dismissed EB-1A Case: Performing Arts

U.S. Department of IIomeland Security 
U.S. Citizenship and Immigration Services 
identifiing data deleted to 
prevent c!aariy unw ananted 
invasion of personal privacy 
Office ofAdn~inistrativr ~~~eals, MS 2090 
Washington. DC 20529-2090 
QL 
Office: NEBRASKA SERVICE CENTER 
 Date: AU G 0 4 2009 
. .- 
LIN 07 243 50082 
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. 5 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 8 103.5(a)(l)(i). 
,U~tkrh b/ 
(-*John F. Grissom 
Acting Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The director reaffirmed that decision on motion. The matter is now before the Administrative 
Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the performing arts, pursuant 
to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1 153(b)(l)(A). 
The director determined the petitioner had not established the sustained national or international 
acclaim necessary to qualifL for classification as an alien of extraordinary ability. 
On motion, counsel asserted that certain evidence was not available from Bosnia Herzegovina, which 
counsel characterizes as a "third world country." The director noted that the regulation at 8 C.F.R. 
103.2(b)(2)(i) provides that the non-existence or other unavailability of required evidence creates a 
presumption of ineligibility. On appeal, counsel asserts that this regulation is not applicable because 
the regulations relating to the classification sought do not require specific evidence. Counsel is not 
persuasive. Several of the criteria require very specific evidence. For example, the regulation at 
8 C.F.R. $204.5(h)(3)(x) requires evidence of commercial successes in the performing arts, "as shown 
by box office receipts or record, cassette, compact disk, or video sales." Thus, this regulation clearly 
requires evidence of box office receipts or media sales. In order to rely on secondary evidence or 
affidavits to establish commercial success, the petitioner must first comply with 8 C.F.R. 
fj 103.2(b)(2)(ii) in establishing that primary evidence is not available, which requires an original 
statement on government letterhead. Significantly, counsel's mere assertions, unsupported by 
documentation, that such evidence is unavailable in Bosnia are insufficient. See 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 
ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980). 
Counsel also discusses the petitioner's burden of proof, asserting that the petitioner met her burden 
because it is more likely than not that she has sustained national or international acclaim. Section 291 
of the Act provides: 
Whenever any person makes application for a visa or any other document required for 
entry, or makes application for admission, or otherwise attempts to enter the United 
States, the burden of proof shall be upon such person to establish that he is eligible to 
receive such visa or such document, or is not inadmissible under any provision of this 
Act, and, if an alien, that he is entitled to the nonimmigrant; immigrant, special 
immigrant, immediate relative, or refbgee status claimed, as the case may be. 
The law goes on to assert that the evidence must establish eligibility "to the satisfaction" of the 
adjudicating officer. This burden is confirmed in Matter of Soo Hoo, 1 1 I&N Dec. 15 1 (BIA 1965) and 
Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The regulations governing the present immigrant 
visa determination have no requirement mandating that U.S. Citizenship and Immigration Services 
(USCIS) specifically accept the credibility of personal testimony, even if not corroborated. The 
regulations provide that eligibility may be established through a one-time achievement or through 
documentation meeting at least three of ten criteria. The commentary for the proposed regulations 
implementing this statute provide that the "intent of Congress that a very high standard be set for aliens 
of extraordinary ability is reflected in this regulation by requiring the petitioner to present more 
extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 
(1 991). 
The criteria require specific documentation beyond mere testimony, such as awards, published material 
about the alien, and box office receipts. As another example of the specific nature of the 
documentation required, the regulation at 8 C.F.R. 5 204.5(h)(3)(iii) requires the "title, date and author" 
of the published material about the alien. The only criterion for which letters are specifically relevant is 
the criterion relating to the alien's leading or critical role for an entity with a distinguished reputation. 
8 C.F.R. $204.5(h)(3)(viii). While letters may place the evidence for other criteria in context, they 
cannot serve as primary evidence of the achievement required by the criterion. Whlle we acknowledge 
that there was a highly destructive war in Bosnia, we cannot ignore that, as noted by one of the 
petitioner's references and the ~ikipedia' materials submitted on appeal, the war in Bosnia lasted from 
1992 through 1995; ending over nine years before the petitioner entered the United States and more 
than 11 years before the petition was filed. It is the petitioner's burden to establish why records after 
that date would be unavailable. As stated above, counsel's bare assertion that the records are 
unavailable because Bosnia Herzegovina is a "third world country" is insufficient. See Matter of 
Obaigbena, 19 I&N Dec. at 534 n.2; Matter of Laureano, 19 I&N Dec. at 3 n.2; Matter of Ramirez- 
Sanchez, 1 7 I&N Dec. at 506. 
' With regard to information from Wikipedia, there are no assurances about the reliability of the content from 
this open, user-edited internet site. Specifically, Online content from Wikipedia is subject to the following 
general disclaimer: 
WIKIPEDIA MAKES NO GUARANTEE OF VALIDITY. 
 Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common 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. 
See http://en.wikipedia.or~wiki/Wikipedia:Genera1disc1aimer, accessed on June 17, 2009, a copy of which 
is incorporated into the record of proceeding. See also Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 
(gth Cir. 2008). 
The Dayton Peace Accords ending the war, publicly available at 
htt~://www.state.~ov/wwv\i/re~ions/ei~r/bos~~i~osa~ree.l~t~nl (accessed June 16, 2009, first page incorporated 
into the record of proceedings), were signed on December 14, 1995. 
For the reasons discussed below, we concur with the director that the petitioner has not established by a 
preponderance of the evidence that she is eligible for the exclusive classification sought. Significantly, 
at no point has counsel attempted to rebut the director's finding that the record does not demonstrate 
that the petitioner "sustained" any recognition she may have enjoyed up to February 2005. 
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 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
USCIS and legacy Immigration and Naturalization Service (INS) have consistently recognized that 
Congress intended to set a very high standard for individuals seeking immigrant visas as aliens of 
extraordinary ability. See 56 Fed. Reg. 60897, 60898-9 (Nov. 29, 1991). As used in this section, the 
term "extraordinary ability" means a level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). The 
specific requirements for supporting documents to establish that an alien has sustained national or 
international acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 
C.F.R. 5 204.5(h)(3). The relevant criteria will be addressed below. It should be reiterated, however, 
that the petitioner must show that she has sustained national or international acclaim at the very top 
level. 
At the outset, the AAO notes that from March 13, 2007 until September 12, 2007, the petitioner was 
granted P-3 nonimmigrant status, a visa classification that requires the alien to perform as a 
performer or entertainer at an internationally recognized level of performance, and that the alien seek 
to enter the United States "temporarily and solely for the purpose of performing as such a performer 
or entertainer." See section 214(c)(4)(B) of the Act, 8 U.S.C. 5 1184(c)(4)(B). The current record is 
devoid of any evidence to indicate that the petitioner is performing as a performer or entertainer at an 
internationally recognized level or that she is in the United States "temporarily and solely" for the 
purpose of performing as such a performer or entertainer. 
While USCIS approved at least one P-3 nonimmigrant visa petition filed on behalf of the petitioner, the 
prior approval does not preclude USCIS fiom denying an immigrant visa petition based on a different, 
if similarly phrased standard. It must be noted that many 1-140 immigrant petitions are denied after 
USCIS 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. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). Because USCIS spends less time 
reviewing I- 129 nonimmigrant petitions than I- 140 immigrant petitions, some nonimrnigrant 
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 USCIS from denying an extension of the original visa based on a 
reassessment of petitioner's qualifications). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N Dec. at 597. It would be absurd to suggest that USCIS or 
any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 
825 F.2d at 1090. 
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 had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a singer. The 
regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at 
least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualifjr 
as an alien of extraordinary ability. The petitioner has submitted evidence that, she claims, meets the 
following criteria under 8 C.F.R. 5 204.5(h)(3).~ 
Documentation of the alien S membership in associations in the field for which classlJication is 
sought, which require outstanding achievements oftheir members, as judged by recognized national 
or international experts in their disciplines or fields. 
Initially, counsel asserted that the petitioner meets this criterion through her membership in the 
Association of Entertainers in Bosnia. Counsel discusses the petitioner's role with the association and 
concludes that it is the most "prestigious organization of Musicians and Performers in Bosnia, thereby 
meeting the nationally recognized standard intended by Congress." Counsel then cites Buletini v. INS, 
The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
860 F. Supp. 1222 (E.D. Mich. 1994). First, in contrast to the broad precedential authority of the case 
law of a United States circuit court, the AAO is not bound to follow the published decision of a 
United States district court in cases arising within the same district. See Matter of K-S-, 20 I&N Dec. 
715 (BIA 1993). The reasoning underlying a district judge's decision will be given due 
consideration when it is properly before the AAO; however, the analysis does not have to be 
followed as a matter of law. Id. at 719. Regardless, Buletini does not address this criterion. 
The petitioner submitted a certificate from 
 President of the Association of Entertainers 
and Stage Artists, Republika Srpska based in Banja Luka. We note that Republika Srpska is one of two 
regional subdivisions of Bosnia ~erze~ovina.~ asserts that the petitioner "was an active 
member and was one of the founding members of this association." , a musician and 
music director, also affirms that the petitioner was elected in 2004 as one of the founding members of 
the "Association of Entertainers in Bosnia and Herzegovina." does not explain his own 
affiliation with the association. Neither letter discusses either the membership criteria for the 
association or who judges membership eligibility. 
The petitioner also submitted a membership certificate verifLing her membership in the Records and 
Stage Management Music Company "Renome" as a singer since April 2000. The record does not 
include any membership criteria for this "membership." 
In a request for evidence (RFE) dated January 2, 2008, the director advised that the record did not 
establish that the petitioner's memberships required outstanding achievements. In response, counsel 
asserted: "Through its reputation, those who are members, and specifically those who hold leadership 
roles, are recognized as outstanding by the association." The plain language of the criterion, however, 
does not suggest that the petitioner need only demonstrate the reputation of the association of which she 
is a member. Significantly, some associations may have a very distinguished reputation based on their 
large professional memberships without having the exclusive membership criteria required to meet this 
criterion. At issue to meet this criterion are the membership criteria and who judges prospective 
members for membership. 
submits a new letter asserting that the Association of Entertainers and Stage Artists "in 
Bosnia" is comprised of known entertainers and artists in Bosnia. He also discusses the petitioner's 
role with the association, which is not relevant to this criterion. , a former president of 
the Union of Show Business Music Artists in Serbia, asserts that the association is "the equivalent" of 
the union, which is "exclusive to artists who are nationally recognized." 
The director concluded that the petitioner had not demonstrated that the association requires 
outstanding achievements of its members. On motion, counsel conceded that membership in the 
association may not require outstanding achievement, but maintains that election to the board of the 
association does. The petitioner submitted a new letter from 
 asserting for the first time that 
4 
 See https://www.cia.novllibrar?//publications/the-world-factbooneos/BK.html (accessed June 16,2009 and 
incorporated into the record of proceeding. 
the petitioner is a member of the Union of Music Professionals, RS7 which appears to stand for 
Republika Srpska. He asserts that the union "has well known professionals." 
The director reaffirmed that the record does not establish the membership criteria of the association or 
the "union" membership. On appeal, counsel once again concedes that general membership in the 
association does not require outstanding achievement, but reasserts that the petitioner's election as a 
board member is sufficient. 
We will consider the petitioner's election to the board below as it relates to the regulatory criterion at 
8 C.F.R. 5 204.5(h)(3)(viii). At issue for this criterion, however, are the membership criteria for the 
association. As conceded by counsel, the record does not reflect that the Association of Entertainers 
and Stage Artists or the Union of Music Professionals requires outstanding achievements of their 
members. Moreover, both the association and the union appear to be either Republika Srpska chapters 
of a greater national association or simply limited to that region. Thus, membership in the association 
and the union cannot establish national acclaim. Moreover, it is not clear that membership is judged by 
nationally recognized experts if these are only regional associations. 
In light of the above, the petitioner has not established that she 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 Jield for which classlJication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
As noted by the director, counsel asserted that the petitioner "has been the subject of hundreds of 
articles in newspapers, art magazines and news magazines, throughout Bosnia." Counsel further 
asserted that while most of this evidence was destroyed during the war, the petitioner was able to 
collect a few articles. As noted above, the war in Bosnia ended in 1995. It is the petitioner's burden to 
establish why materials published after that date were destroyed or are otherwise unavailable. 
Moreover, any published materials destroyed during the war would predate the filing of the petition by 
more than 11 years and, thus, would not be evidence of sustained acclaim when the petition was filed. 
Thus, even if we accepted that the petitioner was heavily covered in the media before or during the war 
and that these materials were destroyed in the war, it is her burden to demonstrate that she has sustained 
that acclaim. 
The petitioner submitted the following articles: 
1. A January 2002 article in Mira noting that the petitioner was putting out a second 
album, "Crazy Heart," and was in the process of promoting the album. 
2. A March 2003 article in Express reporting that the petitioner was preparing her third 
album and had received three marriage proposals in a single night. The article also 
stresses that all that is need for a folk singer is to be pretty and "at the end to have little 
bit of a voice." 
3. A March 2003 article in Svet covering a restaurant event where the petitioner, in 
addition to several other singers, performed. 
4. A letter dated March 15,2006 expressing appreciation to the petitioner for being a guest 
on Bosnian "Radio 202" in New Hartford, New York, to promote her compact disc. 
5. A letter dated June 8, 2006 from 
 Director of TV 42 Chicago, 
confirming that the petitioner was a guest on his program and had a commercial on the 
station in April 2006. 
The director's RFE advised that the record lacked evidence that the above publications were major 
media and noted that the evidence did not demonstrate sustained national or international acclaim in 
2007 when the petition was filed. 
In response to the director's request for additional evidence, the petitioner submitted material from 
Svet 's website asserting that it is the "most popular magazine in the former Yugoslav republics." The 
magazine publishes eight regional editions of the magazine. The petitioner submitted three articles 
published in Svet in 2002,2004 and 2005. The two most recent articles appear to have been published 
in the Republika Srpska edition. The 2002 article, appearing in the Bosnia Herzegovina edition, is an 
interview with the petitioner where she discusses her music and the affections of a father and son. The 
introduction asserts that the petitioner is "continuously popular" and that her recent song "is a hit on the 
area's radio station." The 2004 article reports that the petitioner, upon returning from a U.S. tour, 
discovered her boyfriend living with another woman. The 2005 article is about the petitioner's car 
accident while attempting to pass her driver's test. 
The director concluded that some of the published material did not relate to the petitioner's work and 
that, because the material all predated the petition by several years, it could not serve as evidence of 
sustained national or international acclaim. On motion, the petitioner submitted letters from journalists 
in Bosnia attesting to her talent and ability to cooperate with the media. They do not assert that they 
have covered the petitioner since 2005, the most recent article in the record. The director concluded 
that the material was more "sensationalistic" than articles relating to her work and reiterated that the 
published material ended in 2005, two years before the petition was filed. 
On appeal, counsel asserts that the petitioner submitted evidence that it was "more likely than not" that 
the petitioner was the subject of major media coverage. The plain language of the regulation at 
8 C.F.R. €j 204.5(h)(3)(iii) requires that the published material be about the alien relating to her work. 
The material must also appear in professional or major trade journals or other major media. 
The petitioner has not established that a Bosnian New York Radio Station constitutes major media. 
Similarly, a local television station is not major media. Moreover, a paid commercial is not published 
material about the petitioner. 
The 2004 and 2005 articles are both about the petitioner, but do not relate to her work. Regardless, the 
published material in major media submitted by the petitioner ended in 2005, two years before the 
petition was filed. Thus, we concur with the director that the evidence relating to this criterion is not 
indicative of or consistent with sustained national or international acclaim. As noted above, the war in 
Bosnia ended 11 years before the petition was filed. Thus, any materials indicative of or consistent 
with sustained acclaim would not have been destroyed in that war. 
In light of the above, the petitioner has not submitted sufficient evidence of sustained national or 
international acclaim to meet this criterion. For the reasons discussed above and below, the evidence 
submitted under the other criteria also fails to establish any acclaim proximate to the date of filing. 
Even if we concluded that the petitioner did meet this criterion based on the evidence from 2002 
through 2005, for the reasons discussed above and below, she has not established that she meets any 
other 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 alliedfield of speczfication for which classzfication is sought. 
The petitioner did not initially claim to meet this criterion. In response to the director's WE, counsel 
asserted that the petitioner meets this criterion by having served as an honor 
 'ud e for a "New Star" 
competition for young singers. The petitioner submitted a letter from mg President of 
Music Art Box (MAB) in the United States. asserts that MAB sponsored the "New Star" 
competition for young singers and that, in August 2005, the petitioner was selected as the honorary 
judge "by fellow singers and representatives from countries of the former Yugoslavia." 
The director concluded that the petitioner had not demonstrated whether this competition is local, 
regional or national and noted that the contestants were "young singers" who had yet to start a career as 
a singer. Thus, the director concluded that the petitioner's service as a judge for this competition was 
not indicative of or consistent with national or international acclaim. On motion, counsel asserted that 
the evidence shows that it is "more likely than not" that the petitioner served as a judge of the work of 
others and that she was selected by fellow singers and representatives from countries of the former 
Yugoslavia. The director reaffirmed that the record lacks information about the significance of this 
competition. The director noted that the competition was held by a U.S. company and, as such, 
evidence of the significance of the event should be available. 
On appeal, the petitioner submits a letter from, "stage owner of MAB productions," 
asserting that the competition "was kept on the state level" and limited to people from the former 
Yugoslavian countries. He further asserts that there was "a lot" of media coverage and that it was 
"watched all over the former Yugoslavia." Going on record without supporting documentary evidence 
Page 10 
is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 
22 I&N Dec. 158, 165 (Cornrn'r. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 
190 (Reg'l. Comrn'r. 1972)). The record contains no media coverage of the event or television guides 
from various former Yugoslavian countries confirming that it was broadcast in those countries. 
While Buletini, 860 F. Supp. at 123 1, concluded that the petitioner need not demonstrate that the alien 
was selected as a judge because of the alien's national or international acclaim, that case does not stand 
for the proposition that USCIS is precluded from evaluating the significance of the alien's judging 
services. Rather, the evidence submitted to meet this criterion must be indicative of or consistent with 
national or international acclaim. Accord Yasar v. DHS, 2006 WL 778623 *9 (S.D. Tex. March 24, 
2006); All Pro Cleaning Services v. DOL et al., 2005 WL 4045866 * 11 (S.D. Tex. Aug. 26,2005). 
concedes that the competition was limited to a single U.S. state and further to residents of 
former Yugoslavian countries in that state. We cannot conclude that the petitioner's service as a judge 
in this competition is indicative of or consistent with her national acclaim in either the United States or 
Bosnia. Rather, it is only consistent with her recognition among the population from the former 
Yugoslavia residing in Illinois. Thus, the petitioner has not established that she meets this criterion. 
Evidence of the alien S original scientific, scholarly, artistic, athletic, or business-related 
contributions of major sign lJicance in the field. 
Initially, counsel asserted that the petitioner was submitting letters demonstrating that she "has shown 
true quality of music and dedication" and "honest[y], fairness and responsibility in a business where 
this is not the standard." Counsel does not explain how these traits constitute a contribution of major 
significance to the field of folk singing. 
President of Ogledalo, asserts that the petitioner has been "extremely well known," but 
does not explain how she has impacted the field. A Note of Appreciation from the Association of 
- - 
Mothers and Widows of Fallen ~erbian Soldiers expresses appreciation for the petitioner's "help and 
cooperation" at an annual meeting in December 1996. - a "Journalist id TV 
Personality" for an unidentified media outlet, asserts that the petitioner is skilled and dedicated, "very 
successhl," and honest and responsible. 
 does not explain how the petitioner has 
impacted the field of folk singing as a whole. 
The director's RFE advises that the record did not demonstrate the petitioner's impact on the field as a 
whole. In response, the petitioner submitted additional letters. 
 Vice President of 
RTV BN, asserts that the petitioner was and continues to be "one of the 'stars"' of BN Television, a 
national network in Bosnia. The petitioner submitted foreign language Internet materials about the 
- - 
RTV BN, which include a link for Re ublika S ska in the top menu bar. The petitioner did not submit 
a translation, certified or otherwise. praises her talent and asserts that she was selected to 
perform on television weekly for a year, but does not identify the year. He also asserts that her songs 
"have been at the top of the ratings charts in Bosnia" and that one of her songs was "number one on the 
chart for an entire month." 
 host of the television show "Svijet Renomea" affirms 
that the petitioner was a frequent guest on that show. Once again, he does not indicate when the 
petitioner appeared as a guest on his show. asserts that the petitioner was a guest on 
several of her shows with listeners and viewers "all around the world." Other material in the record 
indicates 
 is the host of "Svijet Renomea." 
 fiuther asserts that the 
petitioner's greatest success was "Crazy Heart" and that she is very popu ar, full of charm and very 
The record also includes the second letter from discussed above. 
 asserts that the 
petitioner was one of those who dedicated her time and energy to rebuild the spirit of the Bosnian 
people after the war in Bosnia and that she worked to establish the association to bring the arts back to 
Bosnia "in a time when it was needed most." He further notes that she raised money for those in 
financial need after the war, especially widows and mothers of soldiers who were killed. A letter from 
of City Hall Janja confirms that in October 2004, the petitioner participated in a 
humanitarian concert and the grand opening of the City Hall. 
The director concluded that the letters did not establish that the petitioner had made contributions of 
major significance to her field and that humanitarian work, while commendable, was not a contribution 
of major significance to the field of singing. On motion, counsel asserted that the petitioner submitted 
"relevant, probative and credible evidence" to "lead the director to believe that the claim is 'probably 
true' or 'more likely than not."' The director concluded that creating original music was not, by itself, 
an original contribution of major signijicance. 
On appeal, counsel asserts that the petitioner submitted evidence of original contributions and a "degree 
of recognition." Thus, counsel concludes, it is more likely than not that she has made contributions of 
major significance. Counsel is not persuasive. According to the regulation at 8 C.F.R. 
5 204.5(h)(3)(v), the alien's contribution must be a contribution in the field. Thus, we concur with 
the director that humanitarian contributions, while commendable, are not contributions to the field of 
music. The same regulation provides that an alien's contributions must be not only original but of 
major significance. We must presume that the phrase "major significance" is not superfluous and, 
thus, that it has some meaning. To be considered a contribution of major significance in the field of 
music, the contribution must be demonstrably influential in the field of music. 
The regulations contain a separate criterion for commercial success in the performing arts, set forth 
at 8 C.F.R. 5 204.5(h)(3)(x). Thus, even if we concluded that the petitioner had established her 
popularity, popularity and commercial success alone are insufficient to constitute a contribution of 
major significance. None of the letters explain specifically how the petitioner has influenced other 
folk musicians or folk music in general. Broad assertions that the petitioner contributed to the 
resurgence of music after the war in Bosnia are insufficient. The record also lacks objective 
evidence of such an influence. Thus, the petitioner has not established that she meets this criterion. 
Evidence of the display of the alien's work in thejeld at artistic exhibitions or showcases. 
Counsel initially asserted that the petitioner meets this criterion through her stage and television 
performances and the fact that radio stations in Bosnia play her music. As noted above, the record 
includes an article about her performance at a restaurant along with several other singers. 
 The 
petitioner also submitted a letter from 
 Vice President of RTV-BN 
petitioner "was part of our music program at BN TV during the period of 2002."~ 
President of Ogledalo, a Serbian-American newspaper, asserts that the petitioner has performed in 
Serbia and Montenegro and other European countries. asserts that he organized a 
concert for the petitioner in Germany in 2001 which had "very good attendance." 
The director's RFE requested evidence of the significance of the venues where the petitioner 
performed. 
In response, as stated above, the petitioner submitted letters attesting to her weekly television 
perfoAances during an unidentified year, her appearances as a guest and on the television show "Svijet 
Renomea." In addition, , the host of BN Koktel, asserts that he "hosted" a concert in 
~acksonville~ "in the U.S.A." where the petitioner was a guest. He further states that the audience for 
- 
the event was "huge." He does not, however, provide any information about the venue or give even an 
approximation of the number of people in the audience. He also does not indicate how many other 
performers were at this concert. As stated above, confirms that the petitioner participated in a 
humanitarian concert and the opening of City Hall in Janja. 
The director noted that performing is inherent to the performing arts and concluded that the petitioner 
had not demonstrated that her performances were commensurate with sustained acclaim in the field. 
On motion, counsel asserted that the petitioner meets this criterion based on her invitations to appear on 
"the most popular national programs." The director concluded that the petitioner had still not 
demonstrated that the television performances were showcases of her art. 
On appeal, counsel asserts that the petitioner was invited to perform as a uest on the most popular 
music programs and concerts. The petitioner submits a new letter from asserting that the 
petitioner performed in a commercial on RTV BN television and was a "frequent guest." 
This criterion applies primarily to the visual arts. In order to constitute comparable evidence to meet 
this criterion pursuant to 8 C.F.R. 5 204.5(h)(4), the petitioner cannot rely simply on performing, which 
is inherent to the field of performing arts. Rather, the petitioner must demonstrate that she performed at 
a showcase or exhibit of her art. Moreover, radio play is more comparable to commercial success and 
will not be considered under this criterion. Even assuming that the petitioner's television appearances 
in 2002 and 2003 were exhibitions of her art, the record lacks evidence of significant performances 
proximate to the date of filing in July 2007 when the petition was filed. Thus, the evidence submitted 
5 
 The original foreign language document includes the year 2003, not 2002. 
6 
 While does not identify which U.S. city named Jacksonville he means, we note that there is a 
Jacksonville in Illinois where the petitioner resides. 
to meet this criterion is not indicative of or consistent with national or international acclaim. Without 
evidence more proximate to the date of filing in this criterion or other criteria, the petitioner cannot 
establish eligibility for the classification sought. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
Counsel initially asserted that the petitioner meets this criterion based on her election to the "Board 
who founded the Association of Entertainers in Bosnia." Counsel further asserts that the petitioner 
meets this criterion through her humanitarian efforts. 
As stated above, the record contains confirmation of the petitioner's founding membership in the 
Association of Entertainers and Stage Artists, Republika Srpska, and a Note of Appreciation from the 
Association of Mothers and Widows of Fallen Serbian Soldiers for the petitioner's "help and 
cooperation" at an annual meeting in December 1996. 
The director's RFE requested evidence of the nature of the petitioner's role with the above associations 
and their reputations. 
In response, the petitioner submits the new letter from , discussed above. Specifically, Mr. 
asserts that the petitioner worked to reestablish the arts after the war ended, was a founding 
member and was subsequently elected to the association's board. As stated above, confirms 
that the petitioner performed at a humanitarian concert and the opening of city Hall in Janja. 
The director concluded that the petitioner had not established the nature of her role with the association 
or the reputation of the association. On motion, counsel asserted that the petitioner established that her 
efforts were crucial to building the association after the war in Bosnia. The director concluded that the 
petitioner had provided insufficient evidence of her role with the association or its reputation nationally. 
On appeal, counsel asserts that the petitioner's election to the board of the association in 2004 was a 
leading or critical role for the association, which is "considered a distinguished professional 
organization that meets, discusses, and decides upon different agendas for events in Bosnia." 
As discussed above, the association appears to be regional. The petitioner has not provided evidence of 
the association's reputation outside of the Republika Srpska region. The record does not establish the 
number of board members. Even if we were to conclude that the petitioner performed in a leading or 
critical role for the association, the petitioner has not demonstrated that it enjoys a distinguished 
reputation throughout Bosnia, including beyond the Republika Srpska region. Moreover, it is not clear 
how active the petitioner's role with the association has been since 2005 when she came to the United 
States. As such, it is not clear that the evidence submitted to meet this criterion is indicative of or 
consistent with sustained national or international acclaim in 2007 when the petition was filed. 
In light of the above, the petitioner has not established that she meets this criterion. 
Evidence of commercial successes in the performing arts, as shown by box ofJice receipts or record, 
cassette, compact disk, or video sales. 
Counsel initially asserted that as "primary evidence" of the petitioner's commercial success, she was 
submitting records and compact discs. Counsel asserts that the petitioner sold "hundreds of thousands 
of copies" of her music and has enjoyed a lucrative career as a performer. Counsel does not explain 
how the submission of compact discs is "primary evidence" of their commercial success. 
As stated above, 
 asserts that the petitioner's 2001 concert in Germany had "very good 
attendance." 
The director's RFE requested evidence of the commercial success of the petitioner's compact discs, 
such as sales data, chart placement or other documentation. In response, the petitioner submitted the 
2002 article in Svet claiming that the petitioner's recent song, "'Da, da, da,' is a hit on the area's radio 
station." the petitioner's song "Crazy Heart" was number one on "the chart" 
, Director of DAS radio in Bosnia, asserts that the petitioner made 
frequent guest appearances on the station and that "Crazy Heart" topped "the charts" for one month. 
of Radio SKALA provides a similar letter, asserting that the station continues to advertise 
and promote the petitioner's music. As stated above,, the host of BN Koktel, asserts that he 
"hosted" a concert in Jacksonville where the petitioner was a guest and for which the audience was 
"huge." He does not provide any numbers. 
The director concluded that the petitioner had submitted insufficient objective evidence of how her 
albums had sold or charted and that the evidence submitted was not indicative of sustained acclaim in 
2007 when the petition was filed. On motion, counsel asserted that evidence of compact disc sales and 
chart placement "are simply not available in a third world country such as Bosnia" and that the 
petitioner has established that it is more likely than not that she has enjoyed commercial success. The 
director reaffirmed that the petitioner had not documented her compact disc sales or chart listings and 
concluded that the petitioner had not established the non-existence of such evidence or submitted 
secondary evidence or affidavits. 
On appeal, counsel asserts that evidence of compact disc sales and chart placement is "simply not 
available in a third world country such as Bosnia." The petitioner submits a personal statement 
asserting that production houses in Bosnia will not provide sales information on her compact discs 
"because of taxes involved on such a huge quantities sold." In addition, asserts that the 
petitioner's song "Ludo Srce" was "most listened to in 2002 and was the number 1 hit not only on our 
RTV BN but also on all other RTV all over BIH." Owner and Chief of Radio 
Nostalgiga Romski Dukat, asserts that the petitioner "is very well listened to on the airwaves of my 
radio station for she is very popular here in the U.S.A." He further asserts that she is always "wanted 
for appearances" at concerts in the United States. The petitioner submits a similar letter from = 
Director and Leader of Radio Zapadna Bosna. 
As stated above, the unavailability or nonexistence of required initial evidence creates a presumption of 
ineligibility. 8 C.F.R. 5 103.2(b)(2). In order for the petitioner to rely on secondary evidence, such as 
the newspaper article mentioned above, she must establish that such evidence does not exist. The 
petitioner's personal statement that Bosnian production houses will not provide sales data is 
insufficient. 
The only secondary evidence submitted is a single news article from 2002 asserting that one of the 
petitioner's songs is "a hit" on the area's radio station. This article provides no information regarding 
sales numbers or chart placement and does not even state that the song was a radio hit nationally. 
The letters regarding the petitioner's chart placements are insufficient. First, none of the letters identify 
which "chart" the petitioner topped. A local or even Republika Srpska regional chart would not 
demonstrate the petitioner's national acclaim. Moreover, the petitioner has not provided evidence that 
additional secondary evidence, such as newspaper articles, are unavailable or nonexistent. As 
discussed repeatedly above, the war in Bosnia ended in 1995 and, thus, newspaper articles published 
after that date cannot be presumed to have been destroyed. 
Even if we accepted that primary and secondary evidence were unavailable in Bosnia and Herzegovina, 
the petitioner has not explained the absence of ticket sales from her 2001 concert in Germany or 
evidence of ticket sales, album sales or chart placement in the United States despite assertions of her 
popularity in the United States. 
In light of the above, the petitioner has not demonstrated any commercial success, especially within 
four years of filing the petition in 2007. As such, we cannot conclude that she meets this criterion. 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. 
Review of the record, however, does not establish that the petitioner has distinguished herself as a folk 
singer to such an extent that she may be said to have achieved sustained national or international 
acclaim or to be within the small percentage at the very top of her field. The evidence indicates that the 
petitioner shows talent as a folk singer, but is not persuasive that the petitioner's achievements set her 
significantly above almost all others in her field. Therefore, the petitioner has not established eligibility 
pursuant to section 203(b)(l)(A) of the Act and the petition may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. 5 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal 
will be dismissed. 
Page 16 
ORDER: The appeal is dismissed.