dismissed O-1B Case: Music

identifying data deleted to 
prevent clearly Jnwarr~nted 
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 
DATE: JUL 1 ! 2011 Office: CALIFORNIA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Petition for a Nonimmigrant Worker under Section 10 1 (a)(15)(O)(i) ofthe Immigration and 
Nationality Act, 8 U.S.c. § 1101(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)(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, 
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 record label, filed this nonimmigrant petition seeking to classify the beneficiary pursuant to 
section 1 o 1 (a)(l5)(O)(i) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1101(a)(l5)(O) as an alien 
with extraordinary ability in the arts. Th~eks to employ the beneficiary as a musician/drummer and 
member of the U.s.-based hardcore band~for a period of five years.! 
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 director observed that the evidence submitted failed to meet any of the 
evidentiary criteria set forth at 8 C.F.R. § 214.2(0)(3)(iv)(A) or (B). 
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 refers to the evidentiary criteria applicable to immigrant 
petitions for aliens of extraordinary ability pursuant to 8 C.F.R. § 204.5(h)(3), and asserts that the petitioner has 
established the beneficiary's eligibility under at least four of these criteria. Finally, counsel asserts that new 
evidence submitted on appeal establishes that the beneficiary "is in fact a drummer with extraordinary ability in 
the field of punk music." Counsel submits a brief and documentary evidence in support of the appeal. 
I. The Law 
Section 10 1 (a)(l5)(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. 
I Pursuant to 8 C.F.R. § 214.2(0)(6)(iii)(A), an approved petition for an alien classified under section 
101(a)(l5)(O)(i) of the Act shall be valid for a period of time determined by the Director to be necessary to 
accomplish the event or activity, not to exceed 3 years. 
Page 3 
The regulation at 8 C.F.R. § 214.2(0)(3)(iv) states, in pertinent part: 
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 
Emmy, 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 
Page 4 
(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 
(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 ... of the alien 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. See 59 Fed. Reg. 41818 (August 15, 
1 994)(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. USCIS, 2010 WL 
725317 (9th Cir. March 4, 2010). 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 often alternative criteria in order to establish a beneficiary'S eligibility as an alien with extraordinary ability. 
Cj 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: 
Page 5 
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 of the [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. § 1153(b)(1)(A)(i). 
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 merits determination. The 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. 
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 filed the Form 1-129, Petition for a Nonimmigrant Worker, and supporting documentation on 
September 23,2010. The director issued a request for additional evidence (RFE) on September 29,2010, to 
which the petitioner replied on October 4, 2010. The AAO has considered the evidence of record in its 
entirety in reaching its decision. 
In a letter dated September 22, 2010, counsel stated that the beneficiary is a classically-trained musician in 
both drums and piano, who graduated from the Brighton Institute of Modem Music in the United Kingdom. 
Counsel noted that, following graduation, the beneficiary joined 
performed throughout Europe and the United States before leavmg at 
recently, the beneficiary joined the New York-based hardcore punk band, _ which signed a 
contract with the petitioner's record label in September 2009. The evidence of record shows that_ 
released its third studio album on the petitioner's label in June 2010, and has been engaged in a national and 
international tour throughout 2010. 
Page 6 
Counsel asserts that the beneficiary has "a high level of achievement within the field of independent 
musicians and bands." Counsel further claims that the beneficiary "is known throughout the world as a gifted 
and revolutionary musician by virtue of his participation in his former band, and as a current 
member of " Counsel contends that the beneficiary and _ "are fast becoming 
household names among America's youth and among music industry insiders." 
In a letter submitted in support of the petition, the petitioner's general manager, stated that 
••••• is "currently on the peak of exploding to a high level of fame in the national and international 
market," and "is on the cusp of making serious money from its tour ticket sales and merchandise and CD 
sales." further stated that the band is "among the top 200 bands in the U.S. and in their 
particular genre number 33 overall." 
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 qualifYing significant awards or prizes. 
The beneficiary's fonner band, ••••• was nominated in the category in the 2008 
annual Kerrang! Awards. Kerrang! is a British music magazine of unknown circulation. The petitioner did not 
claim that this award nomination was comparable to a Grammy award nomination, and raised no objection to the 
director's finding that the evidence submitted does not establish the beneficiary's eligibility under 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). We note that neither counsel nor the petitioner has specifically addressed the 
beneficiary's eligibility under the applicable regulatory criteria. The AAO will consider the beneficiary's 
eligibility under each of the six criteria below. 
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; 
and 
As noted above, the evidence of record indicates that the beneficiary has been the drummer for the hardcore 
bands and l and will continue to be a member of if the requested 
classification is granted. 
Page 7 
The petitioner submitted evidence that _ debut full-length album, _ received highly 
favorable reviews in the alternative music press, positive reviews for live shows, and a nomination as _ 
in the 2008 Kerrang! Awards held by the British rock music magazine Kerrang! The 
director determined that, based on his experience as the drummer and a founding member of _ the 
petitioner established that the beneficiary has performed in a lead or starring role for productions or events which 
have a distinguished reputation. 
With respect to_ the director acknowledged that the petitioner submitted evidence that the band "has 
received coverage in magazines such as the American Music Press and coverage on several Internet websites." 
The director found that the evidence "did not establish a distinguished reputation." 
Upon review, the AAO disagrees with the director's determination. The petitioner has submitted sufficient 
evidence in the form of critical reviews, advertisements and publications to establish that the beneficiary satisfies 
the criterion at 8 C.F.R. § 214.2(0)(3)(iv)(B)(1) based upon his role as the drummer for the studio recordings and 
live performances of Dead Swans and This is Hell. 
•••• has been invited to join sponsored by music magazine as one of six 
featured bands on the national tour's roster. According to the evidence of record, the Fall 2010 tour was set to 
take place in October and November 2010 with dates at well-known venues such as House of Blues, Hard Rock 
Live, Starland Ballroom and the Nokia Theatre, and the band was featured in the magazine as a result of its 
selection for the tour. The petitioner has also submitted articles and reviews from alternative music magazines 
that are sufficient to establish that the band's recordings and live shows have a distinguished reputation among 
industry publications that cover the band's genre of music. 
Evidence that the alien has achieved national or international recognition for achievements 
evidenced by critical reviews or other published materials by or about the individual in major 
newspapers, trade journals, magazines, or other publications 
The 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 and, 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? 
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 8 
The director determined that the petitioner failed to submit any published materials about the beneficiary from 
major newspapers, trade journals, magazines or other publications. The director observed that the beneficiary 
was mentioned casually in some articles as a member of the bands and , but that such 
evidence is insufficient to establish that he has received national or international recognition as a drummer. 
On appeal, counsel asserts: 
[The beneficiary's] national and international recogmtlOn for achievement in the arts is 
derived from his participation in the ensemble groups,_(former band) and _ 
_ (current band). USCIS erred in finding that the petitioner provided insufficient evidence 
to establish that [the beneficiary], individually, has gained national or international 
recognition as a drummer. The position of drummer does not allow for individual 
recognition. It is not the position of lead singer or lead guitarist, positions within a band that 
lend themselves to individual recognition. Rather, the drummer provides the background for 
the overall band sound. The drummer provides the beat and emphasizes the other instruments 
and the vocals. The drummer is essentially a band "member" and is a required and influential 
part of the overall band sound and performance. The drummer is not, however, a member of 
the band that garners individual media attention and/or critical review. Accordingly, USCIS 
erred in finding that the petitioner failed to demonstrate the beneficiary's individual ability as 
a drummer and that the petitioner was errant in providing supporting documentation that" ... 
only mentioned casually [the beneficiary] in articles as a member of the band .... " 
Upon review, the AAO agrees with the director's determination that the petitioner has not submitted evidence 
to satisfy this criterion. 
The petitioner has not submitted any published materials that are specifically "about" the beneficiary as an 
individual, despite counsel's initial claims that the beneficiary's "talent has earned him rave reviews from 
critics across the nation" and that "he and his band are fast becoming household names." Counsel further 
claimed that the evidence would establish that the beneficiary is "among the very most distinguished and 
extraordinary drummers of any kind in the hardcore punk genre." Counsel also refers to the beneficiary's 
"early individual international achievements," stating that he is a "drum prodigy" but the record remains 
devoid of any such individual achievements or any evidence to support the statements made above. 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). 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)). 
In light of counsel's claims regarding the beneficiary's individual reputation, counsel's assertions that it is not 
possible for a drummer to gain individual recognition or attention based on his or her own abilities and 
Page 9 
achievements is simply not credible. There are entire magazines and web sites devoted to drumming and 
drummers which feature musicians who, like the beneficiary, play in bands. 
The petitioner submitted one published article in which the beneficiary is quoted extensively and not merely 
mentioned in passing. The article is titled •••• . .. " The title of the publication 
and date of the publication were not provided and thus it cannot be determined that it appeared in a major 
newspaper or magazine. The article consists of background information regarding the musical roots of the 
band and an interview with the band members regarding the recording of their debut album 
While the author of the article speaks very positively of the album, referring to it as "one of the year's most 
exciting UKHC releases," the article fails to recognize the beneficiary's individual achievements as a musician 
or the national and international recognition he received for such achievements. Accordingly, the petitioner 
has not submitted evidence that meets the plain language of the evidentiary criterion at 8 C.F.R. 
214.2( 0 )(3)(iv)(B)(2). 
Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for 
organizations and establishments that have a distinguished reputation evidenced by articles in 
newspapers, trade journals, publications, or testimonials 
The director determined that the beneficiary has performed a critical role for an organization that has a 
distinguished reputation as a member of . However, the director concluded that the evidence 
submitted was insufficient to establish that the beneficiary will perform similar critical roles for the petitioner as it 
failed to establish that its record label has a distinguished reputation. Accordingly, the director concluded that the 
petitioner had not submitted evidence to satisfY the evidentiary criterion at 8 C.F.R. § 214.2(0)(3)(iv)(B)(3). 
The AAO will withdraw the director's finding with respect to this criterion. We note that the director's reasoning 
was inconsistent, as he concluded that the band _ is an "organization or establishment" with a 
distinguished reputation, but did not consider the reputation of the band _, instead choosing to consider 
whether the petitioner established the distinguished reputation of the band's record label. The petitioner has 
submitted evidence that both _ and have been featured in national American and British 
alternative music publications and are in demand for national and international tours. The record shows that _ 
_ was nominated by the British rock music magazine Kerrang! as the in 2008 
among bands of many genres. has been on the cover of American Music Press and Alternative Press 
magazines. The evidence of record is sufficient to establish that both bands enjoy a distinguished reputation in 
the alternative music industry. 
The evidence submitted meets the plain language of the regulation at 8 C.F.R. § 214.2(0)(3)(iv)(B)(3). Therefore, 
this criterion has been satisfied. 
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 
Page 10 
picture or television ratings, and other occupational achievements reported in trade journals, 
major newspapers, or other publications 
The plain language ofthe regulation at 8 C.F.R. § 214.2(0)(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 satisfying this criterion would 
reasonably include evidence of album or single sales, radio airplay rankings, evidence of concert revenues and 
similar evidence of tangible achievements in the music industry. 
At the time of filing the petition, counsel indicated that the beneficiary and his band have been propelled to 
"national and international fame and commercial success." Counsel further stated that _ is "hugely 
popular on the internet, on My Space and You Tube and is fast becoming a record holder for CD and 
merchandise sales." In addition, the petitioner's general manager indicated that _ is "among the top 200 
bands in the United States and in their particular genre number 22 overall," and he indicated that_ 
album is one of his company's "best-selling records." 
However, the supporting evidence contained no documentation to corroborate the band's claimed best-selling 
status, and no objective rankings to support the petitioner's statements were submitted prior to the 
adjudication of the petition. Similarly, the petitioner has not submitted evidence of the major commercial or 
critically acclaimed success of the beneficiary'S work with_ On appeal, counsel for the petitioner 
assert that "according to ,_ has sold over 20,000 CDs to date." The petitioner 
did not submit any documentary evidence in support of this claim. 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 o/Obaigbena, 19 I&N Dec. at 534); Matter 0/ 
Ramirez-Sanchez, 17 I&N Dec. at 506. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter 0/ Soffici, 22 I&N Dec. at 
165 (citing Matter o/Treasure Craft o/California, 14 I&N Dec. 190 (Reg. Comm'r. 1972)). Regardless, even 
if the petitioner did submit evidence of the band's CD sales, the petitioner has not established that the sale of 
20,000 CDs constitutes major commercial success, particularly if this figure applies to the band's entire 
catalog. The petitioner indicates that its label has sold over 1 million CDs to date inclusive of all of their 
artists, a figure which undermines the claim that the petitioner is among the label's top sellers. As noted by 
the director, the fact that_ CD is distributed in major retail stores alone is insufficient to establish 
that the band has a record of major commercial success. 
While we have acknowledged that the critical reviews the beneficiary'S bands have received for their live 
shows and recordings have given them a distinguished reputation among critics and industry writers in the 
hardcore punk genre of alternative rock music, the record does not demonstrate that either band or the 
beneficiary individually has achieved major critically-acclaimed successes, as required by the plain language 
of the regulation. For example, an article in American Music Press about _ indicates that their 
current album "could very well be the release that sees _ step out of the shadow of their more 
heavily fancied peers 
submitted on appeal, 
Page 11 
lead guitarist mentions that the group is "hardly making any money" despite near constant national and 
international touring and frequent opportunities to tour with bigger acts, thus undermining claims of the 
band's commercial success. 
Based on the foregoing, the petitioner has not submitted evidence to satisfy the 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 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 provided a total of three testimonial letters in support of the petition. For the reasons 
discussed below, the letters do not satisfy the plain language of the regulatory criterion at 8 § C.F .R. 
214.2( 0 )(3)(iv)(B)(5). 
a peer review letter from •••••• , an artist manager with 
_stated: 
is an internationally acclaimed hardcore punk band from New York. The band's 
drummer is [the beneficiary], a gifted British musician known throughout Europe and the 
United States for his association and work with and_. 
[The beneficiary] is a musician of international renown, who is well-known in his native 
England and internationally. Both and_ have toured extensively in 
Europe and the United States. Accordingly, [the beneficiary] and his band, _, have 
gained an international following and international critical acclaim. 
As noted above, the regulation at 8 C.F.R. § 214.2(0 )(2)(iii)(B) requires that affidavits written by recognized 
experts "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." _ letter 
fails to establish his credentials as a recognized expert, fails to explain the manner in which he acquired 
information about the beneficiary, and fails to specifically describe the beneficiary's achievements in factual 
terms. The letter consists of general assertions regarding the beneficiary's international acclaim and renown, but 
fails to detail the beneficiary' specific achievements. Furthermore, it is not in a form which clearly indicates • 
••• authority, expertise and knowledge of such achievements. 
The petitioner submitted a second letter from , the beneficiary's former instructor at _ 
_ states that the beneficiary achieved his Diploma and 
Professional Diploma qualifications in drumming "to a good standard" and refers to him as a "studious and 
reliable member of his class, who worked hard to improve his playing." While he acknowledges the 
Page 12 
beneficiary's talent as a student drummer and praises his character, fails to specify the 
beneficiary's achievements beyond graduation from the Brighton School of Modern Music. 
Finally, the petitioner submitted the above-referenced letter from its own general manager, 
who stated: 
_ is currently on the peak of exploding to a high level of fame in the national and 
international market. [The beneficiary] has been a pivotal and extremely talented member of 
[The beneficiary] is an extremely gifted drummer. He ranks among the best young talents 
with which my company works. [The beneficiary] is classically trained, but he is also a 
creative and instinctive musician. As of today, [the beneficiary] and his band are among the 
Top 200 bands in the u.S. and in their particular genre number 33 overall. _ 
newest album has quickly become one of my company's best selling record[s]. This is an 
unbelievable achievement. 
The only achievements referenced in letter are uncorroborated claims of record sales and band 
rankings from an unidentified source. As a matter of discretion, USCIS may accept expert opinion testimony.3 
USCIS will, however, reject an expert opinion or give it less weight if it is not in accord with other information in 
the record or if it is in any way questionable. Matter of Caron International, Inc., 19 I&N Dec. 791, 795 
(Comm'r. 1988). USCIS is ultimately responsible for making the final determination regarding an alien's 
eligibility for the benefit sought; the submission of expert opinion letters is not presumptive evidence of 
eligibility. Id.; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) ("[E]xpert opinion testimony, while 
undoubtedly a form of evidence, does not purport to be evidence as to 'fact' but rather is admissible only if 'it will 
assist the trier of fact to understand the evidence or to determine a fact in issue.'''). 
3 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. Black's Law Dictionary 1515 (8th Ed. 2007) (defining "opinion 
testimony"). Written testimonial evidence, on the other hand, is testimony about facts, such as whether 
something occurred or did not occur, based on the witness' direct knowledge. Id. (defining "written 
testimony"); see also id at 1514 (defining "affirmative testimony"). 
Depending on the specificity, detail, and 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." Id. If testimonial 
evidence lacks specificity, detail, or credibility, there is a greater need for the petitioner to submit 
corroborative evidence. Matter ofY-B-, 21 I&N Dec. 1136 (BIA 1998). 
Page 13 
The letters considered above primarily contain bare and unsupported assertions regarding the beneficiary's 
talent, achievements or recognition, without specifically identifying his achievements and the significant 
recognition he has received for those achievements in the field. Merely repeating the language of the statute 
or regulations does not satisfy the petitioner's burden of proof.4 
In light of the above, the petitioner has not submitted qualifying evidence that meet the plain language of the 
regulation at 8 C.F.R. § 214.2(0)(3)(iv)(B)(5). 
Evidence that the alien has either commanded a high salary or will command a high salary or 
other substantial remuneration for services in relation to others in the field, as evidenced by 
contracts or other reliable evidence 
The petitioner has not claimed that the beneficiary has commanded a high salary in the past. The petitioner has 
submitted a copy of its exclusive recording agreement with This is Hell, but, as noted by the director, failed to 
submit reliable evidence that the financial arrangements set forth under the terms of the agreement are considered 
"high remuneration" in relation to others in the field. 
The agreement indicates that the band would receive: (1) an advance of $6,000 for its first album and $8,000 for 
its second album; (2) a $2,000 advance against merchandise royalties for the first album only; (3) a 14% share of 
royalties for most album sales in the United States and a slightly higher rate if the album exceeds sales of 50,000 
to 100,000 units; and (4) additional royalties from other methods of distribution. While the petitioner and counsel 
have submitted unsupported claims regarding the band's "best-selling status," the petitioner has provided no 
corroborating evidence as to how much the band has earned from sales, royalties, performances, merchandise or 
other revenue streams since signing with the petitioner's label, and no substantiated estimates of how much the 
band is likely to earn during the requested period of approval. Therefore, the director correctly determined based 
on the evidence submitted that the petitioner failed to establish that the beneficiary'S earnings as a member of This 
is Hell are considered high or substantial in relation to others in the field. 
On appeal, the petitioner attempts to overcome the director's finding by submitting a statement from its general 
manager,_. He states that "our Recording contract with the artist, _ is substantial in the 
alternative music industry." 
The plain language of this regulation requires that the petitioner submit "reliable evidence" to establish that the 
beneficiary has commanded or will command a high salary or other substantial remuneration for services in 
relation to others in the field. Clearly, an unsupported statement from the petitioner alone is insufficient to meet 
this criterion. Further, as noted above, the record contains an interview with the band's songwriter and lead 
guitarist, titled ' The article was published in 
4 Fedin Bros. Co., Ltd., 724 F. Supp. at 1108; Avyr Associates, Inc. v. Meissner, 1997 WL 188942 at *5 
(S.D.N.Y.). Similarly, USCIS need not accept primarily conclusory assertions. 1756, Inc. v. The Attorney 
General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Page 14 
October 2010 three months after the release of the band's latest "best selling" record. 
_ states repeatedly in the interview that the band makes very little money. 
In addition, the record remains devoid of any documentary evidence comparing the beneficiary's remuneration to 
that of other musicians, so as to establish that his remuneration for services is high when compared to others in his 
field. 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 the 
beneficiary's 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 merits 
determination that considers all of the evidence follows. 
B. 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. As discussed above, the petitioner established eligibility under only two of the 
criteria found under the regulation at 8 C.F.R. § 214.2(0)(3)(iv)(A) or (B). 
Notwithstanding the above, a 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.F.R. § 214.2(o)(3)(iv)(B). The beneficiary has served as the 
drummer for two hardcore bands that have earned the respect of the alternative music industry press in the United 
States and the United Kingdom. As acknowledged above, the bands and_, despite the 
lack of evidence of apparent commercial success, have earned critical reputations that allow them to tour 
nationally and internationally on "underground" tours and sometimes join the larger tours of more established or 
well-known acts. 
However, the record does not support a finding that the beneficiary's performance with these bands has led to the 
type of widespread recognition that would be expected of a rock musician who could be described as renowned, 
Page 15 
leading or well-known in the field, even if the field is narrowed to the hardcore punk genre of music. While the 
published evidence submitted suggests that the band l after overcoming some struggles, may be on the 
verge of broader or even mainstream success achieved by other acts in their genre, the claim that the beneficiary 
is becoming a "household name" is simply not supported by the evidence submitted. 
Moreover, the record does not contain qualifying evidence of any individual recognition the beneficiary has 
received for his achievements as a drummer, either in the form of published evidence or in the form of 
testimonials from recognized experts or others in the field. The vast majority of the published evidence submitted 
regarding and _ mentions the beneficiary only in passing. As discussed above, the 
assertion that it is impossible for a drummer to receive individual recognition apart from the band is simply not 
persuasive. 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. 
Further, the record remains devoid of any objective documentary evidence of the beneficiary's major critical and 
commercial success as a musician or evidence that has received or will receive substantial remuneration in 
relation to others in his field. The petitioner's claims of eligibility in these regards suffer from an overreliance on 
unsupported assertions regarding the level of success and recognition achieved by the beneficiary's bands within 
the music industry. 
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 
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.