dismissed EB-1A Case: Piano

t 
identifying data deleted to 
revent clearly unwarr~nted 
Ynvaslon of personal privacy 
PllBLICCOpy 
DATE: MAR 2 8 2012 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) (I )(A) of the Immigration and Nationality Act, 8 U.s.C. § 1153(b)(1 )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. 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 $630. Please be aware that 8 C.P.R. § 103.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
cfJo:- $,-
Perry Rhew . ¥ 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" as a pianist in the arts, pursuant 
to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(A). At the time 
of filing, the petitioner was a full-time student studying piano at Southern Methodist University's 
Meadows School of the Arts while also serving on the faculty at the University of Dallas teaching 
advanced piano. The director determined the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present 
"extensive documentation" of the alien's achievements. See section 203(b)(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 of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 c.F.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
On appeal, the petitioner, through counsel submits a brief with additional documentary evidence. 
Generally, counsel asserts that the director's Notice of Intent to Deny (NOID) did not sufficiently give 
notice of the deficiencies in this matter. According to the current rule, enacted prior to the date of filing, 
the director was not required to issue any notice prior to denying the petition for a lack of initial or other 
evidence. 8 c.F.R. §§ 103.2(b)(8)(ii), (iii) enacted pursuant to 72 Fed. Reg. 19100 (June 18, 2007). 
The AAO will consider counsel's response to the deficiencies raised in the final denial on appeal. For 
the reasons discussed below, the AAO upholds the director's ultimate determination that the petitioner 
has not established his eligibility for the classification sought. 
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, 
Page 3 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively 
the United States. 
U.S. 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 101st 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. I 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. Id. 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.S(h)(3)(iv) and 8 C.F.R. 
§ 204.S(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
This criterion contains several evidentiary elements the petitioner must satisfy. According to the plain 
language of the regulation at 8 c.F.R. § 204.5(h)(3)(i), the evidence must establish that the alien is the 
recipient of the prizes or the awards (in the plural). The clear regulatory language requires that the 
prizes or the awards are nationally or internationally recognized. The plain language of the regulation 
also requires evidence that each prize or award is one for excellence in the field of endeavor rather than 
simply for participating in or contributing to the event. The petitioner must satisfy all of these elements 
to meet the plain language requirements of this criterion. 
claims the following prizes or awards relating to this criterion: (1) second prize from 
in 1991 in an "international competition of young musicians"; (2) the 
(9) the title of 
The petitioner also claimed to be a finalist at the 1992 
Young Artists and a finalist at the 2005 Competition, but he failed to 
provide evidence to corroborate these claims. The director determined that the petitioner failed to meet 
the requirements of this criterion. 
The petitioner received the title of in 2009 at the 
_after he filed the petition. A petitioner must establish eligibility at the time of filing; a petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See 
8 c.F.R. §§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
Therefore, a petitioner may not make material changes to a petition that has already been filed in an 
effort to make an apparently deficient petition conform to USCIS requirements. See Matter of [zummi, 
22 I&N Dec. 169, 175 (Comm'r 1998). As this title postdates the petition filing, the petitioner may not 
rely upon this title as it relates to this petition. 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence not 
discussed in this decision. 
The petitioner has demonstrated that he is the recipient of each of the claimed awards for excellence in 
the field and that multiple awards are present thereby satisfying the plural prizes or awards element of 
this criterion. 
1. National or International Recognition of Prizes and A wards 
The petitioner's first prize of $20,000 at the 1998 is 
nationally recognized. For example, the record contains coverage of the competition in the Washington 
Post's "Arts" section. 
Regarding the national or international recognition of each award, the AAO will not presume a prize or 
award enjoys national or international recognition from the name of the prize or award. The petitioner 
provides insufficient objective evidence of the national or international recognition for the following 
prizes or awards: (1) second at the 1991 
(2) first prize at the 1996 
(3) his diploma and honorary title at the 2002 
Several of the expert letters assert claims of the national or international recognition of the petitioner's 
prizes or awards. USCIS may, in its discretion, use as advisory opinions statements submitted as 
expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988). 
However, USCIS is ultimately responsible for making the final determination regarding an alien's 
eligibility for the benefit sought. [d. The submission of letters from experts supporting the petition is 
not presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether 
they support the alien's eligibility. See id. at 795; see also Matter ofV-K-, 24 I&N Dec. 500, n.2 (BIA 
2008) (noting that expert opinion testimony does not purport to be evidence as to "fact"). USCIS may 
even give less weight to an opinion that is not corroborated, in accord with other information or is in 
any way questionable. Id. at 795; see also 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'I. Comm'r. 1972)). Merely 
repeating the language of the statute or regulations does not satisfy the petitioner's burden of proof. 
Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 
1990); Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Similarly, USCIS 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). 
Although the petitioner provides media coverage of the following prizes or awards, he failed to 
demonstrate that each prize or award is national or internationally recognized: (1) 
medal Competition in 2002; (2) fifth ~ 
the Competition; and (3) second prize at the 2007 ..... 
Competition. The petitioner provides no information relating to the 
that reported on these prizes or awards and thus, the he may not rely on 
the submitted coverage in these media outlets to demonstrate that these prizes and awards are nationally 
or internationally recognized. Some of the materials are from the awarding entities' own websites. 
USCIS need not rely on the self-promotional material of the awarding authorities. See Braga v. Poulos, 
Page 6 
No. CV 06 5105 SJO (c. D. CA July 6, 2007) aff'd 2009 WL 604888 (9th Cir. 2009) (concluding that 
the AAO did not have to rely on self-serving assertions on the cover of a magazine as to the magazine's 
status as major media). Counsel's appellate brief asserts that the bronze medal at the Tchaikovsky 
International Musical Competition is among the very top international piano competitions in the world. 
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). 
Additional 
the 1995 
from Wikipedia relating to the prize of $1,000 at 
Named With regard to 
are no assurances about the reliability of the content from this open, 
user-edited internet site.3 See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (8
th 
Cir. 2008). As 
such, the petitioner has not demonstrated that this prize enjoys national or international recognition. 
As the petitioner has only demonstrated that one prize attributable to him enjoys national or 
international recognition, he has not submitted evidence that meets the plain language requirements of 
this criterion, which is worded in the plural. 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish his eligibility. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (lIth Cir. 2005); Hristov v. Roark, 
No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the court found the 
plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion. 
3 Online content from Wikipedia is subject to the following general disclaimer, "WIKIPEDIA MAKES NO 
GUARANTEE OF VALIDITY. Wikipedia is an online open-content collaborative encyclopedia, that is, a 
voluntary association of individuals and groups working to develop a common 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 
opmlOn does not correspond with the state of knowledge in the relevant fields. See 
http://cn.wikilx'dia.org/wikiIWikipedia:General disclaimer, [accessed on March 13, 2012, a copy of which is 
incorporated into the record of proceeding.] 
.' 
Page 7 
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. 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must primarily be about the petitioner and the contents must relate to the petitioner's work in 
the field under which he seeks classification as an immigrant. The published material must also appear 
in professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or international distribution and be published in a 
predominant national language. The final requirement is that the petitioner provide each published 
item's title, date, and author and if the published item is in a foreign language, the petitioner must 
provide a translation that complies with the requirements found at 8 C.F.R. § 103.2(b)(3). The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
The petitioner provides numerous articles relating to this criterion. The director determined that the 
petitioner failed to meet the requirements of this criterion. 
The sole published material qualifying as major media is from the Washington Post. While the 
petitioner is named in the headline, the article is "about" the competition, not the petitioner. The article 
discusses the petitioner in only three of the 10 paragraphs in the article, also discussing the second place 
finisher and the tragedy of one performer who had to drop out after illness and an electrical outage. 
Even if the AAO were to concluded that the Washington Post article is "about" the petitioner, the plain 
language of the regulation at 8 c.F.R. § 204.5(h)(3)(iii) requires evidence of published material in "in 
professional or major trade publications or other major media" in the plural, which is consistent with the 
statutory requirement for extensive evidence. Section 203(b)(1)(A)(i) of the Act. Significantly, not all 
of the criteria at 8 c.F.R. § 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 
C.F.R. §§ 204.5(h)(3)(iv) 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.F.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of 
"letter(s)." Thus, the AAO can infer that the plural in the remaining regulatory criteria has 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 *1, 
*12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at *1, *10 (D. Or. 
Nov. 30,2006) (upholding an interpretation that the regulatory requirement for "a" bachelor's degree or 
"a" foreign equivalent degree at 8 c.F.R. § 204.5(1)(2) requires a single degree rather than a 
combination of academic credentials). 
Regarding the remaining articles, the petitioner submits circulation data regarding each publication, but 
fails to demonstrate that each publication is distributed beyond the local level. The referenced articles 
are from: The BaLtimore Sun, The Plain Dealer, Jefferson MonthLy, Cape Cod Times, 
Page 8 
Publications with only a regional reach are not considered to be major media and the petitioner has not 
demonstrated that any of these publications are a professional or major trade journals. As the petitioner 
provides no information related to the distribution data of these publications to demonstrate the 
published material has a national rather than a regional reach, these articles will not qualify as major 
media. 
The petitioner also submits evidence under this criterion that is only published on the Internet. As 
previously stated, to qualify as major media the publication should have significant national or 
international distribution. The record lacks evidence that these websites serve as an online version of 
major media outlet with a national or international reach, e.g., the Cable News Network (CNN) is 
nationally and internationally broadcast, and as a result, the CNN website is significant and content 
posted on the CNN web site can be considered to gamer national recognition. The petitioner has not 
presented any evidence to demonstrate that the content from www.ksta.de (KOlner Stadt-Anzeiger) or 
the other web-based publications attract national or international viewership. The petitioner bears the 
burden to establish eligibility, and in this instance, he failed to provide evidence regarding the national 
or international reputation of the websites. National or international accessibility by itself is not a 
realistic indicator of a given website's reputation. The petitioner also submits supporting evidence 
deriving from the Wikipedia website. There are no assurances about the reliability of the content from 
this open, user-edited internet site. See Lamilem Badasa, 540 F.3d at 909. 
In view of the foregoing, the petitioner has not submitted evidence that meets the plain language 
requirements of 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. 
This criterion requires not only that the petitioner was selected to serve as a judge, but also that the 
petitioner is able to produce evidence that he actually participated as a judge. The phrase "a judge" 
implies a fonnal designation in a judging capacity, either on a panel or individually as specified at 
8 C.F.R. § 204.5(h)(3)(iv). Additionally, these duties must have been directly judging the work of 
others in the same field in which the petitioner seeks an immigrant classification within the present 
petition. The petitioner must submit evidence satisfying all of these elements to meet the plain language 
requirements of this criterion. 
The petitioner provides multiple invitations to perform as a judge and evidence that he served as a judge 
at the in 2008. The director determined that the 
petitioner failed to meet the requirements of this critenon. the petitioner has submitted evidence that 
meets the plain language requirements of this criterion, the AAO departs from the director's eligibility 
determination related to this criterion. 
.-
Page 9 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The director discussed the evidence submitted pursuant 8 C.F.R. § 204.5(h)(3)(v) and found that the 
petitioner failed to establish his eligibility. On appeal, the petitioner makes only passing reference to 
this issue. Within counsel's appellate brief under the artistic display criterion, she asserts that expert 
letters demonstrate the petitioner's original contributions to his field. Counsel failed to identify an 
incorrect application of law or statement of fact underlying the director's findings relating to this 
criterion. The AAO, therefore, considers this issue to be abandoned. Desravines v. u.s. Atty. Gen., 
343 Fed.Appx. 433, 435 (11th Cir. 2009) (a passing reference in the arguments section of a brief 
without substantive arguments is insufficient to raise that ground on appeal). 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
This criterion contains multiple evidentiary elements the petitioner must satisfy. The plain language 
requirements of this criterion requires that the work in the field is directly attributable to the alien. 
Additionally, the interpretation that 8 c.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is 
longstanding and has been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07 -CV -820-
ECR-RJJ at *7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a performing 
artist do not fall under 8 C.F.R. § 204.5(h)(3)(vii». The alien's work also must have been displayed at 
artistic exhibitions or showcases (in the plural). While neither the regulation nor precedent speak to 
what constitutes an exhibition or a showcase, Merriam-Webster' s online dictionary defines exhibition 
as, "a public showing (as of works of art),,,4 and showcase as, "a setting, occasion, or medium for 
exhibiting something or someone especially in an attractive or favorable aspect."s Dictionaries are not 
of themselves evidence, but they may be referred to as aids to the memory and understanding of the 
court. Nix v. Hedden, 149 U.S. 304, 306 (1893). Therefore, it is the petitioner's burden to demonstrate 
that the display of his work in the field claimed under this criterion occurred at artistic exhibitions or at 
artistic showcases. The petitioner must satisfy all of these elements to meet the plain language 
requirements of this criterion. 
As the petitioner is not a visual artist and has not created tangible pieces of art that were on display at 
exhibitions or showcases, he has not submitted qualifying evidence that meets the plain language 
requirements of the regulation at 8 c.F.R. § 204.5(h)(3)(vii). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish his eligibility. On appeal, the petitioner does not contest the director's findings for this 
4 See http://\vww.melTiam-webster.com/dictionary/exhibition, [accessed on March 13, 2012, a copy of which is 
incorporated into the record of proceeding.] 
5 See http://www.merriam-webster.com/dictionary/showcase. [accessed on March 13, 2012, a copy of which is 
incorporated into the record of proceeding.] 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be abandoned. 
Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the petitioner has not 
submitted qualifying evidence under this criterion. 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field. 
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires the petitioner to submit 
evidence of a "high salary or other significantly high remuneration for services, in relation to others in 
the field." Average salary information for those performing work in a related but distinct occupation 
with different responsibilities is not a proper basis for comparison. The petitioner must submit 
documentary evidence of the earnings of those in his occupation performing similar work at the top 
level of the field.6 The petitioner must present evidence of objective earnings data showing that he has 
earned a "high salary" or "significantly high remuneration" in comparison with those performing 
similar work during the same time period. See Matter of Price, 20 I&N Dec. 953,954 (Assoc. Comm'r 
1994) (considering professional golfer's earnings versus other PGA Tour golfers); see also Crimson v. 
INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL 
enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N. D. Ill. 1995) (comparing salary of NHL 
defensive player to salary of other NHL defensemen). 
The petitioner provides numerous contracts that identify the amount he has been paid for performing. 
The director determined that the petitioner failed to meet the requirements of this criterion. 
The regulation distinctly requires that the petitioner demonstrate his eligibility under this criterion by 
comparing his salary or remuneration to others in his field. He failed to provide any evidence relating 
to the salaries or remuneration that others in his field receive. As such, the petitioner has not submitted 
evidence that meets the plain language requirements of this criterion. 
Evidence of commercial successes in the peiforming arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish his eligibility. On appeal, the petitioner does not contest the director's findings for this 
criterion or offer additional arguments. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the 
petitioner has not submitted qualifying evidence under this criterion. 
6 While the AAO acknowledges that a district court's decision is not binding precedent, we note that in Matter of 
Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated, "[T]he plain reading of the statute 
suggests that the appropriate field of comparison is not a comparison of Racine's ability with that of all the 
hockey players at all levels of play; but rather, Racine's ability as a professional hockey player within the 
NHL. This interpretation is consistent with ... the definition of the term 8 C.F.R. § 204.5(h)(2), and the 
discussion set forth in the preamble at 56 Fed. Reg. 60898-99." 
B. Comparable Evidence 
In the response to the director's NOID, counsel presented her position that comparable evidence under 
8 c.F.R. § 204.5(h)(4) is applicable to the petitioner's case. The regulation at 8 C.F.R. § 204.5(h)(3) 
provides that evidence of sustained national or international acclaim "shall" include evidence of a one­
time achievement or evidence of at least three of the listed regulatory criterion. The ten categories in 
the regulations are designed to cover different areas; not every criterion will apply to every 
occupation. For example, the criterion at 8 c.F.R. § 204.5(h)(3)(vii) implicitly applies to the visual 
arts, and the criterion at 8 C.F.R. § 204.5(h)(3)(x) expressly applies to the performing arts. The AAO 
acknowledges that the regulation at 8 c.F.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.F.R. 
§ 204.5(h)(3) that the rule, not the exception, is that the petitioner must submit evidence to meet at least 
three of the regulatory criteria. 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). 
The director discussed why comparable evidence is precluded in his decision. On appeal, counsel no 
longer presents this position, nor does she contest the director's findings for this regulation. The 
AAO, therefore, considers this issue to be abandoned. Sepulveda 401 F.3d at 1228 n.2; Hristov, 
2011 WL 4711885, at *9. Accordingly, the petitioner has not submitted qualifying evidence under 
this regulation. 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
III. 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. 
Had the petitioner 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 
Page 12 
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. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed. 
7 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 PJd 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 1,2(03); 8 c.F.R. § 2.1 (2003); 8 c.P.R. 
§ 103.l(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).