dismissed EB-1A Case: Singer

U.S. Department of Homeland Security 
U. S. Citlzenshp and lmrmgratlon Serv~ces 
Ofice ofAdmmrstratzve Appeals MS 2090 
Washington, DC 20529-2090 
t- *-I 9 U.S. Citizenship 
invasion of Fui~ J.~-! p"YacY 
 and Immigration 
PUBLIC COp'IiQ 
MAY 1 8 2009 
FILE: Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 035 51881 
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. 9 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 hrther 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. 9 103.5 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. fj 103.5(a)(l)(i). 
d,D~~ody rL 
6' ~ohn F. Grissom 
Acting Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service 
Center, and is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(l)(A) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(A), as an alien of extraordinary ability in the 
arts. The director determined that the petitioner had not established the sustained national or international 
acclaim required for classification as an alien of extraordinary ability. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
Specific supporting evidence must accompany the petition to document the "sustained national or international 
acclaim" that the statute requires. 
 8 C.F.R. 5 204.5(h)(3). An alien can establish sustained national or 
international acclaim through evidence of a "one-time achievement (that is, a major, international recognized 
award).'' Id. Absent such an award, an alien can establish the necessary sustained acclaim by meeting at least 
three of ten other regulatory criteria. Id. However, the weight given to evidence submitted to fulfill the criteria 
at 8 C.F.R. 5 204.5(h)(3), or under 8 C.F.R. Ij 204.5(h)(4), must depend 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. 
 204.5(h)(2). 
We note that the petitioner is the beneficiary of a nonimmigrant visa in a similar classification. While U.S. 
Citizenship and Immigration Services (USCIS) has approved at least one P-3 nonirnmigrant 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 standard. It must be noted that many 1-140 immigrant petitions are denied after USCIS 
approves prior nonirnmigrant 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. Suva, 724 
F. Supp. 1 103 (E.D.N.Y. 1989). Because USCIS spends less time reviewing 1-1 29 nonimmigrant petitions than 
1-140 immigrant petitions, some nonirnmigrant 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 £rom 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 Scientoloay 
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 nonimrnigrant 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 0 282785 (E.D. La.), afd, 248 F.3d 1139 (5th Cir. 2001), 
cert. denied, 122 S.Ct. 51 (2001). 
This petition, filed on November 16, 2006, seeks to c1assif)r the petitioner as an alien with extraordmry ability 
as a singer. Initially, the petitioner submitted supporting evidence including a list of accomplishments, 
information about concerts played, news articles, information about Nepalese publications, judging invitations 
and appreciations, pictures, certificates of appreciation, and letters of recommendation. In response to a Request 
for Evidence ("RFE) dated December 28, 2007, the petitioner submitted information about United States 
performances, the Kantipur F.M. awards, information about judging activities, news articles, information about 
Nepalese publications, letters of recommendation, top 10 pop music weekly lists, information about the Music 
Association of Nepal, and album contracts. We address the evidence submitted in the following discussion of 
the regulatory criteria relevant to the petitioner's case. The petitioner does not claim eligibility under any 
criteria not addressed below. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or awards 
for excellence in theJield of endeavor. 
The petitioner submitted evidence that he won awards for four years in a row awarded by Kantipur FM: third 
place, band category in 2000; fifth place, band category in 2001 and 2002; and sixth place, band category in 
2003. The evidence submitted about Kantipur FM states that the awards are given "on the basis of position they 
secure on the air play of their songs" based on "request by the listeners and play[s] in the FM Station in various 
programs by the listeners" and that ten artists receive awards in each category. This documentation does not 
establish that these awards are nationally or internationally recognized as awards for excellence in the field. 
Instead, the information suggests that the awards recognize bands that receive the greatest amount of airplay and 
listener requests as opposed to recognition by the industry for excellence. The information submitted about 
Kantipur FM as a station suggests that it enjoys great popularity in the eastern part of the country and capital, 
but contains no information about its reach in the western part of the country. On appeal, counsel argues that as 
Kantipur FM is a station with a nationwide broadcast, its awards must be nationally recognized. We are not 
persuaded by this argument. First, the evidence does not show that the station enjoys substantial listeners 
throughout the entire country so as to amount to national recognition. Second, the information does not suggest 
that the awards are nationally recognized even if the broadcasting medium is available throughout the country. 
Similarly, the fact that the competition draws entrants from across the country does not make the prize awarded 
a nationally recognized prize. 
Page 4 
The award referenced by is the Sajjan Smiriti "Best Singer with Album of the year Award - 1999." 
The November 1,2006 letter from states that this award is given to a musician "continuously involved 
with his extraordinary contribution in the music industry for no less than a period of 7 years" and that the album 
honored "should be one that has the highest number of sales that particular year along with it being featured as 
chartbusters in various FM, Radio and TV stations and has received coverage in the national newspapers within 
the year." This award was organized by Santana Records and the only information presented comes from the 
record company. The information does not indicate that the award is open to musicians who are represented by 
or work with other record companies. As such, the record does not establish the national or international 
recognition of this award. 
The petitioner submitted a letter from - station manager at Image 97.9, stating that the petitioner 
was selected as the Artist of the Month in January 2003. The letter states that the artist honored "is selected on 
the basis of popularity and listener's demand." Again, the petitioner has failed to establish that this recognition 
by the radio station is a nationally or internationally recognized award. Further, as the award seems to be given 
monthly to different artists, selection for recognition is not indicative of a national award or consistent with this 
highly restrictive classification. 
In any event, we note that even if the petitioner had established that these awards are nationally or 
internationally recognized, the last award in the record is dated 2003, three years prior the filing of this petition 
and is thus insufficient to establish the sustained acclaim required for this highly restrictive classification. 
Section 203(b)(l)(A)(i); 8 C.F.R. § 204.5(h)(3). 
Accordingly, the petitioner failed to establish that he meets this criterion. 
(ii) Documentation of the alien's membership in associations in the field for which classiJication is sought, 
which require outstanding achievements of their members, as judged by recognized national or international 
experts in their disciplines or fields. 
Although counsel did not specifically claim that this criterion applies, evidence in the record shows that the 
petitioner belongs to the Music Association of Nepal ("Association"). The letter from- president of 
the Association, states that membership is given to those with "at least . , . minimum one album to be released 
and two super hit songs. Slhe has to be commercially popular. She has to have come out with numerous music 
albums and has to have performed nationally and internationally in many live shows." The letter states that the 
applicant must "also have had an experience of judging a musical competition, worked as a music coordinator 
and has been successll in creating a name for Mer self in the Nepali music industry." The letter gives no 
standards for determining what constitutes commercial popularity, a super hit song, or how many albums are 
"numerous." Even if we considered the requirements of membership to equate to outstanding achievements, 
which we do not, the letter does not indicate who makes the selections for membership in order to establish that 
membership is judged by recognized national or international experts in the field as required by the regulation. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
(iii) 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 classijlcation is sought. Such evidence shall include the 
title, date, and author of the material, and any necessary translation. 
Page 5 
The petitioner submitted a number of articles that mentioned him as part of a group or otherwise focused on 
something other than hun, but were not specifically about the petitioner or his work. The articles include: "Tour 
for goodwill & new horizons," published on August 29,2006 in The Kathmandu Post; "Haresh Mathema and 
Angel's bands' cultural show presented," published on October 1, 2006 in Vishwa Sandesh; "Kathmandu 
festival to mark Queen's birthday," published on February 16, 2003; "Tarun cultural nite organized," published 
in the September 25, 2002 edition of The Kathmandu Post; and on a list of songs in Wave; and "Musicians 
Speak - The Nanglo Get Together." These articles are not primarily about the petitioner as required by 8 C.F.R. 
!j 204.5(h)(3)(iii) as opposed to being about a tour or show including multiple music groups. Although the 
petitioner also submitted a picture of himself which appeared in The Rising Nepal on September 24, 2006, 
pictures published by a publication do not amount to published material under this criterion as the criterion 
references written material which requires an author's name which a picture will never have. 
Although the petitioner did submit a number of articles that were primarily about him or a band to which he 
belonged, the petitioner failed to establish that the articles were published in professional or major media. The 
articles include: "Okely Wakes Up," published on January 14, 2003 in an unidentified publication; "Okely's 
third presentation," published on January 19,2003 in an unidentified publication; "Okely returns," published on 
January 14, 2003 in The Himalayan Times; "Music Field's exemplary band 'Okely,"' published on August 5, 
2002 in Hamro Pahel; an interview that appeared in the JanuaryIFebruary 2002 edition of X-Pose; "Big lyricists 
look for big musicians" published in the July 12, 2001 edition of Space time Daily; "Okely Gets Reunited," 
published on December 15,2000; "Let's go OKELY" published in Epsian; "Okely The Band" published in the 
April-May 1997 edition of The Entertainer; and "Rock Kids" published in Wave. As it relates to these 
publications, the petitioner submitted evidence about only three of the publications. However, the evidence 
does not establish that they amount to professional or major trade publications or other major media. The 
statement from regarding The Himalayan Times indicates that the paper is rated sixth with an "A" 
categorization. The statement contains no information about overall circulation statistics, a definition of what 
qualifies a publication for such a categorization, or any other information to place the information relayed in 
context. The letter from -, desk editor of Wave Magazine, states that "WAVE is an English 
language youth magazine . . . has a hardcovv readershiv base of 30,000, including subscribers." A letter from 
. , 
of WAVE, states that WAVE is "the most read youth magazine in 
Nepal." A letter fro 
 , chief editor of Vishwa Sandesh, states that the publication was the frst 
produced for the Nepali Diaspora and has a distribution of around 20,000 copies. These letters do not state 
many copies similar publications distribute or how these numbers compare to other publications. The petitioner 
submitted no evidence about any of the remaining publications so that we are unable to conclude that they 
amount to professional or major trade publications or other major media. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
(iv) 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 alliedjeld of specijication for which classiJication is sought. 
The petitioner submitted evidence that he judged the 6# internal single dance competition at the Ganesh 
Boarding High School, the musical competitions held by and University Campuses of Tribhuvan 
University, a music competition at Future Stars High School, and a poetry recitation at Tribhuvan University. 
The regulation at 8 C.F.R. !j 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 
Page 6 
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. 5 204.5(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 or a competition for top artists is of far greater probative value than judging a regional, 
youth, or student competition. The evidence submitted indicates that the petitioner judged students in dance 
and poetry, fields not related to the petitioner's field of endeavor. Moreover, as the students and competitions 
judged by the petitioner involved local high schools and colleges, this claimed evidence of his judging the work 
of others is not indicative of the national or international acclaim required by this highly restrictive 
classification. 
Consequently the petitioner has failed to establish that he meets this criterion. 
(v) Evidence of the alien's original scientgc, scholarly, artistic, athletic, or business-related contributions of 
major signiJicance in the field. 
We acknowledge the petitioner's submission of many reference letters praising his talent as an artist. Certain 
letters submitted contain verv little. if anv. additional information about the ~etitioner's original contributions to 
d z w 
the area of Nepali po music. These letters were written by: president of Association of Ex- 
Namuna Students; third secret for the Embassy of ~epal; -, 
secretary general of the Tamrakar Society; coordinator for Tewa philanthropic women's fund; 
, executive director oi singha Brewery; advisor for the Nepalese student 
Association of the University of Central Oklahoma,, head of the faculty of education at 
Tribhuvan University; , chief administrative officer of Music Nepal; - chairman of 
Harati Cassette Center; I editor of WAVE Magazine; representative of Music.com; 
- and, secretaries of the Village Development Committee; = 
assistant manager at Nepal Tourist Center; - programme director of Radio Nepal; 
- , vice president of the Association of Music industries Nepal; and - 
managing director of Indreni Audio Cassette Center. 
The remaining letters of recommendation submitted on the petitioner's behalf are also insufficient to meet this 
criterion. The letter from states that the petitioner "has become an important and indispensable 
member of [the] Newah commwty of late. He is a nationally recognized popular and award winning 
artistlsinger of Nepal with many hits [sic] songs and musical contribution in numerous concerts." The letter also 
said that the petitioner "has contributed tremendously to the advancement of the cultural heritage of the 
Nepalese people here in the Washington Metropolitan Washington [sic] and around the country." The letter 
fro-, president of Association of Nepalis in the Americas ("ANA"), states that the ANA invited 
the petitioner to perform at their annual convention because of his popularity in Nepal and states that the 
petitioner's performance at he convention "was very much liked by the audience" so the ANA asked the 
petitioner to organize the next convention's musical event. The letter from states that the 
petitioner is part of a music group "considered one of the prominent ones in the history of Nepali pop music and 
still enjoys a sizeable fan following." The letter from states that the petitioner "is one of the 
renowned and establish singer of Nepal" and that the petitioner "went on to create many commercially and 
musically successful song that are still played and referred to as one of the most popular songs in Nepali music." 
The letter from, managing director of Taal Music, states that the petitioner's latest album, released 
in 2003, "was very well received" and that the songs on the album "are still in demand loved by the listeners." 
The letter from states that the petitioner is "a highly professional, courageous singer and musician" 
who received awards "for his extraordinary contribution." The letter from department chief 
of information and communication of Kathmandu, states that the petitioner "is one of the known and popular 
singers of kingdom of Nepal" based "mainly because of his unique style in voice and presentations." 
These letters, while not without weight, cannot form the cornerstone of a successful extraordinary ability claim. 
USCIS may, in its discretion, use as advisory opinion statements submitted as expert testimony. See Matter of 
Caron International, 19 I. & N. Dec. 791, 795 (Comrn. 1988). However, USCIS is ultimately responsible for 
making the final determination regarding an alien's eligibility for the benefit sought. Id. The submission of 
letters of support fiom the petitioner's personal contacts 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. Thus, the 
content of the writers' statements and how they became aware of the petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in support of an 
immigration petition are of less weight than preexisting, independent evidence of original contributions of major 
significance that one would expect of an artist who has sustained national or international acclaim at the very 
top of the field. 
Although we acknowledge that the petitioner's songs were clearly original in that he created music that had 
never been heard before, according to the regulation at 8 C.F.R. § 204.5(h)(3)(v), 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. While the petitioner's music has earned the admiration of those 
providing letters of recommendation, there is no evidence that his work has had major significance in the field at 
large. For example, the record does not indicate the extent of the petitioner's influence on other artists 
nationally or internationally, nor does it show that the field has somehow changed as a result of his work. 
Accordingly, the petitioner has not established that he meets this criterion. 
(vii) Evidence of the display of the alien 's work in theJield at artistic exhibitions or showcases. 
This criterion generally applies to the visual, not performing, arts. However, because counsel consistently 
claimed that the petitioner's "over approximately 600 live concerts" fall under this criterion, we have considered 
the relevant materials as comparable evidence of the petitioner's eligibility pursuant to the regulation at 8 C.F.R. 
8 204.5(h)(4). The advertisements for the petitioner's concerts state that the petitioner was performing at high 
school auditoriums and the Birendra International Convention Centre. These advertisements, however, do not 
list the petitioner as a headliner. For example, the poster for the S tember 23, 2006 performance at Oakton 
High School in Vienna, Virginia had the headliner of -with the Angles Band. The petitioner is 
the third name down on the "featured" performer list. The petitioner's 
 at the ~irendracenter were 
as a part of "Save Nepal Live Concert," "Shiva Parvati Saajh, Feast'98," and "Singha Rock and Roar." These 
concerts consisted of a group of artists and the petitioner submitted no evidence that he was a headliner or 
otherwise performed and showcased his work in a manner consistent with this highly restrictive classification. 
Similarly, the letter from managing director of The Hidden Treasure, stated that the 
petitioner participated dwing the music festival 'w7 the letter from , president of 
Page 8 
Association of Nepalis in the Americas, stated that the petitioner performed "with other acclaimed artists fiom 
Nepal" and the letter fiom 1, president of Newah Organization of America, stated that the 
petitioner performed as a part of Nepal Fest in 2007. The letter fiom, coordinator of Tewa, 
stated that the petitioner participated in a fundraiser concert for the group in 1996. A letter from -1 
states that the petitioner was one of three musical guests invited to perform at the University of Central 
Oklahoma. Again, however, none of these letters indicated that the petitioner headlined the listed events or 
provided any additional evidence consistent with this classification. 
In addition, the Nepal Fest concerts occurred in 2007, which was after this petition was filed. A petitioner must 
establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. 8 C.F.R. $5 103.2(b)(l), (12); Matter ofKatigbak, 14 I. & 
N. Dec. 45, 49 (Cornm. 1971). The letter from states that the petitioner participated in a number of 
musical events such as the ones contained in the letters above and that the petitioner participated in "more than 
500 other live musical events in INepal] as well as abroad." Participation in these events is not enough to meet 
the stringent requirements imposed upon these visa applicants. Frequent performances are intrinsic to the 
musical profession just as display of art is inseparable from the profession of a visual artist. Yet the regulation 
requires that evidence under this criterion demonstrate sustained national or international acclaim, not simply 
document an alien's continued employment in his field. 
The letter from, president of New York Nepalese Youth Club, states that the petitioner "was 
selected as the main attraction for the ANA convention's featured concert." The petitioner submitted no 
promotional materials or any other evidence to demonstrate that his performance at the ANA convention was 
consistent with national or international acclaim especially as the concert was held outside of Nepal, specifically 
targeting a small portion of the New York, Nepalese ex-patriot community. A letter fi-om - 
secretary of the Village Development Committee, stated that the petitioner performed in an event 
organized with the local citizens' society in 2003. The letter states that the concert was a "national level 
program," but contains no evidence supporting the statement that a concert organized by local groups was a 
national event or otherwise garnered national acclaim. 
In response to the RFE, counsel stated that the petitioner is eligible under this criterion by virtue of the airplay of 
his songs as evidenced by the songs' appearances on the Kantipur Weekly Top Ten List. The last time that one 
of the petitioner's songs appeared on the Top Ten list was in 2001, which was five years prior to the filing of 
this petition. Even if this criterion could be met by the appearance of the petitioner's song on such a list, a five 
year lapse would be insufficient to demonstrate sustained acclaim in the petitioner's field. 
Although we have considered evidence of the petitioner's performances as comparable evidence, he has failed 
to establish that his performances are indicative of the statutory standard. As a result, the petitioner failed to 
establish that he meets this criterion. 
(viii) Evidence that the alien has pet$ormed in a leading or critical role for organizations or establishments 
that have a distinguished reputation. 
In order to meet this criterion, a petitioner must establish the nature of the alien's role within the entire 
organization or establishment and the reputation of the organization or establishment. In the initial submission, 
counsel claimed that the petitioner qualified under this criterion by virtue of his participation with various 
fundraising concerts. However, the petitioner presented no evidence showing how participation in fundraising 
Page 9 
event amounts to a leading or critical role for the organization as a whole. In addition, the petitioner presented 
no evidence about these organizations regarding their reputations. We note that the petitioner's performance at 
these various concerts have been addressed in the preceding criterion. 
Counsel also argued that the petitioner met this criterion through his service on the Executive Committee of the 
Mahendra Adarsha Vidyashram Alumni Association (MAVAA). This argument is not persuasive. First, the 
petitioner failed to show how serving with an alumni association relates to his field of music. Even thoua the 
- - 
letter from 
 states that the petitioner "volunteer[ed] his services and provide[d] his talents 
particularly m Smgmg" for fundraising events, this action is separate from his overall service on the Committee. 
Second, the petitioner provided no evidence that he plays a leading or critical role for MAVAA. Third, the 
petitioner provided no evidence that MAVAA enjoys a distinguished reputation. 
For all of the above stated reasons, the petitioner failed to establish that he meets this criterion. 
fix) Evidence that the alien has commanded a high salary or other signiJicantly high remuneration for 
services, in relation to others in the field. 
The petitioner submitted a copy of a contract with Little Media for a series of concerts and performances 
throughout Nepal. Although the contract sets forth the remuneration to be received by the petitioner for 
participating in these concerts, no evidence was submitted to show how this remuneration compares to the 
amount received by others in the field for musical performances to demonstrate that he has commanded a high 
salary in relation to others in his field. 
As such, the petitioner failed to establish that he meets this criterion. 
(x) Evidence of commercial successes in the perjfiorrning arts, as shown by box ofice receipts or record, 
cassette, compact disk, or video sales. 
The petitioner submitted the letter fi-om 
 which stated that the petitioner's 1997 album "Let's go to 
Nepal" has sold 435,000 copies. A letter fi-om 
 chairman of Harati Cassette Center, states that his 
stores have sold 45,000 copies of the petitioner's album. On appeal, counsel states that the petitioner's "albums 
and continued sales confirm that @el remains wildly successll in the Nepali music market." Counsel presents 
no evidence to support his statements, however, in that these letters contain no information as to how these 
numbers evidence commercial success as no comparison is made to other albums' sales. Without documentary 
evidence to support the claim, the assertions of counsel will not satisfy the petitioner's burden of proof. The 
unsupported assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I. & N. Dec. 533,534 n.2 
(BIA 1 988); 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). In addition, evidence was submitted only about the one album which was released in 
1997, almost a decade prior to the filing of this petition. Counsel submitted no evidence showing that one 
successfbl album released nine years ago evidences the sustained acclaim required by section 
203(b)(l)(A)(i) of the Act, 8 U.S.C. 5 1153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3). 
The petitioner also submitted a contract between himself and Taal Music regarding the distribution rights of an 
album to be distributed at the end of 2002; a contract between himself and Harati Cassette Center regarding 
distribution of an album in 1995; a contract between himself and Santana Records conveying rights to an album 
Page 10 
in 1997; and two contracts between himself and Little Media Pvt.Ltd. running from January 2, 1998 to 
December 3 1, 2000 and January 1, 2001 to December 3 1, 2003 conveying rights to an album and concert 
appearances. These contracts do not indicate commercial success in that they contain no evidence of music 
sales. Even if the contracts did evidence commercial success, a finding we do not make, the contracts ended by 
2003, three years prior to the filling of this petition. Again, a time lapse such as this one does not evidence 
sustained acclaim in the field. 
Accordingly, the petitioner failed to establish that he meets this criterion. 
An immigrant visa will be granted to an alien under section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1153(b)(l)(A), 
only if the alien can establish extraordinary ability through extensive documentation of sustained national or 
international acclaim demonstrating that the alien has risen to the very top of his or her field. The evidence in 
this case indicates that the petitioner is a singer who has enjoyed some degree of success. However, the record 
does not establish that the petitioner achieved sustained national or international acclaim so as to place him at 
the very top of his field. He is thus ineligible for classification as an alien with extraordinary ability pursuant to 
section 203(b)(l)(A) of the Act, 8 U.S.C. 5 1 153(b)(l)(A), and her 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. !j 1361. The petitioner here has not sustained that burden. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed.