dismissed O-1B Case: Music

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,- -
U.S. Department o_f Homeland Security 
U.S. Citizenship and Immigration Services 
Administraiive Appeals Office (AAO) 
20 Massachusetts Ave .. N.W .. MS :!0<)0 
Washington, DC 20529-2090 
U.S. Ci tiz_enshi p 
and Immigration 
Services 
DATE: FEB 2 6 2013 Office: CA!;-IFORNIASERVICE CENTER FILE: 
IN RE: Petitioner: 
_ Beneficiary : 
PETITION: Petition for~ Nonimmigrant Worker under Section 101(a)(15)(0)(i) of the Immigration and 
· Nationality Act, 8 U.S.C. § 1101(a)(15)(0)(i) 
. ON BEHALF OF PETITIONER: 
INSTRUCTIONS: . \ -
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the dm.:umcnts 
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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a m otion to reopen in 
accordance with the instructions on Form 1-2908, Notice of Appeal or Motion, with a fcc of $63(1. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be.aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the, motion seeks to reconsider or reopen. 
J.hailk you, _ . 
. , . . ·' 
~ . - ~~ ~~ - : . . . 
Ron Rosenberg _. .;~ ~: . 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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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, self-described as an organization engaged in "audio-visual services, music writing, 
recording [and] publishing," filed this . nonimmigrant petition seeking to classify the beneficiary 
pursuant to section 101(a)(15)(0)(i) of the Immigration and Nationality Act ("Act"), 8 U.S.C 
§ 1101(a)(15)(0) as an alien with extraordinary ability in the arts. The .petitioner seeks to employ the 
beneficiary as a drummer/musician for a period of three 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.: § 2142( 0 )(3)(ii). The director. observed that the 
evidence submitted failed to meet the evidentiary criterion at 8 C.F.R. § 214.2(o)(3)(iv)(A), or three of 
the six evidentiary criteria set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B). 
The pet.itioner 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 suffici'ent 
evidence was presented attesting to the beneficiary's distinction in the field, and the petitioner asserts 
that the director did not carefully review the facts of the case. Counsel submits a brief and documentary 
evidence in support of the appeal. · 
I. The Law 
Section 10l(a)(15)(0)(i) of the Act provides classification to a qualified alien who has extraordinary 
ability in the sciences, arts, edueation, 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(o)(3)(ii) defmes, 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(o)(3)(iv) states, in pertinent part: 
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Evidentiary criteria for ari 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 recogniz~d 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) Evi.dence that the alien has achieved national or international recognition 
for achievements evidenced by critical reviews or · other published 
materi~s 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 oontracts or other reliable 
evidence; or · 
(C) If the criteria in paragraph (o)(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. · 
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Additionally, the regulation at 8 C.F.R. § 214.2(o)(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 offieer 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 maimer 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 fo·r 0-1 clas~ification. See Fed Reg. 
41820. 
In determining the beneficiary's eligibility under these criteria, the AAO will follow a two~par.t approach 
set forth in a 2010 decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kazarian v. 
USCIS, 596 F.3d 1115 (9th Cir. 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 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). ·Although the court upheld the AAO's 
decision to deny the petition, the court took issue With the AAO's evaluation of evidence submitted to 
meet a given evidentiary criterion. The court concluded that while USCIS may have raised legitimate 
concerns about the significance of the evidence submitted to meet two of the criteria, those concerns 
should have been raised in a subsequent "final merits determination." ld at 1121-22 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the 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)." /d. &t 1122 (citing to 
8 C.F.R. § 204.5(h)(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 AAO fmds 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(o)(3)(iii), (iv) and (v). Therefore, in reviewing Service Center decisions, the AAO will apply 
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the test set forth in Kazarian. As the AAO maintains de novo review, the AAO will conduct a new 
analysis if the director reached his or her conclusion by using a one-step analysis rather than the two­
step analysis dictated by the Kazarian court. See Soltane v. DOl, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that the AAO reviews appeals on a de novo basis). · 
In this matter, · the AAO has' reviewed the evidence under the plain language requirements of each 
criterion claimed. As the petitioner has failed to submit evidence that satisfies three of the evidentiary 
criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B), the proper conclusion is that the petitioner has failed to satisfy 
the regulatory requirement of three types of evidence. 
II. · Discussion 
The sole issue to be addressed is whether the petitioner submitted evidence to establish that the. 
beneficiary satisfies the eviden~iary criterion at 8 C.F.R. § 214.2(o)(3)(iv)(A), or at least three of the six 
criteria set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B). 
The beneficiary, a drummer, is a native and citizen of Australia who was iast admitted to the United 
States as a B-2 visitor for pleasure. The petitioner, which is described as a music publisher, filed the 
Form I-129, Petitipn for a Nonimmigrant Worker, and supporting documentation on December 16, 
2010 .. The director subsequently issued a request for additional evidence ("RFE"), to which the 
petitioner promptly responded: The AAO has considered the evidence of record in its entirety in 
reaching its decision. 
In a letter submitted in support of the petition, the petitioner's chief executive officer, 
stated that the beneficiary "is an incredible drummer" who will "fill a much needed gap in 
[the petitioner's] production office." He states that the petitioner composes music for film,· 
television and corporate branding." He states that the petitioner intends "to record at least 30 new 
songs with [the beneficiary] over the next three years ... for film and television distribution."' 
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(o)(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 ptizes. 
Counsel asserts that the petitioner has submitted evidence that the beneficiary has been nominated for or 
has been the recipient of, significant national or international awards or ·prizes in the field. Counsel 
submits documentary evidence that the beneficiary attended from 1998 to 
2005, which school is ·self-described as "Australia's ·world-Renowned Drum & Percussion 
Headquarters." However, the petitioner has not submitted evidence that being granted admission to this 
school constitutes an award or prize, under the plain language requirements of this criterion. 
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rm1nsP.I "tatP." that at aPe 12 the heneficiarv was chosen to perform with the 
which counsel describes as "Australia's largest 
drumming . event" However, the petitioner has not submitted documentary evidence of the 
beneficiary's participation in this event. Without documentary evidence to support the claim, . the 
assertions of counsel will not satisfy the petitioner's burden of proof. The unsupport~d assertions of 
counsel do not constitute evidence. Matter ofObaigbima, 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 (BlA 1980). 
Counsel has submitted evidence that the beneficiary ~mpeted at the 
held in Melbourne, Australia. The petitioner 
has not submitted evidence that the petitioner won 
an award or prize at this competition, to satisfy the plain language requirements of this criterion. 
Further, the petitioner submitted docuinentarv evidence that at age 15 the beneficiarY, along with his 
former band, finished in first place in competlt1on 
in Melbourne, Australia, which counsel describes as a national competition. The benehcmry received 
an engraved plaque and professional recording time. The petitioner did not claim that this award 
. nomination was comparable to a Grammy award nomination . . 
We agree with the director's finding that the evidence submitted doe!) not establish the beneficiary's 
eligibility under 8 C.F.R. § 214.2(o)(3)(iv)(A). Therefore, the petitioner must establi~h the 
beneficiary's eligibility under at least three of the six criteria set forth at 8 C.F.R. §214.2(o)(3)(iv)(B). 
The petitioner claims 
that the beneficiary meets the following criteria: 
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; 
The evidence of record indicates that the beneficiary has been a drummer for touring bands 
including ______ _ - ·c:r·.~ , The petitioner has 
provided posters, press releases and articles regarding events at which the petitioner asserts the 
beneficiary has appeared with various bands in Australia. None of the posters specifically mention 
the beneficiary by ~arne. Two press releases from local Australian newspapers briefly mention the 
beneficiary's drumming in an upcoming show with and in a recent show with 
respectively. A third article titled published 2004 in 
a local Australian oaoer the states that the beneficiary and his former band will compete 
in the competition This evidence fails to establish that the 
beneficiary performed services in a lead or starring rok il) those productions or events. 
Although counsel · has also submitted a list of additional Websites and publications in which counsel 
contends the beneficiary is mentioned, .counsel has not submitted copies of the materials mentioning the 
beneficiary. As stated 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 
1 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this decision. 
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i . 
not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter u( 
Laureano,' 19 I&N Dec. 1 (BIA 1983); Afatter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BLA 
1980). · I 
I . I 
In addition, the petitioner has not submitted critical reviews, advertisements, publicity releases, 
publications or other evidence to establish t~at the events themselves have a distinguished reputation, as 
required pursuant to the plain language of the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l). As 
described above, the posters, press releases! and articles regarding events at which the beneficiary has 
perf~rm~d do not establish that the bands' jliv.e shows have distinguished reputations among industry 
publicatiOns that cover the bands' genre of music. · 
I . 
Further, in order to meet this criterion, the lpetitioner must establish that the beneficiary will perform 
services as a lead or starring participant in P,roductions or events which have a distinguished reputation 
. upon approval of the petition. The eviden&: of record indicates that if the requested classification is 
granted · the beneficiary, as drummer, sh~ll record at least three records for film and television 
distribution. The evidence submitted by theJpetitioner also indicates that the beneficiary intends to form 
a new band, (also referred to in the record as to include the beneficiary as 
drummer, · and rhythni and lead guitarists !who have worked with · 
respectively. The .Petitioner has also submitted a three-year performance schedule showing the 
beneficiary will be touring with the new band, but the schedule does not list specific performance 
venues. The petitioner has not submittbd · critical reviews, advertisements, publicity releases, 
publications or other evidence to establish the identity of any. upcoming events at which the beneficiary 
will perform, or to establish that the even~s themselves have a distinguished reputation, as required 
pursuant to the plain language of the regul
1
ation at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l). Therefore, the 
petitioner has offered no information regarding the beneficiary performing services as a leading or 
starring participant in any upcoming even.ts br productions. 
In sum, the petitioner has neither identifiL nor documented, through submission of the evidence 
prescribed by regulation, the beneficiary's p~evious or forthcoming lead or starring role in events with a 
distinguished reputation. Therefore, the AAO agrees . with the director that the petitioner has not 
established that the beneficiary meets the criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(1). I . 
Evidence that the alien has ~c~ieved national or international recogmtwn for 
achievements evidenced by critical r~iews or other published materials by or abmit the 
individual in major newspapers, trade journals, magazines, or other publications 
The plain language of the regulation at 81C.F.R. § 214.2(o)(3)(iv)(B)(2) requires the petitioner to 
demonstrate that the beneficiary has achieved natibnal or international recognition for achievements 
through submission of critical reviews or other published materials by or about the individual in major 
newspape.rs, 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 
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New York Times, nomimilly serve a particular locality but would qualify as major media because of 
significant national distribution, unlike small local community papers.Z 
The director determined that the petitioner failed to submit any published materials about the 
beneficiary from major newspapers, trade journals, magazines or other publications. As stated 
·above, the beneficiary was mentioned casually in ·some articles as a member of the bands China 
Angels and Sebasrockets, but that evidence is insufficient to establish~ that he has received national 
or international recognition as a drummer. In addition, the petitioner has not submitted any 
published artide in which the beneficiary is quoted · extensively, as opposed to being merely 
mentioned in passing. 3 
On appeal, counsel asserts: 
... [the beneficiary] is nationally famous in Australia as a drummer and comooser 
and has toured with three most famous rock bands in Australia: 
Massive number (sic) of posters supportmg these 
tours and performances were previously submitted ... With drummers rarely 
reviewed or critiqued in the newspapers or radio or internet, these (sic) supporting 
evidence would indicate ·the fame and distinction that [the] be~eficiary has achieved 
in the rock band world, especially at a very young age ... The media coverage in the 
radio and internet has a broader dissemination area than Sydney, Australia's daily 
newspaper, thus, [the] beneficiary's reputation has reached international stature. 
The petitioner has not submitted any published materials that are specifically "about" the beneficiary 
·as an individual, despite counsel's claims that the beneficiary's talent has earned him national and 
international fame and distinction. Counsel refers to the beneficiary's early individual achievements 
stating that he is a "child prodigy drummer," and refers to his current achievements stating "only a · 
few drummers earn this reputation and achieve this level of talent, skill and competence." However, 
the record remains devoid of any such individual achievements or any evidence to support the 
statements made above. As previously stated, 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 1 988); 
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. ·1sg, 
2 Even with nationally-circulated newspapers, consideration must be given to the placement ,of the article. Fm 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 . . , 
3 On appeal the petitioner has submitted articles concerning the beneficiary published after the date of filing this petition. 
In these articles, the beneficiary is quoted extensively. However, 1 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 ur 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 l&N Dec . 248 (Reg. Comm'r 
1978). Regardless, the articles, generally, consist of interviews with the beneficiary regarding his musical inlluences and 
his upcoming DVD "Stage Presence." While the articles 
are complementary of the beneficiary, they fail to recognize the 
beneficiary's individual achievements as a musician or the national and international recognition he received for such 
achievements. 
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. . . 
. 165 (Comm'r 1998) (Citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r. 
1972)): 
On the Form I-290B, notice of appeal, counsel further states: 
When there is a review of the band (sic) performance, the musical critics do nui 
mention the drummer but the band as a whole (rarely does a drummer is (sic) . 
mentioned in a music critique or newspaper publications.) Thus , this does not per 
se exist in writing. 
In lig~t of counsel's claims regarding the beneficiary's individual reputation, counsel's assertion that 
it is rare, if not impossible, for a drummer to gain individual recognition or attention based .on his or 
her own abilities and achievements is simply not credible. There are entire magazines and websites 
devoted to drumming and drummers · which feature musicians who, like the beneficiary, play in 
bands. 
Upon review, the AAO agrees with the director's determination that the petitioner has not submiited 
evidence that meets the plain language ofthe evidentiary criterion at 8 C.F.R. 214.2(o)(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 petitioner has failed to establish that the beneficiary has performed a 
critical role for an organization that has a distinguished reputation as a drummer for bands such as 
As stated above, the beneficiar has been a drummer for touring bands including 
• The petitioner has provided posters, pn:ss 
releases and articles regarding events at which the petitioner asserts the beneficiary has appeared with 
various bands in Australia. None of the posters specifically mention the beneficiary by name. Two 
press releases from . local Australian newspapers briefly mention the benefici 's drumming in an 
upcoming show with aQd in a recent show with 
respective} . A third article titled, published 2004 in a local Australian paper 
the c;:t~tpc;: th~t thP ~>n~>ficiary and his former band will compete in the 
competitiOn· This evidence fails to establishthat the beneficiary performed 
services in a lead or starring role for these organizations. 
Further, the petitioner has not submitted evidence that any of the bands with which he has performed 
been featured in nationai or international music publications or are in demand for national or and 
international tours. As noted by the director, although the record shows that was listed 
under the "NewAustralian Releases" category of Australia's Aria chart (2004), the chart lists only the 
band's name and its album release date, and is, thus, not indicative of the band's achievements. 
Therefore, the evidence of record is sufficient to establish that the bands with which the beneficiary has 
performed enjoy a distinguished reputation in the music industry. · · 
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Moreover, the petitioner has not establi~hed that the beneficiary will perform in a lead, starring or 
critical role for an organization or establishment that has· a distinguished reputation under the approved 
petition. · 
In support of counsel's' assertion that the petitioner is a very reputable music producer, counsel 
submits the following: 
• The support letter of the petitioner's chief executive officer, 
that the petitioner is represented · by the . 
stating 
• A document from the 
the petition, 
and, 
website showing that, between 1979 and the date of filing 
received the 
• An online Internet Movie Database (IMDb) printout fm The printout, 
in the fohn of .resume, shows that he has worked as a music composer and 
graphic designer for multiple television productions. However, information submitted by 
the petitioner about IMDb states that in 2006, "IMDb · introduced its 'Resume 
subscription service', where actors and crew can post their own resume and upload 
photos of themselves for a yearly fee.'' As there are no assurances about the reliability . of 
the content from this open, user.-edited Internet site, the AAO will not assign weight to 
information from IMDb. 
However, the petitioner has not submitted doc11;mentary evidence, in the form of articles in 
newspapers, trade journals or publications, in support of its claim · that its organization has a 
distinguished reputation in the field. 
Moreover, the petitioner has not established that the beneficiary will oerform in a lead, starring or 
critical role for the petitioner. As stated above, in the support letter states that the 
beneficiary "is an incredible drummer" who will "fill a much needed gap in [the petitioner 's] production 
office." He states that the petitioner composes music 
"for film, television and corporate branding .~' He 
states that the petitioner intends "to record at least 30 new songs with [the beneficiary] over the next 
three years ... for film and television distribution." He states that he finds the beneficiary to be "a 
valuable asset to my music catalog, and the future of my company." The AAO agrees with the director 
that the petitioner has not articulated or documented how the beneficiary will serve in a lead, starring or 
critical role. Furthermore, the plain language of the regulations requires the submission of evidence in 
the form of published articles or testimonials in support of this criterion. Although the petitioner has 
submitted testimonial evidence, none of the testimonials establish that the beneficiary will perform a 
lead, starring or critical role within the petitioner's business, upon approval of the petition. 
Based on the foregoing, the AAO concurs with the director that the submitted evidence does not satisfy 
the criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3). 
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Evidence that the alien has. received significant recognition. for achievements /rom 
organizations, critics, government agencies, or ·other recogn~ed experts in the field in 
which the alien is engaged. Such testimonials must be in a form which clearly indica res 
the author's authority, expertise, and knowledge of the alien'sathievements; 
The petitioner has provided a totai of eight testimoniai letters in support of the petition, seven from 
tlie beneficiary's immediate circle of mentors, colleagues and collaborators. For the reasons 
discussed below, the letters do not satisfy the plain language of the regulatory criterion at 8 * C.F.R. 
214.2(o)(3)(iv)(B)(5). 
The petitioner submitted a letter from the beneficiary's former instructor at the 
states that he trained the beneficiary "at intervals over the II 
years that I have known bini." He acknowledges the beneficiary's talent as a student drummer. He 
states that he has seen the beneficiary perform many times, both in original projects and projects 
with bands and with ensembles, and states that the beneficiary "is certainlv one of the very best 
drummers & his abilities ·are most certainly world class.'' However, falls. to specify the · 
beneficiary's achievements. 
The petitioner. submitted a letter from , 
a band member with He states 
that during the band's second national tour they hired the beneficiary to replace their original 
drummer, and the band was impressed with the beneficiary's ability to learn the various elements of 
the band's live· show. He states the beneficiary was also a great· success after their tour, as their 
session drummer for "pre-production for [the band's] next release." He states that during the time , 
that the beneficiary was with the band he "worked very hard on all aspects of his performance ." Mr .. 
Mahar fails to specifically describe the beneficiary's achievements in factual terms. 
The netitinnn nrmiiclecl ::1 letter from 
states that he has used the beneficiary many times as a session drummer, 
and that the beneficiary makes "the music for other artist (sic) or clients come alive and 
make it feel 
like I wanted it to feel." He states . the beneficiary's musicianship is always great, and that the 
beneficiary is a professional. 
The petitioner has also provided a letter from a production designer for film and 
television in Los Angeles. He states that over the years ne nas worked art-directing over 250 music 
videos for many rock music artists. He states "overthe last few months I have had the priviJCge 
getting to know the beneficiary on apersonal and professional level." He states that he considers the 
beneficiary to be "one of the rising stars in the ·curr~nt music industry'~ and that the beneficiary has 
"extraordinary drumming ability" and "a unique style of playing." 
The petitioner has submitted a letter from an artist manager witl 
in Los Angeles, who states that the beneficiary 'is a naturally talented drummer with 
the skill and drive to take the U.S. music industry by storm." He states, ~'after viewing his drumming 
promo and getting to know [the beneficiary] ori a personal and professional level" he would 
recommend him to any of the bands he manages. 
r 
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As noted above, the regulation at 8 C.F.R. § 214.2(o)(2)(iii)(B) requires that affidavits written by 
recognized experts "shall specifically describe the alien's recognition and ability or achievement in 
factual .ferms and set forth the expertise of the affiant imd the manner in which the affiant acquired such 
information." The"letters of fail to establish the 
witnesses' credentials as recognized experts and fail to specifically describe the beneficiary's 
achievements in factual terms. Moreover, ll :til to explain the manner in 
which they acquired information about the beneficiary. 
The petitioner submitted a letter from . , a freelance band manager in Australia who 
states she first met the beneficiary when he was hired as a replacement and session drummer in a 
band that she was managing in Melbourne. She states the beneficiary "fulfilled the bands headlining 
interstate tours and radio commitments.'"' She states 'that her team found the beneficiary to be "more 
creative and professional than we ever expected." fails to specifically describe the 
beneficiary's achievements in factual terms. 
The petitioner has provided a letter from a professional rimsician/guitarist. He states that 
the beneficiary is "one of the very best young drummers and musicians in the country," and that the 
beneficiary's "exceptional abilities certainly deserve to be called 'Extraordinary;." He states he 
auditioned the beneficiary for a new recording and pe'rforming band he was forming and the beneficiary 
exceeded his expectations. He states the beneficiary's drumming promo was "one of the best I've 
seen.'' He states that the beneficiary's drumming rehearsals "perfectly accompanied the songs, and his 
ability and depth of playing greatly enhanced .the music," receiving high praise from the hand's 
management and investor. He states that the beneficiary is·one of the best young talents in the country. 
does not specifically identify the beneficiary's achievements and the significant 
recognition he has received for those achievements iri the field. 
Finally, the petitioner submitted a letter from a ~usiness development. manager with the 
____ ___. in Los Angeles who stated: 
[The beneficiary] is truly ail exceptional musical talent. By achieving worldwide 
notoriety through his live performances and online videos, [the beneficiary) has 
reached a very high level of achievement ... [The beneficiary's very high level of 
achievement is] reflected by the tremendous public reaction to and demand for hi.s 
music and professional services. A ·percussionist of remarkable talent, acclaim, 
experience and energy; [the beneficiary] has collaborated with a wide range of major 
recording artist (sic) and events over his years of professional work and has proven tci 
be a unique force in Australian music ... [The beneficiary] has been a leader in the 
Australian music industry for several years, I am .confjdent that his exceptional talent 
will only enhance the already considerable demand for him in the· USA. · 
As noted above, the regulation at 8 C.F.R. § 214.2(o)(2)(iii)(B) requires that affidavits writLen by 
recognized experts "shall specifically describe tlie alien's recognition and ability or achievement in 
4 It appears the band is referring to is the as her letter describes first meeting the hcncficiary in 
a manner similar to that described by , above, using similar language. 
(b)(6)
·. 
Page 13 
factual terms and set forth the expertise of the affiant and the manner in which the affiant acquired such 
information." letter fails to explain the manner in which he acquired information about the 
beneficiary. In addition, the letter consists of general assertions regarding the beneficiary's international 
acclaim and renown, but fails to detail the beneficiary' specific achievements in factual terms. 
Furthermore, the letter does clearly indicate authority, expertise and knowledge of such 
· achievements. 
As. a matter of discretion, USCIS may accept expert opinion testimony.5 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. 
/d.; 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."'). · 
The director detennined that the beneficiary met his criterion, without discussion. The AAO 
disagrees with the director's determination. 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 
ac~ievements. i~ the field. Merely repeating the language of the statute or regulations does not 
sattsfy the petitioner 's burden of proof . . _ . · 
In light of the above, the petitioner has not submitted qualifying evidence that meet the plain 
language ofthe regulation at 8 C.F.R. § 214.2(o)(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 
As evidence the beneficiary has commanded a high salary in the past, the petitioner submitted a letter 
from the CEO of the · confirming the beneficiary was paid $5,000 plus GST 
' I 
Letters may generally be divided . into two types of iestimonial evidence: expert opinion evidence and written 
testimonial evidence. Opinion testimony is based on one 's well-qualified belief or idea, rather than direct knowledge t1f 
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. /d. (defining "written testimony"); see also id at 1514 (defining "affirmative testimon y"). 
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 o.f corroborative testimonial 
and documentary evidence, where available." /d. If testimonial evidence lacks specific:ity, detail, or credibility, there is a 
~realer need for the petitioner to submit corroborative evidence. Matter ofY-B- , 21 I&N Dec: 1136 (BIA 1998). 
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). · 
(b)(6)
.,. ,, . 
Page 14 
(Goods and Services Tax) for his performance at the event. On appeal; the petitioner has also submitted 
the following: 
• An Artist Performance Contract between the beneficiary and listing performance 
dates in February 2008, and stating that the beneficiary will be paid "$2,000 at the conclusion of 
each event at which the artist has actually performed." The petitioner has not submitted 
evidence of the beneficiary's actual earnings, if any, paid pursuant to this contract. 
• Undated bank account statements, the owner of which accounts are unidentified, showing a total 
of $200 credited to _the beneficiary. 
• A copy of a 2008 Band Contract between the stating 
payment terms; The petitioner has not submitted evidence of the beneficiary's actual earnings; if 
any, paid pursuant to this contract. · · 
• Copies of several of the beneficiary's compositions for use in television and film productions 
and for "educational purposes." The petitioner has not submitted evidence of the beneficiary's 
actual earnings, if any, from the use of these compositions. . · · 
• Counsel refers to past merchandise sold at concerts at which the beneficiary performed, as well 
. as the beneficiary's which counsel states has been selling on the internet 
The petitioner has not submitted evidence of the beneficiary's actual earnings, if any, paid as 
proceeds of the 'sale of these items. Counsel also refers to the beneficiary having been paid to 
endorse a clothing brand, hair and beauty products, however, counsel has not submitted 
evidence of the beneficiary's actual earnings, if any, from these endorsements. 
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 (BlA 1983); 
Matter ofRamirez-Sanchez, 17 I&N Dec. 503,506 (BIA 1980).7 . 
I 
Upon review of the submitted evidence, the AAO. finds that, other than ·proof of having earned $5,000 
in 2009, the petitioner has provided no corroborating evidence as to how much the beneficiary has 
earned in·the past from performances, sales, royaities, merchandise or other revenue streams. Therefore, 
based on the evidence submitted the petitioner failed to establish that the beneficiary's_past earnings as 
a drummer were considered high or substantial in relation to others in the field. 
The petitioner has submitted a copy of its agreement with beneficiary, but, as noted by the director, 
. the petitioner 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, which pertains to "future musical compositions to be composed by both parties," 
indicates that the beneficiary would receive: (1) $1,500 dollars per week; (2) 50% of net publishing 
receipts, less deductions for enumerated expenses; (3) 50% of net earnings from royalties· from 
recordings; (4) 25% of gross earnings from live perf<?rmances with invested projects; 
7 On appeal counsel states she has submitted a copy of touring performance contrm:t dated July J 2, 
2009, however, the record of proceeding does not contam thts document. 
(b)(6)
Page 15 
and (5) 20% of gross eaniings from touring performan<:es with irivested projects. 8 . Thus, rhe 
petitioner has offered the beneficiary an annual salaryof $78,000, plus other compensation. The 
AAO notes that the beneficiary's annual salary converts to $37.50 per hour. 
The petitioner has submitted salary information as of May 2009 for "Fine Artists, Including Painters, 
. Sculptors, and Illustrators" from the website of the U.S. Department of Labor, Bureau of Labor 
Statistics (BLS). According to the national BLS data, the 901h percentile annual ~age for fine artists in 
2009 was $86,650 or $41.66 per hour. However, this does , not appear to be the appropriate 
classification for the beneficiary's proffered position. The more appropriate classification would 
appear to be "Musicians, Singers and Related Workers." According to the national BLS data, as of May 
2010, the middle 50 percent of musicians and singers in the United States eafued between $12.94 and 
$39.54, while the top 10 percent earned more than $60.02 per hour. If the petitioner establishes through 
the submission of corroborating evidence that under the proffered contract the beneficiary will earned 
significantly more than the top 10 percent of musicians and singers in the United States, then this 
criterion would be met. Based on this information, the. petitioner has not established that the 
beneficiary's offered wage of$37.50 per hour can be considered a "high salaryw compared to others in 
his field. The salary offered could be characterized as average compared to typical working musicians 
and singers. Therefore, the director correctly determined based on the evidence submitted that · the 
petitioner failed to establish that the beneficiary's earnings under the proposed agreement with the 
petitioner, including other compensation, are considered high or substantial in relation to other 
musicia.ns in the field. 
On appeal, the petitioner attempts to overcome the director's finding by submitting evidence rel~tted 
to earnings from two of the beneficiary's projects. The petitioner al~o submits evidence that the 
beneficiary has secured an investor. · 
The 
petitioner submitted an additional letter from _ a research student at the 
stating that a DVD he co-created with the beneficiary 
titled a will be shown ai 
two venues in 2011. The petitioner also submitted an agreement between and 
the heneficiarv. statim! that the beneficiary would be paid $5000 to be a drummer in the 
The petitioner further submitted an undated letter from 
associated with the band stating that the band recently employed the 
beneficiary as its drummer, ana confirming that the band will play a two-week position at the 
in Los Angeles and that "[the beneficiary's] usual fee of $2,000 will be met depending on the 
caliber of the performance;" Finally, the petitioner has submitted an Investor Agreement between 
the beneficiary and investor wherein agrees to pay the beneficiary $50,000 as 
"an investment in his/her career," in return for receiving a percentage of the beneficiary's profits. 
8 The petitioner also submitted a Perfonnance Schedule, which includes lists of cities arid states for concert tours and includes 
the statement, "Proposed cities and states for North American Tour 2011. Dates and Route TBC [to be confirmcdj. The 
Perfonnance Schedule also provides a list of venues and a statement that the beneficiary may perform at music venues similar 
to those listed. [Emphasis added.] The AAO agrees with the director that the petitioner's estimate of the benelicia1y's 
earnings from live and touring performances has not been substantiated because the petitioner has not submillcd cvidcm.:c·of 
contracted shows or concerts. · 
(b)(6)
Page 16 
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. Tlie petitioner \has not submitted any 
documentary evidence of the beneficiary's earnings, such as Australian tax forms, ·checks or other 
reliable evidence showing the benefi~iary's actual earnings for any specific period of time. Again, 
we emphasize that, without documentary evidence to support the daim, 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). In 
addition, 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 l&N Dec. 158, 165 (Comm'r 
1998) (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm'r 1972)). 
While the petitioner and counsel have submitted unsupported claims that the beneficiary's weekly 
earnings and anticipated royalties, along with future merchandise sales establish the beneficiary will 
receive high remuneration in relation to others in his field, the AAO agrees with the director that the 
petitioner has provided no substantiated estimates of how much the beneficiary 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 drummer for the petitioner are considered high or 
substantial in relation to others in the . field. In light of the above, the petitioner has not submitted 
evidence to satisfy this criterion. · 
B. 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(o)(3)(iv)(A) and (B). · 
III. Conclusion ... 
The documentation submitted in support of a claim of extraordinary ability in the field of arts must 
clearly establish that the beneficiary is prominent to the extent that he could be considered renowned, 
leading orwell-known in his field. 
Had the petitioner submitted the requisite evidence under at ieast three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a consideration of the evidence· in the 
context of a final merits determination. However, as discussed above, the petitioner failed to establish 
eligibility under any ·of the criteria found under the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(B). The 
AAO will not conduct a final merits determination. 
(b)(6)
Page 17 
For the above-st~te~ reasons, the petitioner has. not established ~e. beneficiary's eligibility ~ursuarlt t,o 
the regulatorycntena at 8 C.F.R. § 214.2(o)(3)(tv)(B), al).d 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 .. 
9The AAO maintains de novo review. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). In any future proceetling on 
motion or as a result of litigation, the AAO maintains the jurisdiction to conduct a final merits determination as the 
official who made the lastdecision iii 'this matter. 8 C.F.R. §)03.5(a)(l)(ii). See also Section l03(a)(1) of the Act; 
Section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003);.8 C.F.R. § 2.1 (2003); 8 C.F.R. * 
103.l(f)(3)(iii)(2003); Matter of Aurelio, 19 I & N Dec. 458, 460 (BIA 1987)(holding that legacy INS, now USCIS, is 
the sole authority with the jurisdiction to decide visa petitions). ·