dismissed EB-1A Case: Singer And Composer

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministratrve Appeals MS 2090 
identifying data deleted to 
 Washington, DC 20529-2090 
pri.tvent clearly unwmted u.S. Citizenship 
invasion of personal privaq 
 and Immigration 
n 
VL 
FILE: Office: NEBRASKA SERVICE CENTER Date: 0 CT 0 5 2009 
LIN 07 104 50994 
IN RE: 
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 1 153(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. 
5 103.5(a)(l)(i). 
pirry Rhew 
Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The petition is now hefore the Administrative Appeals Office (MQ) 
on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employmefit-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S,C. 8 1153(b)(l)(A), as an 
alien of extraordinary ability in the The dlrecfm determined the petitioer had not 
established the sustained national or international acclaim necessary to qualify for classification 
as an alien of extraordinary ability. More specifically, the director found that the petitioner had 
failed to demonstrate receipt of a major, internationally recognized award, or that he meets at 
least three of the regulatory- criteria at 8 C.F.R. 4 204.5(h)(3). 
On appeal, counsel for the petitioner argues that the petitioner meets the statutory requirements and 
at least three of the regulatory criteria at 8 C.F.R. 5 204.5(h)(3). 
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 Ex'irziordina~y Ability. - An alien is des&kd in $his 
subparagraph if - 
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained national 
or iatmatiorral acclaim ;uzd whose zchie~~ernents have been recogni2e-d 
in the field tllrough 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 to the United States will substantially benefit 
prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and the legacy Immigration and 
Naturalization Sen-ice have consistently recogrzIzd 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 has risen to the very top of the field of endeavor. 8 C.F.R. 5 204.5(h)(2). The specific 
requirements for supporting douuma~ts 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, 
Page 3 
however, that the petitioner must show that he has sustained national or international acclaim at 
the very top level. 
This petition, filed on February 20, 2007, seeks to classify the petitioner as an alien with 
extraordinary ability as a singer and composer. 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, internationally 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 qualify as an alien of extraordinary 
ability. A petitioner, however, cannot establish eligibility for this classification merely by 
submitting evidence that simply relates to at least three of the criteria outlined in 8 C.F.R. 
5 204.5(h)(3). In determining whether the petitioner meets a specific criterion, the evidence itself 
must be evaluated in terms of whether it is indicative of or consistent with sustained national or 
international acclaim. A lower evidentiary standard would not be consistent with the regulatory 
definition of "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. 
5 204.5(h)(2). 
Counsel contends that the director failed to discuss all alleged deficiencies in the Request for 
Evidence (WE) and, therefore, the petitioner was not afforded proper notice or opportunity to 
address the deficiencies. It is not clear what remedy counsel seeks here. As counsel has identified 
what he perceives as the director's errors on appeal and we have considered such arguments and 
evidence in this proceeding, it would serve no useful purpose to remand the case. As with any 
claim of a violation of due process, a violation of immigration regulation will not render a 
decision unlawful unless the violation prejudiced the interests of the alien protected by the 
regulation. United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir. 1980). 
Citing Matter of E-M, 20 I&N Dec. 77 (BIA 1989), counsel asserts that the petitioner's evidence 
"meets the 'sustained national or international acclaim' standard since preponderance of 
evidence means the evidence more likely than not meets the requirements of the law." 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, migrant, special immigrant, immediate relative, or refugee status 
claimed, as the case may be. 
The laws 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, 11 I&N Dec. 151 (BIA 
1965) and Matter of Brantigan, 1 1 I&N Dec. 493 (BIA 1966). 
Page 4 
Counsel further asserts that the director failed to follow the guidance provided in the 
memorandum of Michael Aytes, Acting Associate Director of Domestic Operations for USCIS, 
AFM Update: Chapter 22: Employment-based Petitions (AD03-01) (September 12,2006), and that 
pursuant to the memorandum, "an alien who has achieved extraordinary ability in the past must 
show that [he] maintained a comparable level of acclaim thereafter." Counsel asserts that the 
petitioner's evidence shows that he has "maintained a comparable level of acclaim since the 70's to 
present." First and foremost, an agency guidance document, such as the Aytes memo, does not 
have the force and effect to preempt or countermand the clear mandate of an agency regulation, 
such as 8 C.F.R. 5 204.3(h)(2) and (3), that have been properly promulgated in accordance with 
the Administrative Procedures Act (APA). Further, the AAO notes that the memorandum has no 
precedential value and, therefore, no binding effect as a matter of law upon USCIS. See 8 C.F.R. 
§ 103.3(c) (types of decisions that are precedent decisions binding on all USCIS officers). 
Courts have consistently supported this position. See Loa-Herrera v. Trorninski, 231 F.3d 984, 
989 (5th Cir. 2000) (holding that legacy Immigration and Naturalization Serviced (INS) 
memoranda merely articulate internal guidelines for the agency's personnel; they do not establish 
judicially enforceable rights. An agency's internal personnel guidelines "neither confer upon 
[plaintiffs] substantive rights nor provide procedures upon which [they] may rely"); see also 
Noel v. Chapman, 508 F.2d 1023 (2nd Cir. 1975) (finding that policy memoranda to legacy INS 
district directors regarding voluntary extended departure determinations to be "general 
statements of policy"); Prokopenko v. Ashcroft, 372 F.3d 941, 944 (8th Cir. 2004) (describing a 
legacy INS Operating Policies and Procedures Memorandum (OPPM) as an "internal agency 
memorandum," "doubtful" of conferring substantive legal benefits upon aliens or binding the 
INS); Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985) (describing an INS 
Operations Instruction (01) as an "internal directive not having the force and effect of law"). 
Regardless, as will be discussed, contrary to counsel's assertions, the petitioner has failed to 
establish his sustained national or international acclaim. 
The petitioner has submitted evidence that, he 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 
classzfication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
To demonstrate that membership in an association meets this criterion, the 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 work 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. The overall prestige 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
of a given association is not determinative. The issue is membership requirements rather than the 
association's overall reputation. 
The petitioner submitted a copy of his 2006 membership card in the National Federation of 
Professional Artists of Ecuador (FENARF'E). We note that the translation of the membership 
card was provided by counsel. Additionally, information provided by the petitioner from the 
FENARF'E website was translated by using a web-based translation service. However, this 
translation does not comply with the provisions of the regulation, which require that documents 
submitted in a foreign language must identify the translator, the translator must certify that the 
translation is complete and accurate, and that he or she is competent to translate from the foreign 
language into English. See 8 C.F.R. 5 103.2(b)(3). Nonetheless, nothing in the documentation 
indicates that FENARF'E requires outstanding achievements of its members as judged by 
national or international experts. 
The petitioner also submitted a copy of an August 4, 1998 receipt indicating that he had paid to 
receive an "inscription card" from the National Guild of Professional Workers of Audiovisual 
Field (SINTRAPOAV) and a copy of a May 5, 2003 certificate from the Society of Ecuadorian 
Artists and Composers (SAYCE). We note that translations for both of these documents were 
also provided by counsel. The documentation provided does not indicate that either of the 
organizations requires outstanding achievements of their members. The SAYCE certificate 
indicates: 
For his compliance with more than sufficient achievements the requirements to be 
an active member of SAYCE and because through his extended career as a 
composer he has filled of splendor the national pentagram, contributing with his 
musical creations to the innovation and aesthetics of our cultural values. 
In response to the director's request for evidence (WE) dated April 2, 2008, the petitioner 
submitted a copy of the bylaws of SAYCE as it pertains to membership in the organization. The 
translation accompanying the document was provided by counsel. Article 8 of the bylaws 
provides that any author or composer "who freely and voluntarily express their desire to belong 
to this Society are members of SAYCE." Article 10 indicates that active members must submit 
"supportive documents" and evidence of their work, including evidence of publication or 
production of at least five of their works, and authorize SAYCE to act on their behalf. The 
documentation does not indicate that SAYCE requires outstanding achievement of its members 
as judged by national or international experts. 
The petitioner does not further address this issue on appeal. The petitioner has failed to establish 
that he 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. 
In order to meet this criterion, published materials must be primarily about the petitioner and be 
printed in professional or major trade publications or other major media. To qualify as major 
media, the publication should have significant national distribution and be published in a 
predominant language. Some newspapers, such as the New York Times, nominally serve a 
particular locality but would qualify as major media because of a significant national 
distribution. 
The petitioner submitted copies of articles about him published in several publications such as 
the Galeria, La Hora, El Tiempo, and El Comercio. The petitioner submitted no documentation 
with the petition to establish that any of these publications are professional or major trade 
publications or other major media. Additionally, as noted by the director, these articles were 
published in the 19707s, 1980's, and 1990'~~ and none later than 2002, five years prior to the date 
the petition was filed. 
In response to the RFE, the petitioner submitted a copy of a March 17, 2006 announcement that 
appeared in the newspaper Ultimas Noticias of his scheduled appearance at a local institution. 
The announcement appeared along with that of several others and is not an article primarily 
about the petitioner. The petitioner also submitted information about Ultimas Noticias, retrieved 
from the website of the user-edited encyclopedia Wikipedia. With regard to information from 
Wikzpedia, there are no assurances about the reliability of the content from this open, user-edited 
internet site.2 See Lamilem Badasa v. Michael Mukasey, 540 F.3d 909 (gth Cir. 2008). 
Accordingly, we will not assign weight to information for which Wikipedia is the only cited 
source. Further, the announced appearance of the petitioner, with no other information, is not 
about the petitioner or his work. 
The petitioner also submitted a copy of an August 28, 2004 article from the Hoy newspaper, 
announcing the appearance of "more than 40 local artists" who were scheduled to appear at the 
"Agora of the House of Culture." The petitioner provided documentation regarding the Hoy 
retrieved from the newspaper's website. The document indicates that the Hoy circulates 
2 
 Online content fi-om 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. [Emphasis in original.] 
See http://en.wikipedia.ordwiki/Wilu~edia:General disclaimer, accessed on September 15, 2009, a copy 
of which is incorporated into the record of proceeding. 
nationally and is the "third newspaper with [the] greatest circulation in the country." 
Nonetheless, the petitioner is named as one of the 40 artists scheduled to appear. The article does 
not discuss the petitioner in particular and is not primarily about him or his work. 
Also in response to the RFE, the petitioner submitted an article from BBC News, retrieved from 
the organization's website on May 7, 2004. The article addresses the unrest in Ecuador and 
quotes from "leading newspapers" in Ecuador, including La Hora, Hoy, Expreso and El 
Comercio. An October 2,2007 report from the European Union Election Observation Mission on 
the election system in Ecuador identifies "four principal daily newspapers7 in Ecuador, including 
El Comercio, El Universo, Hoy and Expreso. However, neither of these documents indicates that 
any of the newspapers have a significant national distribution and thus would qualify as major 
media. A newspaper may be a "principal daily" or "leading newspaper" and have only regional 
readership and therefore not be considered major media indicative of this highly restrictive 
classification. 
The petitioner also claims to meet this criterion based on his appearance on television shows. 
The petitioner submitted screen captions and "transcripts" from what he stated were of his 
appearances on various television shows. The petitioner did not provide copies of the videos 
from which these captions and transcripts were taken. Further, television appearances do not 
meet the requirements of the regulation at 8 C.F.R. 8 204.5(h)(3), which refers to published 
material that contain a title, date, and author of the material. 
While the director may have overreached in stating "there is little evidence that the petitioner has 
performed at the national or international levels subsequent to the late 19807s," the evidence 
submitted in support of this criterion does not establish that the petitioner has achieved sustained 
national or intemational acclaim. As discussed previously, the articles submitted by the petitioner 
are dated at the latest, five years prior to the date the petition was filed on February 20, 2007. 
Although counsel alleges that the petitioner submitted copies of articles that were published in 
2004 and 2006, as discussed above, these articles were not about the petitioner or his work. 
Section 203(b)(l)(A)(i) of the Act requires the alien to demonstrate sustained national or 
intemational acclaim. Given that the majority of the petitioner's evidence relates to his work in 
prior decades and the lack of any published material about the petitioner during the five-year 
period preceding the filing of the visa petition, we concur with the ultimate conclusion of the 
director that the petitioner has failed to demonstrate his sustained national or international 
acclaim. 
The petitioner has failed to establish that he 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 alliedfield of speczflcation for which classzfication is 
sought. 
The petitioner submitted a copy of a September 25, 2006 certification from FENARPE of 
Pichincha certifying that he had "collaborated as a member of the Qualifying Jury in the 
auditions taken to candidates who wish to be professional artists." The certification did not 
specify the period or the number of times the petitioner had served as a member of the 
"Qualifying Jury." In response to the WE, the petitioner submitted another certification from 
FENARPE of Pichincha, dated April 16,2008, indicating that the petitioner had "represented this 
Institution as QUALIFYING JURY in various events and categories, during the period 
comprised between October 2005 and September 2006." The letter again did not specify, and the 
petitioner did not provide evidence of any particular events or categories that demonstrate his 
participation as a judge with FENAWE. 
The regulation at 8 C.F.R. tj 204.5(h)(3) provides that "a petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 
Evidence of the petitioner's participation as a judge must be evaluated in terms of these 
requirements. The weight given to evidence submitted to fulfill the criterion at 8 C.F.R. 8 
204.5(h)(3)(iv), therefore, depends on the extent to which such evidence demonstrates, reflects, 
or is consistent with sustained national or international acclaim at the very top of the alien's field 
of endeavor. A lower evidentiary standard would not be consistent with the regulatory definition 
of "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. 5 
204.5(h)(2). For example, judging a national competition involving professional artists is of far 
greater probative value than judging a local competition involving students or amateurs. The 
petitioner's alleged judging of those "wish[ing] to be professional artists" on unspecified occasions 
is not indicative of the evidence required for this highly restrictive classification. 
The petitioner has failed to establish that he meets this criterion. 
Evidence of the alien 's original scientzfic, scholarly, artistic, athletic, or business-related 
contributions of major signzficance in the field. 
According to counsel, the petitioner "has made an extraordinary contribution to the music of 
Ecuador" and "is considered the pioneer and promoter of the musical genre denominated 'balada 
andina' (Andean ballad)." Counsel stated that the petitioner's first song in this genre, recorded in 
1975, "provided a big boon of record sales in the Ecuadorian music field, and created a big 
demand from the public used to buy romantic melodies." 
As evidence that the petitioner meets this criterion, the petitioner submitted copies of the 
following: 
1. A November 28, 1997 proclamation from the President of Ecuador saluting the petitioner 
during the "National Day of the Ecuadorian Artist" for his contribution to the 
"enlargement of [the] National Culture." 
Page 9 
2. 
 A May 26, 1997 "honor diploma" from the Ecuadorian Embassy in Colombia "in 
acknowledgement and gratitude for his valuable and voluntary work for the benefit and 
promotion of interests and values of Ecuador." 
3. A November 1 1, 1999 certificate of recognition from the FENARPE for the beneficiary's 
"artistic career talent and professional quality, which have positioned in a prominent 
place the name of our country." 
4. A June 18, 2001 "Mention of Honor'' from the Argentinean Folkloric Institute for his 
"extensive career" and his "dedication to Folkloric Art and in gratitude for his 
friendship." 
5. A May 5, 2003 certificate from SAYCE for exceeding the "achievements" and 
"requirements to be an active member of SAYCE and because through his extended 
career as a composer" he contributed to the "innovation and aesthetics of our cultural 
values." 
6. A July 31, 1977 diploma from the Department of Federal District DF for his "artistic 
collaboration in the Popular Festivals." 
7. An entry about the petitioner from volume one of the Ecuadorian Music Encyclopedia, 
published by the Ecuadorian Musicology Corporation. 
Although the documents indicate that the petitioner was recognized for his work and through his 
music served as a musical ambassador for Ecuador, talent and notoriety in one's field, however, 
are not necessarily indicative of artistic contributions of major significance. The record lacks 
evidence showing that the petitioner has made original artistic contributions that have significantly 
influenced or impacted his field. 
The petitioner submitted an undated letter from 
 of SAYCE, 
highlighting the petitioner's career and indicating that he IS a "consohdated artist in Ecuador. 
- - 
However, the letter does not specify any contribution of major significance by the petitioner to 
his field of endeavor. 
[The petitioner] is one of the most popular artists in Ecuador and is considered the 
pioneer and propeller of the genre denominated Andean ballade. This style 
consists in a fusion of classic melancholic melodies of the Andes of minor chords 
with a rhythm semi-danceable using electronic instruments that emulate 
traditional folkloric instruments . . . Generally, their lyrics refer to romance and 
frustrated love. The first composition of [the petitioner's] that marked the 
commencement for the Andean ballade as a genre in Ecuador was . . . recorded in 
1975 . . .The novelty and refreshness brought by this song in the Ecuadorian 
landscape translated in a huge impact [ofl record sales, and generated great 
interest for traditional Andean rhythms and their Ecuadorian roots in a public used 
to consume romantic melodic music. 
stated that the petitioner's success with the Andean ballade influenced others to 
follow in his steps, and that: 
[The petitioner's work] caused a revitalization of Andean music in the country, 
and brought to [the] rest of Latin America music with strong Ecuadorian identity 
using as a vehicle the international pop [sic]. This, without doubt constitutes a 
great contribution . . . to the music of Ecuador. 
While the record reveals that the petitioner was a popular artist, it does not support 
statements that the petitioner "revitalized" Andean music or that he was res onsible 
for bringing Ecuadorian music to the rest of Latin America. Additionally, while dh 
stated that the petitioner contributed to Ecuadorian music, the record is not clear that he made a 
contribution of major significance to his field of endeavor. Assuming, however, that the 
petitioner's 1975 record contributed significantly to his field, he submitted no documentation to 
establish that he has made any significant contribution within the past 20 years. 
Counsel asserts that the director erred in requiring that the petitioner show that he has "sustained 
his contributions" and that the petitioner must only show the significance of his contributions to 
the field. We note that section 203(b)(l)(A)(i) of the Act requires the alien to demonstrate 
sustained acclaim. As previously discussed, the criteria outlined in 8 C.F.R. 5 204.5(h)(3) are 
designed to assist the petitioner in establishing the sustained acclaim required by the Act and in 
determining whether a specific criterion is met, the evidence itself must be evaluated in terms of 
whether it is indicative of or consistent with sustained national or international acclaim. 
Counsel asserts that the petitioner's sustained acclaim is evident in that there is a television show 
"devoted to review his career and greatest hits" that is "regularly broadcasted" on national 
television. Counsel further asserts that one of the petitioner's ballads was a hit in 2005-2006, and 
that he performed "live in a massive concert" at one of the major attractions in Ecuador. 
However, none of these documents indicate that the petitioner has made a contribution of major 
significance to his field or that any alleged influence he had over Ecuadorian music has 
continued. The April 21, 2008 certificate from Telesucesos, a television station in Ecuador, 
indicated that the petitioner had "performed several productions written by him" and that the 
"productions are regularly broadcasted in our channel." The letter does not indicate that the show 
was "devoted to review [the petitioner's] career and greatest hits." Additionally, a hit song in 
2005 and a successful performance are also not, without more, indicative of a contribution of 
major significance to the petitioner's field of endeavor. Without extensive documentation 
showing that the petitioner's work has been unusually influential, highly acclaimed throughout 
his field, or has otherwise risen to the level of original contributions of major significance, we 
cannot conclude that he meets this criterion. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The petitioner claims to meet this criterion based on his performance in various concerts and 
television programs. The director concluded that the evidence indicated that the evidence "is 
adequate to demonstrate eligibility under this criterion" but that "there is little evidence showing 
that the petitioner has performed at the national or international levels subsequent to the late 
1980s." We do not concur with the director's conclusion that the evidence shows that the 
petitioner meets this criterion and we withdraw this statement. 
The plain language of this regulatory criterion indicates that it applies to visual artists (such as 
sculptors and painters) rather than to singers and actors like the petitioner. In the performing arts, 
acclaim is generally not established by the mere act of appearing in public, but rather by 
attracting a substantial audience. For this reason, the regulations establish separate criteria, 
especially for those whose work is in the performing arts. We find the petitioner's performances 
are far more relevant to the "leading or critical role" criterion set forth at 8 C.F.R. 
5 204.5(h)(3)(viii) and the "commercial successes in the performing arts" criterion at 8 C.F.R. 
5 204.5(h)(3)(x), and are discussed separately within the context of those criteria. 
The petitioner has failed to establish that he meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
To meet this criterion, the petitioner must show that he performed a leading or critical role for an 
organization or establishment and that the organization or establishment has a distinguished 
reputation. 
In his letter accompanying the petitioner's initial submission, counsel asserted that evidence of 
that the petitioner meets this criterion consisted of newspaper articles showing his participation 
"in different renowned Festivals representing Ecuador" and in "[c]ertificates asserting the 
participation [of the petitioner] in important and distinguished organizations." 
The petitioner submitted several articles indicating that he was going to perform and had 
performed at different festivals. For example, a December 28, 1977 photograph of the petitioner 
in the newspaper El Comercio Quito was accompanied by a caption that he was traveling "to 
Cali to participate in the Pan-American Festival of Song and Interpreter organized by the 
Commission of Tourism of the Cauca Valley." A February 1978 article indicated that the 
petitioner was preparing to represent Ecuador at the Ancon Festival-Peru. The petitioner also 
provided copies of certificates reflecting his participation in events such as the 1990 National 
Congress of FENARPE and the 1995 First National Encounter of Ecuadorian Artists, Authors 
and Composers. The petitioner submitted no documentation to establish that his participation in 
any of these events was in a leading or critical role for the festivals of events or that the 
organizations he performed for had distinguished reputations. 
In response to the WE, counsel denied that the petitioner claimed to meet this criterion and does 
not address it further on appeal. Accordingly, the petitioner has failed to establish that he meets 
this criterion. 
Evidence of commercial successes in the performing arts, as shown by box office receipts 
or record, cassette, compact disk, or video sales. 
The director determined that the petitioner meets this criterion based on his receipt of a gold 
record in 1977. We do not concur with the director's determination and withdraw his finding. 
The petitioner alleged that his receipt of a gold record was the result of selling more than 
100,000 records. The petitioner submitted a photograph of a gold record awarded to him by the 
"National Convention FADISA Of Publicity and Sales" on January 29, 1977 "For his 
International Projection in 1976." The petitioner submitted no other information about 
"FADISA or documentation that the basis of its award of a gold record is sales of records in 
excess of 100,000. The petitioner also failed to submit evidence regarding record sales related to 
his claimed "hit" song from 2005 to 2006. 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. 1998) (citing Matter of Treasure Craft of 
California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
The petitioner also submitted photographs of the covers of other compact discs and records that 
he has recorded. Counsel also refers to the newspaper articles submitted by the petitioner as 
evidence of this criterion. We note first that we have previously considered the newspaper 
articles under the criterion listed at 8 C.F.R. 9 204.5(h)(3)(iii). Further, pursuant to 8 C.F.R. 
9 204.5(h)(3)(x), eligibility for this criterion must be established by "box office receipts or 
record, cassette, compact disk, or video sales." 
Even if we accept the petitioner's gold record as evidence of this criterion, the petitioner's 
receipt of a gold record in 1977, 20 years prior to the filing of the visa petition, does not 
demonstrate the sustained acclaim required by section 203(b)(l)(A)(i) of the Act and this highly 
restrictive visa classification. 
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 his field of endeavor. Review of the record, 
however, does not establish that the petitioner has distinguished himself to such an extent that he 
may be said to have achieved sustained national or international acclaim or to be within the small 
percentage at the very top of his 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 AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. tj 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice or by rule."); see 
also Janka v. US. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). The AAO's de 
novo authority has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 
997, 1002 n. 9 (2d Cir. 1989). 
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. 
ORDER: The appeal is dismissed.