dismissed O-1B Case: Music

Identifying data deleted to 
prevent clearly unw~ted 
invasion of personal pnvacy 
PUBLIC COpy 
u.s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: Office: CALIFORNIA SERVICE CENTER Date: 
MAR 1 0 2011 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(15)(O)(i) of the Immigration and 
Nationality Act, 8 U.S.C. § 11OI(a)(l5)(O)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter 
is now before the Administrative Appeals Office ("AAO") on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to classifY the beneficiary pursuant to section 
101 (a)(lS)(O)(i) of the Immigration and Nationality Act (the Act), 8 U.S.c. § IIOI(a)(lS)(O) as an alien with 
extraordinary ability in the arts. The petitioner requests that the beneficiary be granted 0-1 classification for a 
period of three years so that he may perform in the United States as a trumpet player. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary qualifies as 
an alien of extraordinary ability in the arts. The director determined that the petitioner failed to establish that the 
beneficiary meets the evidentiary criterion at 8 C.F.R. § 2l4.2(0)(3)(iv)(A), and submitted evidence to satisfY 
only one of the six evidentiary criteria set forth at 8 C.F.R. § 2l4.2(0)(3)(iv)(B), of which three must be met to 
establish eligibility. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that the director's decision contains 
a misstatement of fact, demonstrates a lack of understanding of the beneficiary's artistic field, and fails to 
adequately explain why the petitioner's evidence was insufficient to establish the beneficiary's eligibility under the 
0-1 evidentiary criteria. Counsel submits a brief and introduces a substantial amount of new evidence in support 
of the appeal. Counsel contends that the evidence submitted meets four of the evidentiary requirements set forth 
at 8 C.F.R. § 2l4.2(0)(3)(iv)(B). 
I. The Law 
Section IOl(a)(lS)(O)(i) of the Act 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, whose achievements have been recognized in the field through extensive documentation, and who seeks 
to enter the United States to continue work in the area of extraordinary ability. 
The regulation at 8 C.F.R. § 214.2(0)(3)(ii) defines, in pertinent part: 
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 high level of 
achievement in the arts evidenced by a degree of skill 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. § 2l4.2(0)(3)(iv) states, in pertinent part: 
Page 3 
Evidentiary criteria for an 0-1 alien of extraordinary ability in the arts. To quality 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 the recipient of, significant national 
or international awards or prizes in the particular field such as an Academy Award, an 
Emmy, a Grammy, or a Director's Guild Award; or 
(B) At least three of the following fonns of documentation: 
(1) Evidence that the alien has perfonned, and will perfonn, 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; 
(2) 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; 
(3) Evidence that the alien has perfonned, and will perfonn, 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; 
(4) 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; 
(5) 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 fonn 
which clearly indicates the author's authority, expertise, and knowledge of the 
alien's achievements; or 
(6) 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; or 
Page 4 
(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 eligibility. 
Additionally, the regulation at 8 C.F.R. § 214.2(0)(2)(iii) provides: 
The evidence submitted with an 0 petition shall conform to the following: 
(A) Affidavits, contracts, awards, and similar documentation must reflect the nature of the 
alien's achievement and be executed by an officer or responsible person employed by the 
institution, firm, establishment, or organization where the work was performed. 
(B) Affidavits written by present or former employers or recognized experts certifYing to the 
recognition and extraordinary ability ... shall specifically describe the alien's recognition 
and ability or achievement in factual terms and set forth the expertise of the affiant and the 
manner in which the affiant acquired such information. 
The decision of U.S. Citizenship and Immigration Services (USCIS) in a particular case is dependent upon the 
quality of the evidence submitted by the petitioner, not just the quantity of the evidence. The mere fact that the 
petitioner has submitted evidence relating to three of the criteria as required by the regulation does not 
necessarily establish that the alien is eligible for 0-1 classification. 59 Fed Reg at 41820. 
In determining the beneficiary'S eligibility under these criteria, the AAO will follow a two-part approach set forth 
in a 2010 decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kazarian v. USCIS, 2010 WL 
7253 17 (9th Cir. March 4, 20 I 0). Similar to the regulations governing this nonimmigrant classification, the 
regulations reviewed by the Kazarian court require the petitioner to submit evidence pertaining to at least three 
out of ten alternative criteria in order to establish a beneficiary's eligibility as an alien with extraordinary ability. 
Cf 8 C.F.R. § 204.5(h)(3). 
Specifically, the Kazarian court stated that "the proper procedure is to count the types of evidence provided 
(which the AAO did)," and if the petitioner failed to submit sufficient evidence, "the proper conclusion is that the 
applicant has failed to satisfY the regulatory requirement of three types of evidence (as the AAO concluded)." Id 
at *6 (citing to 8 C.F.R. § 204.5(h)(3». The court also explained the "final merits determination" as the corollary 
to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the evidence 
demonstrates both a "level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top ofthe[ir] field of endeavor," 8 C.F.R. § 204.5(h)(2), 
and "that the alien has sustained national or international acclaim and that his or her 
achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(3). Only aliens 
whose achievements have garnered "sustained national or international acclaim" are eligible for 
an "extraordinary ability" visa. 8 U.S.c. § I I 53(b)(l)(A)(i). 
Page 5 
Id. at *3. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if qualifYing under at 
least three criteria, considered in the context of a final merits determination. The final merits determination 
analyzes whether the evidence is consistent with the statutory requirement of "extensive documentation" and the 
regulatory definition of "extraordinary ability" as "one of that small percentage who have risen to the very top of 
the field of endeavor." 
The AAO finds the Kazarian court's two-part approach to be appropriate for evaluating the regulatory criteria set 
forth for 0- I nonimmigrant petitions for aliens of extraordinary ability at 8 C.F.R. § 214.2(0)(3)(iii), (iv) and (v). 
Therefore, in reviewing Service Center decisions, the AAO will apply the test set forth in Kazarian. As the AAO 
maintains de novo review, the AAO will conduct a new analysis if the director reached his or her conclusion by 
using a one-step analysis rather than the two-step analysis dictated by the Kazarian court. See Soltane v. DOJ, 
381 F.3d 143, 145 (3d Cir. 2004)(noting thatthe AAO reviews appeals on a de novo basis). 
In the present matter, the petitioner has failed to submit evidence that satisfies three of the evidentiary criteria at 8 
C.F.R. § 214.2(0)(3)(iv)(B), and has not established that the beneficiary has a high level of achievement in the 
arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent 
that he is recognized as prominent, renowned, leading, or well-known in the field of music. 8 C.F.R. §§ 
2 I 4.2(0 )(3)(ii). 
II. Discussion 
The sole issue addressed by the director is whether the petitioner submitted evidence to establish that the 
beneficiary satisfies the evidentiary criterion at 8 C.F.R. § 214.2(0)(3)(iv)(A), or at least three of the six criteria 
set forth at 8 C.F.R. § 214.2(0)(3)(iv)(B). 
The beneficiary, a trumpet player in the salsa musical genre, is a native and citizen of Colombia who was last 
admitted to the United States in P-I status as a member of the musical group The 
petitioner, which is described as an independent record label, production management and music publishing 
company, filed the petition on July 29, 2009. The director subsequently issued a request for additional 
evidence ("RFE") on September 8, 2009, to which the petitioner submitted responded on October 20,2009. 
In a letter dated August 6, 2009, counsel stated that the petitioner "intends to manage [the beneficiary's] 
performances and distribute his upcoming self-entitled album that will be released in the winter of 2009, as 
well as establish promotion and world-wide tour support for [the beneficiary] in the United States and 
·abroad." The petitioner submitted an itinerary indicating that the beneficiary would be performing 
throughout the United States between August 2009 and July 2012, oc(:asionalll 
with various groups and singers including 
____ and 1Ii •• _ 
Page 6 
Counsel's letter provided background infonnation regarding the salsa musical genre, noting that "the most 
important instruments in salsa are percussion and trumpet, which serve as the core to any and all musical 
pieces." Counsel indicated that the beneficiary has perfonned with several "pillars in the Latin music 
industry," including_, and •••••• 1e 
A. The Evidentiary Criteria 
If the petitioner establishes through the submission of documentary evidence that the beneficiary has been 
nominated for or has been the recipient of, significant national or international awards or prizes in the particular 
field pursuant to 8 C.F.R. § 2l4.2(0)(3)(iv)(A), then it will meet its burden of proof with respect to the 
beneficiary'S eligibility for 0-1 classification. The regulation lists an Academy Award, an Emmy, a Grammy, or 
a Director's Guild award as examples of qualifYing significant awards or prizes. 
The petitioner did not claim that the beneficiary is eligible for this classification based on his nomination for or 
receipt of a Grammy award or comparable award in his field. The evidence of record demonstrates that the 
beneficiary perfonned as the trumpet player on the 2005 album "Alive" by : . Counsel indicates that 
_ has won Latin Grammy awards and has been nominated for Grammy awards, but does not claim 
that the recording in which the beneficiary participated received such recognitions. In addition, counsel states on 
the Fonn 1-290B, Notice of Appeal or Motion, that the beneficiary "has not yet earned a significant national or 
international award." Accordingly, the AAO concurs with the director's finding that the petitioner did not submit 
evidence to meet this criterion. 
Therefore, the petitioner must establish the beneficiary's eligibility under at least three of the six criteria set forth 
at 8 C.F.R. § 214.2(0)(3)(iv)(B). Counsel indicates that the beneficiary satisfies the criteria at 8 C.F.R. 
214.2(0)(3)(iv)(B)(1), (3), (4) and (5). The remaining criteria will not be discussed. 
Evidence that the alien has performed, and will perform, services m 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 
At the time of filing and in response to the request for evidence, counsel for the petitioner indicated that the 
beneficiary meets this criterion based on his past perfonnances with the salsa music groups_ and 
Specifically, counsel stated: 
[The beneficiary 1 participated as a musical executive and trumpet player in the recording of 
••••• 2005 hit album, "i is y award winning and 
__ nominated salsa group founded by and _ in 1978 in Bogota, 
Colombia and currently based out of Cali, Colombia. 
Page 7 
On July 20, 2001, [the beneficiary] perfonned live with ••••••• at Madison Square 
Garden before a crowd of 20,000 fans .... This group has helped bring Colombian salsa music 
to the forefront of the booming Latin music industry, a cultural explosion that has taken place 
over the past fifteen years. 
The petitioner's supporting evidence included: the product page for "_' album from the 
Amazon.com mp3 store; a list of other __ albums available for purchase from Amazon.com; a 
Wikipedia article about which lists the album "_' among their recordings; an article about 
~ from the website M-Audio which discusses the group's history and principal accomplishments; and a 
letter from , the musical producer of_. states that the 
beneficiary "participated as musical executive in the production '_' and that his participation "consisted of 
playing the trumpet on all of the tracks in the album." 
The petitioner enclosed a DVD and indicated that footage of the beneficiary'S perfonnance with _ 
_ at Madison Square Garden was included, along with footage of other major perfonnances. The 
petitioner submitted an artist biography for from the All Music Guide website; a listing of 
albums available for purchase from Amazon.com; a copy of the CD cover for the group's 
and photographs depicting the group's 200 I New York tour, in which the beneficiary appears 
with the band members. 
Although the petitioner claimed eligibility under this criterion based only on the above-referenced perfonnances, 
we note that the petitioner'S initial evidence also included evidence that the beneficiary was credited with playing 
the trumpet on the album "_' by The petitioner submitted a letter from ••••• 
who stated that the beneficiary "has organized and has directed my Salsa band as well as played the trumpet on 
many occasions, including concerts and special events." 
producing his upcoming album '_ in Colombia. 
••••• also indicates that the beneficiary is 
Finally, the petitioner submitted evidence that the beneficiary's photograph is featured on the cover of the album 
__ 2 " a compilation album published by_ 
World Music CDs. The photograph appears to have been taken during a live perfonnance and depicts the 
beneficiary among several members of a brass section. The petitioner submitted evidence that the CD is available 
for purchase on Amazon.com, but did not provide a track listing or the album's credits. 
In the RFE issued on September 8, 2009, the director advised the petitioner that the evidence submitted did not 
clearly establish the beneficiary's lead or starring role in the above-referenced events or productions. The director 
requested evidence in the fonn of written reviews from critics, advertisements, publicity releases, publications, 
contracts, or endorsements to establish the beneficiary'S leading, rather than supporting role, in events or 
productions which have a distinguished reputation. In response, counsel for the petitioner expressed "utter shock 
and disbelief' at receiving an RFE. Counsel reiterated his contention that the beneficiary meets this criterion 
participation in the recording of '_," and based on his 2001 perfonnance with _ 
Madison Square Garden. The petitioner re-submitted the evidence discussed above. 
Page 8 
Upon review of the petitioner's response to the RFE, the director determined that "the evidence is not persuasive 
that the beneficiary's duties as a trumpet player have included a leading role in a production that has a 
distinguished reputation as evidenced by critical reviews." 
On appeal, counsel once again claims that the beneficiary is eligible under this criterion based upon his 
album '_ and based upon his performance at Madison Square Garden with 
on July 20, 2001. 
The petitioner submits a letter dated October 13, 2009 from __ of who certifies 
that the beneficiary "has been associated with us as trumpet player during the following periods: June 2000 
through July 2002; August 2008 through July 2009." _ further states: 
During these years, he performed with us in renowned national and international performances, 
such as: The 43'd Festival of Cali, 2001; The 44th Fair of Cali, 2002; Colombian Festival in 
Madison Square Garden, 200 I; and touring for our albums ... in different cities in Colombia, 
Ecuador, Venezuela, United States, Italy, Belgium, Germany and Spain. 
The musical talent that [the beneficiary 1 possesses has allowed him to become our orquestra's 
[sic 1 best trumpet player. His greatest influences have been his innovation and ability to 
improvise, making his contributions to the orquestra [sic 1 of enormous value. 
The petitioner submits photographs of the covers of various CD re(:ordir,gs ~IIIIIIIIIIIIIIIII •••• , 
critical review of their 1995 album written 
The review describes the band as a ten-piece act and identifies •••• 
beneficiary's name does not appear in the review, and, based on the letter 
not a member of the band when this album was recorded. 
the beneficiary was 
The plain language of this criterion requires the petitioner to support its assertions regarding the beneficiary's 
lead or starring role in events or productions with a distinguished reputation by submitting evidence including 
critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. The petitioner 
has submitted no such evidence with respect to the July 2001 performance at Madison 
Square Garden or the album "_," that would establish either the beneficiary's leading role in 
these productions or the distinguished reputation of the events or productions themselves. The petitioner 
appears to be relying on the reputation of the groups in lieu of providing specific documentary evidence 
relating to the concert and album in which the beneficiary participated. 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'r. 1998) (citing Matter of Treasure Craft of California, 14 
I&N Dec. 190 (Reg. Comm'r. 1972)). 
On appeal, counsel claims for the first time that the beneficiary also meets this criterion based on his 
performance with singer in " ......................... . 
held at the Nokia Theater in Los Angeles, California In December 2006 and December 2007. Counsel 
Page 9 
indicates that the beneficial)' received an award from_ in return for his charitable participation 
in the benefit concerts. In support of these claims, the petitioner submits a letter dated December 9, 2009 
from si'ng(or-s'~ng,wriiter who states: 
[The beneficial)' 1 performed alongside of me and singer/songwriter at 
in December 2006 and 
December 2007. I am proud to say that this event has become Los Angeles' most anticipated 
holiday event galvanizing the entire community into a spirit of giving. 
Ar.!2eles Times articles covering the holiday benefit concerts. One article 
mentions 
appearance by gospel-salsa performer .!I!!I!!I!!I!!I!!I! __ ." 
while the other mentions "a brief 
The petitioner submits photographs of the 
beneficiary with in rehearsals for the show, and in a 
with •••••• 1 The petitioner also provides a lengthy Wikipedia article 
While the petitioner has established that annual holiday benefit concert can be considered an 
event with a distinguished reputation, the evidence subm itted fails to demonstrate that the beneficiary was a 
leading or starring participant in these events. The beneficial)' performed as a member of the large band that 
accompanied singer There is no evidence that he was invited individually to participate in 
the event, that he was featured in any way, or that he received any media recognition for his appearance. 
Performers at these events included some prominent musical artists, including ~, 
_, and others, all of whom likely brought supporting bands or 
musicians with them to the event. The AAO cannot conclude that evel)' musician who took the stage in any 
capacity during these benefit concerts performed services as a "lead or starring participant" within the 
meaning of this criterion. The petitioner has not submitted evidence that would distinguish the beneficial)' 
from any other supporting musician who performed at the event. Accordingly, the newly submitted evidence 
regarding the holiday benefit concerts is insufficient to establish that the beneficial)' meets this 
criterion. 
Furthermore, although not addressed by the director, we emphasize that this regulatol)' criterion also requires 
the petitioner to submit evidence that the beneficial)' "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. 
The petitioner submitted an itineral)' listing over 200 anticipated tour dates for the beneficial)' for the 
requested three-year period of employment. The petitioner indicated that it is also representing the 
beneficial)' in the recording of his first solo album titled ," and indicates that he will tour 
individually as well as performing as lead trumpet player for the various acts listed in the itinerary. As noted 
above, the vast majority of the listed tour dates are with other acts including 
The itineral)' identifies 
specific dates and cities for performances, but does not specifically identify any "events." The itineral)' is not 
Page 10 
accompanied by contracts between the beneficiary and any of the artists or groups listed therein. The 
petitioner submitted a letter from _ who states that she looks forward to working with the 
beneficiary in the United States, but she offers no details regarding specific events or performances. The 
who expresses his need for the beneficiary's 
services in September 2009 
-
The petitioner has not provided evidence in the form of advertisements, publicity releases, publications, 
contracts, or endorsements to establish that any of the productions or events in which the beneficiary will 
participate have a "distinguished reputation." As discussed further below, the petitioner has not established 
that the beneficiary has firm commitments for any of the performances listed in the itinerary, much less 
provided evidence that he will provide services as a lead or starring participant in such events. At most, the 
record confirms that the beneficiary will perform with _ on two occasions in September 2009 and 
with_at some undisclosed time in the future. 
On appeal, the petitioner supplements the record with promotional materials for the beneficiary's solo album, 
including an announcement of the beneficiary's 2010 tour with two dates in December 
one in January 2010. Again, the petitioner has not submitted any critical reviews, 
advertisements, publicity releases, publications, contracts or endorsements to establish that the beneficiary's 
album or upcoming tour are considered to be productions or events with a distinguished reputation. 
Based on the foregoing discussion, we concur with the director's conclusion that this criterion has not been met. 
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. 
Counsel asserts that the beneficiary has performed in lead, starring or critical roles for a number of Latin musical 
groups and solo artists during the course of his career. 
The beneficiary began his professional career as a member an all-child salsa 
band. Counsel indicates that "this group gave birth to many child stars who are now recognized musicians not 
only in the realm of Colombian music, but some like [the beneficiary] have even become internationally 
recognized as leaders in Latin music." Counsel states that the band earned "many accolades on tours throughout 
Europe." The petitioner submitted several photographs of the beneficiary performing with the 10-12 member 
ensemble, and evidence that the beneficiary participated with at the Festival de Musica del 
Pacifico in 1997. This evidence is insufficient to establish that the beneficiary performed in a lead, starring or 
critical role for this salsa band, nor does it demonstrate that the band has a distinguished reputation. The petitioner 
did not submit any published articles about the band, nor did it provide testimonial evidence relating to this period 
of the beneficiary'S career. 
Page 11 
The petitioner's evidence regarding the beneficiary's time with did include one clipping from an 
unidentified newspaper or other publication. The clipping consists of a photograph of the beneficiary and refers 
to him as "the infant musician of Candelaria." The article indicates that the beneficiary "is only eight years old 
and he has become the new star of the all child band in this area that was selected to represent valle del cuaca in 
the National Band Contest that will take place in Paipa, Boyaca." Based on the beneficiary'S biography 
pe'''''J'', the beneficiary "started his music career as a trumpet player at the age of 13 with. 
" Therefore, an article about the beneficiary at the age of eight does not appear to 
relate to the beneficiary'S role with •••••• or to his career as a trumpet player. It is unclear to what 
"child band" the article refers and, while the article refers to the beneficiary as a "star" it is insufficient to establish 
that he was the "star" of an organization that has a distinguished reputation. 
The petitioner also relies on the beneficiary's participation in the recording of the _ album ".' in 
support of its claim that the beneficiary meets this criterion. While it appears that : is a well-known 
salsa band, the petitioner has not provided any published or testimonial evidence regarding the beneficiary'S lead, 
starring or critical role in the band. According to the information submitted, the band has a 30 year history and 
has recorded approximately two dozen albums. The petitioner submitted two general articles about the band and 
its history, but neither article mentions the beneficiary. Counsel has repeatedly asserted that "the most important 
instruments in salsa are percussion and trumpet," but this assertion is insufficient to establish that any trumpet 
player who appears on a group's album or in a group's live performance should be deemed to have performed in a 
lead, starring or critical role with the group. Based on the evidence of record, it can be concluded that the 
beneficiary played on a single album out of the two dozen or more recorded by _ There is no 
evidence that he ever performed in a lead, starring or critical role for the ensemble. 
Counsel further asserts on appeal: 
Any person with even the most remote musical knowledge understands that bands and orchestras 
are nearly always comprised of more than one musician who plays the same instrument in a 
musical section. Such a grouping does not imply that each musician cannot or does not possess 
extraordinary talent individually. 
Counsel makes an analogy to the Los Angeles Lakers basketball team, noting that "anybody would be pressed to 
conclude that any single member of that particular team is not a star athlete in his own right." 
The AAO emphasizes that we do not question the beneficiary'S talent as a trumpet player. However, the plain 
language of the regulations requires the petitioner to establish through published articles or testimonial evidence 
that the beneficiary in this matter performed in a lead, starring or critical role for the various bands with which he 
has performed. With respect to counsel's professional sports analogy, we note that USClS has long held that 
even athletes performing at the major league level do not automatically meet the "extraordinary ability" standard. 
See. e.g, Matter oj Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 1994); 56 Fed. Reg. at 60899.1 Likewise, it 
I While we acknowledge that a district court's decision is not binding precedent, we note that in Matter oj 
Racine, 1995 WL 153319 at *4 (N.D. Ill. Feb. 16, 1995), the court stated: 
Page 12 
does not follow that any musician who has perfonned with a well-known musical group or in the supporting band 
of a solo artist in any capacity should necessarily qualifY for a nonimmigrant visa as an alien of extraordinary 
ability. The pennanent members of any band clearly gain more recognition than musicians who record as a guest 
artist on one album or occasionally tour with the band, and would be considered to perfonn in a lead, starring or 
critical role by comparison. If the beneficiary did in fact playa lead or critical role in the band _ on 
the album, then it is the petitioner's burden to establish this through submission of the evidence required 
by the regulations. Here, the only evidence of the beneficiary's role with the band is the mention of his name as 
the trumpet player in the album's liner notes, and a letter from the band's producer confinning that he played 
trumpet on the album. 
Counsel further stated that the beneficiary has perfonned and will perform in a lea.dirlg 
band as its lead trumpet player. Counsel identified as "one of the most 
famous salsa groups in the world." Counsel indicates that the beneficiary has perfonned with •••••••• 
in the United States pursuant to a P-I visa on several U.S. tours between 2001 and 2004, and last entered the 
United States to perfonn with this group in September 2008. 
In support of these claims, the petitioner submitted a letter from president of 
who states that the beneficiary was associated with the band as a trumpet player from June 2000 through July 
2002 and from August 2008 through July 2009. _ states that "the musical talent that [the beneficiary] 
possesses has allowed him to become our orquestra's [sic] best trumpet player." 
The petitioner has not established how the beneficiary's intennittent association with is 
tantamount to perfonning in a lead, starring or critical role for the organization. The petitioner has not provided 
evidence that the beneficiary has recorded with the band, and, based on the evidence submitted, it appears that he 
has participated in the group as one of many touring musicians. The band appears to have four primary members. 
While _ letter indicates that the group is impressed with the beneficiary's musical talent, it does not 
establish that the beneficiary is considered to be a lead, starring or critical member of the group. 
The petitioner also attempts to satisfY this criterion based on the beneficiary's association with Grammy-award 
winning Mexican singer and songwriter, _ Specifically, the petitioner indicates that •••• 
_perfonned with _ in Los Angeles, California in June 2008, and that the beneficiary toured 
[T]he plain reading of the statute suggests that the appropriate field of comparison is not a 
comparison of Racine's ability with that of all the hockey players at all levels of play; but rather, 
Racine's ability as a professional hockey player within the NHL. This interpretation is consistent 
with at least one other court in this district, Grimson v. INS, No. 93 C 3354, (N.D. Ill. September 9, 
1993), and the definition of the term 8 C.F.R. § 204.5(h)(2), and the discussion set forth in the 
preamble at 56 Fed. Reg. 60898-99. 
Page 13 
with as his principal trumpet player throughout Mexico in mid-2003. Counsel indicates that the 
beneficiary has been invited to perform wi~ in the United States, as stated in the itinerary. 
The record contains a photograph of the beneficiary with , two photographs that depict the 
beneficiary performing as a member of _ band on a television soundstage, and a listing of_ 
•••• albums available for purchase on Amazon.com. The record does not include evidence in the form of 
articles in newspapers, trade journals, publications, or testimonials confirming the beneficiary's lead, starring or 
critical role with band. As noted above, the petitioner has not submitted evidence in the form of 
contracts between the beneficiary and the artists who are claimed to have invited him to perform on their 
upcoming tours in the United States, therefore, the beneficiary's future performances with 
unconfirmed. 
are also 
The petitioner claims that the beneficiary has performed and will perform a lead, starring or critical role with the 
~~II!!IIII!!IIII!!II~ ••• The petitioner provided photographs depicting the beneficiary as 
a member of and a Wikipedia article about the band, which describes it as a group with a 
50-year history that has "always featured a strong female vocalist to accompany its ten-piece." As noted above, 
_ the group's current singer, provided a letter indicating that the beneficiary "has worked with my band 
on numerous occasions in the past years in Colombia." While confirms the beneficiary's association 
with the band, her statement is too vague to establish that the beneficiary has ever performed in a lead, starring or 
critical role for the organization. As the record contains no other testimonial evidence and no published articles 
that address the beneficiary's role with the band, the petitioner has not established that the beneficiary's 
association with satisfies the plain language of this regulatory criterion. 
Counsel indicates that the beneficiary is eligible under this criterion because he "collaborated with Colombian 
salsa group in 200 I in the production of their twelfth album, " 
Counsel describes as "one of the most important salsa group[s] to emerge out of Colombia in the 
mid-1980s, and is sometimes upheld as an exemplar of a salsa band that actually originated from Cali." The 
petitioner submitted a photograph of four individuals that is labeled 
The beneficiary is not pictured. The petitioner also provided an undated newspaper or magazine article from an 
un-identified source, which includes a photograph of . The beneficiary appears to be one of the 
thirteen people pictured, although the photograph is not captioned. The photograph is accompanied by a brief 
article which mentions that the group is working on its twelfth album. While the evidence submitted establishes 
the beneficiary's association with the band, the brief article does not document the beneficiary's performance in a 
lead, starring or critical role. 
Finally, the petitioner claimed eligibility under this criterion based on his role as "one of the lead trumpet players 
in the production of a popular album a salsa band from Cali, 
Colombia." The petitioner provided the credits for the album, which confirm that the beneficiary was one of two 
trumpet players included in the fifteen-member group. A photograph of seven individuals appears on the cover of 
the album, but the beneficiary is not included in the photograph. The petitioner did not submit any other evidence 
in the form of published articles or testimonials to establish the distinguished reputation of the band or the 
Page 14 
beneficiary's role as a lead, starring or critical perfonner in the band. The album credits do not satisi)' the plain 
language ofthis regulatory criterion. 
Due to the evidentiary deficiencies discussed above, the petitioner has not established that the beneficiary has 
perfonned in a lead, starring or critical role with organizations and establishments that have a distinguished 
reputation evidenced by articles in newspapers, trade journals, publications, or testimonials. Furthennore, 
although not addressed by the director, we emphasize that this regulatory criterion also requires the petitioner 
to submit evidence that the beneficiary "will perform" in a lead, starring or critical role with organizations and 
establishments that have a distinguished reputation. 
As discussed, the petitioner submitted an II' ,'r lerary 
perfonning with 
••••• and in the United States. Again, the itinerary is not accompanied by contracts 
between the beneficiary and any of the artists or groups listed therein. Only _ and _ have 
confinned their intent to work with the beneficiary in the United States. The uncorroborated itinerary provides 
insufficient evidence of the beneficiary's upcoming perfonnance in a lead, starring or critical role with the 
listed groups and solo artists. 
For the foregoing reasons, the petitioner has not submitted evidence to meet the criterion at 8 C.F.R. 
§ 214.2(0)(3)(iv)(B)(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 
Counsel indicates that the beneficiary meets the criterion at 8 C.F.R. § 214.2(0)(3)(iv)(B)(4) based on his 
"critically acclaimed success." Counsel cites four specific examples of such success. 
First, counsel states that the beneficiary "recently finished recording his debut . which 
he intends to release fonnally in the United States if granted 0- I B status." Counsel indicates that the single "is 
currently being aired by radio stations in Peru, Mexico and Colombia as well as on Y ouTube and 
RumbaLounge.com." The petitioner submits promotional materials related to the single and evidence of the 
beneficiary's videos on Y ouTube. The AAO notes that this evidence is submitted for the first time on appeal, and 
there is no evidence that the beneficiary's first single was completed and being promoted at the time the petition 
was filed. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Accordingly, evidence 
related to the release of the beneficiary's first single will not be considered. Regardless, the petitioner did not 
submit evidence of the single's commercial or critical success in the form of published evidence from trade 
journals, major newspapers or other publications. 
Page 15 
Counsel also relies on the beneficiary's participation in Annual House Full of Toys Benefit 
Concert as evidence of his "critically acclaimed success." The plain language of the regulation at 8 C.F.R. § 
214.2(0)(3)(iv)(B)(4) requires the petitioner's commercial or critically acclaimed successes to be "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 has not submitted any relevant evidence pertaining to this event. 
Counsel further refers to the beneficiary's participation in the recording of ••••• 2005 album "_' 
as evidence of his critically-acclaimed success. Again, the petitioner did not submit supporting documentary 
evidence that would meet the plain language of this evidentiary criterion. Counsel's assertion that the album 
was a "hit" is insufficient. 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). 
helnefici,uv was the main musician featured on the cover of musical production, 
entitled " Counsel notes that this CD is currently being sold 
worldwide by companies such as Amazon.com and Bames & Noble. The AAO notes that the fact that the CD is 
available for purchase from major retailers does not provide evidence that the beneficiary has a record of major 
commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, 
and other occupational achievements reported in trade journals, major newspapers, or other publications. 
Furthermore, while the beneficiary'S photograph appears on the cover of this compilation CD, his level of 
involvement in or contribution to the CD itself has not been established through evidence. The petitioner has not 
provided the album's track listing or credits, or any other evidence that would establish why the beneficiary'S 
photograph was chosen for the cover of the CD. 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. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Commr. 1972)). 
For the foregoing reasons, the petitioner has not submitted evidence that satisfies the evidentiary criterion at 8 
C.F.R. 214.2(0)(3)(iv)(B)(4). 
Evidence that the alien has received significant recognition for achievements from 
organizations, critics, government agencies, or other recognized experts in the fteld 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. 
At the time of filing, the petitioner claimed eligibility under this criterion based on the letters of 
As noted above, 
beneficiary "participated as musical executive in the production 'Alive'" and that his participation "consisted of 
playing the trumpet on all of the tracks in the album." 
Page 16 
•••• states that the beneficiary "is one of the best in the Latin music industry, and one of the best if not the 
best trumpet player that I have ever had the pleasure to work with and know." 
_states: 
[The beneficiary] is an excellent music producer and song writer. He is a very talented musician 
and has a long successful musical history in his home country. He is currently producing a 
music cd for me in Colombia. The music project will be titled " " Many Christian 
music and radio networks are asking and anticipating it's [sic] release. [The beneficiary] has 
been highly instrumental in spearheading this project. I highly recommend him for residency in 
the United States. He is a person of good moral standing and integrity. Since I've known him, 
he's always been a responsible and dependable musician. 
On appeal, the petitioner introduces the above-referenced letters 
beneficiary as "a tremendously talented trumpet player," and from 
"innovation and ability to improvise." 
who describes the 
The director determined that the letters from and were sufficient 
to satisfY this requirement. The AAO disagrees and will withdraw the director's finding that this evidentiary 
criterion has been met. While the AAO recognizes that the individuals who provided letters hold a very high 
opinion of the beneficiary'S talent as a musician, the submitted testimonials do not satisfY the plain language of 
the evidentiary criterion at 8 C.F.R. § 214.2(0)(3)(iv)(B)(5). None of the persons providing testimonials have 
clearly indicated their knowledge of the beneficiary's achievements. Rather, the majority of them opine that the 
beneficiary is a talented trumpet player, without specifically addressing his achievements or recognition in the 
field. 
On appeal, the counsel states that the beneficiary is also eligible under this criterion based on his membership 
in The Recording Academy. Counsel notes that "the Grammy's are the only peer-presented award to honor 
artistic achievement, technical proficiency and overall excellence in the recording industry, without regard to 
album sales or chart position. The petitioner indicates that the beneficiary became a member of the Recording 
Academy on December 9, 2009. The petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Commr. 1978). 
Furthermore, the petitioner has not established how membership in the Recording Academy constitutes "significant 
recognition for achievements" as required by the regulations. The petitioner has not submitted evidence to establish 
that The Recording Academy requires significant or outstanding achievement as an essential condition for 
membership or otherwise identified or documented the criteria for membership. 
Based on the foregoing, the petitioner has not submitted evidence that satisfies the criterion at 8 C.F .R. § 
2 I 4.2(0)(3)(iv)(B)(5). 
Page 17 
B. Final Merits Determination 
Kazarian sets forth a two-part approach where the evidence is first counted and then considered in the context of 
a final merits determination. However, as discussed above, the petitioner established eligibility under none of the 
criteria found under the regulation at 8 C.F.R. § 214.2(0)(3)(iv)(B). Notwithstanding the above, a final merits 
determination considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) 
that the beneficiary has a high level of achievement in the arts evidenced by a degree of skill and recognition 
substantially above that ordinarily encountered to the extent that he is renowned, leading, or well-known in the 
field of arts, pursuant to 8 C.F.R. § 214.2( 0)(3)(ii); and (2) that the beneficiary is recognized as being prominent 
in his field, pursuant to 8 C.F.R. § 214.2(0)(3)(iv). See Kazarian, 2010 WL 725317 at *3. 
In this case, we concur with the director's finding that the petitioner has not established that the beneficiary is 
prominent to the extent that he could be considered renowned, leading or well-known in the field of music. 
The specific deficiencies in the documentation submitted by the petitioner have already been addressed in our 
preceding discussion of the regulatory criteria at 8 C.FR. § 214.2(0)(3)(iv)(B). It is claimed that the beneficiary 
has worked with and will work with singers and musical groups who are nationally and internationally 
recognized, and that he is on the verge of launching his own solo career as a musician. However, this 
classification focuses on the beneficiary'S individual achievements and recognition within the field. The 
petitioner has provided little corroborating evidence of such recognition. 
The favorable opinions of well-known artists who have worked with the beneficiary, while not without 
evidentiary weight, are not a solid basis for a successful extraordinary ability claim.' Unusual in its specificity, 
section IOI(a)(15)(O)(i) of the Act clearly requires "extensive documentation" of the alien's achievements. Letters 
from personal contacts that generally praise the beneficiary as a musician cannot form the cornerstone of a 
successful extraordinary ability claim. Further, USCIS may, in its discretion, use as advisory opinion statements 
2 Letters may generally be divided into two types of testimonial evidence: expert opinion evidence and 
written testimonial evidence. Opinion testimony is based on one's well-qualified belief or idea, rather than 
direct knowledge of the facts at issue. Blacks Law Dictionary ISIS (8th Ed. 2007) (defining "opinion 
testimony"). Written testimonial evidence, on the other hand, is testimony about whether something occurred 
or did not occur, based on the witness' direct personal knowledge. ld. (defining "written testimony"); see 
also id at 1514 (defining "affirmative testimony"). 
Depending on the specificity, detail, or credibility of a letter, USCIS may give the document more or less 
persuasive weight in a proceeding. The Board of Immigration Appeals (the Board) has held that testimony 
should not be disregarded simply because it is "self-serving." See, e.g.. Matter of S-A-, 22 I&N Dec. 1328, 
1332 (BIA 2000) (citing cases). The Board also held, however: "We not only encourage, but require the 
introduction of corroborative testimonial and documentary evidence, where available." ld. If testimonial 
evidence lacks specificity, detail, or credibility, there is a there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
Page 18 
submitted as expert testimony. See Matter of Caron International, 19 I&N Dec. 791, 795 (Commr. 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 from 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. 
The AAO emphasizes that four out of the six criteria set forth at 8 C.F.R. § 214.2(0)(3)(iv)(B) require the 
petitioner to submit various types of published materials to establish the beneficiary's recognition, such as critical 
reviews, advertisements, publicity releases, newspaper, magazine or trade joumal articles. Therefore, it is 
significant that the petitioner has submitted little published evidence regarding the beneficiary. Absent evidence 
that the regulatory criteria are not applicable to the beneficiary's occupation, pursuant to 8 C.F .R. 
§ 214.2(0)(3)(iv)(C), the petitioner must submit some published materials "about" the beneficiary in order to 
establish his eligibility for this classification. It is not reasonable to include the beneficiary among the group of 
musicians recognized in the field as leading, renowned or well-known if the petitioner does not establish that he 
has received significant independent recognition based on his own reputation or achievements. 
Therefore, the conclusion we reach by considering each evidentiary criterion separately is consistent with a 
review of the evidence in the aggregate. Even in the aggregate, the evidence does not distinguish the beneficiary 
as a musician who has achieved a level of distinction to the extent that he can be deemed to be renowned, leading, 
or well-known in the field of music. 8 C.F.R. § 214.2(0)(3)(ii). Accordingly, the appeal will be dismissed. 
Ill. Contract and Itinerary Requirements 
Beyond the decision of the director, the AAO notes that, prior to the adjudication of the petition, the petitioner 
failed to submit any evidence to satisfy the regulation at 8 C.F.R. § 214.2(0)(2)(ii)(B), which requires the 
petitioner to submit copies of any written contracts between the petitioner and the alien beneficiary or, ifthere 
is no written contract, a summary of the terms of the oral agreement under which the alien will be employed. 
The director issued a request for evidence ("RFE") in which she specifically instructed the petitioner to 
provide this required evidence. Although the petitioner responded to the RFE, it did not submit a copy of its 
contract with the beneficiary or otherwise acknowledge this request. The failure to submit requested evidence 
that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. § I03.2(b)(14). 
On appeal, the petitioner has submitted a copy of its "representation/agency agreement" with the beneficiary. 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). lfthe petitioner had wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need 
not and does not consider the sufficiency of the evidence submitted on appeal. Consequently, the petition will 
be denied for this additional reason. 
Page 19 
Another issue not addressed by the director is whether the petitioner satisfied the evidentiary requirements 
pertaining to agents as petitioners, pursuant to 8 C.F.R. § 214.2(0)(2)(iv)(E). At the time of filing, the petitioner 
provided an itinerary indicating that the beneficiary would be touring almost constantly during the requested 
three-year period of employment, occasionally as a solo artist, but primarily performing as a trumpet player with a 
number of different musical acts. The petitioner indicated that it will "manage [the beneficiary] as a performer 
and ensure that he meets his performance commitment." The petitioner did not indicate whether it was filing as 
an agent under 8 C.F.R. § 214.2( 0)(2)(iv)(E)(1) or (2). 
The regulation at 8 C.F.R. § 214.2(0)(2)(iv)(E)(2) states: 
A person or company in business as an agent may file the pellllon involving multiple 
employers as the representative of both the employers and the beneficiary if the supporting 
documentation includes a complete itinerary of the event or events. The itinerary must 
specifY the dates of each service or engagement, the names and addresses of the actual 
employers, and the names and addresses of the establishments, venues or locations where the 
services will be performed. A contract between the employers and the beneficiary is required. 
The burden is on the agent to explain the terms and conditions of the employment and to 
provide any required documentation. 
The director specifically requested that the petitioner "provide a contractual agreement between the employer 
and the beneficiary for each event." As noted above, the director also requested a copy of the contract 
between the petitioner and beneficiary. Agents performing the functions of employers under 8 C.F.R. § 
214.2(0)(2)(iv)(E)(1) must provide the contractual agreement between the agent and the beneficiary which 
specifies the wage offered and the other terms and conditions of employment of the beneficiary. The petitioner 
did not submit a copy of its contract with the beneficiary, or copies of contracts between the beneficiary and the 
various musical acts with which he is claimed to be touring extensively in the United States, according to the 
itinerary. As such, the petitioner has not complied with the documentary requirements applicable to petitions 
filed by U.S. agents. For this additional reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements of the law may be denied by the 
AAO even if the Service Center does not identifY all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683 
(9th Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO conducts 
appellate review on a de novo basis). 
IV. Conclusion 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
Page 20 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
at 1043. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.s.c. § 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed.