dismissed O-1B Case: Music

(b)(6)
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr ation Services 
Administrativ e Appeals Offi ce (AAO ) 
20 Massachusetts Ave. , N.W ., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE : SEP 0 9 2013 Office: CALIFORNIA SERVICE CENTER FILE: 
INRE : Petitioner: 
Beneficiary: 
PETITION: Petition for a 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 plea
se find the decision of the Administrative Appeals Offic e (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to prese nt new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http ://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Tha 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa pettllon and the 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner, an artist management and production company, filed this nonimmigrant petition seeking to 
classify the beneficiary pursuant to section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the 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 reggae/dance hall music recording artist for a period of five years. 1 
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(o)(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(o)(3)(iv)(A) or (B).2 
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 asserts that the petitioner has established the beneficiary's 
eligibility under all six of the evidentiary criteria. In addition, counsel asserts that new evidence submitted on 
appeal establishes "the beneficiary 's distinction in his field and occupation, and a degree of skill and recognition 
substantially above that ordinarily encountered ... in the art of dance hall." Counsel submits a brief and 
documentary evidence in support of the appeal. 
I. TheLaw 
Section 101(a)(15)(0)(i) of the Act provides classification to a qualified alien who has extraordinary ability in the 
sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international 
acclaim, whose achievements have been recognized in the field through extensive documentation, and who seeks 
to enter the United States to continue work in the area of extraordinary ability. 
The regulation at 8 C.F.R. § 214.2( o )(3)(ii) defines , in pertinent part: 
1 Pursuant to 8 C.F.R. § 214.2(o)(6)(iii)(A), an approved petition for an alien classified under section 
101(a)(15)(0)(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. 
2 
The director also determined, as set forth in the request for evidence (RFE), that the petition was untimely filed, 
since it was filed after expiration of the beneficiary's period of previously authorized status as a B-2 
nonimmigrant. A beneficiary who is out of status at the time of filing is ineligible for the requested change of 
status and extension of stay. The regulations at 8 C.F.R. § 214.1(c)(4) provide that an extension of stay may not 
be approved for an applicant who failed to maintain the previously accorded status or where such status expired 
before the application or petition was filed, except that failure to file before the period of previously authorized 
status expired may be excused in the discretion of the Service. The petitioner provided an explanation for filing 
the petition approximately six days late, and the director chose to exercise this discretion. 
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NON-PRECEDENT DECISION 
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.P.R.§ 214.2(o)(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 
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NON-PRECEDENT DECISION 
the field in which the alien is engaged. Such testimonials must be in a form 
which clearly indicates the author's authority, expertise, and knowledge of the 
alien's achievements; or 
(6) Evidence that the alien has either commanded a high salary or will command a 
high salary or other substantial remuneration for services in relation to others in 
the field, as evidenced by contracts or other reliable evidence; or 
(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. 
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 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, 
1994)(Final Rule) . 
In determining the beneficiary's eligibility under these criteria, the AAO will follow a two-part approach set forth 
in a 2010 decision issued by the U.S. Court of Appeals for the Ninth Circuit. Kazarian v. 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 ." Jd 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 
(b)(6) NON-PRECEDENT DECISION 
Page 5 
evidence, "the proper conclusion is that the applicant has failed to satisfy the regulatory requirement of three types 
of evide nce (as the AAO concluded)." !d. at 1122 (citing to 8 C.F.R. § 204.5(h)(3)). Thus , Kazarian sets forth a 
two-part approach where the evide nce is first counted and then, if qualifyi ng under at least three criteria , 
considered in the context of a merits determination. 
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(o)(3)(iii), (iv) and (v). 
Therefore, in reviewi ng Service Center decisions, the AAO will apply the test set forth in Kazarian. As the AAO 
maintains de novo review, the AAO will conduct a new analysis if the director reached his or her conclusion by 
using a one-step analysis rather than the two-step analysis dictated by the Kazarian court. See Soltan e 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 will review the evidence under the plain language requirements of each criterion claimed. 
As the petition er has failed to submit evidence that satisfies three of the evidenti ary 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 petitioner filed the Form I-129, Petition for a Nonimmigrant Work er, and supporting document ation on 
October 1, 2012. The director iss ued a request for additional evidence (RFE) on Octob er 16, 2012, to which 
the petitioner replied on Janu ary 11, 2013. The AAO has considered the evidence of record in its entirety in 
reaching its decisi on. 
In a short biography submitted at filing, the beneficiary is described as a performer of "da ncehall " music, "a 
high tempo deriv ative of reggae ." The beneficiary is further described as having "achieved success in Jamaica 
and abroad in the U.S. and Europe." The beneficiary is stated as having released his first single, 
_ . and his first album, in 2009, after launching a "new indie island music company" 
named ' ."The record also reveals the beneficiary released an additional album , 
In a document titled " ' 
submitted in support of the petition the petitioner stated that it 
"requires our recording artist , , to complete five (5) albums within a seven (7) year period . .. The 
Completion of these albums MUST be acquir ed by October 15, 2014 ... The albums will be recorded at ... 
Florida." The itinerary also contains a six-month studio recording 
schedule. The petitioner further stated that the completion of the five albums "wo uld in h1rn prepare [the 
beneficiary] for shows in the U.S." An "Exc lusive Recording Agreement " also submitted in support of the 
petition further descri bes the proffered employment. In respo nse to the RFE, the petitioner submitted a three­
year itinerary of the beneficiary's "performances, recordin g and promotional dates " including events in the 
United States , Trinidad & Tobago, Barbado s, Grenada, Virgin Islands and Jamaica. 
A. The Evidentiary Criteria 
The first 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(o)(3)(iv)(A), or at least three of the six criteria set forth at 
(b)(6) NON-PRECEDENT DECISION 
Page 6 
8 C.F.R. § 214.2(o)(3)(iv)(B). 
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 prizes. 
The petitioner did not claim that the benefici ary is eligible for this classification based on his nomination for or 
receipt of a Grammy award or comparable award in his field, 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(o)(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.P.R. § 214.2(o )(3)(iv)(B). Counsel has asserted the beneficiary's eligibility under each of 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 
The evidence of record indicates that the beneficiary has been a dancehall/reggae music performer. The 
petitioner has provided posters and articles regarding events at which the beneficiary has performed in 
Jamaica, Ethiopia and the United States. The posters specifically mention the beneficiary by name, either as the 
solo artist or as one of many performers at the event. Two articles dated in 2004 on the websites 
and describe the beneficiary as "fas t-rising " and "up-and-
coming." A third article dated September!, 2005 on the website lists the beneficiary as 
one of many performers at a concert at Jamaica College. 
Upon review , although the AAO finds that the evidence establishes that the beneficiary has performed in a 
lead or starring role for productions or events, the AAO agrees with the director 's determination that the 
petitioner has not submitted critical reviews, advertisements, publicity releases, publications or other evidence 
to establish that 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 and articles 
regarding events at which the beneficiary has performed do not establish that the live shows have 
distinguished reputations among industry publications that cover the beneficiary's genre of music. 
Further, in order to meet this criterion, the petitioner must establish that the beneficiary will perform services as a 
lead or starring participant in productions or events which have a distinguished reputation upon approval of the 
petition. The evidence of record indicates that if the requested classification is granted the benefici ary as a 
dancehall/reggae music performer shall record at least five albums for the petitioner. The evidence submitted by 
the petitioner indicates that the recording of the five albums "would in turn prepare [the beneficiary] for shows in 
the U.S." The petitioner has also submitted a six-month studio recording schedule and a three-year " itinerary of 
performances , recording and promotional dates." The petitioner has not submitted critical reviews, 
(b)(6) NON-PRECEDENT DECISION 
Page 7 
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 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). Therefore, the 
petitioner has offered no information regarding the beneficiary performing services as a leading or starring 
participant in any upcoming events or productions. 
In sum, the petitioner has neither identified nor documented, through submission of the evidence prescribed by 
regulation, the beneficiary's previous 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)(l). 
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(o)(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? 
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 evidence 
submitted is insufficient to establish that the beneficiary has received national or international recognition as a 
dancehall/reggae music performer. 
On appeal, counsel asserts: 
The petitioner did submit reviews and published materials about the beneficiary in 
newspapers and journals intrinsically linked to the field. The beneficiary is involved in the 
Dancehall industry, and has been written about and worked extensively since 2003. 
* * * 
The evidence submitted demonstrates the beneficiary 's distinction in his field and occupation, 
and a degree of skill and recognition substantially above that ordinarily encountered, as 
3 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, Virgini a, for instance, cannot serve to spread an individual's reputation outside of that county . 
(b)(6)
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NON-PRECEDENTDECISION 
required by the statute and regulation. The beneficiary is prominent in his occupation, as he 
is renowned, leading or well known in his field of arts. The director's conclusion that the 
petitioner did not establish the beneficiary's qualification for classification was erroneous 
based on the evidence submitted. The petitioner demonstrated the beneficiary 's extraordinary 
ability in the art of dancehall. 
Upon review, the AAO agrees with the director's determination that the petitioner has not submitted evidence 
to satisfy this criterion. The record remains devoid of 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); Matt er 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)). 
The record contains two articles in which the beneficiary is mentioned in passing: an article dated September 
1, 2005 titled ' on the website tnd an article dated March 
7, 2003 titled on the website 
In addition, the petitioner has submitted several published articles which are about the beneficiary as follows: 
an article dated August 27, 2002, when the beneficiary was 17 years old, in 
an article dated 2004 titled ' on the website 
and an undated article titled published on the website 
In the articles the beneficiary is quoted extensively and not merely mentioned in 
passing. The articles consist of summaries of interviews with the beneficiary regarding his musical influences 
and interests. The authors of the articles speak positively of the beneficiary's performances and songs, 
referring to him as an "up-and-coming artist ," "one of the fastest-rising deejays," and "the young artiste" 
who "has been performing at youth events such as socials, a few high school barbecues and fetes , 
and functions at the " However , the articles fail to recognize the beneficiary's 
individual achievements as a songwriter or performer or the national and internation al 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.P.R. 214.2(o)(3)(iv)(B)(2). 
In addition, the petitioner has not established that the publications which published articles about the beneficiary 
have a significant national or international distribution or otherwise qualify as "major" online magazines or 
newspapers. The record contains an additional article titled ' which also mentions the 
beneficiary in passing. 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. 
Accordingly, the petitioner has not submitted evidence that meets the plain language of the evidentiary 
criterion at 8 C.P.R. 214.2(o)(3)(iv)(B)(2). 
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NON-PRECEDENT DECISION 
Evidence that the alien has perform ed, 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 determi ned that the petitioner has failed to establish that the beneficiary has performed a critical role 
for orga nizations and establishm ents that have a distinguished reputation. 
The petitioner has s ubmitted evidence that the beneficiary has performed with other management /production 
companies. The petitioner submitted a letter from the president of , a 
manage ment/production comp any in Kingston, Jamaica. The letter states the beneficiar y work ed with the 
company between 2003 and 2009 , during which time "the beneficiary proved to be a reliable hard worki ng and 
outstanding entertainer." ln addition , the letter states the benefic iary was featured in the followi ng shows: 
1. 
2. 
" .) . 
4. 
5. 
The petitioner submitted a letter from the manager of Kingst on, Jamaica stating that 
the beneficiary "wo rked at our studio" and that the beneficiar y is "an amazing talented songwriter and song 
performer " and "has an extraordinary ability as a songwriter, musician and Perfom1er. " 
The record cont ains a letter from a represent ative of , a production company m Kingston, 
Jamaica, stating that the beneficiary worked with the company for ten years during which time the beneficiary 
was "a professional , reliable and trustworthy artiste." The letter states the beneficiary "worked with 
" and the beneficiary "has also written songs for other artistes who we have worked with; he 
has also contributed in the production of several commercials we have produced for our clients." 
The record also contains a letter from the chief executive officer (CEO) of , a production 
company in Florida, stating that the beneficiary worked with the company for "over six years " durin g which time 
the company "produced and released over ten songs for [the beneficiary]." The letter described the benefic iary as 
"an extremely talented vocalist with a sound like no other" and "a great songwriter, arranger and produc er with a 
professional approach to his art." 
The petitioner also submitted several YouTube screen shots of the benefici ary as follows: 
1. A screen shot label ed as showing the beneficiary in Kingston , Jamaica in 2004, 
" 
2. A screen shot labeled as showing the beneficiary as a judge ' 
by international recording artists 
(b)(6) NON-PRECEDENT DECISION 
Page 10 
3. A screen shot labeled as showing the beneficiary "featured beat boxing 111 
'" 
4. A screen shot labeled as showing the beneficiary "featured 111 video 
The record also contains photographs labeled as showing the beneficiary "and Tsses 
and witt in Kingston , Jamaica." 
The petitioner also submitted a letter from the deputy director of East Palo Alto, 
California, stating that the beneficiary, "as a member of " served as a volunteer with the 
organization's . The letter states that the beneficiary "became one of 
the most memorable arts educators " in the seven-year history of the . The letter describes that from 
January 7, 2010 to June 12, 2011, students worked with the beneficiary "to write, record, produce and master a 
13-track album about ... and then performed live in front of over 900 community 
members at 11 different live performances." 
Similarly,the petitioner submitted screenshots from regarding and· 
to establish that these performers have a distinguished reputation. As there are no assurances about the reliability 
of the content from this open , user-edited Internet site, we will not assign weight to information from Wikipedia. 
See Laamilem Badasa v. Michael Mukasey, 540 F.3d 909 (81h Cir. 2008) .
4 
Nonetheless , the screenshots from 
Wikipedia reflect a biography of and .o establish that these performers have a 
distinguished reputation. Regardless, the evidence fails to establish that the beneficiary performed services in a 
lead or starring role for these performers. 
In addition, regarding the remaining organizations , the petitioner has not submitted evidence that any of the 
organizations with which the beneficiary has worked have been featured in national or international music 
publications. Therefore, the evidence of record is insufficient to establish that the organizations with which the 
beneficiary has worked enjoy a distinguished reputation in the music industry. 
4 See also the online content from http://en .wikipedia.org/wiki(Wikipedia : General c!isclaimcr, accessed on 
August 29, 2013, and copy incorporated into the record of proceeding is subject to the following general 
disclaimer: 
WIKIPEDIA MAKES NO GURANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone 
with an Internet connection to alter its content. Please be advised that nothing found here has 
necessarily been reviewed by people with the expertise required to provide you with complete, 
accurate or reliable information .... Wikipedia cannot guarantee the validity of the information 
found here. The content of any given article may recently have been changed, vandalized or 
altered by someone whose opinion does not correspond with the state of knowledge in the 
relevant fields. 
(b)(6) NON-PRECEDENT DECISION 
Page 11 
Further, the petitioner has not articulated or documented, on the basis of the submitted evidence, the beneficiary 
has performed in a lead , starring or critical role for these organizations. 
In addition, the director concluded that the evidence submitted was insufficient to establish that the beneficiary 
will perform simil ar critical roles for the petitioner or other management and production companies, or that the 
petitioner or the other companies have a distinguished reputation. Accordingly , the director concluded that the 
petitioner had not submitted evidence to satisfy the evidentiary criterion at 8 C.P.R. § 214.2(o)(3)(iv)(B)(J). We 
concur with the director's finding that the petitioner has not established 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. 
The petitioner has not submitted documentary evidence, in the form of articles in newspapers, trade journals 
or publications, to establish that its organization has a distinguished reputation in the field. 
Moreover, the petitioner has not established that the beneficiary will perform in a lead , starring or critical role 
for the petitioner. As stated above, in a document titled submitted in support of the 
petition the petitioner stated that it "requires our recording artist, to complete five (5) albums within a 
seven (7) year period ... The Completion of these albums MUST be acquired by October 15, 2014 . .. The 
albums will be recorded at. . . Florida." The itinerary also contains a 
six-month studio recording schedule. The petitioner further stated that the completion of the five albums 
"would in turn prepare [the beneficiary] for shows in the U.S." An "Exclusive Recording Agreement " also 
submitted in support of the petition further describes the proffered employment. In response to the RFE, the 
petitioner submitted a three-year itinerary of the beneficiary's "performances, recording and promotional 
dates " including events in the United States, Trinidad & Tobago, Barbados, Grenada , Virgin Islands and 
Jamaica. 
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 for the petitioner. 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 documentary evidence , none of the documents establish that the beneficiary will perform 
a lead, starring or critical role within the petitioner's business, upon approval of the petition. 
The petitioner has also submitted evidence to establish that the beneficiary will perform in a lead , starring or 
critical role for other organizations. 
The petitioner submitted a letter from the CEO of: _______ _j New York, stating in pertinent part: 
(The beneficiary] has been chosen as a featured performer to promote an upcoming 
album, scheduled for release on December 18, 2012. He would be needed to perform 
alongside one of the Company's main artist (sic), They are both members of 
the musical group, As part of the promotional tour he will be 
performing at several clubs and events throughout the North Eastern and Mid Atlantic 
United States. 
(b)(6) NON-PRECEDENT DECISION 
Page 12 
The record contains a letter from the CEO of a video production company, stating the company "has 
an interest in working with [the beneficiary] to shoot three music videos over a two year period." 
The record also contains another letter from the deputy director of East Palo Alto , 
California, stating that the organization is " interested in having [the beneficiary] continue to work with our 
by performing with our youth artists at key events throughout the upcoming years, 2013-
2016." 
The petitioner has also submitted several letters stating that in pertinent part as follows: 
1. That a U.S. festival organizer, would consider hiring the 
beneficiary for three specified annual events in 2013, 2014 and 2015 ; 
2. That , a U.S. festival organizer and/or promoter , would consider hiring 
the beneficiary for five specified annual events in 2013, 2014 and 2015; 
3. That a U.S. promotion company, would consider hiring the 
beneficiary for six specified annual events in 2013, 2014 and 2015; 
4. That a U.S. promotion company, would consider hiring the 
beneficiary for six specified annual events in 2013, 2014 and 2015; 
5. That a U.S. festival organizer and/or promoter would consider 
hiring 
the beneficiary for three specified annual events in 2013, 2014 and 2015. 
On appeal, the petitioner has submitted a letter stating that a U.S. 
artist development, event planning, and promotions company, "is willing to hire and produce performance and 
musical events for [the beneficiary] specifically during the period of March 2013 ending March 2015." The letter 
lists 13 proposed perform ance dates, and states"[ v ]enues and/or specific events to be determined at a later date." 
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 for these organizations. As stated above, 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 documentary evidence, none of the documents establish that the 
beneficiary will perform a lead, starring or critical role within these organizations, upon approval of the petition. 
Further, the petitioner has not submitted documentary evidence, in the form of articles in newspapers, trade 
journals or publications, to establish that these organizations have a distinguished reputation in the field. 
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)(J). 
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 
(b)(6)
Page 13 
NON-PRECEDENT DECISION 
picture or television ratings, and other occupational achievements reported in trade journals, 
major newspapers, or other publications 
The plain language of the regulation at 8 C.P.R.§ 214.2(o)(3)(iv)(B)(4) requires a record of major commercial or 
critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office 
receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, 
major newspapers , or other publications. In the beneficiary's field, evidence 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. 
On appeal counsel asserts as follows: 
(T]he petitioner 
included information in the evidence submitted about the beneficiary's 
original contributions in the form of tracks, and songs, including but not limited to 
collaborations and features, as well as solo performances on songs. In the music 
industry , success is gauged by working and collaborating with other successful artists, 
which the beneficiary has done. The service failed to take the evidence into account. 
However, the petitioner did not submit any documentary evidence in support of this claim. The petitioner 
submitted copies of the album covers of the beneficiary's albums and ' 
and an Amazon.com screen shot of the track listings for The petitioner provided a 
listing from the ) of songs the beneficiary is 
credited with writing or performing. The petitioner also submitted a listing of songs available for online 
purchase, performed by the beneficiary as a solo performer or with other artists . The record also contains 
YouTube screen shots of several of the beneficiary ' s music videos. 
However, the petitioner has not submitted evidence of the major commercial or critically acclaimed success 
of the beneficiary's work. 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. Matt er of Obaigbena, 19 I&N Dec. at 534); Matter ofRarnir ez-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 of Soffici , 22 I&N Dec. at 165 (citing Matter of Treasure Craft 
of California , 14 I&N Dec. 190 (Reg. Comm'r. 1972)). 
Based on the foregoing , the petitioner has not submitted evidence to satisfy the criterion at 8 C.F.R. § 
214.2( o )(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 ml/St be in a form which clearly indicates the author's 
authority, expertise, and knowledge of the alien's achievements; 
(b)(6) NON-PRECEDENT DECISION 
Page 14 
The petitioner has provided a total of four 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( o )(3)(iv)(B)(5). 
The petitioner provided a peer review letter from CEO 
Florida. stated: 
I have known [the beneficiary] for over 10 years and he is one remarkable recording 
artiste. I am currently looking forward in aiding [the beneficiary] with his upcoming 
album which is going to be marketed and promoted in the United States of America 
and Europe. [The beneficiary] is a very determined recording artiste who is very 
serious about his music career and has one of the greatest voices Reggae /Dancehall is 
yet to hear. I would definitely say that [the beneficiary] is of extra-ordinary talent ... 
The petitioner submitted a joint letter from 
musician/producer, both of 
• xecutive producer, and . 
n Kingston, Jamaica, who stated: 
[The beneficiary] is a remarkable songwriter, producer and performer. We have seen 
[the beneficiary] rise from a youth over the years, and he has consistently focused on 
his career to become a versatile and talented artist. He has developed into and found 
his own unique persona where he grabs the attention of listeners for expressing his 
messages , which all can relate to. 
The petitioner also submitted a letter from self-described as a " 
stated: --.---------
[The beneficiary] is an amazing recording artist in the Reggae/Dancehall music field. 
His voice is very unique and extraordinary. He is an excellent song writer and song 
performer. He is a hard working artist making major progress in the industry. I have 
been playing his music over 18 years now and whenever I play [the beneficiary's] 
songs anywhere in the world the response from the crowd is always excellent. 
Finally, the petitioner submitted a letter from 
stated: 
self-described as a ' 
I have been selecting/spinning music for over eight (8) years and believe me when I 
say that [the beneficiary] has an extraordinary ability as a songwriter and performer. 
[The beneficiary's] lyrics are very clever and his voice is outstanding. I have known 
[the beneficiary] for three (3) years and it's an honor playing his songs where ever l go. 
He has the image, charisma and the capability of taking his music internationally. He 
has a lot of discipline and is also well focused on what he does. I think he is going to 
be the next to shine on the international scene. 
(b)(6)
NON-PRECEDENT DECISION 
Page 15 
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 terms and set forth 
the expertise of the affiant and the manner in which the affiant acquired such information." The submitted letters 
fail to establish the witness's credentials as a recognized expert, fail to explain the manner in which the witness 
acquired information about the beneficiary, and fail to specifically describe the beneficiary's achievements in 
factual terms. None of the letters assert that the beneficiary has achieved international acclaim and renown. The 
letters also fail to detail the beneficiary' specific achievements. Furthermore, the letters are not in a form which 
clearly indicates the witness's authority, expertise and knowledge of the beneficiary's stated 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. 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."'). 
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. 6 
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(o)(3)(iv)(B)(5). 
5 Letters may generally be divided into two types of testimonial evidence: expert opinion evidence and written 
testimonia:! 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." !d. lf 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). 
6 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 Attorn ey 
General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
(b)(6)
Page 16 
NON-PRECEDENT DECISION 
Evidenc e 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 the beneficiary , but failed to submit reliable evidence 
that the financial arrangements set forth under the terms of the agreement are considered "high remuneration" in 
relation to other s in the field. 
The agreement states, regarding remuneration that the beneficiary would receive, "[t]he songs to be recorded 
under this agreement are 8% Singles 14% Albums or more than this number if [the petitioner] so desires." 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 under the exclusive recording agreement with the 
petitioner are considered high or substantial in relation to others in the field. 
On appeal, counsel asserts: 
The petitioner has previously submitted a contract between the company and the 
beneficiary , outlining the agreement. This contract is commensurate with international 
recognition in the field in that it provides for [the beneficiary] to produce five albums, 
and perform in several international and national events in the upcoming years. Also, 
the beneficiary is a party to a letter of intent with a 
California Based company looking to hire and contract the beneficiary to perform. 
In the 1-2908, Notice of Appeal , counsel states, "[T]he beneficiary has been made a party to a contract that 
represents substanti al remuneration and is commensurate with recognition." 
The petitioner attempts to overcome the director's finding by submitting a letter from 
a U.S. artist development, event planning, and promotions company , preciously discussed 
in our analysis of the qualifying criterion set forth at section 8 C.F.R. § 214.2( o )(3)(iv)(B)(3). The letter states 
that I s willing to hire and produce performance and musical events for 
[the beneficiary] specifically during the period ofMarch 2013 ending March 2015." The letter lists 13 proposed 
performance dates, and states "[v]enues and/or specific events to be determined at a later date ." Regarding 
remuneration, the letter states, "Artist's performance fees and compensation will be based on specific details of 
each event, (i.e. track show or stage show) whereby a performance fee will be paid with hotel, transportation and 
per diems. " The letter of intent from does not state what remuneration 
the beneficiary will receive. 
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. The record remains devoid of any documentary evidence comparing the beneficiary's remuneration 
(b)(6) NON-PRECEDENT DECISION 
Page 17 
to that of other musicians, so as to establish that his remuneration for service s 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 petiti oner 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). 
B. Comparable Evidence 
The petitioner has claimed eligibility under the "comparable evidence" regulation. Beyond the decision of the 
director, upon revie w of the reco rd the AAO fi nds insu fficie nt evidence to establish either that the regulatory 
criteria are not readily applicabl e to the beneficiary's occupation or the identity of the comparable evidence 
submitted to establish the beneficiary's eligibility . 
The regulation at 8 C.F.R. § 214.2(o)(3)(iv) provides that an alien of extraordinary ability in the arts must 
dem onstrate sust ained national or international acclaim and recognition for achievements in the field of expertise by 
providing evidence of receipt of a major intern atio nally recognized award pursuant to 8 C.F.R. § 214.2(o )(3)(iv)(A), 
or by submitting evidence to satisfy at least three of the six forms of documentation set forth at 8 C.F.R. 
§ 214.2(o)(3)(iv)(B). We further acknowledge that the regulation at 8 C.F.R. §214.2(o)(3)(iv)(C) provides " [i]f 
the criteria in paragrap h (o)(3)(iv) of the secti on do not readily apply to the beneficiary's occ upation, the petitioner 
may submit comp arab le evidence in order to establish the beneficiary's eligibility." It is clear from the use of the 
word "must " in 8 C.F.R. § 214.2(o)(3)(iv) that the rule, not the exception, is that the petitioner is requir ed to submit 
evidence to meet at least three of the regulatory criteria. Thus, it is the petitioner 's burden to explain why the 
regulatory criteri a are not readily applicable to the benefici ary's occupation and how the evidence submitted is 
"comparable" to the objective evidence required at 8 C.P.R.§ 214.2(o)(3)(iv)(B)(I) through (6). 
The petitioner states in its response to the director 's RFE that the regulatory criteria at 8 C .F.R. § 214.2(o)(3)(iv)(B) 
are not readily applicable to the beneficiary's occupation. 
In consid eratio n of . . . the beneficiary's occupation , the petitioner contends that the 
criteria [at 8 C.F.R. § 214.2(o)(3)(iv)(B)] do not readily apply to the beneficiary 's 
occupation, and he has therefore submitted comparable evidence to establish [the 
benefici ary's] eligibility for the 0-1B visa. 
Counsel utilizes simi lar langu age on appeal. Although counsel states the petition er is claiming eligibility 
under the "comparable evidence" regulation , we note that the petitioner has not specified what evidence it is 
submitting und er this criterion. Going on record without supporting documentary evidence is not sufficient 
for purposes of meeting the burden of proo f in these proceedings. Matt er of Soffici , 22 I&N Dec. 158, 165 
(Comm'r 1998) (citing Matter of Treasure Craft of California , 14 T&N Dec. 190 (Reg. Comm'r 1972)) . In 
addition, without documentar y evidence to support the claim, the unsupported assertions of counsel do not 
(b)(6)
NON-PRECEDENT DECISION 
Page 18 
constitute evidenc e. Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matt er of Laurean o, 19 I&N 
Dec. 1 (BIA 1983) ; Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 
In addition , the regulatory language preclude s the consideration of comparable evidence in this case, as there is 
no indication that eligibility for 0-1 classific atio n in the beneficiary's occupation as a dancehall recording artist 
cannot be establish ed by submitting docum entation relevant to at least three of the six criteria at 8 C.F.R. 
§ 214.2(o)(3)(iv)(B). In fact , as indicated in this decision , the petiti oner specifically indicate s that it is 
submitting evidence relating to each of the six criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B). An inability to meet a 
criterion, howev er, is not necessarily evidence that the criterion does not apply to the beneficia ry's occupation. 
Wher e an alien is simply unable to meet or submit document ary evidence meeting three of these criteri a, the plain 
language of the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(C) does not allow for the submission of comparable 
evidence. 
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 or well­
known in his field. 
Had the petitioner submitted the requisite evidence under at least 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 
determi nation. 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. 
For the above-stated reasons , the petitioner has not established the beneficiary's eligibility pursuant to the 
regulatory criteri a at 8 C.F.R. § 214.2(o)(3)(iv)(B), and the petition may not be approved.
7 
The appeal will be dismissed for the above sta ted reaso ns, with each considered as an independent and 
alternate basis for the decision . In visa petition proceedings , it is the petitioner's burden to establish eligibility 
for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 
127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
7 Th e AAO maint ains de novo review. Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). In any future 
proceeding 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 last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also 
Section 103(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. § 103.1(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 
petitio ns).