dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 6830071 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 23, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a musician , seeks classification as an individual 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 Petitioner established 
that he met only two of the initial evidentiary criteria for this classification , of which he must meet at 
least three . 
On appeal , the Petitioner maintains that he submitted evidence that satisfies four of the evidentiary 
criteria and is otherwise qualified for the benefit 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)(l) 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 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 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) (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). 
II. ANALYSIS 
The Petitioner, a guitarist and composer, has been a member of several Colombian bands, including 
I 11 ~ andl I 
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 Petitioner claims that he meets four of the ten evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x). 1 The Director determined that the Petitioner met two of these criteria, relating to leading or 
critical roles with organizations that have a distinguished reputation, and commercial success in the 
performing arts. See 8 C.F.R. 204.5(h)(3)(viii) and (x). However, the Director determined that the 
Petitioner did not submit evidence to satisfy the two remaining claimed criteria, relating to published 
material about him and his work in major media, and display of his work at artistic exhibitions or 
showcases. See 8 C.F.R. 204.5(h)(3)(iii) and (vii). 
After reviewing all of the evidence in the record, we conclude that the Petitioner did not establish that 
he meets at least three evidentiary criteria. 
Published material about the individual in professional or major trade publications or 
other major media, relating to the individual's work in the field.for 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) 
The Director determined that the articles the Petitioner submitted did not satisfy this criterion because 
they only briefly mentioned him or his musical groups and were not about him and his work in the 
1 The Petitioner has not claimed that he meets any of the evidentiary criteria not discussed in this decision. 
2 
field. On appeal, the Petitioner claims that he meets this criterion based on articles published by El 
Espectador, El Tiempo, and Remezcla. 
With regard to the article published by El Espectador, the Petitioner submitted the article in English 
and it was not accompanied by the Spanish-language original, nor does the translation contain a 
statement from a translator attesting to its accuracy and completeness. Any document in a foreign 
language must be accompanied by a full English language translation. 8 C.F.R. § 103.2(b)(3). The 
translator must certify that the English language translation is complete and accurate, and that the 
translator is competent to translate from the foreign language into English. Id. Here, the Petitioner 
submitted a single blanket "Certificate of Accuracy" from a translator who does not identify the 
documents she translated. Because the Petitioner did not submit a properly certified English language 
translation of the document, we cannot meaningfully determine whether the translated material is 
accurate and thus supports the Petitioner's claims. 
In any event, the Petitioner did not submit sufficient evidence to establish that El Espectador qualifies 
as a major trade publication, professional publication or other major media. 2 The Petitioner relies on 
a screenshot from the website SimilarWeb which indicates that El Espectador has a global rank of 
3,298, a country rank of 27, and a category rank of 551. The Petitioner, however, did not demonstrate 
the significance of the Internet rankings and viewing statistics or explain how such information reflects 
the publication's status as major media. 
With respect to the article from El Tiempo, which was published in its print edition, the Petitioner 
submitted only a partial English translation of an article titled ' 
I I. The translated portion incl~u-de_s_o_n_l_y_t-hr_e_e_p_a_ra_g_r_a-ph_s_o_f_a_le_n_g-th~y 
article, in which the members of the group I I are introduced. In total, 
there are two sentences about the Petitioner and we agree with the Director's determination that the 
article is not about him. In addition to the insufficient translation, we note that the article does not 
identify the author of the material. While the record reflects that El Tiempo likely qualifies as major 
media in Colombia, the evidence submitted does not satisfy all elements of the criterion at 8 C.F.R. 
§ 204.5(h)(3)(iii). 
Finally, we agree with the Petitioner that the article published by online publication Remezcla, titled 
i ,I' contains sufficient references to and quotes from the 
Petitioner to qualify as published material about him and his work. However, the Petitioner did not 
establish that Remezcla, which is described as a I I "Latino independent cultural 
publication," qualifies as major media. The Petitioner submitted an article about the publication which 
mentions the size of its online audience but he did not provide comparative circulation statistics or 
rankings. 
Accordingly, the Petitioner did not establish that he satisfies this criterion. 
2 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14 7 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (instructing that evidence of published material in 
professional or major trade publication or in other major media publications should establish that the circulation ( on-line 
or in print) is high compared to other circulation statistics and show the intended audience of the publication). 
3 
Evidence of the display of the individual's work in the field at artistic exhibitions or 
showcases. 8 C.F.R. § 204.5(h)(3)(vii) 
The Director determined that the Petitioner did not meet this criterion based on his live performances 
as a musician, emphasizing that this criterion is "limited to the visual arts." We disagree with the 
Director's interpretation that the plain language of the regulation renders this criterion applicable only 
to visual artists. The regulation requires only that the work displayed be a given petitioner's own 
work product and that the venues at which the individual's work was displayed be artistic exhibitions 
or showcases. 8 C.F.R. § 204.5(h)(3)(vii). 3 
As certain exhibitions or showcases featuring performing artists meet the plain language of this 
regulation, the Director should not have summarily disregarded the Petitioner's evidence. Here, for 
example, the Petitioner provided evidence that his bands have performed at music festivals, and at 
various Colombian arts and cultural events. Accordingly, we conclude that the submitted evidence 
satisfies the plain language of this criterion. 
Evidence that the individual has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation. 8 C.F.R. 
§ 204.5(h)(3)(viii) 
The Director determined that the Petitioner met this criterion. Upon review, the Petitioner has 
submitted sufficient evidence to demonstrate that he served in a critical role as lead guitarist and co-
writer fo ._ _________ _. Further, he has established that the group, which was nominated 
for at least one Latin Grammy A ward, received significant media coverage, toured nationally and 
internationally, and enjoyed a distinguished reputation in Colombia. 
Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x) 
We note that the Director's decision states without explanation that the Petitioner provided sufficient 
documentation to satisfy this criterion. As explained below, upon de nova review of the record, we 
find the Petitioner has not adequately documented the sales of his recorded music. Therefore, we will 
withdraw the Director's determination that this criterion was met. 
This criterion focuses on volume of sales as a measure of an individual's commercial success in the 
performing arts. The evidence must show that the volume of sales reflects the individual's success 
relative to others involved in similar pursuits in the performing arts. 4 
To satisfy this criterion, the Petitioner provided evidence relating to one of his bands.I~-----~ 
I ~' including: (1) screenshots from Y ouTube providing viewing data for several of the group's 
music videos; (2) a screenshot of an article from the website los40.com.co which mentions that the 
group received a I I for selling 10,000 copies of I I in Colombia; (3) a 
3 See also USCTS Policy Memorandum PM 602-0005.1, supra at 9-10. (stating that officers should use the common 
dictionary definitions of "exhibition" and "showcase" in evaluating this criterion). 
4 Id. at 11-12. 
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screenshot of an article from El Espectador which mentions that the band' s~debut album achieved 
"double platinum" status; and (4) a partial Wikipedia article listing music recording certification 
thresholds in different countries along with the name of each country's certifying authority. 
The information provided regarding the band's YouTube views does not satisfy the plain language of 
this regulation as it does not relate to.__ ___ ~---~___.'s sales of recorded music or video 
sales. Further, the band's achievement of gold and platinum record status is not sufficiently 
documented in the record. The Petitioner has relied solely on English translations of Spanish-language 
media articles to corroborate his band's achievement of these sales milestones. As noted, any 
document in a foreign language must be accompanied by a foll English language translation. 8 C.F.R. 
§ 103.2(b)(3). The translator must certify that the English language translation is complete and 
accurate, and that the translator is competent to translate from the foreign language into English. Id. 
Here, the Petitioner did not provide copies of the original articles in Spanish, nor did he provide a 
properly certified English translation of foreign-language documents. Rather the Petitioner submitted 
a single, blanket certification that did not accompany or refer to any specific document. This 
"Certificate of Accuracy" includes the translator's name and states that she is "fluent in English and 
Spanish and the above translation is accurate to the best of my ability and knowledge." Because the 
Petitioner did not submit a properly certified English language translation of the articles that mention 
the band's sales certifications, we cannot determine whether the translated material is accurate and 
thus supports the Petitioner's claim. 
Even if the articles that mention]~---------~~ s gold and platinum record certifications 
were properly translated, the record does not contain primary evidence of the band's receipt of these 
certifications, or evidence of its total sales relative to that of other musical groups. The Petitioner did 
not, for example, provide evidence from the industry's certifying body, or from~----~ (the 
band's record label), confirming the group's gold and platinum records and the sales achieved to obtain 
them. 
For these reasons, we withdraw the Director's determination that the Petitioner satisfied 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. 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 section203(b)(l)(A) 
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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, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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