dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 5565038 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 24, 2020 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a cellist, seeks classification as an alien of extraordinary ability. 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 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 Texas Service Center denied the petition, concluding that although the record 
established that the Petitioner satisfied the initial evidentiary requirements, it did not establish, as 
required, that the Petitioner has sustained national or international acclaim and is one of that small 
percentage at the very top of the field. The Director also found that the Petitioner had not shown that 
he is corning to the United States to continue working in the field. The Petitioner appealed that 
decision. 
On appeal, the Petitioner noted that the denial decision contained a number of inapplicable references 
to athletics, and that the Petitioner had documented upcoming work in the United States. The Director 
issued a revised decision which addressed these issues and raised additional points. Because the 
Petitioner's appeal predated these revisions , we allowed the Petitioner an additional 30 days to 
supplement the record and respond to the latest version of the decision. The record contains no 
response to this notice, and we consider the record to be complete as it now stands. 
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 aliens 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 in 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 
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 that petitioner does not submit this evidence, 
then they 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) (including items such as awards, published material 
in certain media, and scholarly articles). 
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. 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.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 of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Petition~r is a cej)jft. The Petitioner has studied at China'sb _______ .,,....,_ lof Music, the 
University of1._ ____ _.]the National Universit of and University. When he filed the 
petition, the Petitioner was studying a ~---~ onservatory. 1 
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 ten alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner claimed to have met seven of those criteria: 
• (i), nationally or internationally recognized prizes or awards for excellence; 
1 The Petitioner appears to have left the United States; on the appeal form, he provides an address in China. 
2 
• (ii), membership in associations requiring outstanding achievements; 
• (iii), published material in professional or major trade publications or other major media; 
• (iv), participation as a judge of the work of others; 
• (v), original contributions of major significance; 
• (vii), display at artistic exhibitions or showcases; and 
• (viii), performance in a leading or critical role for organizations or establishments that have a 
distinguished reputation. 
The Director found that the Petitioner met five of the ten criteria: (ii), (iii), (iv), (vii), and (viii). On 
appeal, the Petitioner does not dispute the Director's findings regarding the other two criteria. After 
reviewing all of the evidence in the record, we find that the Petitioner has satisfied four of the five 
criteria that the Director granted. We disagree with the Director's remaining finding: 
Published material about the individual in professional or major trade publications or other 
major media, relating to the individual's work in the field/or which class[fication 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) 
In general, in order for published material to meet this criterion, it must be about the petitioner and, as 
stated in the regulations, be printed in professional or major trade publications or other major media. To 
qualify as major media, the publication should have significant national or international distribution. 
In late 2017 and eary 2018, profiles of the Petitioner appeared in three provincial newspapers published 
inl . Submitted information indicates that one of these publications, Sichuan Daily, 
"rank[s] highest [in] circulation among provincial newspapers in China." An unspecified number of 
copies circulate in other countries, but the Petitioner did not show significant national or international 
distribution of what the record describes as a "provincial newspaper." 
In I 12017, the Pertioner wat one of two musicians interviewed on New York Lounge' a television 
talk show broadcast by.__ __ ___,· The Petitioner did not establish than I constitutes major 
media. Rather, it is a "Chinese-language TV station in the{ I area." The submitted 
information indicates that the program's viewership is predominantly local, and necessarily limited to 
viewers who speak Chinese. 
Other local media carried preview pieces, announcing then-upcoming shows by the Petitioner. One such 
preview appeared on an online platform that claims "readers from 181 countries," but the article about 
the Petitioner's! 12016 performance atl I had only 349 page views more than two 
years after that performance took place. 
Two preview pieces for that same I I 2016 performance appeared not in local media, but on biogs 
that aggregate content. One blog, Don411, includes news stories covering a variety of topics, while the 
other, Classical Candor, focuses on classical music. The Petitioner did not establish that either blog 
constitutes a professional or major trade publication or other major media. Furthermore, both pieces 
include identical language; in Classical Candor, the piece was specifically credited to an artist 
management and public relations agency. As such, the item is not a news article about the Petitioner, but 
rather a promotional press release. 
3 
The Petitioner established that The Straits Times is a major English-language newspaper in~I ---~ 
but the submitted article from that paper is not about the Petitioner. The 2010 review of an ensemble 
performance mentions the Petitioner only once, in the context of "a six-minute work for oboe and cello." 
To satisfy this criterion, an article must both ( 1) appear in professional or major trade publications or other 
major media, and (2) be about the Petitioner. None of the submitted articles meet both of these 
requirements, and therefore the Petitioner has not satisfied this regulatory criterion. 
As the Petitioner has demonstrated that he satisfies at least three criteria, we will evaluate the totality 
of the evidence in the context of the final merits determination below. 
B. Final Merits Determination 
As the Petitioner submitted the reqms1te initial evidence, we will evaluate whether he has 
demonstrated, by a preponderance of the evidence, his sustained national or international acclaim and 
that he 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. In a final merits determination, 
we analyze a petitioner's accomplishments and weigh the totality of the evidence to determine if their 
successes are sufficient to demonstrate that they have extraordinary ability in the field of endeavor. 
See section 203(b)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 
1119-20. 2 In this matter, we determine that the Petitioner has not shown his eligibility. 
It is significant that the prizes the Petitioner has won are specifically for young or student musicians, for 
which the most highly acclaimed artists in the field were ineligible. The Director raised this point in the 
amended notice of decision, to which the record contains no response from the Petitioner. 
The same pattern is evident in other aspects of the record. Whilel O I is a prestigious and well­
known concert venue, the record shows that the Petitioner performed there in the venue's smallest concert 
space. The record includes a printout from I l's website, stating: "With 268 seats, the elegant, 
intimate! !Recital Hall is home each season to hundreds of recitals, chamber music concerts, panel 
discussions, and master classes. At many of these events, you're likely to find young musicians making 
thei~ I debuts." 
Likewise, the Petitioner served as principal cello for four conservatory or youth orchestras, including the 
~-~IPhilharmonia. These placements attest to the Petitioner's skill in relation to his fellow students, but 
youth and student orchestras, by definition, exclude the most experienced musicians who have completed 
their training. As such, the Petitioner's principal cello positions do not attest to his standing in the field 
as a whole. 
2 See also USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 
Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADI 1-14 4 (Dec.22.2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (stating that USCIS officers should then evaluate the 
evidence together when considering the petition in its entirety to determine if the petitioner has established, by a 
preponderance of the evidence, the required high level of expertise for the immigrant classification). 
4 
Musicians can achieve acclaim and reach the top of their field while they are still students, but the burden 
is on the Petitioner to show that he has reached the top of his entire field. As recently as November 2016, 
less than 19 months before the petition's filing date, the Petitioner performed at a gala produced by an 
organization "dedicated to discovering, presenting and supporting the most talented young musicians, 
helping them achieve their full potential to become tomorrow's great concert artists." 
The Petitioner's field comprises all cellists, not only student cellists or young cellists. Any evidence that 
limits comparison to students or young musicians is greatly diminished in weight, because such evidence 
excludes many of the most accomplished musicians in the Petitioner's field. (In his introductory 
statement, the Petitioner mentions I I a prominent cellist who was 62 years old at the time of 
filing.) The Petitioner seeks an employment-based immigrant classification, which demands comparison 
of the Petitioner to those who are employed in the field, rather than students who are preparing for entry 
into that field. 
By way of analogy, U.S. Citizenship and Immigration Services (USCIS) has long held that even athletes 
performing at the major league level do not automatically meet the statutory standards for immigrant 
classification as an alien of "extraordinary ability." See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. 
Comm'r 1994); 56 Fed. Reg. at 60899. The AAO notes that in Matter of Racine, 1995 WL 153319 at 
*1, *4 (N.D. Ill. Feb. 16, 1995), the Court stated, with reference to a hockey player: 
[T]he plain reading of the statute suggests that the appropriate field of comparison is not 
a comparison of Racine's ability with that of all the hockey players at all levels of play; 
but rather, Racine's ability as a professional hockey player within the NHL. This 
interpretation is consistent with at least one other court in this district, Crimson v. INS, 
No. 93 C 3354, (N.D. Ill. September 9, 1993), and the definition of the term 8 C.F.R. 
§ 204.5(h)(2). and the discussion set forth in the preamble at 56 Fed. Reg. 60898-99. 
The Court's reasoning indicates that USCIS' interpretation of the regulation at 8 C.F.R. § 204.5(h)(2) is 
reasonable. By this same reasoning, the Petitioner must show that he is a top cellist, rather than a top 
student or a top "young cellist." 
The Petitioner has not shown that any established symphony orchestras, comprised of working musicians 
rather than conservatory students, have sought to employ him, either as a principal or otherwise. The 
upcoming work in the United States (which the Director acknowledged in the revised decision) consisted 
of the following: 
• A recording session to produce 60 minutes of music for a documentary film; 
• Providing accompaniment to a pianist for a six-date concert tour; and 
• Providing accompaniment at a concert to mark the release of an album by another 
musician. 
5 
The Petitioner did not establish that any of these short-term projects reflected, resulted from, or 
contributed to acclaim in the field, or that the events themselves have a prominence indicative of the very 
top of the field. 3 
Individuals who have worked with the Petitioner in various capacities, including the president of~ 
I I and a pianist who has employed the Petitioner as a touring accompanist, praise the Petitioner's 
skill as a musician, with particular attention to his bow technique. The record does not show, however, 
that these abilities have earned the Petitioner significant recognition beyond those who have worked with 
him. 
The record establishes that the Petitioner was a highly accomplished student of the cello, developing 
a technique that impressed his teachers while also earning coveted opportunities both to study and to 
perform. Ultimately, however, the key test of eligibility is not promise, potential, or subjective 
evaluations of the Petitioner's talent. Rather, the Petitioner must show that, at the time of filing the 
petition, he has already earned sustained national or international acclaim and reached the very top of 
his field. As substantial as his student accomplishments may be, the Petitioner has not yet met this 
very high threshold. 
III. CONCLUSION 
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. By way of 
comparison, USCIS 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 significance of his 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. 101-723, 59 
(Sept. 19, 1990); see also section 203(b )(1 )(A) of the Act. Moreover, the record does not otherwise 
demonstrate that the Petitioner has garnered national or international acclaim in the field, and he is 
one of the small percentage who has risen to the very top of the field of endeavor. See section 
203(b)(l)(A) of the Act 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. 
ORDER: The appeal is dismissed. 
3 By acknowledging that the Petitioner "provided paitial evidence in the form of upcoming engagements," the Director 
effectively withdrew the earlier finding that the Petitioner "has not provided any evidence" that he is coming to the United 
States to continue work in his field of expertise. 
6