dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF P-K-H- DATE: JUNE 20,2016 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a singer, seeks classification as an individual of extraordinary ability in the arts. See 
Immigration and Nationality Act (the Act) § 203(b)(I)(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, Nebraska Service Center, denied the petition. The Director concluded the Petitioner 
did not submit sufficient evidence to meet at least three initial evidence criteria. 
The matter is now before us on appeal. On appeal, the Petitioner submits a brief indicating that the 
Director erred in finding she did not submit sufficient initial evidence. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b) of the Act states in pertinent part: 
(I) Priority workers.-- Visas shall first be made available ... to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph 
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 in the 
area of extraordinary ability, and 
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(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 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate 
sustained acclaim and the recognition of his or her achievements in the field through a one-time 
achievement (that is, a major, internationally recognized award). If the petitioner does not submit 
this evidence, then he or she must provide sufficient qualifying documentation that meets at least 
three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i)- (x). 
Satisfaction of at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. 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. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.O. Wash. 2011); Matter of 
Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0) (holding that the "truth is to be determined not by the 
quantity of evidence alone but by its quality" and that users examines "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") . 
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II. ANALYSIS 
The Director found the Petitioner did not demonstrate extraordinary ability because she did not 
submit initial evidence meeting at least three of the criteria listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
The Director found the Petitioner satisfied only the criterion related to published material about her 
in professional or major trade publications or other major media related to her work in the field. See 
8 C.F.R. § 204.5(h)(3)(iii). After a review of the evidence in the record, we agree that the Petitioner 
has met only this one initial evidence criterion. On appeal, the Petitioner reasserts that she has also 
met the three evidentiary criteria discussed below. 
A. Initial evidence 
Documentation of the individual"s receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in thefield of endeavor. 
In response to a request for evidence issued by the Director, the Petitioner provided a statement 
indicating that, "while it is true that the [Petitioner] herself has not received nationally or 
internationally recognized prizes or awards for excellence, many of the projects in which she has 
been involved have received such awards." She listed eight films and two television shows with 
which she was involved that received awards or nominations for awards. The Director found that 
the evidence provided did not meet this criterion because I) the awards named are not in the 
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Petitioner's field of endeavor, 2) the Petitioner did not receive the awards, and 3) the Petitioner did 
not establish the national or international recognition of the awards. 
We first note that this criterion requires the receipt of an award and therefore requires more than a 
nomination. As a result, we will address only those awards that were actually received. The 
Petitioner provided printouts from the to show her role as vocalist 
as a member of the productions' music departments. The printouts confirm the following awards: 
• - 2011 
awarded to 2012 
awarded to 
• -2010 for awarded 
to 
• -2009 Special Mention for Director; 
• - 2007 awarded to 
2007 
2008 
awarded to 2007 
• -2005 
and 
• -2003 
awarded to and 
awarded to 2004 
awarded to 
awarded to 
On appeal, the Petitioner states that the Director erred in concluding that her field of expertise is 
vocal music and that many of the awards, such as those for directing, do not relate to it. She 
specifically states that her field of expertise is "arts" and that all of the awards therefore fall within 
that category. The Petitioner refers to the statutory language indicating that, in order to demonstrate 
eligibility, a petitioner must demonstrate his or her extraordinary ability in the sciences, arts, 
education, business, or athletics, urging that the sciences, arts, education, business, or athletics are the 
potential fields of endeavor. See § 203(b )(I )(A)(i) of the Act. 
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The Petitioner's proposed reading is not supported by the plain language of the relevant statute and 
regulations, by principles of construction, or logical policy. The statute states that an individual can 
have extraordinary ability in "the sciences, arts, education, business, or athletics" and that such ability is 
demonstrated through evidence that the individual's "achievements have been recognized in the field 
through extensive documentation." Section 203(b )(1 )(A)(i) of the Act. The term field is not defined, 
and the Petitioner does not provide justification for interpreting "field" to be the broad areas of "the 
sciences, arts, education, business, or athletics." 
In explaining why the Petitioner should be able to claim awards in seemingly different areas, she notes 
that"[ o ]ne artistic field cannot be easily separated from another there is invariably overlap and interplay 
in all aspects of art." The statement that "one artistic field cannot be easily separated from another," 
itself underscores that several different fields exist within the broader category of arts. This narrower 
reading of the term "tield" is encouraged by the language used in a related regulation. Eligibility for 
this benefit can be demonstrated by establishing that an individual "is one of that small percen~age 
who have risen to the very top of the field of endeavor." See 8 C.F.R. § 204.5(h)(2). If, as the 
Petitioner requests, we understood the term "field" to be defined in broad terms, petitioners would be 
forced to demonstrate that an individual had reached the top of the entire science world , the entire art 
world, or the entire world of sports, for example. We find that such a reading would impose too 
strict a standard. We have consistently employed a narrower reading of the term "field," which has 
been upheld in the courts. See Kazarian, 596 F.3d at 1122 (upholding our evaluation of the 
individual's contributions to the field of physics, not all of science); Visinscaia, 4 F .Supp.3d at 131-
32 (upholding our evaluation of the individual's contributions to the field of dance, not all of athletics). 
The Petitioner does not claim to have expertise in the field of directing, producing, acting, script 
writing, music composition, or music production. As a result, we agree with the Director that the 
awards for work in these areas are not in the Petitioner's field of endeavor. 
The Director further found that the awards listed in the petition were not received by the Petitioner, 
as required to satisfy this criterion. We agree with this finding. Most of the awards were either 
specifically given to other individuals or are for aspects of filmmaking with which the Petitioner has 
not demonstrated involvement, such as directing, acting, producing, and screenwriting. On appeal, 
the Petitioner states that, "the [D]irector erred in finding that since the award did not go directly to 
the [P]etitioner, it cannot be considered toward meeting this criterion." She does not provide an 
explanation for this statement. We first note that the plain language of this criterion requires that the 
individual of extraordinary ability receive the award. In addition, however, the Petitioner has not 
demonstrated that the awards named are sufficiently related to her work such that she can otherwise 
take credit for them. The one film which received an award specifically related to music is 
which won at the 2004 The 
second page of the film's printout states that its music is by and 
The Petitioner's name is found on the last page of the print-out under the listing for the 
music department, where she is credited with "additional vocals." Others credited under the music 
department include the executive soundtrack producer, the music engineer, and several musicians. 
Given the numerous other individuals that contributed to the film's soundtrack in significantly more 
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involved roles, we cannot conclude that the Petitioner effectively received the award for 
by performing additional vocals. 
The Director also noted that the record does not contain information to show that the 
award is nationally or 
internationally recognized. On appeal, the Petitioner does not provide additional information to 
establish recognition of this award. As a result, we agree that the Petitioner has not demonstrated 
that the award is nationally 
or internationally recognized. On appeal, the Petitioner instead states that the Director erred by not 
considering other unspecified nominations and awards. As previously explained, this criterion 
requires the receipt of an award by the Petitioner. Evidence of awards given to others for different 
aspects of a production is not sufficient to meet its requirements. 
Evidence that the individual has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. _ 
In the denial, the Director found the Petitioner did not establish that her roles as a musical vocalist 
were leading or critical for the films or television shows cited. On appeal, the Petitioner challenges 
the Director's statements that she must show "the productions could no! have been produced without 
[her] contributions" or that "[her] role was more leading or critical than 
others employed in similar 
positions tor the projects." We agree with the Petitioner that this reasoning does not accurately state 
the regulation's requirements. We do find, however, that the Petitioner has not met her burden of 
proof in demonstrating that she performed in a leading or critical role. 
A leading role should be apparent by its position in the organizational hierarchy and the role's 
matching duties. A critical role is apparent by its overall impact on the organization or 
establishment. Aside from taking issue with the Director's rationale for the finding, the Petitioner 
does not provide evidence or explanation to support a finding that she performed in a leading or 
critical role. As noted by the Director, the Petitioner submitted articles regarding the importance of 
music in film. Regardless, the Petitioner has not provided additional information to demonstrate the 
impact of her involvement in the music of these productions. The Petitioner's name is listed for 
"vocals" or "additional vocals," however, the record is otherwise silent regarding the extent of her 
involvement. Without more, the Petitioner has not shown she played leading or critical role in a film 
or television show. 
The Petitioner also raises her participation m the mus1c festival, She provided 
documentation characterizing the event as '' ' The Director 
noted that the event poster listing the performers has the Petitioner's name in smaller font 
than many of the other performers, suggesting she did not have a leading or critical role. On appeal, 
the Petitioner states that: 
[She] should not be penalized just because "font size" on the poster indicated that she is 
perhaps not as famous as [other performers]. Her presence on the poster indicated that she 
has risen to the top few percentage points of artists in the world in this genre. The director 
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should have acknowledged this fact and considered the evidence m the totality of the 
circumstances. 
Here, the Petitioner argues that her participation in the festival should be considered as evidence of 
her extraordinary ability. Although such a cons-ideration may be appropriate for a final merits 
determination, we must first evaluate whether the Petitioner has provided sufficient initial evidence 
to meet three of the regulatory criteria. The relevant question at this junctur e is therefore whether 
the Petitioner has shown that she played a leading or critical role in the festival. Other than the 
poster, the Petitioner did not provided documentation regarding her relative position or importance 
to We decline to find that, merely by virtue of participating in the event, she necessarily 
played a leading or critical role. As a result, the Petitioner has not met her burden of proof to 
establish that she meets this criterion. 
Evidence of commercial successes in the perform ing arts, as shown by box office receipts or record , 
cassette, compact disk, or video sales. 
As evidence of commercial success, the Petitioner provided document ation regarding the box office 
sales attributable to several of the film s for which she provided music vocals: 
• -$14,586 
• - £199,259 
• -$18 ,935,657 
• - $74,655 
• -$285,585 
• -$30 ,143 
The Petitioner did not submit documen tation regarding the commercial success of these films other 
than Internet printouts listing the above box office returns. She did not provide information 
necessary to demonstrate that these returns r
epresent commercial success as opposed to commercia l 
failure, such as production , distribution , or promotiona l costs. Moreover, the Petitioner has not 
demonstrated that the box office returns represent her own commercia l success. She did not indicate 
what she was paid to participate in the movie production, or that the commercial success is 
sufficiently related to her work to satisfy this criterion. We cannot equate a film's box office 
revenues to the Petitioner' s commercial success without more details establishing that connection. 
The Petitioner submitted other evidence of a music career in Poland. She did not, however, provide 
specific information regarding her 
record sales or other commercial success related to her music. 
Without more details, documentation generally referring to the Petitioner's musi
cal 
accomplishments is not sufficient to meet the requirements of this criterion. 
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B. Summary 
The documents submitted in support of extraordinary ability must show that the individual has 
achieved sustained national or international acclaim and is one of the small percentage who has risen 
to the very top of his or her field of endeavor. Had the Petitioner satisfied at least three evidentiary 
categories, the next step would be a final merits determination that considers all of the filings in the 
context of whether or not the Petitioner has demonstrated: (I) a "level of expertise indicating that 
the individual is one of that small percentage who have risen to the very top of the field of 
endeavor," and (2) that the individual "has sustained national or international acclaim and that his or 
her achievements have been recognized in the field of expertise." 8 C.F.R. § 204.5(h)(2), (3); 
see also Kazarian, 596 F.3d at 1119-20 (discussing a two-part review where the evidence is first 
counted and then, if satisfying the required number of criteria, considered in the context of a final 
merits determination). Although we need not provide the type of final merits determination 
referenced in Kazarian, a review of the record in the aggregate supports a finding that the Petitioner 
has not established the level of expertise required for the classification sought. 
Ill. CONCLUSION 
The Petitioner has not provided the requisite initial evidence to establish extraordinary ability, as 
required by regulation. The appeal will be dismissed for the above stated reasons, 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 immigrl\tion benefit sought. Section 291 of the 
Act. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
Cite as Matter of P-K-H-, ID# 16855 (AAO June 20, 2016) 
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