dismissed O-1B Case: Music

IdentifYing data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 ~assachusctts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
FILE: Office: CALIFORNIA SERVICE CENTER Date: MAR 1 S 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. § llOl(a)(15)(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)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
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, a restaurant and music venue, filed this nonimmigrant petition seeking to classify the beneficiary 
pursuantto section 101(a)(IS)(0)(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 seeks to employ the beneficiary as a singer and 
musician for a period of eight months. 
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 evidence submitted was insufficient 
to establish that the beneficiary's achievements and recognition have reached the level of "distinction" as defined 
at 8 C.F.R. § 214.2(0)(3)(ii). 
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 petitioner submitted 
evidence to satisfy the regulatory criterion at 8 C.F.R. § 214.2(0)(3)(iv)(A), as well as evidence to satisfy at least 
three of the six criteria at 8 C.F.R. § 214.2(0)(3)(iv)(B). Counsel further contends that the director failed to 
adequately discuss the merits of the evidence submitted or the reasons for denial. Finally, counsel asserts that the 
director applied an improper burden of proof by requesting "clear evidence" of the beneficiary's eligibility for the 
requested classification. Counsel submits a brief and additional evidence in support of the appeal. 
I. The Law 
Section 101(a)(lS)(0)(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. § 214.2(0 )(3)(iv) states, in pertinent part: 
Page 3 
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 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 three of the following forms of documentation: 
(1) Evidence 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; 
(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 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; 
(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 form 
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 m 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 (USClS) 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. See 59 Fed. Reg. 41818 (August 15, 
1994)(Final Rule). 
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. USClS, 2010 WL 
725317 (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 
Page 5 
whose achievements have garnered "sustained national or international acclaim" are eligible for 
an "extraordinary ability" visa. 8 u.s.c. § I I 53(b)(I)(A)(i). 
Jd. 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 0-1 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. 
Furthermore, the AAO agrees with counsel's assertions that the reasons given for the denial are conclusory with 
few specific references to the evidence or discussion as to why the evidence submitted does not satisfY the 
petitioner'S evidentiary burden. When denying a petition, a director has an affirmative duty to explain the 
specific reasons for the denial; this duty includes informing a petitioner why the evidence failed to satisfY its 
burden of proof pursuant to section 291 ofthe Act, 8 U.S.C. § 1361. See 8 C.F.R. § 103 .3(a)(1)(i). 
As the AAO's review is conducted on a de novo basis, the AAO will herein address the petitioner's evidence 
and eligibility, and conduct the two-step analysis dictated by the Kazarian court. See Soltane v. DOJ, 381 
F.3d 143, 145 (3d Cir. 2004)(noting that the AAO conducts appellate review on ade novo basis). 
In the present matter, the petitioner has failed to submit evidence that satisfies the evidentiary criterion at 8 
C.F.R. § 214.2(0)(3)(iv)(A), or evidence to satisfY at least 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, orwell-known in the field of music. 8 C.F.R. §§ 214.2(0)(3)(ii). 
II. Discussion 
The sole issue to be addressed 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 petitioner indicates that the beneficiary has been singing since he was 
Brazilian musical duos and groups 
.-. The beneficiary recorded a solo album titled 
12 years old, performing in the 
_and 
in the United States in 2009. 
Page 6 
The petitioner operates a Brazilian restaurant, bar and music venue that features live local and Brazilian 
music. It seeks to have the beneficiary perform seven times weekly at a rate of $150 per performance. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, using the U.S. Citizenship and 
Immigration Services (USCIS) electronic filing system on January 12, 20 I 0, and USCIS received its package 
of initial evidence and supporting documentation on January 21, 2010. The director issued a request for 
additional evidence (RFE) on January 25, 2010, to which the petitioner responded by resubmitting a copy of 
the previously submitted supporting documentation.' The AAO has considered the evidence of record in its 
entirety. 
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. § 214.2(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 qualitying significant awards or prizes. 
Counsel for the petitioner asserts that the beneficiary meets this criterion based on the following: (I) his 
nomination for a Brazilian International Press Award for best CD by a local Brazilian feature artist (male) 
released in the United States; and (2) his achievement of finalist status in the best male vocalist category of the 
competition Talento Brasil (Talent Brazil). 
With respect to the International Press Award nomination, counsel stated: 
The International Press Award is the most important prize award for the promotion of Brazilian 
culture in the United States. The award was created in 1997, and is sponsored by, among others, 
TV Globo, the largest television network in Brazil, and the four largest network in the world .... 
The Board of the International Press Award selects contestants who have promoted the 
international image of Brazilians and Brazil. The nomination of [the beneficiary's 1 debut album 
as a solo artist for an International Press Award is significant as the process involves nomination 
by a board of experts in arts and music from artists recommended by the public. Thus the 
nomination represents both the widespread popularity and critical recognition of [the 
beneficiary'S 1 album. 
, The AAO notes that it appears that the RFE was drafted prior to the Service Center's review of the evidence 
included in the petitioner's supporting documentation package. The RFE is dated January 25, 2010, but the 
attachment to the Form 1-797 is dated "0112211 0." The director requested several items that were submitted as 
initial evidence, including the required written consultation from a labor organization, a copy of its contract 
with the beneficiary, and a copy of the beneficiary'S Form 1-94 Arrival/Departure record. 
Page 7 
The petitioner submitted a partially-translated screenshot from the 
The excerpt provided is a voting ballot for the 
English translation of the beneficiary's categc'r: 
USA - Men." The beneficiary's album' 
petitioner provided an 
Released in 2009 in the 
While the petitioner provided sufficient evidence to establish that the beneficiary was nominated fo, •••••• 
•••••••••••••• the petitioner has not demonstrated that this nomination is for a significant 
national or international award or prize comparable to a Grammy award, the example provided in the regulations. 
Merely submitting evidence of the beneficiary's receipt of a nomination for the award is insufficient to meet the 
plain language of the regulation. 
The petitioner has failed to establish through submission of evidence that the Brazilian International Press 
Award is a significant national or international award in the beneficiary's field. Counsel's unsupported 
assertions regarding the importance and significance of the award are insufficient to meet the petitioner's 
burden of proof. 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 afObaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Laureano, 19 I&N Dec. I (BIA 1983); 
Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
The petitioner has not provided relevant documentation, such as evidence of the official rules and regulations or 
nomination and selection process, or evidence that the nominees receive significant media attention as a result of 
a nomination. For example, the Grammy Award nominations are widely publicized within the music industry 
and mainstream media and the awards ceremony is televised on a major network. The petitioner has not provided 
evidence that the nominees for an International Press Award receive similar recognition, or provide copies of 
published articles about the awards. Counsel stated that the awards are sponsored by Brazil's TV Globo, but did 
not provide evidence that the awards ceremony is broadcast. Going on record without supporting documentary 
evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Saffiei, 22 
I&N Dec. at 165 (citing Matter of Treasure Craft of California, 14 I&N Dec. at 190)). 
With respect to the beneficiary's participation in Talent Brazil, counsel stated: 
The Talent Brazil competition similarly involves the nomination of contestants by a panel of 
experts at the regional level, and the finalists are then selected among the regional contestants 
by another panel of experts. The contest is televi As with his nomination 
beneficiary's] nomination as a finalist for Talent Brazil 
is a significant international award recognizing talented Brazilians in the United States. 
The petitioner submitted a partially-translated ••••••••••••••••••• which lists 
the beneficiary as one of ten male singers qualified to compete in the national finals held in Miami Beach, 
Florida on January 29 and 30, 2010. This evidence was the sole supporting documentation submitted with 
respect to the Talent Brazil contest prior to the adjudication of the petition. The petitioner did not submit 
Page 8 
evidence of any published articles or televised press about the event, evidence that the contest was in fact 
televised, or documentation that would corroborate counsel's claims regarding the contests' nominating 
procedure. The record also does not include information from the presenting organization indicating the 
significance of the competition or the evaluation criteria. 
The plain language of the regulatory criterion at 8 C.F.R. § 214.2(0)(3)(iv)(A) specifically requires that the 
beneficiary's nominations be for significant national or international awards or prizes, and it is the petitioner's 
burden to establish every element of this criterion. In this case, there is no evidence establishing that the 
aforementioned nominations are equivalent to a Grammy nomination. Moreover, a competition may be open 
to musicians from throughout one's country, but this factor alone is not adequate to establish that an award or 
prize is a significant "national or international" award. In this case, the beneficiary'S nominations appeared to 
be for awards or prizes available only to Brazilian performing artists working in the United States. As such 
the awards appear to convey recognition within the Brazilian expatriate community in America. The awards 
provided as examples in the regulation at 8 C.F.R. § 214.2(0)(3)(iv)(A) are indicative of industry-wide 
recognition and are much broader in scope. The burden is on the petitioner to demonstrate the level of 
recognition and achievement associated with the beneficiary's awards. Given the paucity of evidence in the 
record regarding either of the beneficiary'S claimed qualifying awards, the petitioner has not met this burden. 
Again, merely submitting evidence of the beneficiary'S nomination for national or international prizes or 
awards is insufficient to meet the plain language of the regulation; the petitioner must also corroborate its 
claims regarding the significance ofthe prizes and awards for which the beneficiary was nominated. 
We note that, on appeal, counsel indicates that the beneficiary won third place in the 
held in Miami Beach, Florida on January 29 and 30, 2010. The petitioner has submitted 
a published article about the competition; however, the name of the publication is not provided, and the article 
is in the Portuguese language and is not accompanied by an English translation. The regulation at 8 C.F.R. § 
103 .2(b) provides in pertinent part: 
(3) Translations. Any document containing foreign language submitted to USCIS shall be 
accompanied by a full English language translation which the translator has certified as 
complete and accurate, and by the translator's certification that he or she is competent to 
translate from the foreign language into English. 
Because the petitioner failed to comply with the regulation at 8 C.F.R. § 103.2(b)(3), the AAO cannot 
determine whether the evidence supports the petitioner's claims. Accordingly, the evidence is not probative 
and will not be accorded any weight in this proceeding. Regardless, the beneficiary's third place finish in this 
competition occurred after 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. 
Camm. 1978). 
Page 9 
Based on the foregoing discussion, the petitioner has not established that the beneficiary meets the criterion at 
8 C.F.R. § 214.2(0)(3)(iv)(A). 
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 at least four of these criteria. 
Evidence that the alien has performed, and will perform, services a, 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; 
and 
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 indicated that the beneficiary meets the criterion at 8 C.F.R. § 214.2(0)(3)(iv)(B)(J) based on his 
performances in Brazil with and While counsel did not claim eligibility 
under the related criterion at 8 C.F .R. § 214.2(0)(3 )(iv )(B)(3), we will consider the evidence submitted under both 
criteria. Counsel stated: 
With [the beneficiary] performed as the lead vocalist at city festivals and state-
sponsored events throughout Brazil. Most notably, was invited to perform at 
shows sponsored by Brazil's two largest states, Minas Gerais and Sao Paolo. As lead vocalist for 
[the beneficiary] toured all over Brazil and performed at diverse large-scale 
events attended by many thousands. One live performance performed for a crowd of 5,000 was 
recorded on a DVD marketed in Brazil and 
on local and national TV and radio in Brazil. 
Counsel further stated: 
performances have been featured 
While with [the beneficiary] was discovered by an agent for a nationally-
recognized pop group called [The beneficiary] signed with _ 
_ and performed with them for four years. toured all over Brazil 
regularly and had air play on Brazilian radio and TV. 
In its letter dated January 19, 20 I 0, the petitioner stated: 
[The beneficiary's] experience as lead vocalist for gained him a significant 
following and fame in Brazil. [The beneficiary] toured all over Brazil with 
where they performed in front of large crowds of several thousand, often as the headlining band. 
Page 10 
On appeal, counsel asserts that the beneficiary "provided a resume and articles" that showed his performance in a 
lead or starring role with the above-referenced bands. Upon review, the AAO notes that the beneficiary's resume 
was not included in any of the petitioner's submissions and is not listed on the index of documents submitted in 
support of the petition. Regardless, in order to establish that the beneficiary meets the criterion at 8 C.F.R. 
§ 2l4.2(0)(3)(iv)(B)(1), the petitioner must support its claims with evidence in the form of critical reviews, 
advertisements, publicity releases, publications, contracts, or endorsements. Similarly, a claim that the beneficiary 
has performed in a lead, starring or critical role for an organization that has a distinguished reputation must be 
evidenced by articles in newspapers, trade journals, publications, or testimonials. 8 C.F.R. § 
214.2( 0)(3)(iv)(B)(3). The beneficiary'S resume would not be sufficient to satisfY these criteria. 
The petitioner has not submitted testimonial evidence in support of the petition. The petitioner did provide a total 
of three published articles which appear to be from Portuguese-language newspapers or magazines published in 
the United States for the Brazilian-American community. Two of the articles mention that the beneficiary was a 
singer for the "famous group for four years. The AAO cannot find that these passing 
references to the beneficiary'S former band as a "famous group" are sufficient to establish the distinguished 
reputation of that group or the distinguished reputation of any specific events or productions in which they 
participated. The petitioner did not submit critical reviews, advertisements, pUblicity releases, publications, 
contracts, or endorsements related to either band's productions or events, or submit published articles or 
testimonials to establish the distinguished reputation of the beneficiary'S former groups. The focus of the articles 
submitted is on the beneficiary's newly launched solo career in the United States. 
The petitioner's and counsel's unsupported assertions regarding the beneficiary's leading role in the bands 
and and largely unsubstantiated claims regarding the distinguished 
reputation of the bands and the events at which they performed, are clearly insufficient to meet the petitioner's 
burden of proof, and do not satisfY the plain language of these regulatory criteria. Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Matter af Saffici, 22 I&N Dec. at 165. Again, 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 af Obaigbena, 19 I&N Dec. at 534; Matter af Laureano, 19 I&N 
Dec. I; Matter of Ramirez-Sanchez, 17 I&N Dec. at 506. 
Furthermore, the plain language of these regulatory criteria requires the petitioner to establish through the 
required evidence that the beneficiary will perfarm services as a lead or starring participant in productions or 
events that have a distinguished reputation, or will participate in a lead, starring, or critical role for 
organizations and establishments that have a distinguished reputation. 8 C.F.R. §§ 214.2(0)(3)(iv)(B)(1) and (3). 
The petitioner seeks to hire the beneficiary to perform in its bar and restaurant seven times per week for a period 
of eight months, and no other productions or events are proposed. The petitioner has neither claimed nor 
submitted evidence to establish that the beneficiary's daily performances in its bar qualifY as events or 
productions with a distinguished reputation, or that the organization itself has a distinguished reputation as a live 
music venue. The petitioner submitted a screenshot of the front page of its website and provided no additional 
evidence with respect to the organization. Again, going on record without supporting documentary evidence is 
Page 11 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. at 
165. 
Based on the foregoing, the petitioner has not submitted evidence that satisfies the plain language of the 
regulatory criteria at 8 C.F.R. § 214.2(0)(3)(iv)(B)(J) or (3). 
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 
In her letter dated January 19,20 I 0, counsel for the petitioner stated: 
With and [the beneficiary] made a name for himself in 
Brazil as an exceptional artist and performer. With the launch of his solo career and travel to the 
United States, [the beneficiary] has already developed a substantial following and critical praise 
in the U.S. His brand of Brazilian country and pop has found a welcoming audience among the 
Brazilian expatriate community in the United States and earned him positive reviews in the 
Brazilian-American press. 
Counsel further stated: 
[The beneficiary's] nominations for the International Press Award and Talent Brazil both 
demonstrate his international recognition as a star of Brazilian music. Both awards involved 
nomination by panels of experts in the field of arts and music and demonstrate his notoriety in 
the United States as well as Brazil. The critical reception of [the beneficiary'S] solo work by 
Brazilian media in the United States further demonstrates his international . The 
(itself a nominee for 
community outlets with 10 or more years of publication in the United States) has opined that [the 
beneficiary's] "talent," his "unmistakable voice, special charisma, and technical knowledge of 
music have made [him] a distinguished musician among the Sertanejo style [country music]." .. 
. The _ also references his fame in Brazil, writing that he "has become a well known 
musician in his city" of Brasilia, the capital of Brazil, but is "seeking new horizons outside the 
country" for his music. ld. _calls [the beneficiary] "one of the great names of Brazilian 
music here in the United States" and "a musician of major importance," and gives his solo record 
a glowing review. 
The petitioner submitted the above-referenced articles, including an article from the local/community highlights 
section published in the September 24-30, 2009 edition, which refers to the 
beneficiary as "a new promise of success in Brazilian music in the USA." The article announced the beneficiary'S 
appearance at_ on October 4, 2009. The petitioner also submitted the ~ article, which appeared 
in the October 27,2009 edition of the publication. Finally, the petitioner submitted an article from the September 
Page 12 
28, 2009 edition of , titled "Thiago Makye is a promise of counlly music in Massachusetts." The 
article announces the beneficiary's release of his first solo album on October 4, 2009 at the club ,_ 
The plain language of the regulation at 8 C.F.R. § 214.2(0)(3)(iv)(B)(2) requires the petitioner to demonstrate 
that the beneficiary has achieved national or international recognition for achievements through submission of 
critical reviews or other published materials by or about the individual in major newspapers, trade journals, 
magazines, or other publications. In general, in order for published material to meet this criterion, it must be 
primarily about the beneficiary aud, as stated in the regulations, be printed in major newspapers, magazines or 
other major publications. To qualify as major media, the publication should have significant national or 
international distribution. Some newspapers, such as the New York Times, nominally serve a particular locality 
but would qualify as major media because of significant national distribution, unlike small local community 
papers.' 
The petitioner has not provided evidence that the above-referenced publications have a significant national or 
international distribution. The petitioner identified the publications as "the Brazilian-American press," and 
did not provide the scope aud size of the circulation of any of the newspapers that published articles about the 
beneficiary. Therefore, the submitted articles, at least one of which appeared in the "local" section of the 
publication, are insufficient to establish the beneficiary'S national or international recognition. While the 
petitioner claims that the beneficiary pr~ational recognition in the press in his native Brazil 
based on his role as the lead singer of __ the petitioner has not submitted any documentary 
evidence in support of this claim. Accordingly, the petitioner has not submitted sufficient evidence to satisfy 
this criterion. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165. 
We acknowledge that the petitioner also claims eligibility under this criterion based on the beneficiary'S 
nomination and status as a finalist in the Talent Brazil competition. 
As discussed above, the petitioner did not provide published articles regarding these nominations, and thus the 
evidence submitted does not satisfy the plain language of this evidentiary criterion. 
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 
At the time of filing the petition, counsel suggested that all of the submitted evidence combines "to demonstrate 
[the beneficiary's] immense commercial and critical success." Counsel stated: 
2 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For 
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax 
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county. 
Page 13 
As lead vocalist for [the beneficiary 1 gained national recognition and a 
privileged (and highly compensated) position among Brazilian musicians, and the widespread 
critical and commercial success of the band was certainly in large part due to its charismatic 
front-man. He nonetheless took a risk in venturing away from the highly successful band and 
launching his own solo career, beginning with the recording of his first solo album. That leap 
has so far paid off, with wide critical acclaim for his album from glowing critiques in the 
Brazilian media in the U.S. to two nominations for international prizes, both selected by expert 
art and music critics. 
The beneficiary's role as the lead singer for is far more relevant to the aforementioned 
criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l) and (3) and has been discussed separately within the context of those 
criteria. Regarding the petitioner's performances in contests and competitions, they have already been 
considered under the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(A) and will be further discussed below, while the 
criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(2) takes into account published evidence of the beneficiary's national 
or international recognition. We will not presume that evidence relating to the above-referenced criteria is 
presumptive evidence that the petitioner also meets this criterion. To hold otherwise would render meaningless the 
regulatory requirement that a petitioner must submit evidence to meet at least three separate criteria. 
The plain language of the regulation at 8 C.F.R. § 2l4.2(o)(3)(iv)(B)(4) requires 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. In the beneficiary's field, evidence satistying this criterion would 
reasonably include evidence of album or single sales, radio airplay rankings and similar evidence of tangible 
achievements in the popular music industry. A favorable review of the beneficiary's newly released solo album in 
a Brazilian-American publication of unknown circulation is not evidence of a record of "major critically 
acclaimed success. I' 
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; 
The petitioner has not provided evidence in the form of testimonials from organizations, critics, government 
agencies or other recognized experts in the beneficiary's field. While the petitioner indicates that experts in 
the beneficiary's field nominated him for both the International Press Award and Talent Brazil competitions, 
the petitioner has not provided any documentary evidence corroborating its claims regarding the nominating 
process for the award or competition. As discussed above, merely submitting evidence that the beneficiary 
was nominated for or received an award is insufficient to establish the significance of the recognition. 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. Accordingly, the petitioner has not 
established that the beneficiary meets the criterion at 8 C.F.R. § 214.2(0 )(3)(iv)(B)(5). 
Page 14 
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 
Counsel asserts that the beneficiary "commanded a high salary and will command substantial 
remuneration for his performances in relation to other musicians." Counsel further states: 
As the lead vocalist [the beneficiary] earned the equivalent of between 
$70 and $100 for each performance. During the four years [the beneficiary] was a member, 
toured four days a week, playing each ofthe four nights. This amounts to an 
annual salary of between $14,560 and $20,800. In comparison, the average starting salary for 
the top ten percent of income earners in 2007 in Brazil was barely $3,000 .... 
As a musician in the United States, [the beneficiary] will continue to earn substantially high 
remuneration compared to other musicians. [The beneficiary's] contract guarantees him seven 
performances a week at a fee of $150 per performance .... The contract provides that each 
performance is to be three to four hours, thus [the beneficiary's] hourly rate is between $37.50 
and $50. In comparison, for May 2008, "[m]edian hourly wages of wage-and-salary musicians 
and singers were $21.24." ... The median hourly rate in Massachusetts for the sarne period is 
$15.06. 
The petitioner submitted an article titled "Brazil salary gap narrows, rich-poor divide same," published b~ 
on June 23, 2008, as well as information regarding "Musicians, Singers and Related Workers" from the U.S. 
Bureau of Labor Statistics' Occupational Outlook Handbook, 2010-11 Edition. According to the information in 
the Occupational Outlook Handbook, the middle 50 percent of musicians and singers in the United States earned 
between $11.49 and $36.36, while the top 10 percent earned more than $59.92 per hour. Based on this 
information, the petitioner has not established that the beneficiary's offered wage of $37 to $50 per hour can be 
considered a "high salary" compared to others in his field. The salary offered could be characterized as above­
average compared to typical working musicians and singers. 
With respect to the beneficiary'S earnings as a member the petitioner has not submitted 
any documentary evidence of the beneficiary's earnings, such as contracts, Brazilian tax forms, or other 
reliable evidence showing the beneficiary'S actual earnings for any specific period of time. Again, we 
emphasize that, 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. I (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
Moreover, the plain language of this regulatory criterion requires the petitioner to submit evidence showing that 
the beneficiary has commanded a high salary "in relation to others in the field." In this case, the petitioner 
Page IS 
submitted documentary evidence comparing the beneficiary's remuneration for services to the average salary of 
Brazilians. The petitioner failed to submit any documentary evidence comparing the beneficiary's remuneration 
to that of other singers and musicians, so as to establish that his remuneration for services is high when compared 
to others in his field. The comparison with the average salary of Brazilians is not sufficient to meet the plain 
language of the regulation at 8 C.F.R. § 214.2(0)(3)(iv)(B)(vi). In light of the above, the petitioner has not 
submitted evidence to satisfY this criterion. 
Summary 
In this case, we concur with the director's determination that the petitioner has failed to demonstrate his 
receipt of a major, internationally recognized award, or that he meets at least three of the six categories of 
evidence that must be satisfied to establish the minimum eligibility requirements necessary to qualifY as an 
alien of extraordinary ability in the arts. 8 C.F.R. §§ 214.2(0)(3)(iv)(A) and (B). A final merits determination 
that considers all ofthe evidence follows. 
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)(A) or (B). 
Notwithstanding the above, a final merits determination considers all of the evidence in the context of whether or 
not the petitioner has demonstrated: (I) 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.F.R. § 214.2(0)(3)(iv)(B). Counsel and the petitioner claim 
that the beneficiary has served as the lead singer for a nationally-recognized musical group in Brazil and that is he 
is in the early stages of launching his career as a solo artist in the United States. The evidence of record indicates 
that the beneficiary has received some attention for his solo project from the Brazilian-American press, and that 
he has been recognized as a nominee for awards for Brazilian expatriates working in the American entertainment 
industry. However, the petitioner has not established that the beneficiary has received major media attention in 
the United States, nor has it submitted the required supporting evidence to demonstrate the national or 
international significance of the International Press Awards or the Talent Brazil competition. The petitioner 
submits three newspaper articles that may qualify as only local or regional press, and bare evidence of the 
beneficiary's nominations for awards, 
Further, the record remains devoid of any documentary evidence of the beneficiary's critical and commercial 
success as a musician in Brazil in the form of articles, reviews, testimonials, sales figures, income or any other 
indicia of his standing in the Brazilian national music industry. As discussed, the record consists of unsupported 
assertions that the beneficiary is a nationally-recognized entertainment figure in Brazil based on the success of his 
band, 
The AAO emphasizes that four out of the six criteria set forth at 8 C.F.R. § 2l4.2(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 journal 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. 
§ 2l4.2(0)(3)(iv)(C), the petitioner must submit 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 ifthe petitioner does not establish that he has received 
significant independent recognition based on his own reputation or achievements. Here, the scant published 
evidence submitted about the beneficiary reflects only the last several months of his career. While we do not 
discount the possibility that the beneficiary is in fact a nationally-recognized artist in Brazil, the petitioner has 
simply not documented its assertions regarding the beneficiary's career with the required supporting evidence. 
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 singer or 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. 
III. Conclusion 
Review of the record does not establish that the beneficiary has distinguished himself to such an extent that he 
may be said to be renowned, leading, or well-known in the field of arts. 8 C.F.R. § 2l4.2(0)(3)(ii). Therefore, 
the petitioner has not established eligibility pursuant to section IOI(a)(IS)(O)(i) of the Act and the petition 
may not be approved. 
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.