dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 109467 48 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 5, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a violinist , seeks classification as an individual of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A) , 8 U.S .C. § l 153(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 initially approved the petition , but later revoked that 
approval on notice , under the provisions of section 205 of the Act, 8 U.S.C. § 1155, and 8 C.F.R . 
§ 205.2 . The Director concluded that the petition had been approved in error, because the record did 
not establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria , as required. 
The Director also concluded that the Petitioner had provided false information to U.S . Citizenship and 
Immigration Services (USCIS) regarding her plans to continue working in the area of claimed 
extraordinary ability. The matter is now before us on appeal. 
After a preliminary review of the record , we issued a notice of our intent to dismiss (NOID) the appeal, 
notifying the Petitioner of various adverse findings outside the record of proceeding . The Petitioner 
subsequently asked to withdraw the appeal. The Petitioner 's request to withdraw the appeal is granted; 
however, notwithstanding the withdrawal of this appeal, we will enter a separate finding of willful 
misrepresentation of a material fact against the Petitioner. 
I. LAW 
Section 203(b )(1 )(A) of the Act makes immigrant visas available to individuals 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. 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). 
II. REQUEST FOR WITHDRAW AL OF THE APPEAL 
As noted above, we issued a NOID, notifying the Petitioner of various adverse findings outside the 
record of proceeding. The Petitioner subsequently asked to withdraw the appeal. She did not 
acknowledge, discuss, or dispute the adverse findings in her withdrawal request. 
A withdrawal may not be retracted and may not be refused. 8 C.F .R. § 103 .2(b )( 6); Matter of Cintron, 
16 I&N Dec. 9 (BIA 1976). Accordingly, the Petitioner's request will be granted and the appeal will 
be dismissed based on that withdrawal. 
III. MATERIAL MISREPRESENTATION 
For the reasons discussed below, we find that the Petitioner willfully misrepresented information about 
her prior employment and claimed recording career, which was material to the adjudication of the 
petition. 
A. Evidence of Record 
The Petitioner claimed to be an alien of extraordinary ability in the arts, specifically as a violinist. As 
examples of her work, the Petitioner submitted what purport to be images of the front and back cover art 
of several compact discs (CDs) of her recorded work. The Petitioner also claimed to have been a professor 
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of Music at since 2011; she claimed no other employment during .__ ____________ ____, 
that period. 
Further research, however, calls these claims into question. 
On January 30, 2016, the Petitioner applied for a nonimmigrant visa at the U.S. Embassy iJ._ _ ____. 
Ukraine. At that time, she indicated that she was employed as "Head of Department of Advertising" at 
I I This information contradicts her later claim to have worked as a music professor 
since 2011. 
The CD back cover art the Petitioner submitted derives from altered images taken from real CD 
packaging. The purported packaging for.__ ______ _, shows a catalog number and artwork 
corresponding to a compilation album called).7ucKomeKa Aeapu5t -Bee Xztmbz: Aeapu5t Ilpomue!. 1 
The purported back cover of I , I shows the logo of thel l1abel; a bar code 
numbered! land the catalog numberl I The last two numerals printed 
with the bar code have been altered; the bar code itself actually scans as 4607115072715, which 
corresponds to I'ape.r,,1, an album by Reflex. 2 Text and logos in the submitted image match elements 
of the Reflex album. The catalog number, also altered, corresponds to the compilation album XXXL 
15 - MaKCllll4llllbHbllt. 3 
The purported back cover o~ I shows a blurred photo of trees; a bar code reading 
'-------~ logos for Fiction Records, Polydor, and Universal; and the web address 
"www.thecure.com." The text also provides separate catalog numbers for "DISC ONE" and "DISC 
TWO," although! I purportedly has only 10 tracks. The back cover text (except for 
the Petitioner's name, in a mismatched font) and the tree image correspond to a 2-CD reissue of 
Seventeen Seconds by the Cure. 4 
The Petitioner has submitted no credible evidence that her claimed CDs actually exist. (The Petitioner 
did not submit the actual CDs themselves, or their original packaging.) Her reliance on falsified images 
of packaging indicates that she did not actually release the claimed CDs. Because the artwork from 
three of her claimed CDs has been falsified, there is reason to question the origin and authenticity of the 
submitted artwork for several other claimed CDs. Doubt cast on any aspect of a petitioner's proof may 
undermine the reliability and sufficiency of the remaining evidence offered in support of the visa petition. 
Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). We note, here, that the Director of the Nebraska 
Service Center previously concluded that the Petitioner submitted "digitally manipulated" images 
relating to awards and media coverage. The Petitioner did not dispute this conclusion when given the 
opportunity to do so. 
Our NOID gave the Petitioner an opportunity to respond to the adverse information, as required by 
8 C.F.R. § 103.2(b)(16)(i). We also advised the Petitioner that, if she did not overcome this 
1 Source: https://www.discogs.com/)],11cK0TeKa-ABapm1-Bce-X11Tbr-ABapm1-TTponrn/release/11669604 (last visited Feb. 
2, 2021). 
2 Source: https://www.discogs.com/Reflex-fapeMlrelease/5405130 (last visited Feb. 2, 2021). 
3 Source: https://www.discogs.com/Various-XXXL-15-MaKCIIMaJibHbiii:/release/2374428 (last visited Feb. 2, 2021). 
4 Source: https://www.discogs.com/The-Cure-Seventeen-Seconds/release/493031 (last visited Feb. 2, 2021 ). 
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information, then we would make a finding of willful misrepresentation of a material fact. We further 
advised that, while the Petitioner had the right to withdraw the petition, such a withdrawal would not 
prevent a finding of willful misrepresentation of a material fact. The Petitioner responded to the NOID 
with a request to withdraw the appeal, but she did not address the above-described adverse findings in 
any way. 
B. Analysis 
The facts and evidence presented in the instant matter warrant a finding of willful misrepresentation 
of a material fact against the Petitioner. 
A misrepresentation is an assertion or manifestation that is not in accord with the true facts. As 
outlined by the Board of Immigration Appeals (BIA), a material misrepresentation requires that the 
foreign national willfully make a material misstatement to a government official for the purpose of 
obtaining an immigration benefit to which one is not entitled. See Matter of Kai Hing Hui, 15 I&N 
Dec. 288, 289-90 (BIA 1975). The term "willfully" means knowing and intentionally, as distinguished 
from accidentally, inadvertently, or in an honest belief that the facts are otherwise. See Matter o_f Healy 
and Goodchild, 17 I&N Dec. 22, 28 (BIA 1979). To be considered material, the misrepresentation must 
be one which "tends to shut off a line of inquiry which is relevant to the alien's eligibility, and which 
might well have resulted in a proper determination that he be excluded." Matter of Ng, 17 I&N Dec. 
536, 537 (BIA 1980). 
USCIS will deny a visa petition if the petitioner submits evidence which contains false information. 
In general, a few errors or minor discrepancies are not reason to question the credibility of a foreign 
national or an employer seeking immigration benefits. See Spencer Enters. Inc. v. US., 345 F.3d 683, 
694 (9th Cir. 2003). However, if a petition includes serious errors and discrepancies, and the petitioner 
does not resolve those errors and discrepancies given the opportunity to rebut or explain, then the 
inconsistencies will lead USCIS to conclude that the claims stated in the petition are not true. See 
Matter of Ho, 19 I&N Dec. at 591. 
In this case, the discrepancies in the documents relating to the petition constitute substantial and 
probative evidence. The regulation at 8 C.F.R. § 204.5(h)(3)(x) calls for evidence of the alien's 
commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact 
disc, or video sales. The Petitioner submitted altered CD artwork specifically to address this regulation, 
and therefore evidence of a claimed recording career is material to her eligibility under section 
203(b )(3 )(A) of the Act. We find that the Petitioner misrepresented material facts regarding the claimed 
CDs. 
The Petitioner's past employment is also material to the petition, because eligibility is based on 
acclaim earned in one's past career. See section 203(b )(2)(A)(i) of the Act. Furthermore, the 
Petitioner initially claimed that, as a professor, she performed in a leading or critical role for an 
organization or establishment that has a distinguished reputation, which relates to 8 C.F.R. 
§ 204.5(h)(3)(viii). We find that the Petitioner misrepresented material facts relating to her past 
employment in Ukraine, because her own prior statements about her employment history contradict 
the information she provided in the petition. 
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When given an opportunity to rebut these findings, the Petitioner offered no rebuttal or explanation 
for the inconsistencies. Instead, she withdrew the appeal. If the Petitioner had not withdrawn the 
appeal, we would have dismissed the appeal based, in part, on these misrepresentations. See Cintron, 
16 I&N Dec. at 9; see also 8 C.F.R. § 103.2(b)(l4). 
Beyond the adjudication of the visa petition, a misrepresentation may lead USCIS to enter a finding 
that an individual foreign national sought to procure a visa or other documentation by willful 
misrepresentation of a material fact. This finding of fact may lead USCIS to determine, in a future 
proceeding, that the foreign national is inadmissible to the United States based on the past 
misrepresentation. 
Section 212(a)(6)(C) of the Act, 8 U.S.C. § 1182(a)(6)(C), provides: 
Misrepresentation - (i) In general - Any alien who, by fraud or willfully 
misrepresenting a material fact, seeks to procure ( or has sought to procure or has 
procured) a visa, other documentation, or admission into the United States or other 
benefit provided under this Act is inadmissible. 
To find a willful and material misrepresentation in visa petition proceedings, an immigration officer 
must determine: 1) that the petitioner or beneficiary made a false representation to an authorized 
official of the United States government; 2) that the misrepresentation was willfully made; and 3) that 
the fact misrepresented was material. See Matter of M-, 6 I&N Dec. 149 (BIA 1954); Matter of L-L-, 
9 I&N Dec. 324 (BIA 1961); Kai Hing Hui, 15 I&N Dec. at 288. 
First, the Petitioner submitted falsified evidence ( altered images of CD packaging) intended to falsely 
create the appearance of a recording career. The Petitioner's submission of these falsified documents 
in support of her immigrant visa petition constitutes a false representation to a government official. 
The Petitioner also made a false representation to a government official when she claimed to have 
been a music professor since 2011, when her own prior statements show that she was employed in an 
unrelated field during that time. 
Next, we find that the Petitioner willfully made the misrepresentation. The Petitioner has not asserted 
that she believed the images of the claimed CD packaging to be authentic, or explained how she came 
to be in possession of the images. She has also not accounted for providing two conflicting 
employment histories. When given the opportunity to address our findings, the Petitioner withdrew 
the appeal rather than offering any explanation or rebuttal that she submitted the evidence accidentally, 
inadvertently, or in an honest belief that the facts previously offered in support of the petition were 
true. 
Furthermore, the Petitioner signed Form I-140, Immigrant Petition for Alien Worker, certifying under 
penalty of perjury that the visa petition and the submitted evidence are all true and correct. See section 
287(b) of the Act, 8 U.S.C. § 1357(b); see also 8 C.F.R. § 103.2(a)(2). Accompanying the signed 
petition, the Petitioner submitted the claimed CD artwork and information about her claimed 
professorship, specifically citing them as evidence in support of the petition. Part 8 of Form I-140 
requires a petitioner to make the following affirmation: "I certify, under penalty of perjury of the 
United States of America, that this petition and the evidence submitted with it are all true and correct." 
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On the basis of this affirmation, made under penalty of perjury, we find that the Petitioner willfully 
and knowingly made the misrepresentation. 
Third, the misrepresented facts are material. To be considered material, a false statement must be 
shown to have been predictably capable of affecting the decision of the decision-making body. Kungys 
v. US., 485 U.S. 759 (1988). Here, the misrepresentations could have affected the outcome of the 
petition because they purported to address, and to satisfy, specified criteria of eligibility; as noted 
above, the Director initially approved the petition before revoking that approval. In light of the list 
of contradictory evidence and information we described above and in the NOID, we find that the 
Petitioner's misrepresentations were material to her eligibility. 
For these reasons, we will enter a finding that the Petitioner made a willful misrepresentation of a 
material fact. 
IV. CONCLUSION 
By filing the instant petition and submitting falsified evidence relating to her claimed employment and 
recording career, the Petitioner sought to procure a benefit provided under the Act through willful 
misrepresentation of a material fact. This finding shall be considered in any future proceeding where 
admissibility is an issue. While the Petitioner has chosen to withdraw her appeal, this does not negate 
our finding that she sought to procure immigration benefits through willful representations of material 
facts, which may render her inadmissible in future proceedings. 
ORDER: The appeal is dismissed based on its withdrawal by the Petitioner. 
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