dismissed O-1B Case: Music

p~LlC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave. N.W., Rrn. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 05 800 13985 Office: VERMONT SERVICE CENTER Date: MAR 1 0 2008 
PETITION: 
 Petition for Nonimrnigrant Worker Pursuant to Section 10 1 (a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 1 (a)(15)(0)(i) 
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. 
kobert P.. Wiemann, chief 
dministrative Appeals Office 
EAC 05 800 13985 
Page 2 
DISCUSSION: 
 The Director, Vermont Service Center, denied the nonimmigrant visa petition. 
 The 
Administrative Appeals Office (AAO) dismissed the petitioner's subsequent appeal. The matter is now before the 
AAO on a motion to reopen and reconsider. The motion will be granted and the previous decision of the AAO 
will be affirmed. 
The petitioner is self-described as an "agent for immigration purposes," and the beneficiary is a vocalist. The 
petitioner filed ths petition seehng to classify the beneficiary as an 0-1 nonimrnigrant pursuant to section 
10 1 (a)(15)(0)(i) of the Immigration and National Act (the Act), 8 U.S.C. 5 1 10 1 (a)(15)(0)(i). The beneficiary 
seeks to perform opera as a vocalist for 20 hours per week for a period of three years. 
The director denied the petition on August 17,2005 on two separate grounds. First, the director found that the 
petitioner failed to submit copies of any contracts or summaries of any oral employment agreements and an 
itinerary of the beneficiary's engagements in the United States, as required by 8 C.F.R. $8 214.2(0)(2)(ii)(B) 
and (C). Second, the director determined that the record lacked evidence that the beneficiary satisfied the 
regulatory criteria to establish extraordinary ability in the arts pursuant to 8 C.F.R. 
 2 14.2(0)(3)(iv). 
On appeal, the petitioner on1 addressed the first ground of denial, by submitting copies of contracts between 
the beneficiary and of "New Day," dated June 9, 2005 and September 12, 2005, respectively. 
The AAO noted that evidence of the beneficiary's contracts and itineraries had been specifically requested by 
the director in a Request for Evidence (RFE) issued on April 1, 2005, and the petitioner had failed to provide 
the evidence prior to the adjudication of the petition. The AAO therefore refused to consider this evidence on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BIA 
1988). Citing Matter of Michelin Tire Corp, 17 I&N Dec. 248 (Reg. Comm. 1978), the AAO further 
determined that even if such evidence were considered, it was dated well after the date the petition was filed 
and was therefore not relevant to a determination of the beneficiary's eligibility. 
The AAO also concurred with the director's determination that the evidence did not satisfi the regulatory criteria 
to establish extraordinary ability in the arts at 8 C.F.R. 5 214.2(0)(3)(iv). The AAO's decision included a detailed 
analysis of the evidence submitted and why such evidence failed to satisfy any of the regulatory criteria. It is 
noted that the petitioner did not address second ground for denial of the petition on appeal. 
The petitioner subsequently filed the instant motion to reconsider. On motion, counsel for the petitioner provides 
the following statement on Form I-290B, Notice of Appeal to the Administrative Appeals Office (AAO): 
The Appeals Uniit [sic] Director failed to apply the proper legal standard in determining the 
extraordinary ability in the arts of the beneficiary. The tenn extraordinary achievement in the 
context of the arts is "Distinction." Distinction is defined as having a degree of shll and 
recognition substantially above that normally encountered." [sic] 8 CFR 214.2(0)(3)(iii). The 
evidence submitted came from sources of high national regard in the Ukraine, the beneficiary's 
home country. These unique sources unhesitatingly hearlded [sic] the talent and ability of the 
beneficiary, to a degree far more than that normally encountered. Also the decision of the Director 
of the Appeals Unit was factually incorrect inasmuch as copies of contracts for some limited 
EAC 05 800 13985 
Page 3 
engagements were indeed submitted along with the response to the Center Director's Request for 
Evidence. 
The first issue to be addressed is whether the petitioner submitted evidence to satis@ the evidentiary requirements 
set forth at 8 C.F.R. 5 214.2(o)(ii)(B) and (C), which provide that the petitioner must submit copies of any written 
contracts for the beneficiary, summaries of any oral agreement under which the beneficiary will be employed, and 
an explanation of the nature of the beneficiary's intended events or activities, the beg~ing and end date of such 
events or activities, and a copy of any itinerary for such activities. As discussed above, the director and the AAO 
determined that the petitioner had failed to submit any such evidence prior to the adjudication of the petition and 
had therefore not satisfied these evidentiary requirements. 
On motion, counsel for the petitioner states that the AAO's decision was factually incorrect because "copies of 
contracts for some limited engagements were indeed submitted along with the response to the Center Director's 
Request for Evidence." 
A careful review of the entire record of proceeding reveals that no such contracts were included in the petitioner's 
response to the director's RFE. The record does contain a letter dated January 3 1,2005 signed by - 
of "New Day" located in ~hiladelphia, Pennsylvania. New Day is described in the letter as "an interpretaive 
ensemble of traditional Ukrainian Music." This evidence was addressed by the director in his decision dated 
August 17,2005, and was deemed to be insufficient to satisfy the evidentiary requirements set forth at 8 C.F.R. 5 
2 14.2(o)(ii)(B) and (C). The AAO did not specifically address this evidence in its decision. The letter fiom New 
Day is addressed to the beneficiary and refers to a "Performance Offer." The letter states, in pertinent part, the 
following: 
As a result of our discussions, New Day is willing to extend to you the opportunity to appear as a 
soloist with our ensemble to promotional purposes. 
You will not be compensated, but your presence will enhance your professional good will and 
reputation. 
The letter fiom New Day is neither a written contract nor a summary of the terms of an oral agreement under 
which the beneficiary will be employed and therefore this document does not satisfy the evidentiary criteria set 
forth at 8 C.F.R. $214.2(o)(ii)(B). Nor does this evidence satisfy the petitioner's burden to provide an explanation 
of the nature of the beneficiary's planned events or activities, the begnning and ending dates for such events, or 
an itinerary for the events or activities, as required by 8 C.F.R. tj 214.2(o)(ii)(C). The evidence submitted in 
response to the director's RFE suggested that the petitioner seeks 0-1 status for the beneficiary not for 
already-planned specific events, but rather to enable the beneficiary to be available for engagements that may 
occur during the intended period covered by the petition. Therefore, the AAO affirms its previous 
determination that the petitioner failed to comply with the regulations at 8 C.F.R. $5 2 14.2(o)(ii)(B) and (C). 
The remaining issue is whether the petitioner has established that the beneficiary qualifies for classification as 
an alien with extraordinary ability in the arts as defined by the statute and regulations. 
EAC 05 800 13985 
Page 4 
Section 10 1 (a)(15)(0)(i) of the Act, 8 U.S.C. 5 1 10 1 (a)(15)(0)(i) provides classification to a qualified alien who: 
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, and seeks to enter the United States to 
continue work in the area of extraordinary ability[.] 
The regulation at 8 C.F.R. 9 2 14.2(0)(3)(ii) provides the following pertinent definitions: 
Arts includes any field of creative activity or endeavor such as, but not limited to, fine arts, visual 
arts, culinary arts, and performing arts. . . . 
Extraordinary ability in the field of arts means distinction. Distinction means a hgh level. of 
achievement in the arts evidenced by a degree of shll and recognition substantially above that 
ordinarily encountered to the extent that a person described as prominent is renowned, leading, or 
well-known in the field of arts. 
The regulation at 8 C.F.R. $214.2(0)(3)(iv), states, in pertinent part, that: 
Evidentiary criteria for an 0-1 alien of extraordinary ability in the arts. To qualify as an alien of 
extraordinary ability in the field of arts, the alien must be recognized as being prominent in his or her 
field of endeavor as demonstrated by the following: 
(A) Evidence that the alien has been nominated for, or has been the recipient of, significant national 
or international awards or prizes in the particular field such as an Academy Award, an Ernmy, a 
Grammy, or a Director's Guild Award; or 
(B) At least of the following forms of documentation: 
(I) Evidence that the alien has achieved national or international recognition for 
achievements evidenced by critical reviews or other published materials by or about the 
individual in major newspapers, trade j ournals, magazines, or other publications; 
(2) 
 Evidence that the alien has performed, and will perform, in a lead, starring, or critical role 
for organizations and establishments that have a distinguished reputation evidenced by 
articles in newspapers, trade journals, publications, or testimonials; 
(3) 
 Evidence that the alien has a record of major commercial or critically acclaimed successes 
as evidenced by such indicators as title, rating, standing in the field, box office receipts, 
motion picture or television ratings, and other occupational achievements reported in trade 
journals, major newspapers, or other publications; 
EAC 05 800 13985 
Page 5 
(4) 
 Evidence that the alien has received significant recognition for achievements from 
organizations, critics, government agencies, or other recognized experts in the field in 
which the alien is engaged. Such testimonials must be in a form which clearly indicates 
the author's authority, expertise, and knowledge of the alien's achievements; or 
(5) 
 Evidence that the alien has either commanded a high salary or will command a hgh salary 
or other substantial remuneration for services in relation to others in the field, as 
evidenced by contracts or other reliable evidence; or 
(C) 
 If the criteria in paragraph (0)(3)(iv) of this section do not readily apply to the beneficiary's 
occupation, the petitioner may submit comparable evidence in order to establish the 
beneficiary's eligbility. 
In its previous decision, the AAO determined that the record contained no evidence that the beneficiary has been 
nominated for or received any significant national or international awards or prizes in her field pursuant to the 
regulation at 8 C.F.R. 8 214.2(0)(3)(iv)(A). Accordingly, the AAO discussed her eligibility under the relevant 
criteria at 8 C.F.R. 8 214.2(0)(3)(iv)(B), and determined that the record did not demonstrate that the beneficiary 
meets at least three of these criteria. 
On motion, counsel for the petitioner asserts that the AAO failed to apply the proper legal standard in determining 
whether the beneficiary qualifies as an alien with extraordinary ability in the arts. Counsel contends that the 
evidence submitted "came from sources of high national regard" in the beneficiary's home country and is 
sufficient to establish her "distinction" in the field as that term is defined at 8 C.F.R. tj 214.2(0)(3)(ii). Counsel 
asserts that "these unique sources unhesitatingly hearlded [sic] the talent and ability of the beneficiary, to a degree 
far more than that normally encountered." 
Counsel's assertions are not persuasive. Although counsel suggests that the AAO applied an improper legal 
standard, he fails to address the AAO's determination that the petitioner failed to meet the specific evidentiary 
requirements set forth at 8 C.F.R. 8 214.2(0)(3)(iv)(A) or 8 C.F.R. $ 214.2(0)(3)(iv)(B). Counsel's assertion that 
the petitioner established the beneficiary's "distinction" in her field, and therefore her extraordinary ability, is 
insufficient to overcome those evidentiary deficiencies. 
As the petitioner has not established that the beneficiary has been nominated for or received any significant 
national or international awards of prizes in her field, it must establish that she meets three of the six criteria 
outlined at 8 C.F.R. 8 2 14.2(0)(3)(iv)(B). 
The first criterion requires the petitioner to submit that the alien has performed, and will perform, services as 
a lead or starring participant in productions or events which have a distinguished reputation as evidenced by 
critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. None of the 
submitted evidence referred to the beneficiary's participation in any capacity in any specific production or 
event. Accordingly, the petitioner did not establish that the beneficiary meets this criterion. 
EAC 05 800 13985 
Page 6 
The second criterion requires the petitioner to submit evidence that the alien has achieved national or 
international recognition for achievements evidenced by critical reviews or other published materials by or about 
the individual in major newspapers, trade journals, magazines, or other publications. The petitioner provided no 
critical reviews or other published materials in support of the petition. Therefore, the petitioner did not establish 
that the beneficiary meets this criterion. 
The third criterion requires the petitioner to submit evidence that the alien has performed, and will perform, in a 
lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced 
by articles in newspapers, trade journals, publications, or testimonials. 
The petitioner submitted a letter from - President of the Ukrainian League of 
Philadelphia, in which he thanks the beneficiary for performing at the League's fundraiser on December 17, 
2004. While praises the beneficiary's contribution, he does not indicate that the beneficiary 
performed a lead, starring or critical role for the League. The record is also devoid of any evidence that the 
League has a distinguished reputation. 
President of the Philadelphia Branch of the Ukrainian Congress Committee of America 
(UCCA), similarly praises the beneficiary's work as a volunteer associa 
 'rector of the Akkolada 
Chamber Choir that is sponsored by the UCCA Philadelphia Chapter, but Hm r does not indicate that 
the beneficiary performs a lead, starring or critical role for the organization. The record also contains no 
evidence that the UCCA Philadelphia Chapter has a distinguished reputation. 
, Chief Choirmaster of the Lviv Opera House in the Ukraine, states that he has known the 
beneficiary since 2000 when she was a soloist with the Lviv Opera Choir. does not further 
describe the nature or significance of the beneficiary's role with the Choir or indicate that she was the lead or 
principal soloist or otherwise performed a lead, starring or critical role for the Choir. The record is also 
devoid of any evidence that the Lviv Opera Choir has a distinguished reputation. 
Counsel's claim on motion that the petitioner's evidence "came from sources of high national regard in the 
Ukraine" is insufficient to demonstrate the distinguished reputation of these organizations. 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 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Ramirez-Sanchez, 17 I&N 
Dec. 503, 506 (BIA 1980). Counsel does not address the AAO's observation that none of the organizations 
who submitted letters on the beneficiary's behalf mentioned that she had performed or would performed in a 
lead, starring or critical role. Accordingly, the beneficiary does not meet this criterion. 
To meet the fourth criterion at 8 C.F.R. 9 214.2(0)(3)(iv)(B), the petitioner must submit evidence that the alien 
has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, 
rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational 
achievements reported in trade journals, major newspapers, or other publications. The petitioner submitted no 
documentary evidence to establish that the beneficiary has a record of major commercial or critically acclaimed 
success and thus failed to demonstrate that the beneficiary meets this criterion. 
EAC 05 800 13985 
Page 7 
The fifth criterion requires the petitioner to submit evidence that the alien has received significant recognition 
for achievements from organizations, critics, government agencies, or other recognized experts in the field in 
which the alien is engaged. Such testimonials must be in a form which clearly indicates the author's authority, 
expertise, and knowledge of the alien's achievements. 
states that he has known the beneficiary since 1999 as her vocal coach. He opines that the 
beneficiary is "a vocalist of outstanding ability" because she "learned huge amount of material from operas 
repertoire [sic] and showed big professionalism in performing it on the stage" and "has always demonstrated 
exceptional level [sic] in theatrical art and highest vocal talent along with auctorial [sic] mastering on the 
stage." 
, Director of the Opera Studio of the Lviv Lysenko Federal Conservatory in the Ukraine, 
states that he has known the beneficiary since 1999 as her vocal coach. 
 praises the 
beneficiary's "unique voice and talent," "breathtalung" performances and states that the beneficiary "was 
awarded many times" for her unspecified achievements. 
While 
 and attest to the beneficiary's musical abilities, their testimonials fail to 
demonstrate that the beneficiary has received significant recognition for her achievements. Rather, the letters 
indicat 
 iary is well-respected by two individuals with whom she worked closely in the past. 
Despit 
 statement that the petitioner has received many, unspecified awards, the record remains 
devoid of any evidence that the petitioner has received awards or other significant recognition for her 
achievements from organizations, critics, government agencies or other recognized experts in her field beyond 
individuals with whom she has worked directly. 
The sixth and final criterion set forth at 8 C.F.R. 5 214.2(0)(3)(iv)(B) requires the petitioner to submit 
evidence that the alien has either commanded a high salary or will command a high salary or other substantial 
remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence. 
The petitioner submitted no evidence pertaining to the salary commanded by the beneficiary for her services in 
the past. The petitioner stated on Form 1-129 that the applicant would work for 20 hours per week at a rate of 
$50.00, although it was not clear if ths is a weekly or hourly rate. The petitioner submitted no contracts prior to 
the director's decision, and only provided a vague performance offer letter indicating that the beneficiary would 
have the opportunity to perform with the New Day ensemble on an unpaid basis. The petitioner therefore did not 
demonstrate that the beneficiary has received or would receive a high salary or other substantial remuneration. 
Again, on motion, counsel does not directly address the AAO's specific findings and instead relies on his 
unsupported claim that the applicant has acheved "distinction" based on the petitioner's submission of letters 
fiom "sources of high national regard" who attest to her "talent and ability." As stated at 8 C.F.R. €j 
241.2(0)(3)(ii), distinction means a high level of achievement in the arts evidenced by a degree of shll and 
recognition substantially above that ordinarily encountered to the extent that a person described as prominent is 
renowned, leading, or well-known in the field of arts. None of the submitted evidence demonstrates that the 
applicant has received the requisite level of achievement or recognition, or that she could be considered 
renowned, leading, or well-known in her field. 
EAC 05 800 13985 
Page 8 
Moreover, as discussed above and in the AAO's previous decision, the petitioner has failed to establish that the 
beneficiary meets any of the evidentiary criteria at 8 C.F.R. 5 214.2(3)(iv). Consequently, the beneficiary is 
ineligble for nonirnrnigrant classification under section 101(a)(15)(0)(i) of the Act and the petition must be 
denied. 
The petition will be denied for the above stated reasons, with each considered as an independent and alternative 
basis for denial. In visa petition proceedings, the burden of proving eligbility for the benefit sought remains 
entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has not been met. 
Accordingly, the previous decision of the AAO will be affirmed. 
ORDER: The AAO's decision dated April 19,2007 is affirmed.