
applicable to the beneficiary 's occupation. Instead, counsel makes unsupported assertions such as 
"we did not submit evidence of membership in associations in the field which require outstanding 
achievements as judged by recognized experts because this does not readily apply," and "we have 
explained that as a Tabla musician, you are rarely written about and published in major media." The 
unsupported statements of counsel on appeal or in a motion are not evidence and thus are not entitled 
to any evidentiary weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). In fact, 
counsel's claim that an individual is "rarely" written about demonstrates that there could be 
published material about a tabla player. Moreover, counsel did submit published material about 
other tabla players, and the petitioner did submit two articles that were published material about the 
beneficiary, which will be discussed further below, evidencing that the criterion does apply to the 
beneficiary's occupation. 
The regulatory language precludes the consideration of comparable evidence in this case, as there is 
no indication that the ten criteria specified by the regulation at 8 C.F.R. § 204.5(h)(3) are not readily 
applicable to the beneficiary's occupation as a table player. In fact, as indicated in this decision, 
counsel discusses evidence in his brief that specifically addresses six of the ten criteria at 8 C.P.R. 
§ 204.5(h)(3) that relates to the beneficiary 's occupation . An inability to meet a criterion, however, 
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is not necessarily evidence that the criterion does not apply to the beneficiary's occupation. 
Moreover, the regulation at 8 C.F.R. § 204.5(h)(3) includes other broad criteria, including evidence 
that the beneficiary commanded a high salary pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix) 
and have commercial successes pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(x). Counsel 
provides no documentation as to why these provisions of the regulation would not be appropriate to 
the profession of a tabla player/musician. 
The petitioner also did not indicate how the letters supporting the petition are comparable to the 
objective evidence independent of the filing of the petition required under the regulatory criteria at 
8 C.F.R. §§ 204.5(h)(3)(ii) and (iii). Where a beneficiary is simply unable to meet or the petitioner 
is unable to 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. 
B. Evidentiary Criteria 2 
Documentation of the alien 's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in thefield of endeavor. 
On June 18, 2013, in accordance with the regulation at 8 C.F.R. § 103.2(b )(16)(i), the AAO issued a 
notice advising the petitioner that the beneficiary previously submitted an altered document. 
Specifically, on April 16, 2010, the beneficiary filed Form I-140 l seeking to 
classify himself as an alien of extraordinary ability pursuant to section 203(b )(1)(A) of the Act. At 
that time, the beneficiary submitted his resume and claimed that he was an 
(Emphasis 
added.) Moreover, the beneficiary submitted a copy of a letter, dated November 24, 1988, from 
Station Director for who stated that the beneficiary "placed inA (H) 
grade." (Emphasis added.) Furthermore, prior counsel claimed that "selects 
musicians for their music programs based on their stature and ability and grades them according to 
their talent and ability, the highest grade being A."3 On February 21, 2012, the AAO dismissed the 
appeal and indicated that letter was altered where the 'A' grade was listed. At the 
time of filing the current petition the petitioner submitted a copy of the 
unaltered version of letter reflecting that the beneficiary received a "B" grade for 
his audition. Neither the petitioner nor counsel addressed the previous findings of the AAO or 
provided an explanation for the prior submission of an altered document. 
On July 12, 2013, counsel responded to the AAO's June 18, 2013 notice and submitted a letter, 
dated June 26, 2013, from Program Head for who stated that the 
beneficiary is a '" B High' grade In addition, counsel submitted an 
affidavit from the beneficiary who claimed that he did not alter letter, had no 
knowledge of how the letter was altered, and was unsatisfied by the representation of his former 
2 
On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed 
in this decision. 
3 Prior counsel was 
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counsel. Moreover, counsel submitted some email correspondence between the beneficiary and 
former counsel. 
It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent, 
objective evidence. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Any attempt to explain or 
reconcile such inconsistencies will not suffice unless the petitioner submitted competent, objective 
evidence pointing to where the truth lies. !d. Doubt cast on any aspect of the petitioner 's proof may, 
of course, lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered 
in support of the visa petition. Id. at 591. Although the petitioner established that the beneficiary 
was a "B" graded artist of the petitioner has not demonstrated that the beneficiary 
did not submit an altered document in order to procure an immigration benefit. Neither counsel's 
response nor the beneficiary's affidavit addresses why, in support of the previous petition, the 
beneficiary submitted his resume indicating that he was an "A' Grade Artist of " 
Regardless, the beneficiary's receipt of a "B" grade from will be evaluated below, 
along with the other claims on appeal, to determine if the documents meet the plain language of the 
regulation at 8 C.P.R. § 204.5(h)(3)(i). 
The director determined that the petitioner did not establish the beneficiary's eligibility for this 
criterion. On appeal, counsel claimed that the beneficiary meets this criterion based on the 
following: 
1. Selection as "winner" of the conducted by 
2. Receipt of a Gold Medal from the 
3. Receipt of the title 
and 
4. Receipt of a National Scholarship from the 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the 
alien's receipt oflesser nationally or internationally recognized prizes or awards for excellence in the 
field of endeavor." It is the petitioner 's burden to establish that the evidence meets every element of 
this criterion. Not only must the petitioner demonstrate the beneficiary's receipt of prizes and 
awards, it 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. 
Regarding item 1, the etitioner submitted a certificate indicating that the beneficiary "participated 
in the and has placed 2nd in ' on January 24, 1974. 
Thus, according to this certificate, the beneficiary placed second and was not the winner of the 
competition as counsel claimed on appeal. The unsupported statements of counsel on appeal or in a 
motion are not evidence and thus are not entitled to any evidentiary weight. See Phinpathya, 464 
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Page 7 
U.S. at 188-89 n.6. The AAO must look to the plain language of the documents and not to 
subsequent statements of counsel. See Matter of Izummi, 22 I&N Dec. 169, 185 (Comm'r 1998). 
Nonetheless, on appeal, the petitioner submitted screenshots from 
and www.wikipedia.org reflecting background information about 
However, none of the screenshots provide any information regarding the 
or associated prizes or awards, so as to demonstrate that the beneficiary's second place 
finish constitutes a nationally or internationally recognized prize or award for excellence. Without 
additional evidence regarding the national or international recognition of the prize or award, the 
reputation alone of the awarding entity is insufficient to establish eligibility for this criterion. 
Similarly, regarding the beneficiary's receipt of a "B" grade from as discussed 
above, the petitioner did not submit any documentary evidence regarding the significance of being a 
graded artist, as well as receiving a "B" grade, so as to demonstrate that it equates to a nationally or 
internationally recognized prize or award for excellence in the field pursuant to the regulation at 
8 C.F.R. § 204.5(h)(3)(i). 
Regarding item 2, the petitioner submitted two certificates dated March 31, 1977 and March 22, 
1977. The March 31, 1977 certificate indicates that the beneficiary "participated in the 
conducted by the in 1976/77, and was given a 
Gold Medal for placing first in the " The March 22 1977 certificate 
indicates that the beneficiary "participated in the regional Music Competition in conducted 
by the in 197 6177, and has won first prize in 
signed both certificates. The certificates bear no indicia 
that the national organization issued either certificate. 
On appeal, the petitioner submitted a screenshot from 
regarding 2011 photos of 
a press release 
screenshot from 
regarding 
a screenshot from www.wikepedia.org, screenshots from www.nvtimes.com, a 
a screenshot from www.firstpost.com, and 
annual report. The documentary evidence contains background information 
According to the documentation, the _ are recognized as 
the highest national honour conferred on practicing artistes, gurus and scholars, and have come to 
stay as the most coveted honours to which the artistes aspire." The press release reflects that 
is based in New Delhi. The petitioner, however, has not demonstrated that 
the beneficiary received a In fact, the 
petitioner submitted screenshots from that listed the 
recipients of the and the beneficiary is not listed as a recipient. Rather, 
the beneficiary received a gold medal in a competition that the _ 
conducted. The March 22, 1977 certificate expressly states that the competition was 
regional. The petitioner did not submit any documentary evidence regarding the gold medal or first 
prize in the senior percussion category at the music presentations in so as to 
establish that either certificate is a nationally or internationally recognized prize or award for 
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excellence in the field consistent with the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i). 
Regarding item 3, on appeal counsel claimed: 
It is apparent from the contents of the Denial that reliance was placed on a prior AAO 
Decision associated with the Beneficiary. 
For instance, the Denial repeats the AAO's contention from that Decision that 
although the letter from 
provided history and selection process for the award. "Nothing in Mr. support 
letter or the record; however, reflect that the award is nationally/internationally 
recognized." 
It is clear the reviewing Officer has not read the letter that was submitted this time 
around. 
Counsel then quoted portions of the letter. However, a review of the record of proceeding reflects 
that the petitioner submitted the same letter from dated May 31, 2010, which the 
beneficiary previously submitted in support of his prior petition. The petitioner did not submit an 
updated or new letter as suggested by counsel. Regardless, while Mr. described the annual 
music festival and the selection process for the various awards, as well as background information, 
his letter provides no information demonstrating that receiving a 
equates to a nationally or internationally recognized prize or award for excellence in the 
field pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i). The petitioner also submitted a 
screenshot from 
' dated July 12, 2010, regarding who received the at the 
The article, from the who claimed 
that "[t]his title is considered to be very prestigious as only select few talents [sic] get invited to 
perform at the annual fest" and "[t]he title is given in recognition of meritorious performance at the 
fest." The personal opinion of a winner in a local section of a newspaper is not persuasive evidence 
that receiving the title meets all of the elements of this criterion. The article does not 
establish that the title is a nationally or internationally recognized prize or award for 
excellence in the field; there is no evidence demonstrating that the title is nationally or 
internationally recognized beyond 
Regarding item 4, on appeal, the petitioner submitted a screenshot from 
reflecting that "[t]his scheme seeks to give assistance to young artists of outstanding promise for 
advanced training within India in the field of Indian Classical Music, Indian Classical Dance, 
Theatre, Visual art, Mime Folk, Traditional and Indigenous Arts and Light Classical Music." 
However, academic study is not a field of endeavor, but training for a future field of endeavor. As 
such, academic scholarships, student awards, postdoctoral fellowships, and financial aid awards 
cannot be considered nationally or internationally recognized prizes or awards in the petitioner's 
field of endeavor. Moreover, financial aid awards in the form of scholarships are reserved for 
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students in need of financial assistance to pay for tuition and not based on excellence in the field. 
Therefore, the petitioner did not establish that the beneficiary's scholarship is a nationally or 
internationally recognized prize or award for excellence in the field. Moreover, the petitioner did 
not submit any documentary evidence beyond the awarding entity to demonstrate that the 
scholarship is recognized nationally or internationally for excellence in the field of endeavor. 
Finally, while they may be prestigious, scholarships, fellowships, and other sources of competitive 
financial support are not nationally or internationally recognized prizes or awards because only other 
students - not recognized experts in the field - compete for such funding. It cannot be concluded 
that receiving funding for one's academic training constitutes receipt of nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. Such support funding is 
presented not to established musicians or artists with active professional careers, but rather to 
students seeking to further their training and experience. Academic awards and honors received 
while preparing for a vocation fall substantially short of constituting a national or international prize 
or award for recognition in the field. 
Finally, the director also determined that the beneficiary did not receive a gold medal for the film, 
On appeal, counsel claims: 
While it is true that the Gold Medal for Original Score was awarded to 
and therefore evidence of Beneficiary's role, however leading, or critical may not go 
to satisfy the extraordinary ability prong at 8 CFR § 204.5(h)(3)(i) as Evidence of 
receipt of lesser nationally or internationally recognized prizes or awards, we 
respectfully request that it can be considered as evidence to satisfy 8 CFR 
§ 204.5(h)(3)(viii) -Evidence that the alien has performed in a leading or critical 
role for organizations or establishments that have a distinguished reputation. 
(Emphasis in original.) 
As counsel is no longer contesting this issue under the awards criterion, this issue is considered to be 
abandoned and the evidence will be considered under the leading or critical role criterion pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 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). 
As discussed above, the plain language of this regulatory criterion specifically requires that the 
beneficiary's prizes or awards be nationally or internationally recognized for excellence in his field. 
In this case, the petitioner did not establish that the beneficiary's prizes or awards are nationally or 
internationally recognized prizes or awards for excellence in the field of endeavor. 
Accordingly, the petitioner did not establish that the beneficiary meets this criterion. 
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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. 
As indicated earlier in this decision, counsel requested that the beneficiary's reference letters be 
considered as comparable evidence to meet this criterion. Again, counsel did not establish that the 
beneficiary's occupation as a tabla musician is eligible for the provisions of the regulation at 
8 C.F.R. § 204.5(h)( 4) and explain how reference letters are comparable to the membership criterion 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ii) requires "[ d]ocumentation 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." In order to demonstrate that membership in an association 
meets this criterion a petitioner must show that the association requires outstanding achievement as 
an essential condition for admission to membership. Membership requirements based on 
employment or activity in a given field, minimum education or experience, standardized test scores, 
grade point average, recommendations by colleagues or current members, or payment of dues do not 
satisfy this criterion as such requirements do not constitute outstanding achievements. Further, the 
overall prestige of a given association is not determinative; at issue are the membership requirements 
rather than the association's overall reputation. 
The reference letters do not make any claims that the beneficiary has any memberships in 
associations , which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields consistent with the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
Accordingly, the petitioner did not establish that the beneficiary meets this criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien 's work in the .field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The director determined that the petitioner did not establish the beneficiary 's eligibility for this 
criterion. On appeal, counsel claims that the director "added a substantive requirement required 
beyond those set forth in the regulations" by indicating that the articles were not primarily about the 
beneficiary. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires "[p]ublished 
material about the alien in professional or major trade publications or other major media, relating to 
the alien's work in the field for which classification is sought." USCIS may not utilize novel 
substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5. See Kazarian, 
596 F.3d at 1221, citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir.2008). As the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires that the published material be 
"about" the beneficiary relating to his work in the field for which classification is sought, material 
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that mentions the beneficiary but is about another subject does not meet the plain language 
requirements of the regulation. Nevertheless, an article that is about the beneficiary in addition to 
other subjects, would generally meet the elements of this criterion. 
A review of the record of proceeding reflects that the petitioner submitted numerous articles that 
briefly mention the beneficiary as one of the performers or as the instructor of students but are not 
published material about him relating to his field. As an example, the petitioner submitted an article 
entitled, " _ (unidentified date and publication) that 
mentioned the beneficiary one time as accompanying at a concert in Tampa, Florida. 
The article is about and his spiritual chants rather than published material about the 
beneficiary relating to his work in the field. It is insufficient to establish eligibility for this criterion 
based on material that simply lists, mentions, or indicates the beneficiary's name without providing 
material that is about him and relates to his work. According to the plain language of the regulation, 
any published material that mentions a beneficiary's name does not automatically qualify for the 
regulation at 8 C.P.R. § 204.5(h)(3)(iii). 
Likewise, the petitioner submitted articles reflecting published material about shows or events in 
which the beneficiary is mentioned as being a participant, but the articles are not about the 
beneficiary relating to his work. For example, the petitioner submitted an article entitled, ' 
While the article mentioned the 
beneficiary and credited him as the guru and instructor, the article is about a concert organized by 
the performed at the An article that is 
not about the beneficiary does not meet this regulatory criterion. See, e.g., 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 are not about the actor). 
Again, the plain language of the regulation at 8 C.F .R. § 204.5(h)(3)(iii) requires "[p ]ublished 
material about the alien in professional or major trade publications or other major media, relating to 
the alien's work in the field for which classification is sought." Furthermore, the plain language of 
the regulation at 8 C.P.R.§ 204.5(h)(3)(iii) requires that "[s]uch evidence shall include the title, date, 
and author of the material, and any necessary translation." In general, in order for published 
material to meet this criterion, it must be about the beneficiary and, as stated in the regulations, be 
published in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national or international distribution. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as 
major media because of significant national distribution, unlike small local community papers.4 
A review of the record of proceeding reflects that the petitioner submitted various screenshots from 
the publications' websites. For example, the petitioner submitted screenshots from 
However, USCIS 
need not rely on the self-promotional material of the publisher. See Braga v. Poulos, No. CV 06 
4 
Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
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5105 SJO (C. D. CA July 6, 2007) aff'd 2009 WL 604888 (9th Cir. 2009) (concluding that self­
serving assertions on the cover of a magazine as to the magazine's status is not reliant evidence of 
major media). Moreover, the petitioner submitted screenshots from Wikipedia; however, as there are 
no assurances about the reliability of the content from this open, user-edited Internet site, 
information from Wikipedia has little evidentiary weight. See Badasa v. Mukasey, 540 F.3d 909 (8th 
Cir. 2008). 5 Further, the petitioner submitted material that was posted on Internet websites , such as 
However, the petitioner did not 
demonstrate that the material is considered to be major media. The petitioner did not submit 
independent, objective evidence establishing that the websites are considered major media. In 
today's world, many newspapers and organizations, regardless of size and distribution, post at least 
some of their stories on the Internet. To ignore this reality would be to render the "major media" 
requirement meaningless. However, the petitioner did not establish that international accessibility 
by itself is a realistic indicator of whether a given website is "m<Uor media." Finally, the petitioner 
submitted articles from various publications, such as Indo-American News, without any 
documentation demonstrating that they are professional or major trade publications or other major 
media. 
The director found that the petitioner submitted one article, 
which qualified as published material about the beneficiary in a major medium; however the director 
indicated that the regulatory criterion "requires published material in the plural." Section 
203(b )(l)(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.P.R. § 204.5(h)(3)(iii) requires 
published material in more than one professional or trade publication or other major medium. 
Significantly, not all of the criteria at 8 C.P.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 service on a single judging panel 
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.P.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 USCIS' 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 12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 
5 See also the online content from http://en.wikipcdia.org/wiki/Wikipedia: General disclaimer, accessed on 
December 18, 2013, and copy incorporated into the record of proceeding 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 resource 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 of 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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 13 
at *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). 
Notwithstanding the above, the director stated that "USCIS is satisfied that his publication is major." 
However, the record of proceeding does not support the director's finding. Regarding 
~ _ counsel previously claimed that s one of the most widely read newspapers 
in India, with a circulation of 309,000, according to the and 
referenced in Wikipedia. Counsel did not submit any documentary evidence from the 
or from Wikipedia to support his assertions. Without documentary evidence to 
support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). See also Badasa, 540 P.3d at 909 (weight will not be 
assigned to information from Wikipedia as there are no assurances about the reliability of the content 
from this open, user-edited Internet site). Moreover, the petitioner submitted screenshots from 
that provide general information about the brands in the 
aggregate but no specific circulation or distribution statistics for the specifically. 
USCIS need not rely on the general self-promotional material of the publisher. See Braga, 2009 WL 
at 604888 (concluding that self-serving assertions on the cover of a magazine as to the magazine's 
status is not reliable evidence of major media). The petitioner did not submit any independent, 
objective evidence or other specific circulation or distribution data establishing that 
is a major medium. As such, the director's finding is withdrawn. 
On appeal, counsel specifically refers to the following three articles: 
1. An article entitled, 
2. An article entitled, 
3. An article entitled, ' 
Regarding item 1, the article reflects published material about the beneficiary relating to his work. 
According to the translation, which the beneficiary's spouse executed, the article is "[f]rom 
' However, as evidence of the significance of this publication, the petitioner 
submitted screenshots from Wikipedia, which is not a source of probative evidence. See Badasa, 
540 P.3d at 909 (weight will not be assigned to information from Wikipedia as there are no 
assurances about the reliability of the content from this open, user-edited Internet site). Moreover, 
the petitioner submitted a screenshot from reflecting that "Sakal operations 
consist of regional newspapers, magazines, and Internet publishing." The plain language of the 
regulation at 8 C.P.R. § 204.5(h)(3)(iii) requires that the material be published in professional or 
major trade publications or other major media. Hence, the determining factor is the publication 
(b)(6)
NON-PRECEDENT DECISION 
Page 14 
(Sakal) rather than the publishing company The petitioner has not established that 
the publication is a professional or major trade publication or other major medium consistent with 
this regulatory criterion. 
Regarding item 2, the article is about a concert at the _ Although the 
beneficiary is mentioned as performing at the concert, the article is about the concert. An article that 
is not about the beneficiary does not meet this regulatory criterion. See, e.g., Negro-Plumpe, 2:07-
CV-820-ECR-RJJ at *7 (upholding a finding that articles about a show are not about the actor). 
Moreover, counsel claimed that "Oxford Town is the Oxford Eagle's weekly arts and entertainment 
guide established in 1993," and "[t]he Oxford Eagle is a daily newspaper serving Oxford Town, 
Mississippi and surrounding counties." However, counsel did not provide any documentary 
evidence to support his assertions. The unsupported statements of counsel on appeal or in a motion 
are not evidence and thus are not entitled to any evidentiary weight. See Phinpathya, 464 U.S. at 
188-89 n.6. Regardless, if true, the newspaper appears to enjoy only a local distribution and 
circulation. Finally, as the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires the 
date of the material, the submission of a copy of an article with an illegible date does not satisfy this 
regulatory criterion. 
Similarly, regarding item 3, the article is about a concert by the beneficiary's students at the 
Although the article provides some background information about the 
beneficiary, the article is about the concert. An article that is not about the beneficiary does not meet 
this regulatory criterion. See, e.g., Negro-Plumpe, 2:07-CV-820-ECR-RJJ at *7 (upholding a finding 
that articles about a show are not about the actor). Moreover, as previously discussed, the petitioner 
did not submit any documentary evidence establishing thw is a professional or 
major trade publication or other major media. 
Furthermore, although not discussed in counsel's brief, counsel submitted two additional articles on 
appeal. First, counsel submitted a screenshot entitled. ' 
August 30, 2012, by 
The petitioner filed the petition on December 21, 
2011. The petitioner must establish the beneficiary's eligibility at the time of filing. 8 C.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter of Izummi, 22 I&N Dec. at 175. That decision further provides, citing Matter of Bardouille, 
18 I&N Dec. 114 (BIA 1981 ), that US CIS cannot "consider facts that come into being only 
subsequent to the filing of a petition." Id. at 176. Regardless, the article is about a concert the 
organized. Although the article mentions the beneficiary one time 
as being a performer at the concert, the article is not about him relating to his work. An article that 
is not about the beneficiary does not meet this regulatory criterion. See, e.g., Negro-Plumpe, 2:07-
CV-820-ECR-RJJ at *7 (upholding a finding that articles about a show are not about the actor). In 
addition, counsel did not submit any documentary evidence demonstrating that 
is a professional or major trade publication or other major medium. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
Second, counsel submitted a screenshot entitled, ' unidentified date, by 
Again, the article is about a concert at the 
and mentions the beneficiary as a performer. An article that is not about 
the beneficiary does not meet this regulatory criterion. See, e.g., Negro-Plumpe, 2:07-CV-820-ECR­
RJJ at *7 (upholding a finding that articles about a show are not about the actor). Further, as 
indicated above, counsel did not submit any documentary evidence establishing that 
is a professional or major trade publication or other major medium. 
Finally, counsel did not include the date of the material as required pursuant to the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iii). 
While the petitioner submitted a few articles reflecting published material about the beneficiary and 
his work, the petitioner did not establish that the material was published in professional or major 
trade publications or other major media. Submitting published material about the beneficiary and his 
work is insufficient to meet the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) without 
establishing that the material was published in professional or major trade publications or other 
major media. The burden is on the petitioner to establish every element of this criterion. 
Accordingly, the petitioner did not establish that the beneficiary meets this criterion. 
Evidence of the alien 's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specification for which 
classification is sought. 
The director did not make a determination of the beneficiary's eligibility for this criterion. On 
appeal, counsel states that he requested consideration of this criterion in response to the director's 
request for evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8). Based on a review of the 
record of proceeding, counsel claimed the beneficiar y's eligibility for this criterion based on a letter 
~m w~ 
stated that the beneficiary was affiliated with the university from 1996 to 1998 and "served on the 
panel of examination for both theory and practicals for "6 The letter does not 
include "a specific description of the duties" the beneficiary performed and, thus, does not comply 
with the regulation at 8 C.F.R. § 204.5(g)(1) regarding evidence of experience. 
The regulation at 8 C.F.R. § 103.2(b)(2) provides in pertinent part: 
(i) The non-existence or other unavailability or required evidence creates a 
presumption of ineligibility. If a required document, such as a birth or marriage 
certificate, does not exist or cannot be obtained, an applicant or petitioner must 
demonstrate this and submit secondary evidence , such as church or school records, 
pertinent to the fact at issue. If secondary evidence also does not exist or cannot be 
obtained, the applicant or petitioner must demonstrate the unavailability of both the 
required document and relevant secondary evidence, and submit ·two or more 
6 The letterhead , body and seal on this letter state " while the author 's title says' 
' 
(b)(6)
Page 16 
NON-PRECEDENT DECISION 
affidavits, sworn to or affirmed by persons who are not parties to the petition who 
have direct personal knowledge of the event and circumstances. Secondary evidence 
must overcome the unavailability of primary evidence, and affidavits must overcome 
the unavailability of both primary and secondary evidence. 
The regulation at 8 C.F.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. 
In this case, while the petitioner submitted a letter, the petitioner did not submit any documentary 
evidence demonstrating that primary evidence and secondary evidence do not exist or cannot be 
obtained. Regardless, the letter that has been provided is not an affidavit as it was 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, does it contain the requisite statement, permitted by 
Federal law, that the signer, in signing the statement, certifies the truth of the statement, under 
penalty of perjury. 28 U.S.C. § 1746. Furthermore, the plain language of the regulation at 8 C.F.R. 
§ 103.2(b)(2)(i) requires the submission of "two or more affidavits" in which the petitioner only 
submitted one letter. · 
Regardless, the plain language of the regulation at 8 C.P.R.§ 204.5(h)(3)(iv) requires "[e]vidence of 
the 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." In the case here, 
letter does not contain specific information such as the beneficiary's responsibilities on the 
panel and who he purportedly judged, so as to establish that the beneficiary participated as a judge of 
the work of others consistent with the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
See also 8 C.F.R. § 204.5(g)(l) (providing that letters documenting experience must provide "a 
specific description of the duties" the individual performed). Without additional, specific 
information supporting the letter, the petitioner has not demonstrated that the beneficiary meets this 
regulatory criterion. 
Accordingly, the petitioner did not establish that the beneficiary meets this criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director determined that the petitioner did not establish the beneficiary's eligibility for this 
criterion. The plain language 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." Here, the evidence must be reviewed to see whether it rises to the level of 
original contributions "of major significance in the field." The phrase "major significance " is not 
(b)(6)
NON-PRECEDENT DECISION 
Page 17 
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 (2nd Cir. Sep 15, 2003). 
The director found that the beneficiary 's reference letters did not reflect any original contributions of 
major significance in his field. Specifically, the director discussed a letter from 
and found that the reference did not identify the beneficiary's "new techniques" or any 
original contributions of major significance. The director's ultimate conclusion is consistent with 
the record, including the beneficiary's reference letters. For example, stated that 
the beneficiary' s "unique style of playing wherein he has ably merged two schools of thoughts 
makes him one of the contemporary musicians in India." 
Although identified the beneficiary's unique style of playing, she did not indicate 
how the beneficiary's playing style has influenced or impacted the field, so as to demonstrate an 
original contribution of major significance in the field. Similarly, stated that the 
beneficiary "represents the (school of thoughts) and is among the 
selected tabla players who can play different with equal mastery." Again, 
did not discuss how the beneficiary's school of thought and playing ability have been of major 
significance in the field consistent with the regulation at 8 C.F.R. § 204.5(h)(3)(5). 
Moreover, the director indicated that the beneficiary's other reference letters praised the 
beneficiary's talents and skills but did not demonstrate how those talents and skills equated to 
original contributions of major significance in the field. A review of the record of proceeding 
reflects that the beneficiary 's references highly praised the beneficiary. For example, the l~tters 
include the following statements: "[the beneficiary] is one of only a handful of Tabla percussionists 
who is both a performer and an educator" "[the beneficiary has] the ideal 
combination [of] talent, knowledge, determination and worldly vision- a quality that has made him 
successful not only as a performer in India, but also as a performer-cum-teacher of this art in the 
Western countries" and "[the beneficiary is] a unique breed of Hand Drumming 
Percussive maestros who are in paucity today" . None of the letters indicated how 
the beneficiary 's skills, talents, or knowledge are original contributions of major significance to the 
field. While states that in addition to spreading Tabla/Indian music to the next 
generation in t e United States, the beneficiary "has left his mark also in the field of Fusion music­
a music that creates the bond between the world and the people of the USA," 
provides no examples or other support of this conclusory statement. users need not accept 
primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 F. 
Supp. 9, 15 (D.C. Dist. 1990). 
Having a diverse skill set is not a contribution of major significance in and of itself. Rather, the 
record must be supported by evidence that the beneficiary has already used those unique skills to 
impact the field at a significant level. Furthermore, assuming the beneficiary'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). 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
Similarly, while counsel claimed that the title of' constitutes 
comparable evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(4), the petitioner has not 
demonstrated that the standards at 8 C.F.R. § 204.5(h)(3) are not readily applicable to the 
beneficiary ' s occupation. Insofar as counsel's assertions relate to this criterion, the beneficiary's 
title will be considered under this criterion. Although described the 
beneficiary as "one of my best students" who "imparts not only the knowledge of the but is 
also a Guru (teacher) in the fullest sense," he did not identify the beneficiary's original contributions 
of major significance in the field beyond playing with other Indian musicians and performing at 
various venues. In order to demonstrate eligibility for this criterion, the petitioner must establish that 
the beneficiary has made original contributions and demonstrate how those contributions have been 
of major significance in the field. However, recommendation letter does not 
explain how the beneficiary's achievement of receiving the title of " ' is indicative of an 
original contribution to the field that has impacted or influenced the field at a level consistent with a 
contribution of major significance in the field. Likewise, on appeal, the petitioner submitted an 
article entitled, "The guru recontextualised? - Teaching and learning North Indian classical music in 
a western professional training environment" by Although the article reflects 
background information regarding gurus as well as the role of gurus in learning music, it does not 
reflect that the beneficiary has made any original contributions of major significance in the field. It 
is not persuasive that every ' ' also demonstrates an original contribution of major significance 
. in the field. 
On appeal, counsel submits a letter from who stated that the beneficiary's 
"'feathertouch' approach to playing is non-traditional and unique." Although 
identified an original contribution through the beneficiary's development of a new table playing 
technique, he did not demonstrate how this technique has significantly impacted the field as a whole 
rather than limited to his own performances. did not indicate, for example, if 
other tabla players have widely adopted the beneficiary's playing technique, so as to demonstrate an 
original contribution of major significance in the field pursuant to the plain language of the 
regulation at 8 C.F.R. § 204.5(h)(3)(v). 
Moreover, on appeal counsel submitted another letter from who stated: 
[The beneficiary] is an innovative Tabla player who can very easily be called 
extraordinary for his remarkable 'feathertouch' method of rendering The 
fact that I willingly acknowledge his extraordinary ability should in itself be adequate 
to qualify him for whatever benefit he is seeking. The reason being that not only 
have I performed with [the beneficiary] but I have observed the innovative, new 
techniques he uses while playing. The new techniques are in the way he makes 
certain sounds with his I have a term for the way he plays - "whispering 
drums' . This is a rare form of rendering music and clearly 
[the beneficiary] has come up with this unique and remarkable way by experimenting 
with modulations that are not readily apparent. 
(b)(6)
NON-PRECEDENT DECISION 
Page 19 
Although claims that the beneficiary is extraordinary, his letter does not 
establish that the beneficiary has made original contributions of major significance in the field 
consistent with the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(v). Similar to 
letter, he identified the beneficiary ' s original contribution of the "feathertouch " 
technique but did not offer any examples demonstrating that it is considered an original contribution 
of major significance in the field. provided no evidence reflecting the impact 
or influence that the "feathertouch" has had on the field, so as to establish that it has been of major 
significance. The act of teaching students, by itself, does not establish that the teacher's techniques 
have influenced the field at a level consistent with a contribution of major significance in the field. 
The opinions of the beneficiary's references are not without weight and have been considered above. 
users may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International , 19 I&N Dec. 791, 795 (eomm'r 1988). However, USeiS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. /d. The submission of reference letters supporting the petition is not presumptive 
evidence of eligibility; users may evaluate the content of those letters as to whether they support 
the alien's eligibility. See id. at 795-796; see also Matter ofV-K- , 24 r&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 beneficiary'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 tabla player who has made original contributions of major significance in the 
field. 
While those familiar with the beneficiary ' s work generally describe it as "extraordinary," "unique," 
and "rare," there is insufficient documentary evidence demonstrating that the beneficiary 's work is 
of major significance. This regulatory criterion not only requires the beneficiary to make original 
contributions, the regulatory criterion also requires those contributions to be significant. Vague, 
solicited letters that repeat the regulatory language but do not explain how the beneficiary's 
contributions have already influenced the field is insufficient to establish original contributions of 
major significance in the field. Kazarian v. USCIS , 580 F.3d 1030, 1036 (9th eir. 2009) aff 'd in part 
596 F.3d 1115 (9th eir. 2010). In 2010, the Kazarian court reiterated that the USeiS ' conclusion 
that the "letters from physics professors attesting to [the petitioner's] contributions in the field" were 
insufficient was "consistent with the relevant regulatory language. '; 596 F.3d at 1122. 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), aff'd, 905 F. 2d 41 (2d. eir. 1990); A vyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). 
Moreover, on appeal counsel claims that the beneficiary's promotion of the next generation of tabla 
players is relevant to this criterion. Specifically , counsel submitted documentar evidence reflecting 
that , thebeneficiary's son, was a finalist for the was 
a finalist for the and was selected to perform with 
the However, 
the documentary evidence does not demonstrate the beneficiary ' s influence in the field beyond his 
(b)(6)
NON-PRECEDENT DECISION 
Page 20 
son and students that he has taught, so as to establish that his teachings can be considered original 
contributions of major significance in the field. There is no evidence reflecting that his musical 
instruction has risen to the level of major significance in the field. Although the beneficiary's son 
has received some recognition for his own musical abilities, the personal achievements of the 
beneficiary's son do not constitute the beneficiary's original contributions of major significance in 
the field consistent with the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(v). 
Again, the plain language of the regulation at 8 C.F.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." Without additional, specific evidence showing that the beneficiary's work 
has been unusually influential , widely applied throughout his field, or has otherwise risen to the level 
of contributions of major significance , the petitioner has not established that the beneficiary meets 
this regulatory criterion. 
Accordingly, the petitioner did not establish that the beneficiary meets this criterion. 
Evidence of the display of the alien 's work in the fi eld at artistic exhibitions or 
showcases. 
The director determined that the petitioner established the beneficiary 's 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." However, a review of 
the record of proceeding does not reflect that the petitioner submitted sufficient documentary 
evidence establishing that the beneficiary meets the plain language of the regulation at 8 C .P.R. 
§ 204.5(h)(3)(vii) for the reasons outlined below. 
The beneficiary is a tabla musician. Not every music performance is an artistic exhibition designed 
to showcase the performer 's art. 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-Plump e, 2:07-CV-
820-ECR-RJJ at *7 (upholding an interpretation that performances by a performing artist do not fall 
under 8 C.P.R. § 204.5(h)(3)(vii)). As the beneficiary is not a visual artist and has not created 
tangible pieces of art that were on display at exhibitions or showcases, the petitioner has not 
submitted qualifying evidence that meets the plain language requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(vii). Therefore, the decision of the director for this criterion is withdrawn. 
Accordingly , the petitioner did not establish that the beneficiary 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 the beneficiary's 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." In general, a leading role is evidenced from the role itself, and a critical 
(b)(6)
NON-PRECEDENT DECISION 
Page 21 
role is one in which the alien was responsible for the success or standing of the organization or 
establishment. 
On appeal, counsel claims that the beneficiary meets this criterion based on the following: 
1. The beneficiary's gold medal at the 
2. The beneficiary's performance at an event to commemorate the 
and 
3. The beneficiary's position for the petitioner, the 
Regarding item 1, the petitioner submitted a letter from Scott Szabo clarifying a letter that he 
previously submitted with an earlier petition. stated that the musical score for a feature 
film, won a gold medal at the and that the 
beneficiary's opening and ending renditions of Mr. score "may have actually been the 
reason my score was selected for a Gold Medal." Although the beneficiary may have played a 
critical role in the musical score, 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 petitioner did not demonstrate how a 
musical score or a feature film equates to an organization or establishment. As such, this item does 
not meet the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
Regarding item 2, the petitioner submitted a certificate recognizing the beneficiary's performance at 
the concert on July 19, 2005. Similar to item 1, the petitioner did 
not establish how a performance equates to an organization or establishment consistent with the 
plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii). Moreover, although the United 
Nations is an organization, the petitioner did not demonstrate how performing at a single event 
constitutes performing in a leading or critical role for an organization as a whole. In fact, the 
petitioner submitted an article entitled, 
hat reported on the concert. While the article named other individuals who performed at 
the concert, such as the article does not 
mention the beneficiary. Rather, he is included in a photograph with other performers. The 
, petitioner did not establish that the beneficiary's performance at the United Nations meets the plain 
language of this regulatory criterion. 
Regarding item 3, the petitioner submitted a letter from Director of the 
and stated that the beneficiary "is an invaluable and critical asset to our organization," 
"has contributed immensely to the growth and success of our programs," and "has established a 
name for himself as a leading Tabla exponent in the U.S. and a critical role within our organization." 
However, repeating the language of the statute or regulations does not satisfy the petitioner's burden 
of proof. See Fedin Bros. Co., Ltd., 724 F. Supp. at 1108, aff 'd, 905 F. 2d at 41; Avyr Associates, 
Inc., 1997 WL 188942 at *5. Moreover, the petitioner's letter claims that the beneficiary's 
"affiliation led to doubling our enrollment in a very short period of time," and the beneficiary "has 
(b)(6)
NON-PRECEDENT DECISION 
Page 22 
contributed to the spread of [the petitioner's] reputation as a premier institute for the 
However, the petitioner did not submit any documentation to support its 
assertions. 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)). It appears from job title alone that the beneficiary performs in a subordinate 
rple. The petitioner did not submit any organizational charts, for example, to demonstrate that the 
beneficiary's role was leading when compared to other employees. Without additional, supporting 
documentation, the petitioner's letter is insufficient to demonstrate that the beneficiary performed in 
a leading or critical role. 
Furthermore, the . plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires the 
organizations or establishments to "have a distinguished reputation ." The petitioner submitted 
several letters recognizing the work of the petitioner including letters from government officials, 
educators, and parents. Although the documentation generally acknowledges the petitioner's 
service, it does not demonstrate that it has a distinguished reputation. Not every educational or 
cultural institution has a distinguished reputation. The petitioner did not submit any documentary 
evidence, for example, reflecting that it received any recognized awards or notable media coverage, 
so as to distinguish it from other art forums. 
Again, the plain language ·ofthe 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 it meets every element of 
this criterion. Without documentary evidence demonstrating that the beneficiary has performed in a 
leading or critical role for organizations or establishments that have a distinguished reputation, the 
petitioner has not established that the beneficiary meets the plain language of this regulatory 
criterion. 
Accordingly, the petitioner did not establish that the beneficiary meets this criterion. 
C. Summary 
The petitioner has not satisfied the antecedent regulatory requirement of three types of evidence. · 
III. 0-1 Nonimmigrant 
USCIS recently approved the beneficiary for 0-1 nonimmigrant status from September 2, 2013 to 
September 1, 2014 . Although the words "extraordinary ability" are used in the Act for classification 
of artists under both the nonimmigrant 0-1 and the first preference employment-based immigrant 
categories, the statute and regulations define the term differently for each classification. Section 
101(a)(46) of the Act states that "[t]he term 'extraordinary ability ' means, for purposes of section 
10l(a)(15)(0)(i), in the case of the arts, distinction ." The 0-1 regulation reiterates that 
"(e]xtraordinary ability in the field of arts means distinction." 8 C.F.R. § 214.2(o)(3)(ii). The same 
regulation further defines "distinction"as follows: 
(b)(6)
Page 23 
NON-PRECEDENT DECISION 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill and recognition substantially above that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
"Distinction" is a different standard than that required for the immigrant classification, which defines 
extraordinary ability as "a level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The 
evidentiary criteria for these two classifications also differ in several respects, for example, 
nominations for awards or prizes are acceptable evidence of 0-1 eligibility, 8 C.F.R. 
§ 214.2( o )(3)(iv)(A), but the immigrant classification requires actual receipt of nationally or 
internationally recognized awards or prizes. 8 C.F.R. § 204.5(h)(3)(i). Given the clear statutory and 
regulatory distinction between these two classifications, the petitioner's receipt of 0-1 nonimmigrant 
classification is not evidence of his eligibility for immigrant classification as a performing artist with 
extraordinary ability. Further, an approval of a nonimmigrant visa does not mandate the approval of 
a similar immigrant visa. Each case must be decided on a case-by-case basis upon review of the 
evidence of record. 
Many r-140 immigrant petitions are denied after USCrS approves prior nonimmigrant petitions. See, 
e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dept. of 
Justice , 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Brothers Co. Ltd., 724 F. Supp. at 1103. Because 
USCrS spends less time reviewing r-129 nonimmigrant petitions than r-140 immigrant petitions, 
some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 
(5th Cir. 2004) (finding that prior approvals do not preclude users from denying an extension of 
the original visa based on a reassessment of the alien's qualifications). 
USCIS is not required to approve petitions where the petitioner has not demonstrated eligibility 
because of prior approvals that may have been erroneous. See, e.g., Matter of Church Scientology 
International, 19 r&N Dec. 593, 597 (Comm. 1988). USCrS or any agency need not treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore , the AAO's authority over the service centers is comparable to the relationship between 
a court of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of the alien, the AAO would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orch estra v. INS, No. 98-2855, 2000 WL 282785, *1, *3 
(E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
An application or petition that does not comply with the technical requirements of the law may be 
denied by the AAO 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 (9th Cir. 2003); see also Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2004) (noting that the AAO conducts appellate review on a de novo basis). 
(b)(6)
NON-PRECEDENT DECISION 
Page 24 
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" 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. 7 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 ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
7 
The AAO maintains de novo review of all questions of fact and law. See Soltane, 381 P.3d at 145. 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.P.R.§ 2.1 (2003); 8 C.P.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).