dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 14444775 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 15, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a songwriter, musician, and producer, 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner met the initial evidence requirements through either receipt of a major, 
internationally recognized award or meeting at least three of the evidentiary criteria under 
8 C.F.R . § 204.5(h)(3). 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review , we will dismiss the appeal. 
I. LAW 
Section 203(b )(I) 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 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 
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 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. 20 l 0) 
( 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); Rijalv. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
TI. ANALYSIS 
The Petitioner is a songwriter, musician and producer for the and ecord 
labels, and is credited on songs by artists such as.__---.-____ ,...,._ ____ _,._ ____ ....,, and 
I, I, who performs under the pseudonym......,. ___ ~ He has also contributed to songs 
~ land others as a session guitarist. He states that he intends to continue working in 
the United States as a songwriter and producer. 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 alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Petitioner met two of the evidentiary criteria 
at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to a high salary in relation to others in his field and 
commercial success in the performing arts. On appeal, the Petitioner asserts that he also meets the 
evidentiary criteria relating to lesser nationally or internationally recognized awards and a leading or 
critical role for organizations having a distinguished reputation. 2 After reviewing all of the evidence 
in the record, we agree that the Petitioner meets the two criteria granted by the Director, but find that 
he does not meet the initial evidentiary requirement for this classification of at least three criteria. 
1 The record shows that he has been working in the United States for several years prior to the filing of this petition pursuant 
to 0-1 nonimmigrant status. 
2 Although the Petitioner initially claimed to also meet the criteria at 8 C.F.R. §§ 204.5(h)(3)(iii) and (v) relating to 
published material about him and contributions to the field of major significance, he does not contest the Director's 
decision relating to these criteria on appeal or otherwise refer to them in his appeal brief. We will therefore consider these 
issues to be waived. See, e.g., Matter ofM-A-S-, 24 I&N Dec. 762, 767 n. 2 (BIA 2009). 
2 
Documentation of the alien 's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i) 
The record includes evidence of the Petitioner's receipt (along with two ~) of the Society of 
Comr;iosers, Authors, and Music Publishers (SOCAN) Songwriting Prize inL_J for his work on the 
song l I performed b~ I The evidence indicates that the award includes a $10,000 
cash prize, a keyboard, and a $500 gift card. In addition, the official rules for the prize state that the 
song must be original, and created by songwriters who are Canadian citizens, landed immigrants or 
legal residents, and who have not been nominated for a Grammy award or are a previous winner of 
the SOCAN Songwriting Prize. 
The Director noted in his decision that the prize is described as honoring "emerging Canadian 
songwriters," and therefore excludes those "who have already achieved excellence in the field ... ," 
rendering this evidence less than probative. On appeal, the Petitioner argues that the plain language 
of this criterion does not preclude an award from meeting the requirements simply because it is granted 
to "emerging" artists, or because it is awarded based in part upon public voting. 
We agree with the Director that limitations on the scope of potential awardees may be taken into 
consideration when determining whether an award is granted for "excellence in the field of endeavor," 
since that phrase includes all of those engaged in the field of endeavor, not just the pool of nominees 
for a particular award. 3 Here, the exclusion of those who have been nominated for a Grammy award 
removes from the pool of potential awardees those who have already been judged to have 
demonstrated excellence in the field of songwriting. In addition, while the official rules state that the 
short list of ten finalists is nominated by an independent panel of experts "on the basis of artistic 
merit," the award itself is determined by public vote. Therefore, we also agree with the Director that 
the rules do not establish that the winner of the SOC AN Songwriting Prize is awarded for excellence 
in songwriting as opposed to popularity. 
Further, the evidence does not establish that the SOCAN Songwriting Prize is nationally or 
internationally recognized. The Petitioner initially submitted evidence that the press release from 
SOCAN about his receipt of the award was posted on the website businessinsider.com, as well as on 
the organization's own website. This evidence does not show recognition in the field beyond the 
awarding entity. Other media about the Petitioner's and his co-writers' receipt of this award included 
articles posted on the websites fyimusicnews.com and indie88.com. However, the information about 
these media outlets from their own websites is insufficient to show that these articles constitute 
national or international recognition in the music industry. 
In response to the Director's request for evidence (RFE), the Petitioner submitted additional evidence 
about the SOCAN Songwriting Prize, the organization, and previous winners of the award. We note 
that much of this evidence refers not to the songwriting prize, but to the "SOCAN Awards," which are 
granted at a highly publicized event and include awards in a large number of categories including 
3 See USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted With Certain 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14. Pg. 6 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html, noting that limitations on competitors is a relevant 
consideration when determining whether an award was granted on the basis of excellence in the field. 
3 
"Songwriters of the Year." That award was given to other songwriters itj I not the Petitioner and 
his collaborators. This evidence does not demonstrate that the SOCAN Songwriting Prize receives 
the same level of recognition, either from the general public or in the field. Accordingly, we agree 
with the Director and conclude that the Petitioner does not meet this criterion. 
Evidence that the alien has pe1formed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
In order to meet the plain language requirements of this criterion, a petitioner must establish that they 
have performed in either a leading or critical role, and that that role has been for an organization or 
establishment having a distinguished reputation. If a leading role, the evidence must establish that the 
petitioner is or was a leader. A title, with appropriate matching duties, can help to establish if a role is 
or was, in fact, leading. If a critical role, the evidence must establish that the petitioner has contributed 
in a way that is of significant importance to the outcome of the organization or establishment's 
activities. 
Here, the Petitioner asserts that he has played a leading or critical role for companies such as 
I I the I b, and I l dba I I I I as well as for individual artists who, he asserts, operated as "going business concerns" which 
qualify as organizations. In his response to the Director's RFE, for example, he states that his "critical 
rol~ withl lcontributt to mn)tjnla ~-];hoard chrlll~ songs and R. IAA certifications for 
artists such as I, I _ _ __ : _ an .__ _ _ ___,t' A letter from I I D SVP of A~~--------_.....,,..verifies that the Petitioner "has signed a publishing 
deal" and is employed as a songwriter, producer, and musician, and that his "writing and productions 
have led to multiple billboard charting songs ... " A similar letter from I I a music 
publisher atl land co-founder ofl I states that he has been collaborating with 
the Petitioner since signing him in 2010, and that the Petitioner "has surpassed all our collective 
expectations." And in a third letterJ I, Vice President of A&R a~ I notes that the 
Petitioner continues to work closely withl l an artist that he signed. All of these letters are 
supported by evidence from websites such as discogs.com and allmusic.com showing that the 
Petitioner is credited as a composer, producer, and musician on son~s performed by the artists listed 
above as well as others, and also by copies of contracts he signed witrl I This evidence 
does not, however, show that he has played either a leading or critical role for any of the companies 
with which he has been employed. 
First, regarding the Petitioner's role forl I the record does not include evidence which 
suggests that he has served in a leadership position or otherwise acted as a leader for the company. As 
for a critical role, the above evidence demonstrates that he has worked as a composer, producer, and 
musician on several songs for well-kn'C/-,I-IC..U...., ................. .,__,,.hich have been commercial successes. However, 
as noted b the Director in his decision is a large, multinational company which touts itself 
as.__ ___ ~~----~----' in the website materials submitted. Although the evidence 
shows that the Petitioner has contributed to several commercially successful songs, it does not show 
that these results were of significant importance tol ts overall activities, which according to 
its own marketing materials includes ownership ot1 I songs from well-known artists 
past and present. 
4 
Second, the evidence about the role the Petitioner ha.s served fo~ I concerns only his involvement 
as a songwriter, producer, and musician wittj ~ The letter froml J credits him with 
helping to create the artist's "signature sound," and states that he is involved on a dail basis with the 
creation of a new album. But neither the letter nor other evidence in the record about indicates 
that he has played a leading or critical role for the company, which is a part of '-----------' and includes several record labels and represents many popular artists. 
Third, the Petitioner claims in his response to the Director's RFE that he is a co-founder oti I I I and refers to the letter froml._ ____ _,~ as verification of this status. However, the letter 
mentions only thatl I has been collaborating with the Petitioner since meeting him in 2010, 
and that he anl his pirtners "immediately signed him to an exclusive publishing deal." As with 
I land the evidence indicates only that the Petitioner was an employee, and does not 
suggest that he served in a leadership role or that he was a critical part of any success enjoyet by the I 
company. Further, as the Director found in his decision, the evidence does not demonstrate tha 
.__ __ _.I has a distinguished reputation. 
Finally, the Petitioner asserts that the term "organization" is defined as "an administrative and 
functional structure ( such as a business ... )" and that individual artists constitute "going business 
concerns" and should therefore be considered as organizations. Although this definition, obtained 
from the website merriam-webster.com, uses a business as an example of an organization, it does not 
suggest that all businesses are organizations. Notably, the two examples found on this website refer 
to a formal structure, which the Petitioner has not shown to present iu the case rthe individual artists 
with whom we has worked. Further, in the cases otj ll an~ I 
the evidence shows that he was one of many artists who contributed to individual songs on a particular 
album, and was not a part of any formal structure. And although the evidence establishes that he has 
a close working relationship wittj l again there is no evidence of a formal administrative or 
functional structure of which the Petitioner can claim to be a member. In addition, as noted by the 
Director in his decision, even ifl lwas considered to be an organization as opposed to an 
individual artist, the record does not sufficiently establish tha~ I has a distinguished reputation. 
For the reasons detailed above, we agree with the Director and conclude that the Petitioner has not 
established that he meets 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 need not 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 that 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 the top. USCTS 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 
5 
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 )(l)(A) 
of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner has garnered 
national or international acclaim in the field, and that 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, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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