dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JULY 29, 2024 In Re: 32384170 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner is a musician who seeks classification as an alien of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § l 153(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 Texas Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding the record did not establish that the Petitioner had a major, internationally 
recognized award, nor did he demonstrate that he met at least three of the ten regulatory criteria. The 
matter is now before us on appeal. The Petitioner bears the burden of proof to demonstrate eligibility 
to U.S. Citizenship and Immigration Services (USCIS) by a preponderance of the evidence. Section 
291 of the Act; Matter ofChawathe , 25 I&N Dec. 369, 375 (AAO 2010). We review the questions in 
this matter de nova. Matter ofChristo 's Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de nova 
review, we will dismiss the appeal. 
I. LAW 
To qualify under this immigrant classification
, the statute requires the filing party demonstrate: 
• The foreign national enjoys extraordinary ability in the sciences, arts, education, business, or 
athletics; 
• They seek to enter the country to continue working in the area of extraordinary ability; and 
• The foreign national's entry into the United States will substantially benefit the country in the 
future. 
Section 203(b)(l)(A)(i)-(iii) of the Act. 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-step analysis. In the first 
step, 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). 
Where a petitioner meets these initial evidence requirements, we then move to the second step to 
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, 
1121 (9th Cir. 2010) ( discussing a two-step 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 Amin v. Mayorkas, 24 F.4th 383, 394 (5th Cir. 2022). 
II. ANALYSIS 
The Petitioner is a mus1ctan primarily known for playing the trnmpet. He has performed 
internationally with the bandl Iand has appeared on their albums. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has 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). Before the Director, the Petitioner claimed he met five of the regulatory criteria. 
The Director decided that the Petitioner satisfied two of the criteria relating to published material, and 
display of the Petitioner's work but that he had not satisfied the criteria associated with prizes or 
awards, membership, or leading or critical role. On appeal, the Petitioner maintains that he meets the 
evidentiary criteria the Director decided against. After reviewing all the evidence in the record, we 
conclude the Director came to the correct conclusion, although we determine the Petitioner is ineligible 
for different reasons. 
We begin addressing two criteria in which we do not agree with the Director's conclusions. First, we 
do not agree that the Petitioner has met the published material criterion. Then, we decide that the 
evidence offered for the awards criterion adequately fulfills the regulatory requirements. 
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 ofthe material, and any necessa,y translation. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
The Petitioner provided numerous articles and the Director determined that met this criterion's 
requirements without offering any analysis. A review of the record leads us to a different conclusion 
and we will withdraw the Director's favorable determination under this criterion. 
Out of the several articles the Petitioner provided for the record, only two of them even mention his 
name, but neither is about him. Instead, those two articles are either about the band in which the 
Petitioner was a member or an event where he performed. The first article is titled,! 
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I 
and it appeared in the publication, El Nacional. This article 
is about the band I I as a whole and the group's receipt of two silver medals in a 
competition. The article simply mentions the Petitioner's name among a list of all the band members. 
USCIS policy does not require that a foreign national and their work be the sole subject within the 
published material. However, it does require that the material "be about the person, relating to the 
person's work in the field, not just about ... another organization and that organization's work. Any 
materials the petitioner submits must demonstrate the value of the person's work and contributions, 
and must not be solely focused on the employer or organization that the person is associated with .... " 
See generally 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policymanual. 
Coverage that is about a broader topic in which the Petitioner is merely mentioned does not 
demonstrate that the published material itself is "about the alien" and "relating to the alien's work in 
the field" as the regulation mandates. See Mussarova v. Garland, 562 F. Supp. 3d 837, 848--49 (C.D. 
Cal. 2022) (finding the published material criterion's requirements are not satisfied where the articles 
are about events in which a foreign national was associated but were not about them); Noroozi v. 
Napolitano, 905 F. Supp. 2d 535, 545 (S.D.N.Y. 2012) (finding that articles that are about a team or a 
competition and only briefly mention a foreign national do not satisfy the published material criterion); 
see also generally Negro-Plumpe v. Okin, No. 2:07-CV-820-ECR-RJJ, 2008 WL 10697512, at *3 (D. 
Nev. Sept. 9, 2008) (upholding a finding that articles about a show or a character within a show are 
not about the performer). As this article is not about the Petitioner, it is unnecessary that we evaluate 
whether it qualifies as one of the required publication types. 
Moving to the second article in which the Petitioner was mentioned, it was titled, _____
I and it appeared in the publication Corral de Comedias. This article was about an 
award given to an orchestra where-again-the Petitioner's name is merely listed among other band 
members. For reasons similar to the first article, this one is not about him and related to his work in 
the field. The remaining articles are not about him and do not even mention his name, and we will not 
discuss them further. Accordingly, we withdraw the Director's favorable determination as it relates 
to this criterion. 
Documentation of the alien 's receipt of lesser nationally or internationally recognized prizes 
or awards for excellence in the field ofendeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The Petitioner provided information relating to a _______ and the Director determined 
that the evidence did not meet the requirements of this criterion. The Director solely focused on 
whether the Petitioner's individual and group award-each as Silver Medal Winners-were issued for 
excellence in the field. The Director did not adequately justify why these awards were not issued for 
excellence in the field and we withdraw their adverse determination on this issue. Because the 
Petitioner demonstrated he was the recipient of an award that received national recognition for 
excellence in the field, we conclude his evidence is sufficient to meet this criterion's requirements. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
We agree with the Director's determination that the evidence in the record is sufficient to fulfill this 
criterion's requirements. 
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Documentation of the alien's membership in associations in the field for which classification 
is sought, which require outstanding achievements oftheir members, as judged by recognized 
national or international experts in their disciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
This criterion contains several evidentiary elements the Petitioner must satisfy. First, the Petitioner 
must demonstrate that he is a member of an association in his field. Second, the Petitioner must 
demonstrate both of the following: (1) the associations utilize nationally or internationally recognized 
experts to judge the achievements of prospective members to determine if the achievements are 
outstanding, and (2) the associations use this outstanding determination as a condition of eligibility 
for prospective membership. 
The Petitioner claims his membership in the Latin Academy of Recording Arts and Sciences 
(LARAS). The information from the LARAS website states that the "voting member" classification is 
for "creative or technical professionals" involved in recording music. Prospective voting members are 
required to provide evidence of at least six credits, or songs, released within the last five years. The 
organization further requires that at least 51 percent of the recordings are either in the Spanish or 
Portuguese languages. An additional requirement is proof of physical or digital album distribution. 
Prospective members are encouraged to send in as much information as possible including their 
biographies and any media about them, and LARAS reserves the right of admission and approves 
membership according to the evaluation of the materials submitted. We note the Petitioner did not offer 
the portion of the organization's bylaws that addresses membership types, the application for 
membership, or the academy's processes or standards for granting voting membership. 
The Director determined that the Petitioner did not meet the requirements of this criterion because it 
does not require outstanding achievements, rather than volume of publications of music. On appeal, 
the Petitioner maintains that this organization requires outstanding achievements in order to be granted 
membership and, as he stated before the Director, lists their requirements as six released productions 
and at least 12 digital releases on syndicated streaming or online platforms. The Petitioner describes 
these activities as "a feat that most Musicians will go the whole of their career without accomplishing. 
The fact that this is a requirement of the association shows that it only admits outstanding members of 
the music industry." However, he did not offer objective evidence to corroborate those assertions. As 
it stands, the Petitioner has not demonstrated that the Director erred when they determined he failed 
to establish that this organization requires outstanding achievements of its members, and we agree 
with the Director on this point. 
On the final issue that LARAS must utilize nationally or internationally recognized experts to judge 
the achievements of prospective members to determine if the achievements are outstanding, we are 
not persuaded by the Petitioner's circular and presumptive arguments, which follow: 
Furthermore, the ultimate admission of any member into the Latin Recording Academy 
is fully at the discretion of the academy's voting members. As already discussed, in 
order to be a voting member, an individual must show that they have outstanding 
achievements within the music industry, and thus, in the field. Accordingly, [the 
Petitioner's] membership in LARAS as a Voting Member was determined by experts 
in the field that, themselves, have outstanding achievements and merit. 
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We note he did not demonstrate that voting members must show they have outstanding achievements 
within the industry, and he does not offer evidence from LARAS that prospective members' 
achievements are judged by recognized national or international experts in their disciplines or fields. 
We conclude that the Petitioner has not submitted evidence that meets the plain language requirements 
of this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
A leading role should be apparent by its position in the overall organizational hierarchy and the role's 
matching duties. A critical role should be apparent from the Petitioner's impact on the entity's 
activities. The Petitioner's performance in any role should establish whether it was leading or critical 
for organizations, establishments, divisions, or departments as a whole. Ultimately, the leading or the 
critical role must be performed on behalf of the organization, establishment, division, or department 
that enjoys a distinguished reputation, rather than for a unit subordinate to these listed entities. See 
generally 6 USCIS Policy Manual, supra, F.2(8)(1 ). 
USCIS policy reflects that organizations, establishments, divisions, or departments that enjoy a 
distinguished reputation are "marked by eminence, distinction, or excellence." Id. (citing to the 
definition of distinguished, Merriam-Webster, https://www.merriam­
webster.com/dictionary/distinguished). The Petitioner must submit evidence satisfying all of these 
elements to meet the plain language requirements of this criterion. 
After considering the Petitioner's claims and evidence, the Director determined that he did not meet 
the requirements of this criterion. On appeal, the Petitioner continues to claim that he performed in a 
leading or critical role for the musical group I I He relies on the letter from the group's 
chief executive officer, as well as a document titled Record Deal Memorandum. 
We begin with Mr. I I letter. Mr.I lsooke highly of the Petitioner and his abilities. He 
indicated the Petitioner's work and performances had been critically important for the band. He noted 
that as the trumpet player of the group, the Petitioner was a fundamental component and an invaluable 
member of the group. He further signified that because the band is based on horned instruments, such 
as the trumpet, the Petitioner is a fundamental part of the backbone of each of their songs, and that the 
rest of the band relies on him to provide a strong melody that holds the song together. 
Mr. I I continued stating: "The whole song depends on [ the Petitioner's] ability to maintain 
rhythm and harmony, and without a strong trumpet player and soloist like him, the band will go astray 
and the whole song will fall apart." We note it appears that Mr.I lwas generally describing one 
who occupies the lead trumpet position, but he never stated that outright and the Petitioner does not 
identify what evidence in the record might support that implication. 
Nor does Mr. persuade us how the Petitioner performs in a leading or critical role for the band. 
He claims: 
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[The Petitioner] is not only critically important to our performances, but leads 
I I contributing knowledge, experience and concept in many, if not most, of 
the songs that the group performs live to the public. In this way, he plays an 
indisputably essential role for the group to be able to perform the music that the band 
plays live to perfection, as well as being responsible for instructing each member of the 
band on how their individual parts fit into the musical production. 
Although Mr. I I indicated the Petitioner "has contributed extremely valuable knowledge to the 
creation of the most successful songs of the band," the record lacks material to corroborate these 
claims. The Petitioner does not identify material demonstrating that he leads the band through his 
contribution of "knowledge, experience, or concept" which might support Mr.I I assertions. 
Correspondence from those with "personal knowledge of the significance of the person's leading or 
critical role can be particularly helpful to officers in making this determination, so long as the letters 
contain detailed and probative information that specifically addresses how the person's role for the 
organization, establishment, division, or department was leading or critical." See generally 6 USCIS 
Policy Manual, supra, F.2(B)(l). 
Again, Mr. I I letter does not sufficiently describe the Petitioner's role in such a way. While 
making broad claims about his impact, Mr. I I letter lacks details about the Petitioner's work 
and its effect on the band. Mr.I I does not provide relevant details, such as a significant number 
of performances in which the Petitioner was billed as a leader within the band, or how he was more 
instrumental than other band members, or how his role was more significant to the band than other 
members' activities. The Petitioner's evidence does not demonstrate how his role differentiated him 
from the numerous other of the band's performers. 
Moving to the Record Deal Memorandum, it reflected the Petitioner was to serve as "Principal 
Trumpeter" on an unspecified or unnamed album. But the Petitioner did not provide evidence that 
any such album was created, nor by extension did he establish sales figures for the album, both of 
which might add support for his claims under this criterion. And as a final note, we observe that Mr. 
I I did not mention this album when he discussed the Petitioner's role for the organization. 
Here, the Petitioner has not submitted evidence that meets the plain language requirements of this 
criterion. 
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 criteria. As a result, we do not need to 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 it does not support a finding 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 that goal. USCIS has long 
held that even athletes performing at the major league level do not automatically meet the 
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"extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r 1994). 
Here, the Petitioner has not shown the significance of their work is indicative of the required sustained 
national or international acclaim or that it is consistent with a "career of acclaimed work in the field" 
as contemplated by Congress. H.R. Rep. No. l 0 1-723, 59 (Sept. 19, 1990); see also section 
203(b)(1 )(A). Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and they are one of the small percentage who has risen 
to the very top of the field of endeavor. See section 203(b)(l)(A) and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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