dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
MATTER OF W-0-D-M-C-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 26, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a music center. seeks to classifY the Beneficiary, a violinist, as an individual of 
extraordinary ability in the arts. See Immigration and Nationality Act (the Act) section 
203(b)(1)(A), 8 U.S.C. § 1153(b)(I)(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 Form I-140, Immigrant Petition for Alien 
Worker, concluding that although the Beneficiary satisfied three of the regulatory criteria, as 
required, the Petitioner did not show the Beneficiary's sustained national or international acclaim 
and demonstrate that he is among the small percentage at the very top of the field of endeavor. 
On appeal, the Pciitioner submits additional documentation and a brief~ arguing that the Benetlciary 
has sustained the required acclaim· and has risen to the very top of his field. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b)(I)(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 tleld through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work 1n the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United Staies. 
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Matter of W-0-D-M-C-
The term "ex traordinary ability" refers only to those individual s in "that sma ll percent age who have 
risen to the very top of the field of endeavo r." 8' C.F.R. § 204.5(h )(2). The implementin g regulation 
at 8 C.F.R. * 204.5(h)(3) sets forth two options for sati sfying this class itication 's initial evide nce 
requiremen ts. First, a petitioner can demon strate a one-time achieveme nt (t hat i s, a major , 
internation ally recognized awa rd). If that petiti one r d oes not submit this evidence , then he or she 
must provide documentati on that meets at lea st three of the ten categories listed at 8 C. F. R. 
§ 204.5(h)(3 )(i) - (x) (including items such as awards, published material in certa in media, and 
scholarly art icles). 
Where a petitioner meet s these initial evid ence requi rement s, we then consider the total ity of the 
material prov ided in a final merits determin ation and assess whethe r the record shows sustaine d 
national or international acclaim and demon strate s that the individu al is among the small percentage 
at the very top of the field of endea vor. See Kazarian v. USCIS, 596 F.3d 1115 (9th C ir. 20 I 0) 
(discussing a two-part review where the docum entat ion is first counted and then , if fulfi lling the 
required numbe r of criteri a, cons idered in the contex t of a final merits determin ation); see also 
Visinscaia v. Beers, 4 F. Supp . 3d 126, 131-32 (D.D .C. 2013) ; Rijal v. USCIS, 772 F. Supp . 2d 1339 
(W .O. Wash. 201 1). Thi s two -step anal ysis is consistent with our ho lding that t he "tru th is to be 
determin ed not by the quantit y of evidence alone but by its quality," as we ll as the principle that we 
examine "each piece of evid ence for relevan ce, probative value , and credibilit y, bo th individuall y 
and within the conte,l(t of the tota lity C?f the evidence , to determin e whether the fact to be proven is 
probably true." Maller ofChawathe , 25 I&N Dec. 369, 3 76 (AAO 201 0). 
II. ANALYS IS 
The Benefi ciary is a violini st who has perform ed in Iran, the Uni ted Arab Emi rate s, and the U nited 
States. As the Petition er has not establi shed that the Benefic iary has received a major , 
internati ona lly recog nized award, it must sati sfy at least three of the alterna te regul atory criteria at 8 
C.F.R. § 204 .5(h)(3)(i)-(x) . 
A. Evidenti ary Criteria 
. The Direc tor found that the Beneficia ry met th e following three criteria: awards under 8 C. F.R. 
§ 204.5(h)(3 )(i), published material· under 8 C.F.R. § 204.5(h)(3 )(iii), and j udging und er 8 C.F.R. 
§ 204.5(h )(3)( iv). Althou gh the record does not su pport the Direct or's determination regarding the 
awards criterion, we fin~ the Petitioner has fulfi lled three of the ten criteri a liste d at 8 C.F.R. 
§ 204.5(h)(3). Spec ifically , the Petitioner 's docum entar y evidenc e indicates that the Beneficiary 
served on a jury panel for a festival at the satisfy ing the judgin g c riterion. In 
addition, featured the Beneficiary meeting the publ ished mater ial criterion. Further , the 
record contai ns evidence showing that the Beneficiary performe d at festiva ls, such as the 
estab lishing eligib ility for the arti stic display criteri on at 8 C.F.R . 
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/Vfaller of W-0-D-M-C-
§ 204.5 (h)(3)(vii). Accordingl y, we will evalu ate the totality of the evidence in the context of the 
tina! merit s determination below. 1 
B. Final Merits Determination 
As the Petiti oner has submitted the requiSite initial evidence, we will eva luate whether it has 
demonstrated, by a preponder ance of the evidence, the Beneficiary's sustained national or 
internation al accla im and that he is one of the sma ll percentag e at the very top of the field of 
endeavor, and that his achievements have been recognized in the field through extensive 
document ation. In a tina! merits detennination, we analyze a beneficiary's accompli shments and 
we igh the totality or the evidence to determine if his s uccesse s are sufficient to demon strate that he 
has extraordinary ability in the field of endeavor . See section 203(b)(I)(A)(i) of the Act ; 8 C.F.R. 
* 204.5(h)(2) , (3); see also Kazari(m, 596 F.3d at 1119-20. In thi s matter, we determi .ne that the 
Petitioner has not shown the Beneficiary's eligibility . 
According to the Beneficiary 's Form G-325A, Biographic Informati on, he was a se lf-employed 
musician for app roximatel y 15 years and has recently performed with for the past 
two years. As mentioned above, the Petitioner appeared on a televi sion station , j udged a 
competition, and performed at festivals and shows. The reco rd, however, does not demon strate that 
his achi evemen ts arc reflectiv e of a "career of acclaimed work in the field" as contemplated by 
Congress. H.R. Rep. No. I 01-723, 59 (Sept. 19, 1990). 
The Petiti one r argues that the Beneficiary's certificate by for the fastest 
violinist \:vho played in 2013, is a major , internationally recog nized 
award, as well as a lesser nationally or internationally recognized pri ze or award for excellence in 
the tield. First, the Petitioner has not shown that this qualifie s as a major, 
internation ally recognized award , such as an O~car, Grammy, Pulitzer Prize, Olympic Medal, or 
Nobel Prize. Further, the Petiti oner has not offered support for its assertion that the 
for speed in playing a particular song is nationally or internat ionally recognized as a prize or 
award " for excellence" in the Beneficiary ' s field . Finally, the Petitioner did not establish tha t the 
Beneficiary 's has garnered him susta ined nati onal or intern ation al acclaim 
or place s him amo ng that small percentage at the very top of his field. See sec tion 203(b )( I )(A)( i) of 
the Act and 8 C.F.R. * 204.5(h)(2) and (3). 
The record also reflects that the Beneficiary received first place at the a 
competition for Persian voca lists and instrum enta lists. In addition , the Beneficiary won seco nd 
place at the The Petitioner, however, did not demonstrate that 
these awards are nationally or internationally recognized for exce llen ce in the field of endeavor or 
that they indicate he "is one of that small percent age who [has] risen to the very top of the fiel d of 
1 We note the Petitioner contends on appeal that the Beneficiary received a major, internationally recognized award and 
met three additional criteria under 8 C .F.R. § 204.5(h)(3)(i)-(x). While we do not find the record supports these 
assertions, we will consider all of the documentation in the aggregate as part of our final merits determination. 
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Mauer of W-0-D-M-C-
endeavor." See 8 C.F.R. § 204.5(h)(2). The Petitioner did not document, for insta nce , that the 
competitions included accomplished artists and music ians from throughout the Petitioner's field 
reflect ing that he received awards against acclaimed competition. USC IS has lopg held that even 
athlete s performin g at the majo r l eague level d o not automatically meet the statut ory standards for 
classificati on as an individu al of "ex traordinar y ability." Mall er of Price, 20 I&N Dec. 953, 954 
(Assoc. Comm ' r 1994). 
The Petiti oner also presented ev idence of the Beneticiary's member ship with the 
However, the Petitioner did not establish that the Beneficiary's member ship requ ires 
outstanding achievements, as jud ged by recognized natio nal or internat ional experts. 2 Further, as it 
has not shown, for example , t hat the Beneficiar y is a member of assoc iatio ns that limit n:tembership 
to musician s 
or violinists with renowned endeavor s, his membership ev idence does not contribute to 
·a finding that he has sustained national or international acclaim . See section 203(b )( l)(A)( i) of the 
Act and 8 C.F .R. § 204.5(h)(3 ). 
The record contains an appearance by the Beneticiary on in 2014 covering his 
While the Petition er provided the title, date, and author for thi s material , the majority 
of the remaining screensh ots, articles, and radio and television appearanc es in the reco rd do not 
identify the publication or broad cast in which the material appear ed or only mention the Beneticiary 
as one of the perfo rmers without a discussion about him. In addition, besides the appearance on 
the Petitioner did not demonstrate that his eviden ce reflec ts published material about 
the 13cnclic iary regarding his wo rk in professional or major trade pub licatio ns or other major media. 
Here , the Petitione r did not estab lish that a s ingle television appeara nce on a major med ium t hree 
yea rs ago is consistent with the sus tained nati ona l or internati ona l acclai m nece ssary for this highl y 
restrictive classification. See sec tion 203(b)(l)(A) ofthe Act. Even cons iderin g the tota lity o f the 
other evidence, the Petitioner has not shown that the Beneficiary's press coverage is ind icative o f a 
level of success consistent with being among "that small percenta ge who have risen t o the very top 
of the field of endeavo r." 8 C.F.R . § 204.5(h)(2). 
Regarding the Beneficiary's judgi ng service , an eva luation of the significance of his ex perience is 
appropriat e to determine if such evidence is indicati ve of the extraordinmy ability required for this 
highly restrictive classification. See Kazarian, 596 F. 3d at 1121-22. The record reflects that the 
Beneficiary serve d on a jury panel for a festival at the in 2014. Howev er, the 
Petitioner did not demonstrate that this compet ition is considered prestigi ous or attract s sign ificant 
attention by· the field. Accordi ngly, the Petiti one r did not e s tabli s ~ that the Beneficia ry's single 
instance of judging this testival , approximately three years ago, is i ndicative of the requ ired 
sustain ed n ationa l or internati onal acclaim. See section 203(b )( I )(A)(i) of the Act. Without 
evidence that sets the Benefi ciary a part from others in his field , such as documentation that he has 
served as a jud ge of renown ed musicians or violini sts rather than aspirin g a rtists, the reco rd does not 
1 The Petitioner prov ided the bylaw s show ing that membership require s a clea n criminal reco rd, military compl etion, 
" being famou s.'· educatio n, and experience , which are not cons isten t with a leve l of outsta nding achievements. 
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Mauer of W-0-D-M-C-
show that his judging plac es him in that small percentage at the very top of his field . See 8 C.F.R. 
§ 204.5(h) (2). 
With respec t to his contributions to the tield, the Petition er subm itted letter s confirming the 
Beneficiary 's appearances at musical events. For example, the letters include statements such as: 
"[the Beneficiary] is one of the most talented young violinist in Iran and he has mad e appearances 
with many Persian musician s on stage in and outside of Iran," "[ u]pon seeing [the Beneficiary] 
playing the violin I offered to book him for 3 events in New York and one in and" ! usc 
[the Benef ici ary] in my orchestra as a lead vio linist and plan to contin ue usi ng him for many 
upcoming shows." 3 While the letters generally confirm the Benefic iary's performance s and praise 
him for his work, they do not show that he has sign ificantly influ enced the field placing him in " that 
small percentage who have risen to the very top 6f the field of endeavor." 8 C.F.R. § 204.5(h)(2). 
In addition , the Petitioner offered evidence claiming that the Beneficiary authored two sc holarly 
articles in in 2017. A scholarly article should be written for "learned" persons 
in the tield . "Learned" is defined as having or demonstrating profound knowl edge or scholarship. 
Learned persons include all persons ha ving profound knowledge of a tield.
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Here, the record does 
not show that the Beneficiary's articles are scholarly in nature. In addition , the Petitioner did not 
demonstrate that the magazines are professional or major trade publications or other major media. 
Moreover , the Petitioner did not establish that the Beneficiary's publication record of two articles 
within a month of the filing of the petition sets him apart through a "career of acclaimed work." The 
statute requires the Petitioner to submit "extensive documentation" of the Benefici ary' s sustai ned 
national or international acclaim. See section 203(b )(I )(A) of the Act. The commentary for the 
propo sed reg ulations implementin g sec tion 203(b)(J )(A)(i) of the Act prov ide that the " intent of 
Congress that a very high standa rd be set for aliens of extraordinary ability is reflected in this 
regulation by requiring the petitioner to pres ent more extensive docum entation than that required" 
for lesser classifications. 56 Fed. Reg. 30703 , 30704 (July 5, 1991 ). Further, Petitioner did not 
establish that the articles have been cited, nor did it otherwise demonstrate a level of interest in the 
Beneficiary's work commensurate wit h susta ined national or internationa l acclaim at the top of his 
tield. See sec tion 203(b)(l)(A )(i) ofthe Act and 8 C.F.R. § 204.5(h)(3 ). 
Regarding the display of the Beneficiary's work, the Petitioner pre sen ted evidence show ing that he 
performed at various ven~es in Iran, United Arab Emirates, and the United States. As it is ex pected 
that a violinist , such as the Beneficiary, would exhibit his artisti c work in front of an audience , we 
will evaluate the exte nt to which the display of his work is reflecti ve of acclaim con sistent with this 
classific atio n. As discussed above, the Benefici ary performed on television and radio stations, suc h 
as and In addi tion, the Petitioner played at 
theaters and other concert venues, such as for the compe tition in 
3 Alrhough we discuss a sampling of leuers, we have reviewed and considered each one. 
4 See USC IS Policy Memorandum PM-602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 
Petitions: Revisions to the A(ljudicawr ·.,. Field Manual (AFM) Chapter 22.2, AFM Update AD/1-14 9 (Dec. 22, 2010), 
https://www .usc is.gov/s ites/de faultlfi les/ocomm/i I ink/0-0-0-6423 .hllnl. · 
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Maller of W-0-D-M-C-
California ; 
and the 
Iran for the 
in Iran. Howe ver, the evide nce is not sufficient to 
show, tor examp le, that his performances brought praise from critics, drew notable crowds, raised 
attendance , or were responsible for the success or standin g o f the eve nt. The sub mitted evide nce 
does not distin guish the Beneficiary's performan ces from others in his fie ld or demonst rate that it 
reflects a "caree r of acclaim ed work in the field. " H.R. Rep. No. 101-723 at 59. 
The record as a whole, includ ing the evidence discussed above, doe s not establish the Beneficiary's 
eligibility for the benefit sought. The Petiti oner seeks a highly restrictive visa classificati on for the 
Beneficiary, intended for indi viduals alread y at the top of their respective fields. As noted above, 
USCIS has long held that eve n athlete s performing at the major league leve l do not automa tically 
meet the "ex traordinary ability" standard. Malter of Price, 20 I&N Dec. at 954. While the 
Petitioner need not establish that there is no one more accomplished to qualify for the classification 
sought, we find the record insufficient to demon stra te that the Beneficiary has sustained national or 
internati onal accla im and is among the small percen tage at the top of his field . See section 
203(b)(l)(A)(i) oft hc Act; 8 C.F.R. § 204.5(h)(2). 
C. 0-1 Nonimmigrant Statu s 
The record reflects that the Beneficiary received 0-1 status, a cla ssificati on reserved for 
nonimmi grants of extraordinary abil ity. Although USCIS has approv ed at least one 0-1 
non imm igrant visa petition fi led on behalf of the Beneficiary , the prior approval doc s not preclude 
USCIS from denying an immigrant visa petition wh ich is adjud icated based on a different standard­
statute, regulations , and case law. Many Form 1-140 immigran t petiti ons are denied after USC IS 
approves prior nonimmigrant petitions. See. e.g.. Q Data Consulting . Inc. v. INS, 293 F. Supp. 2d 25 
(D.D.C. 2003); /KEA US v. US Dept. (~(Justi ce, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co .. 
Ltd. v. Sava, 724 F. Supp . 1103, 1108 (E.D.N .Y. 1989), a.fj'd, 905 F. 2d 41 (2d Cir. 1990). 
Furthermore , our authorit y over the USC IS service centers, the oftice adjudicat ing the nonimmigrant 
visa petit ion, is compa rable to the relationsh ip betwee n a court of appeals and a district court. Even 
if a service center director has app rove d a nonimmigrant petition on behalf of an individ ual, we are 
not bound to follow that find ing in the adjudication of another imm igra tion petition. Lou isi ana 
Philharm onic Orchestra v. INS, No. 98-2855, 2000 WL 282785 (E.D. La.), ajf'd, 248 F.3d 11 39 (5th 
Cir. 200 I), cert. denied, 122 S.Ct. 51 (200 I). 
Ill. CONCLUS ION 
For the reason s disc ussed above, the Petitioner has not establi shed the Beneficiary's eligibility as an 
individu al of extraordinar y abi lity. 
ORDER: The appeal is dismissed. 
Cite as Matter l!( W-0-D- M-C-, ID# 1264406 (AAO Apr. 26, 20 18) 
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