dismissed EB-1A Case: Music

MATTER OF V-E-O-J-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 2, 2019 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a guitarist, seeks classification as an individual of extraordinary ability in the arts. 
See Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This 
first preference classification makes i~migrant 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 Acting Director of the Nebraska Service Center denied the Form 1-140, Immigrant Petition for 
Alien Worker, concluding that the Petitioner had shown that he met three of the ten initial 
evidentiary criteria but that he did not establish eligibility in the final merits analysis. 
On appeal, the Petitioner submits additional evidence and contends that he qualifies as an individual 
of extraordinary ability. 
Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes visas available to immigrants with extraordinary ability if: 
(i) the alien has 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, 
(ii) the alien seeks to enter the United States to continue work m the area of 
extraordinary ability, and 
(iii) the alien's 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 
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Matter of V-E-D-J-C-
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is a major, 
internationally recognized award). Alternatively, he or she must provide documentation that meets 
at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items 
such as awards, memberships, and published material in certain media). 
Where a petitioner meets these initial evidence requirements, 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. USC IS, 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. 2013); RUal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011 ). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually 
and within the context of the totality of the evidence, to determine whether the fact to be proven is 
probably true." Matter ofChawathe, 25 I&N Dec. 369,376 (AAO 2010). 
II. ANALYSIS 
The Petitioner is a guitarist. The record reflects that from 1990 to 2000, he was the lead guitarist for 
the Philippine band The band then took a hiatus in 2000 until regrouping in 2005, this 
time without the Petitioner as a member. The record demonstrates that he rejoined the band as its 
lead guitarist in 2016. 
A. Substantial Benefit and Continuous Work in the Area of Extraordinary Ability 
As an initial matter, the Acting Director held that because the Petitioner was recently unemployed 
and doing pro bono work as a guitarist after reuniting with Introvoys, he had not established that he 
would work to substantially benefit prospectively the United States. Section 203(b)(l)(A) of the Act 
states that the petitioner must show that he seeks to enter the United States "to continue work in the 
area of extraordinary ability" and that his entry "will substantially benefit prospectively the United 
States." The regulation at 8 C.F.R. § 204.5(h)(5) states that "the petition must be accompanied by 
clear evidence that [the petitioner] is coming to the United States to continue work in the area of 
expertise," noting that such evidence may include a statement "detailing plans on how he or she 
intends to continue his or her work in the United States." We note that the Petitioner's statement in 
the record demonstrates that while he did not receive compensation for the shows in which he had 
performed, his intent was to work in his field of expertise by returning to the lntrovoys as the lead 
guitarist. He states that the band had been raising money for future tour expenses and to complete a 
studio. the drummer for , indicates that members of the band will 
begin receiving compensation once the studio is completed . We find that this evidence, together 
with the Petitioner's statement , sufficiently establishes that he intends to continue working in the 
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Matter of V-E-D-J-C-
area of extraordinary ability in a manner that will substantially benefit the United States to meet the 
requirements of section 203(b)(l)(A) of the Act. Therefore, we withdraw the Director's finding in 
this regard. 
B. Evidentiary Criteria 
As the record does not establish that the Petitioner has received a major, internationally recognized 
award, he must demonstrate that he satisfies at least three of the ten criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). The Acting Director held that the Petitioner met the following criteria: 
published material, judging, leading or critical role, and commercial successes at 8 C.F.R. 
§ 204.5(h)(3)(iii), (iv), (viii), and (x), respectively, but that he had not met the criteria for scholarly 
articles, display, and high salary at 8 C.F.R. § 204.5(h)(3)(vi), (vii), and (ix). Ultimately, she 
concluded that the Petitioner had not established eligibility in the final merits analysis. Here, we 
find that the record supports the conclusion that he meets three criteria to warrant a final merits 
determination. 1 
Specifically, we disagree with the Acting Director regarding published material and find that the 
record does not establish that the Petitioner meets this criterion. The Petitioner asserts that 
interviews conducted by Filam Star and UNTV meet the requirements of 8 C.F.R. § 204.5(h)(3)(iii). 
First, the record contains printouts from these websites with transcriptions of the interviews, but the 
record does not contain the dates of these interviews or proper translations of these documents as 
substantial portions of the interviews are in a foreign language. Any document in a foreign language 
must be accompanied by a full English language translation. 8 C.F.R. § 103.2(b)(3). The translator 
must certify that the English language translation is complete and accurate, and that the translator is 
competent to translate from the foreign language into English. Id. Second, the questions asked are 
about rather than focusing on the Petitioner individually in a manner that relates to his 
work in the field. The record does not contain evidence demonstrating Filam Star is major media or 
to establish that it is a professional or major trade publication to meet the requirements of 8 C.F.R. 
§ 204.5(h)(3)(iii). The other publications in the record, including the article from UNTV, are about 
and not about the Petitioner. See, e.g.. Negro-Plumpe v. Okin, 2:07-CV-820-ECR-RJJ at 
* 1, *7 (D. Nev. Sept. 8, 2008) (upholding a finding that articles about a show are not about the 
1 The Petitioner cites 8 C.F.R. § 204.5(h)(4) and asserts that evidence of the songs he has written and the showcasing of 
his music in concerts constitutes comparable evidence that should be accepted instead of the scholarly articles and 
display criteria, which he claims do not readily apply to his occupation. The Acting Director held that 8 C.F.R. 
§ 204.5(h)(4) is not applicable here because the Petitioner has met three criteria. The Petitioner contends that an 0-1 
nonimmigrant USCIS policy memorandum is instructive in this matter for the proposition that comparable evidence may 
be submitted if any of the criteria do not apply. The Acting Director held that memoranda for nonimmigrant visa 
classifications do not apply here. We agree. For the policy memorandum that is applicable to this matter, see USCIS 
Policy Memorandum PM-602-0005.1. E\'(//11u1ion o(EFidence S11h111i11ed wilh Cerlain Form /-140 Pel it ions: Revisions to 
the .4.diudicator's Field Manual rAFkl) Chapter ll.2. AFM Ut)(fate ADI 1-1-1 (Dec. 22. 2010). 
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/i-140-evidence-pm-6002-005- I .pdf. We also note 
that because the Petitioner has met three criteria, it is unnecessary for us to reach the comparable evidence issue. That 
said, in the final merits analysis we will consider the evidence of the songs the Petitioner has written and the concerts in 
which he has performed. 
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Matter of V-E-D-J-C-
actor).ln the few places where the Petitioner's name is mentioned, such as in articles from Smash! 
Magazine, the only details provided are about his biographical information and basic interests as part 
of the profiles of the band members. This does not constitute published material about him that 
relates to his work in the field as required under 8 C.F.R. § 204.5(h)(3)(iii). Therefore, the Petitioner 
has not shown that he meets this criterion. 
We agree with the Acting Director that the Petitioner meets the criteria for judging, 
critical role, and commercial success. For judging, the record indicates that in 
Philippines, the Petitioner was a judge for in 2015 and the 
leading or 
Laguna, 
singing contest in 2016, which satisfies the requirements of this criterion. Regarding leading or 
critical role, the record reflects that he meets this criterion as he was the lead guitarist for 
for approximately ten years, co-writing some of the band's most successful songs and the record 
shows that the band is an organization with a distinguished reputation.2 For commercial successes, 
the record demonstrates that the Petitioner, as a member oflntrovoys, shared in the band's success in 
record sales achieving gold, platinum, double platinum, triple platinum, and quadruple platinum 
awards. This demonstrates that the Petitioner meets three of the ten criteria listed at 8 C.F.R. 
§ 204.5(h)(3). Accordingly, we will evaluate the totality of the evidence in the context of the final 
merits determination below. 3 
C. Final Merits Determination 
As the Petitioner has submitted the requisite initial evidence, we will evaluate whether the record 
demonstrates, by a preponderance of the evidence, that he has sustained national or international 
acclaim and is one of the small percentage at the very top of the field of endeavor, and that his 
achievements have been recognized in the field through extensive documentation. See section 
203(b )(1 )(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2)-(3); see also Kazarian, 596 F.3d at 1119-20. In 
this matter, we determine that the Petitioner has not established that he has sustained national or 
international acclaim. 
For published material, the record contains articles from the 1990s in Smash! Magazine about the 
with several articles that only mention the Petitioner as a guitarist for with his 
profile and basic interests. While indicative of acclaim during the 1990s, the other publications in 
the record do not establish that he has enjoyed national or international acclaim from 2000 through 
2016 when he rejoined the band. 
2 Later in the decision, but prior to the final merits discussion, the Acting Director held that he did not meet the leading 
or critical role criterion, even though she held that he did meet this criterion at the beginning of the decision. Here, we 
clarify that the record establishes that he meets this criterion. 
' As the Petitioner meets at least three criteria, we will discuss the evidence regarding each of the criteria he raises in the 
context of a final merits discussion. We will also discuss the evidence in the record of the Petitioner's song-writing 
ability and the showcasing of his music in concerts as part of the final merits discussion. 
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Matter of V-E-D-J-C-
As stated above, the record lacks certified translations of the interviews of members of 
published on the websites for Filam Star and UNTV, and it is unclear when these interviews took 
place or how widely viewed they were. We further note that these interviews discuss the success of 
the band in the 1990s and do not demonstrate that the Petitioner, as an individual , has enjoyed 
sustained national or international acclaim from 2000 onward. Documentation in the record from 
the Ranker website contains an article entitled, _ 
which lists the as number 26th. This ranking does not list individual members 
of and the Petitioner has not shown how this demonstrates his sustained national or 
international acclaim from 2000 onward. Also, in an article from 8List.ph entitled 
the '90s" is ranked 8th, but this relates to the band's success in the 1990s. 
The Petitioner states that we should not disregard the published material about simply 
because he was not a member at the time of publication , asserting that his acclaim is tied to the 
success of the original band. However , the record does not show what level of success the 
had from its restructuring in 2005 onward , or that its success during this time brought national or 
international acclaim to the Petitioner. Therefore, the evidence in the record does not demonstrate 
that the Petitioner has sustained national of international acclaim while not being a part of 
from 2000 to October 2016. 
With respect to judging, the two certificates regarding the Petitioner's judging experiences for the 
and the singing contest demonstrate that these were local 
events for the City of The record does not reflect that he received any other recognition 
for his role in judging these contests outside of this city to constitute national or international 
acclaim. 
Regarding the showcasing of the Petitioner's music in concerts, the record reflects that he was the 
lead guitarist for the during the 1 990s at the height of its success, but he has not shown 
how any concerts the band performed after his departure brought national or international acclaim to 
him. We note his first performance after reuniting with the band took place in February 2017. Even 
if he had shown that he again received national or international acclaim after rejoining in 
2016, or 2017 at his first concert as a reunited member of the band, this is not sufficient to establish 
sustained acclaim in the intervening period. The record contains reviews of concerts where 
performed, but the evidence does not demonstrate when these concerts took place or if the 
Petitioner performed. Furthermore, the publications with these reviews appear to be blog posts that 
individuals have posted on the Internet, but it has not been established how widely these reviews 
have been viewed. . Therefore, this evidence has not established that the Petitioner has enjoyed 
sustained acclaim as a result of his performances with 
As to his leading or critical role and his song-writing abilities, states that the 
Petitioner "has made valuable contributions into helping our collaborative efforts achieve what they 
were intended to do." He notes that their "most prominent collaboration , a song called 
is still on current rotation in terrestrial radio in the Philippines.'' As stated above, we note 
the success the had in the 1990s, but the Petitioner has not established how the current 
radio play of this song equates to his sustained national or international acclaim. It has not been 
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Matter of V-E-D-J-C-
shown how much current radio play this song receives or to what extent the Petitioner has received 
acclaim for this from 2000 to 2016. While the record contains evidence of Y ouTube views of many 
of the songs of it is unclear over what period of time these views took place, and the 
Petitioner has not shown how this amounts to national or international acclaim. 
In a letter from the lead guitarist for the Filipino band during the 
1990s, he states that the Petitioner "was the lead guitarist of the band when their greatest hits were 
released ... making him an integral and intrinsic part of the band's successful sound." He indicates 
that and were among the most popular bands in the 1990s and had been in 
numerous occasions featured in the same shows or events." He notes that "[the Petitioner's] style is 
extraordinary insofar as creating melodic guitar 'pyrotechnics' that pulls inspiration from guitar 
legends Eddie Van Halen, Niel Schon, Yngwie Malmsteen and Jimi Hendrix while still maintaining 
his own unique musical sensibility, which in turn has made him an inspiration and hero to the next 
generation of Filipino guitarists." Similarly, , the lead vocalist in the Filipino band 
states that the Petitioner "is a true master of his instrument," "[h ]is sound is very distinct 
and his playing style, which clearly drew inspiration from other guitar icons, has blended so well" 
and "is now uniquely his." indicates that his "searing, melodic and sometimes anthemic 
guitar solos were something the audience anticipated." We acknowledge the Petitioner's expertise 
and his role as lead guitarist for from 1990 to 2000, but the record does not demonstrate 
that he has had sustained national or international acclaim from 2000 until October 2016 when he 
reunited with 
Pertaining to high salary, the record contains a letter from the former manager 
for stating that the band earned 150,000 Philippine pesos (Php) per show during its 
popularity in the 1990s. The Petitioner has not provided corroborating evidence to substantiate the 
salary he earned during this time or how it compared to other bands. Even if this had been 
established, he has not shown how his salary contributed to his sustained national or international 
acclaim. 
With respect to commercial success, the record contains a certification from 
detailing the album sales for the which include gold, platinum, double platinum, triple 
platinum, and quadruple platinum awards. While we acknowledge the commercial success of the 
in the 1990s and the Petitioner's role in the band during that time, the record reflects that 
the band took a hiatus in 2000 and that when the band resumed its activity, he was no longer part of 
it. In addition, he states that he left the music business in 2004 and the record reflects that he 
rejoined in October 2016. He has not shown that he enjoyed commercial success in the 
field from 2000 to October 2016 that resulted in sustained national or international acclaim. In 
addition, the record does not demonstrate that the Petitioner has been commercially successful in the 
field since rejoining the band in 2016.4 
4 Documentation from the website indicates that in June 2013, the band went on a "successful, well-attended 
16-month tour of different cities, states, and provinces in the U.S. and Canada," but the Petitioner was not a member of 
the band at this time. 
Matter of V-E-D-J-C-
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established that the Beneficiary is eligible as 
an individual of extraordinary ability under section 203(b )(1 )(A) of the Act. 
ORDER: The appeal is dismissed. 
Cite as Matter ofV-E-D-J-C-, ID# 1846417 (AAO Jan. 2, 2019) 
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