dismissed EB-1A Case: Composer

U.S. Citizenship 
and Immigration 
Services 
In Re : 20434723 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JULY 20, 2022 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a composer I, seeks classification as an individual of extraordinary ability. 
See Immigration and Nationality Act (the Act) section 203(b )(1 )(A), 8 U.S.C. § 1153(b )(l)(A). This 
first preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation . 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria, as required. 
The matter is now before us on appeal. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes immigrant visas available to individuals with extraordinary 
ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained 
national or international acclaim and whose achievements have been recognized in the field through 
extensive documentation; who seek to enter the United States to continue work in the area of 
extraordinary ability; and whose entry into the United States will substantially benefit prospectively 
the United States. The term "extraordinary ability" refers only to those individuals in "that small 
percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The 
implementing regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner 
can demonstrate international recognition of his or her achievements in the field through a one-time 
achievement, that is, a major, internationally recognized award. If that petitioner does not submit this 
evidence, then he or she must provide sufficient qualifying documentation that meets at least three of 
the ten criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x), including items such as awards, published 
material in certain media, and scholarly articles. The regulation at 8 C.F.R. § 204.5(h)(4) allows a 
petitioner to submit comparable evidence if they are able to demonstrate that the standards at 8 C.F.R 
§ 204.5(h)(3)(i)-(x) do not readily apply to the individual's occupation . 
Where a petitioner meets the initial evidence requirements through either a one-time achievement or 
meeting three lesser criteria, we then consider the totality of the material provided in a final merits 
determination and assess whether the record shows sustained national or international acclaim and 
demonstrates that the individual is among the small percentage at the very top of the field of 
endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where 
the documentation is first counted and then, if fulfilling the required number of criteria, considered in 
the context of a final merits determination); see also Visinscaia v. Beers , 4 F. Supp. 3d 126, 131-32 
(D.D.C. 20l3);Rijalv. USCIS, 772 F. Supp. 2d 1339(W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner studied at I College of Music and I I College I Since 2014 he 
ked for I, a company owned by composer 
Many of the Petitioner's documented projects in the record have heen as an assistant t 
Some of their projects are the I _____ an 
1 His most recent work includes composing the score for the feature film 
and the television series! I 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or shown that he received a major, internationally recognized 
award, he must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i}­
(x). The Petitioner claims to have satisfied four of these criteria , summarized below: 
• (iii), Published material about the individual in professional or major media; 
• (iv), Participation as a judge of the work of others; 
• (viii), Comparable evidence of a leading or critical role for distinguished organizations or 
establishments; and 
• (ix), High remuneration for services. 
The Director concluded that the Petitioner met two of the criteria, relating to published material and 
participation as a judge . On appeal, the Petitioner asserts that he also meets the other claimed criteria. 
Upon review of the record, we agree with the Director that the Petitioner has satisfied the criterion at 
8 C.F.R. § 204 .5(h)(iv) by serving as a judge at film festivals in Turkey. For the reasons explained 
below , we do not conclude that he has satisfied the other three claimed criteria. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien 's work in the field for which classification is sought 
Such evidence shall include the title, date, and author of the material, and any necessary 
translation. 8 C.F.R. § 204.5(h)(3)(iii). 
1 The Petitioner is currently in the United States in 0-1 nonimmigrant status , which relates to extraordinary ability . 
Nevertheless, the record ofproceedingforthe approved nonimmigrant petitions are not before us. Also, the nonimmigrant 
and irn migrant categories have different definitions and standards for persons of the arts. "Extraordinary ability in the 
field ofarts" in the nonirnmigrant 0 -1 category means distinction. 8 C.F.R § 214.2(0 )(3)(ii). But in the immigrant context, 
"extrao rdinary ability" reflects thatthe individual is among the small percentage atthe very top of the field . 
2 
Review of the record does not support the Director's conclusion that the Petitioner had satisfied the 
requirements of this criterion. 
A number of the submitted articles are not about the Petitioner. Rather, they are about projects on which 
he worked. "The person and the person's work need not be the only subject of the material; published 
material that covers a broader topic but includes a substantial discussion of the person's work in the field" 
may also satisfy the criterion. See 6 USCIS Policy Manual F.2 appendix, https://www.uscis.gov/ 
policymanual. In this instance, the submitted articles mention the Petitioner only briefly, and do not 
include substantial discussion of his work. 
Other submitted articles are about the Petitioner, but the Petitioner has not established that the articles 
appeared in professional or major trade publications or in other major media publications. The submitted 
evidence should establish that the circulation ( online or in print) or viewership is high compared to other 
statistics and show who the intended audience is. 6 USCIS Policy Manual, supra, at F.2 appendix. 
The Petitioner asse1is that each article includes "the applicable circulations [sic] figures for print 
publications andnumberof unique visitor[ s] for all online publications," butthe Petitioner did not provide 
this information for every submitted article. Where the Petitioner did provide the information, it is 
incorporated into transcripts or translations, without attribution of the source of the data. Also, these raw 
numbers do not establish that the circulation or readership is high compared to other publications in the 
field, as required. 
The Petitioner also quotes what appear to be various publishers' own promotional material, such as a 
reference to Film.Music.Media as "your premiere destination when it comes to the world of film music." 
A publisher's "self-serving assertion" about its own publication is not sufficient to establish that the 
publication meets the requirements of8 C.F.R § 204.5(h)(3)(iii). See Braga v. Poulos, No. CV 06-5105 
SJO FMOX, 2007 WL 9229758, at *7 (C.D. Cal. July 6, 2007), ajf'd, 317 F. App'x 680 (9th Cir. 2009) 
("The AAO need not, and indeed should not, rely on the [publisher's] self-serving assertion ... to find 
that [the] magazine is a professional or major trade publication"). 
The Petitioner has been the subject of published material, but he has not established that the submitted 
materials meet the regulatory requirements. 
Evidence that the alien has performed in a leading or critical role/or organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
The Petitioner claims that this criterion is not readily applicable to his occupation, because musical 
"performances are always considered a critical role for productions or events rather than organizations 
and establishments." The Petitioner therefore asserts that evidence about individual "productions or 
events" is comparable evidence under 8 C.F.R. § 204.5(h)(4). The Petitioner submits letters fron-c=] 
I land others, asserting that the Petitioner performed in a leading or critical role by contributing to 
the soundtrack scores for various! I The Petitioner appears to seek to extend the 
comparable evidence principle bythenassertingthatthe studios that produced or distributed thesel I 
are establishments that have a distinguished reputation. 
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In the denial notice, the Director concluded that the Petitioner had not shown that the criterion does not 
readily apply to the Petitioner's occupation. The Director acknowledged that the Petitioner had made 
valued contributions to various projects, but had not shown his work to be leading or critical for any 
organization or establishment with a distinguished reputation. On appeal, the Petitioner repeats prior 
assertions and states that the Director erred by not considering the Petitioner's claim of comparable 
evidence. 
Upon consideration of the record, we need not directly resolve the issue of comparnble evidence, because 
the Petitioner has not shown his roles to be leading or critical in the alternative context of individual 
soundtrack projects. 
Letters from I and others establish that the Petitioner has worked primarily as an assistant to 
I I providing additional music to projects for which I is the credited composer. The 
record shows that most of the Petitioner's film work has been in lesser capacities, belowthatof composer, 
such as the following examples listed on a printout fromIMDb Pro: 
• Soundtrack Producer (uncredited) 
• Score Production Assistant 
• Additional Orchestrator (uncredited) 
• Composer (additional music) 
• Composer (trailer music) 
• Score Production Coordinator 
• Conductor 
• Orchestrator 
• Arranger 
On the IMDb Pro printout, all nine of the projects that credit the Petitioner as the primary composer are 
short films. Theprintoutdoesnotprovide box office figures foranyofthese short films, and the Petitioner 
has not otherwise established that these projects have distinguished reputations. 
notes that the soundtracks for I were nominated for Grammy Awards. The 
Petitioner does not submit any evidence from the Recording Academy to show that the Academy 
nominated the Petitioner, not just I I for these awards. 
The Petitioner has also claimed a leading role as a producer of motion picture soundtrack albums. The 
field of record production is related to, but distinct from, musical composition. The Petitioner has not 
established that production work of this kind demonstrates extraordinary ability as a composer. 
The Petitioner has not established that his subordinate, supporting, and sometimes uncredited work rises 
to the level of being comparable to a leading or critical role for an organization or establishment with a 
distinguished reputation. 
The Petitioner claims a lead composer credit for projects in thel l but does not establish 
that these projects had even been released at the time he filed the petition. Whatever the prior success or 
reception of earlier l an individual film or television pro gram's reputation and whether it is 
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distinguished, cannot be determined before its release. A petitioner must meet all eligibility requirements 
at the time of filing the petition. See 8 C.F.R § 103.2(b)(l). 
Evidence that the alien has commanded a high salary or other sign#ficantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix). 
The Petitioner has earned a salary and bonuses from and composing royalties froni I I In 2021, his base salary at was $220,000 per year. In a February 2021 letter, 
agreed to pay the Beneficiary a $400,000 advance on royalties anticipated through March 2026. 
Documentation in the record indicates that the Petitioner received payment in the following amounts: 
I I 
2014 $15,006 (October- December) 
2015 47,504 
2016 67,860 
2017 96,156 
2018 133,324 $25,088 
2019 104,191 38,468 
2020 82,269 67,842 
2021 125,294 (January-July) 
The Petitioner did not establish the amount of royalties already paid to him under the terms of the 2021 
agreement with I land the Petitioner did not provide any basis for comparison to show that his 
remuneration in the form of royalty payments are significantly high in relation to others in his field. 
The letter from describes the Petitioner as a "composer, orchestrator and arranger," but the record 
indicates that the Petitioner has also acted as a producer at recording sessions. The record does not 
distinguish between the Petitioner's earnings as a composer and as a producer. Although there is some 
overlap, the two occupations are distinct. Remuneration paid to the Petitioner for his work as a producer, 
such as session fees, would not represent remuneration for work in the field of composition. 
To indicate that his salary from has been high in relation to others in the field, the Petitioner has 
submitted statistics from various online sources, including examples described further below. 
In denying the petition, the Director concluded that the submitted salary information was too broad to 
provide reliable information specific to the Beneficiary's intended employment. The Director stated: 
"Average salary information for those performing work in a related but distinct occupation with different 
responsibilities is not a proper basis for comparison." 
On appeal, the Petitioner asserts that theDirectorselectivelyintetpreted the submitted evidence, and "only 
considered the average salaries and not the comparable salaries at low, medium as well as high levels for 
comparison purposes." But it is not apparent that the Petitioner submitted an adequate basis for 
comparison with respect to composers in the motion picture industry. The figures submitted by the 
Petitioner are not consistent from one source to the next: 
5 
• 0 * NET Online indicates that "Music Directors and Composers" in California earn an average of 
$57,050 per year, and 10% of them earn $139,620 or more; 
• Payscale indicates that the median base salary for composers in the United States is $51,000 per 
year, and 10% earn$122,000 ormore; 
• ZipRecruiterindicates that film composers in I California, earn an average of $58,536 
per year, and 10% of film composers throughout the United States earn $104,000 or more; and 
• Recruiter shows an average income of $71,190 for "Music Composers and Arrangers" in 
California. 
Most of the sources do not distinguish between film score composers and other types of composers and 
songwriters, and it is not evident that the private recruitment and job search websites drew on a large, 
representative data pool. The Payscale figures are "[b]]ased on 50 salary profiles." Recruiter indicates 
that Nevada is the highest-paying state for composers, at $99,210 per year. Only Zip Recruiter provides 
figures specific to film composers, and that website indicates that three of the ten highest-paying cities for 
film composers are in Massachusetts, a state not among the 14 states listed by Recruiter as the highest­
paying. The inconsistent information provided does not appear to be sufficient to show that the 
Beneficiary earns a high salary, or other significantly high remuneration, in relation to composers in the 
motion picture industry. 
ect we note that the Petitioner has done most of his work for a company owned by fellow film 
composer I I has provided statements in support of the petition, butthe record does 
not sho compensation, which might have provided a useful benchmark. 
The Petitioner asse1is that the Director "erroneously claimed that no corroborating evidence was 
submitted by unilaterally claiming it to be a temporal element to the criteria for high salary which is in 
direct conflict to the plain language of the statute." While the Petitioner does not elaborate, the Petitioner 
appears to refer to this passage from the Director's decision: 
The evidence appears to show that the beneficiary's earnings may be higher than average 
compared with data from the US Bureau of Labor Statistics and O-Net online. However, 
corroborative evidence showing that the wage rate is high relative to others working in 
the field was not provided. In addition an accountant indicated that the beneficiary has 
been employed with since on sic October 4, 2014. 
However, evidence of earnings from ____________ prior to 2021 
was not provided. 
This passage is not a ground for denial of the petition. Rather, it is a quotation from the RFE, which the 
Director repeated as part of the chronological narrative of the record. The accountant's initial letter 
attested to the Petitioner's employment from 2014 to 2021, but did not specify how much he earned 
during that time. The Director went on to acknowledge the Petitioner's later submission of a new letter 
from the same accountant, specifying what paid the Beneficiary each year. 
The Petitioner has not established that he has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. Because royalties are not a salary, we would 
not compare royalty figures to salary figures. As noted above, the Petitioner did not provide any basis 
6 
for comparison to show that his remuneration in the form of royalty payments are significantly high in 
relation to others in his field. 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten lesser criteria. As a result, we need not provide the type 
of final merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise 
that we have reviewed the record in the aggregate, concluding that it does not support a conclusion 
that the Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. U.S. Citizenship and 
Immigration Services has long held that even athletes performing at the major league level do not 
automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Comm'r 1994). Here, the Petitioner has not shown that the recognition of his work is 
indicative of the required sustained national or international acclaim or demonstrates a "career of 
acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 
1990); see also section 203(b )(l)(A) of the Act. Moreover, the record does not otherwise demonstrate 
that the Petitioner is one of the small percentage who has risen to the very top of the field of 
endeavor. See section203(b)(l)(A) of the Actand8 C.F.R. § 204.5(h)(2). 
The Petitioner has worked on some high-profile projects for major film studios, in positions of 
increasing responsibility, under the tutelage of I I In this way he may be said to be 
progressing toward the top of his field. Butemploymentwith major studios is not inherently sufficient 
evidence that one has reached the top of that field; a comparison of the Petitioner's credits and 
achievements with those of an Academy Award nominee, shows that while the Petitioner 
is rising in his field, he has not yet established the sustained national or international acclaim required 
to show that he has reached the top of that field. 
The Petitioner has not demonstrated eligibility as an individual of extraordinary ability. The appeal 
will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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