dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 10094866 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 24, 2021 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an orchestral musician, seeks classification as an alien 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 denied the petition, concluding that the record did not 
establish that the Petitioner was a recipient of a major, internationally recognized award or had met at 
least three of ten evidentiary criteria, as required. 
On appeal, the Petitioner submits a brief and asserts her eligibility for the classification sought. 
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 )(1) 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). 
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. USCJS, 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. USCJS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner is the assistant principal_l ___ ~lplayer for thd._ _____ __,l 1 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that she has received a major, internationally 
recognized award, she must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner initially claimed to have satisfied five of these criteria, 
summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iv), Participation as a judge of the work of others; 
• (vii), Display at artistic exhibitions or showcases; and 
• (viii), Leading or critical role for distinguished organizations or establishments. 
The Director found that the Petitioner met the evidentiary criterion at 8 C.F.R. § 204.5(h)(3)(viii), 
relating to leadin or critical role. We will not disturb this conclusion. The record contains an offer 
letter and concert programs establishing that the Petitioner is the assistant principal 
'------~larer for that entjty i letter of recommendation from I I orchestra personnel 
manager for the : : describing her duties in that role, and news articles showing the 
I ~ distinguished reputation. 
On appeal, the Petitioner asserts that she also meets the evidentiary criteria relating to lesser prizes or 
awards, membership, and judging. The Petitioner does not contest the Director's conclusion regarding 
1 USC IS records reflect that the Petitioner received 0-1 status, a classification rese1ved for non immigrants of extraordinaiy 
ability. 
2 
the aitistic display c1iterion, and therefore, we consider that issue to be abandoned. 2 Afterreviewing 
all of the evidence in the record, we find that the Petitioner has not established she meets three of the 
regulatory criteria, as required. 
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 Petitioner initially asserted eligibility for this criterion based upon a claim that she received a 
I I Award in 2008 and provided a certificate recognizing her participation as a musician 
on an album nominated for this award. 3 In response to the Director's subsequently issued request for 
evidence (RFE), 4 the Petitioner acknowledged that the album was nominated for, but did not win the 
.__ _____ _.I She resubmitted the certificate of recognition, referred to it as an award certificate, 
and explained that it "is specific in naming [her] individually for her role on the album ... which 
received a nomination forl I Award." She also included a 2008 article from National 
Public Radio entitled ~----------------~ describing the 2008 D 
.__ __ .....,......!nominees and asserting that the album in question "deserves several awards" and "shovJ.d....lli; 
considered the Best Classical Album." This article does not indicate that the album received theL_J 
I 
In his decision, the Director acknowledged this certificate and article, but found that the Petitioner did 
not meet this criterion as she failed to establish either that the album won ~ I or that she 
received ~ I as a member of the orchestra performing on this album. 
On appeal, the Petitioner reasserts eligibility based upon her receipt of the aforementioned certificate. 
Although the Petitioner received this certificate recognizing her participation on the I I 
nominated album, the regulation at 8 C.F.R. § 204.5(h)(3)(i) provides that this award must be 
nationally or internationally recognized for excellence in her field of endeavor. Relevant 
considerations regarding whether the basis for granting the prizes or awards was excellence in the field 
include, but are not limited to: the criteria used to grant the awards or prizes; the national or 
international significance of the awards or prizes in the field; and the number of awardees or prize 
recipients as well as any limitations on competitors (an award limited to competitors from a single 
institution, for example, may have little national or international significance). 5 The Petitioner does 
not provide the criteria used to grant this certificate, evidence of its national or international 
significance, documentation of the limitations on competitors, or other materials demonstrating that 
the award certificate is nationally or internationally recognized in the field of orchestral music as 
required. Accordingly, the Petitioner has not met the requirements of this regulatory criterion. 
2 See Matter of R-A-M-, 25 I&N Dec. 657,658 n.2 (BIA 2012)(stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also Sepulveda v. US. Att ): Gen., 401 F.3d 1226, 1228 n. 2 
(11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-
CV-27312011, 2011 WL 4 711885 at* 1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were abandoned as he failed to 
raise them on appeal to the AAO). 
3 The Petitioner also submitted evidence rezau:liug the crite:a forreceiving thel lawardanddescribing the 
I !Academy, which confers thel _ I 
4 In this RFE, the Director requested additional evidence to establish that the Petitioner, either individually, or as patt of 
anorchestra,won al laward. 
5 See 6 USC!S Policy Manual F.2(8)(2), Appendix: Extraordinary Ability Petitions - First Step of Reviewing Evidence, 
https://www.uscis.gov/po !icy-ma nua 1/vo !um e-6-pa rt-f-c hapter-2 
3 
Documentation of the alien 's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields. 
8 C.F.R. § 204.5(h)(3)(ii) 
The Director concluded that the Petitioner was a member of thd I that the symphony 
was an organization in her field of endeavor, and that her membership in the symphony was based 
upon an open audition judged by recognized experts in that field; however, the Director did not grant 
this criterion because the Petitioner did not submit evidence demonstrating that thel I 
required outstanding achievements of its members. 
On appeal, the Petitioner argues that she meets this criterion as "[ e ]vidence was submitted to show 
that outstanding achievement was required to even be invited to audition" and that "further 
achievement was required (pe1formance dming the audition) under the careful judging eye of expert 
musician members." Upon review of all of the evidence in the record, we agree with the Director's 
conclusions with respect to this criterion. 
The Petitioner indicates, and letters in the record corroborate, that she won an open audition to become 
a member of thd I The Petitioner further asserts that both her selection to participate 
in this open audition and her selection as a member of thel I required outstanding 
achievements in the field of music. It is the Petitioner's burden to establish eligibility for the benefit 
sought. See Section 291 of the Act, 8 U.S.C. § 1361. For the following reasons, the Petitioner has 
not met this burden. 
First, the Petitioner has not provided evidence sufficient to establish the requirements for participating 
in this open audition. Although in their letters both I I and I l senior vice president 
of artistic planning and production for thd l attest that outstanding achievements are 
required to audition for and be selected as a member of the , their letters do not 
specify what these achievements are. For example, ~-----.-~ explains in his letter that thel I I I puts out public notices inviting musicians to apply for its auditions and that "only those 
applicants with outstanding achievement in their educational background and performance history are 
invited" to audition. I I similarly indicates that "[ m ]embership is predicated upon ... 
meeting of minimum qualifications that include past outstanding achievement in the field and 
excelling in a high-pressure performance setting as judged by a panel of experts." Repeating the 
language of the statute or regulations does not satisfy the petitioner's burden of proof. Fedin Bros. 
Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afJ'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr 
Associates, Inc. v. Meissner, 1997 WL 188942 at *5 (S.D.N.Y.). Beyond using the language of the 
statute, the letters of I I and I I do not provide detailed examples of these 
outstanding achievements, and the Petitioner does not off er other mate1ial such as the open audition 
selection process, the criteria for selection as a member of the or other relevant 
documentation, doing so. Absent this evidence, we are unable to determine if the~ _____ __. 
requires outstanding achievements of its members, and accordingly, that the Petitioner's membership 
with this organization satisfies this criterion. 
4 
.__ ____ _.lalso states in her letter that membership in thel I is predicated upon 
"excelling in a high-pressure performance setting as judged by a panel of experts," but does not explain 
how excelling in this environment equals having outstanding achievements in the field of music. The 
record lacks other evidence establishing this. Without documentation demonstrating that surpassing 
others in a high-pressure performance constitutes an outstanding achievement in the field of orchestral 
music,I ts letter is insufficient to establish that thel I requires outstanding 
achievements of its members, as judged by nationally or internationally recognized expe1ts in the field 
of orchestral music. 
Regarding the docureut titled "Coder Ethical Audition Practices" (Code), it also is insufficient to 
demonstrate that the.__ _____ ~requires outstanding achievements of its members. First, the 
section "Conduct of Auditions," states that an audition committee should "at least include the initial 
screening of applicants." The Code does not indicate how this should be done, rather stating that "the 
existence and composition of an audition committee and the nature and extent of its participation in 
auditioning and hiring is determined locally." In addition, the Code does not include a provision 
requiring that audition applicants have outstanding achievements in the field of music in order to be 
invited for an audition. Moreover, the record does not contain evidence establishing that thel I I I has endorsed this code. This is relevant as the document indicates that only those endorsing 
this code "assert thereby that they will conduct their auditions in accordance with the principles 
aiticulated therein." Without evidence demonstrating that thel I has endorsed the 
Code, and establishing that the Code requires audition applicants to have outstanding achievements in 
the field of orchestral music, this document does not support the Petitioner's assertion on appeal that 
thel I requires outstanding achievements of those who it invites to audition, and 
therefore of its members. 
For the aforementioned reasons, the Petitioner has not established that she meets this criterion. 
In light of the above conclusions, the Petitioner does not meet the initial evidentiary requirement of 
three criteria under 8 C.F.R. § 204.5(h)(3). Detailed discussion of the remaining criterion at 8 C.F.R. 
§ 204.5(h)(3)(iv), relating to judging, cannot change the outcome of this appeal. Therefore, we reserve 
this issue. 6 
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 
me1its dete1mination referenced in Kazarian, 596 F.3d at 1119-20. Neve1theless, 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. USCIS has long held 
6 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like comis, federal agencies are not generally required 
to make findings and decisions unnecessa1yto the results they reach); see also Matter of L-A-C-, 26 I&N Dec. 516,526 
n.7 (BI A 2015) (declining to reach a ltemative issues on appeal where an applicant is otherwise ineligible). 
5 
that even athletes perfmming 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 her 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)(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 she is one of the small percentage who has risen to 
the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act and 8 C .F .R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated her eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
6