dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 20930606 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 19, 2022 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a jazz percussionist and music instructor, 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 l 53(b)(lXA). 
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 although the 
Petitioner met the initial evidence requirement for this classification, the record did not establish that 
he has national or international acclaim and is one of the small percentage at the very top of his field 
of endeavor. 
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). 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 
Visinscaiav.Beers,4F. Supp.3d 126, 131-32(D.D.C.2013);Rijalv. USCJS, 772F. Supp.2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner is a percussionist who has perfonned with the banJ I for several years and has 
been involved with music festivals in his native Georgia. He states that he intends to continue to 
perform and record as a jazz percussionist in the United States while also instructing other 
percussionists. 
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 three of the evidentiary 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to published material about him, his participation as a 
judge of the work of others, and the display of his work at artistic showcases. We agree that the 
Petitioner has met the initial evidentiary requirements for this classification. 
B. Final Merits Determination 
When conducting a final merits determination, we examine and weigh the totality of the evidence to 
determine whether the Petitioner has sustained national or international acclaim and 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 his final merits determination, the Director concluded that the Petitioner had not established his 
national or international acclaim and that he was one of the small percentage at the very top of his 
field. He also concluded that the Petitioner had not submitted clear evidence that he was coming to 
the United States to work in his field of expertise per the requirement at section 203(b )(1 )(ii) of the 
Act, and that his entry would substantially benefit prospectively the United States. On appeal, the 
Petitioner asserts that the Director erred in his final merits determination and did not consider the 
entirety of the record. After reviewing all of the evidence in the record, we agree that the Director 
failed to consider the totality of the evidence in his final merits dete1mination, focusing instead only 
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on evidence submitted in support of qualifying criteria. We will therefore review the record de nova 
and consider whether the entirety of the record demonstrates the Petitioner's eligibility as a person of 
extraordinary ability. 
As noted in the Director's decision, the Petitioner submitted evidence of an article about him and his 
work as a drummer which was published on the website of the Georgian version o~ I magazine 
in 2020. The aiiicle describes his career across different musical genres and his plans for work(ng inl 
the United States. Also submitted were rher pulblished materials, including a biography of 
§
the singer who performs with on the web re of audio eauinment manufacturer 
presumably as a sponsored artist), and a review of I album 
blished on the website www.pennyblackmusic.com.uk. While the Petitioner is mentioned 
as the drummer f 011 fin these articles, their main focus is on the perfomiance ofl I 
and they do not single out the Petitioner for his expertise or skill as a percussionist as they do for her 
as a singer. We note that the Petitioner criticizes the Director's analyses of this evidence, arguing that 
the INA' s requirement of "extensive documentation" in support of this classification is not merely a 
numerical standard but also one of quality. USCIS policy is clear in stating that both the quantity and 
quality of evidence in the record is considered in the final merits determination. See 6 USCIS Policy 
Manual F.2(B)(2). But the Petitioner has not shown that aiiicles that merely mention his name and 
are published on websites about which no information is provided are of sufficient quality to suppmt 
his claim of eligibility. 
Another item discussed in the Director's decision but not in the final merits determination was his 
receipt of an award, the I 12018" for "Best Drummer." The evidence of this award 
includes a certificate, identifying the awarding organization asl lin 
II Russia and a photograph of a statuette with an ille "ble la ue. A letter frortj I 
c===]who names himself as the General Director Company, describes the 
genesis of a music award related to thel I Club in~--~ hich he states the Petitionerreceived 
in 2018, but he does not name the title of the award or the award cate ory, nor does he claim to have 
any relationship with the.__ ___________ ___, o,rL-----'" .................................................................... ........_,,e from 
the website www.minikult.com presents a description of theL....r----------,. ____ ___Jand its 
relationship withl I Club but makes no mention of the~-----~or any other award. 
This evidence casts doubt upon the Petitioner's receipt of the claimed award, and even ifhe did receive 
it, does not indicate that it represents acclaim for his musicianship beyond a single music club. 
also wrote an additional letter in which he claims that I I published 6 
albums for.__ ________ ~..,...........and "held more than 700 concerts in Russia" from 2006 to 
201 7. He provides a list of royalties for the Petitioner for each of these albums, ranging from $30,000 
to $40,000, and also states that in concert performances from 2013 to 201 7, he earned between $65,000 
and $90,000peryear. As the record is otherwise absent of anyinformationregardingl I 
orl I let alone his first-hand knowledge of the Petitioner's earnings, this information is 
insufficient to demonstrate the level of the Petitioner's earnings. While the evidence also includes 
copies of four agreements between the Petitioner and the I I in 
2018 and 2019 for concerts in which the Petitioner was to have been paid between $1800 and $2200, 
this evidence does not show his total earnings over a specific period of time. Further, without evidence 
which puts the Petitioner's earnings in context with that of other musicians, the record does not 
demonstrate that his earnings are indicative of acclaim orputhim among the few at the top of his field. 
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Additional reference letters in the record include one written byl I Art~ctor 
of th~ I Theater. He states that he met the Petitioner in 2007 at theL___JJazz 
Festival, where he "performedatth...._~----.....a+--~--___.describes tw · · 
he collaborated with the Petitioner: th....._..-----,-........,........Jfilm award presenta~t_io_n....,_a_n_d ________ ~ 
as part of the World Economic Forum i ~-~ Switzerland. Although~----~ makes clear 
that the Petitioner performed as a drummer at these events, the role he played beyond that is vaguely 
described. For instance, forthel laward he states that he collaborated with the Petitioner 
"on linking effectively various musicians, singers, songwriters, lyricists, composers, and their fan­
bases together, which enabled us to successfully work toward a common production goal." In addition, 
neither description specifies when these collaborations happened, or whether they happened more than 
once. Reference letters such as this which lack details and make general and expansive statements 
about a petitioner's accomplishments, and are not supported by documentary evidence, are not 
persuasive. See 6 USCJS Policy Manual F.2(B)(l ), https://www.uscis.gov/policy-manual/volume-6-
part-f-chapter-2. 
Two more reference letters describe the Petitioner's role in music festivals. I I 
Director of th~ I states that the Petitioner has been involved with thd I Festival 
in Georgia since 2004, helping to identify those who have preserved Georgian folk music and bringing 
the music to the attention of a national audience. I I also writes that the Petitioner has 
created the music which accompanies the Festival's advertisements aired in Georgia and abroad, and 
has voluntarily provided music instruction for underprivileged children. In addition, the record 
includes a certificate given to the Petitioner by I I in 2019 "for his outstanding 
contribution to the development of the festival." 
Similarly J I of the I I Jazz Festival in Russia states that from 2004 to 2020, the 
Petitioner participated in the festival as a drummer as well as an event planer and artist relations 
coordinator. She explains that in these roles, he helped the festival gain media exposure and secured 
master classes and jam sessions for the festival. As with I I letter, the information 
about the festivals described in these letters, such as their attendance and importance in the world of 
music, is not supported by documentary evidence in the record. Although they indicate that the 
Petitioner's participation in them has been important to the festival organizers, they do not establish 
that it has led to national or international acclaim for him. 
The totality of the evidence, including reference letters, website information, contracts, photographs 
and others, shows that the Petitioner's work as a percussionist has been displayed at many live 
performances over his career, most notably with I I The evidence indicates 
that these performances have occurred primarily in Georgia and Russia, but also in neighboring 
countries and in the United States. However, the record does not show that these performances have 
been noted in media, received critical acclaim, resulted in commercial success, or otherwise garnered 
sustained national or international acclaim for the Petitioner. Although the number and period over 
which these performances have taken place indicate that he has had a long and active career as a 
percussionist, the act of performing is inherent to the musical profession, and the record does not 
demonstrate that either the quantity or quality of these performances place the Petitioner as one of the 
very few at the top of this field. 
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Finally, as noted in the Director's decision, the Petitioner has submitted evidence of having served as 
~ of other drummers for a single event, the 2011~ _______ ____. which took place in 
L__Jin 2011. The record indicates that this was a student drumming competition, with the focus on 
using items found in a classroom instead of traditional instruments, and culminated in an international 
tournament in Brazil. As with the evidence relating to his media attention, the Petitioner has not shown 
that a single instance of evaluating the performance of non-professionals reflects sustained acclaim at 
the national or international level or elevates his standing as one of few top percussionists in his field. 
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, l 990);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). 
C. Coming to Work and Substantial Prospective Benefit 
In addition to concluding that the Petitioner had not established his sustained national or international 
acclaim as a jazz percussionist and instructor, the Director also determined that he had not established 
that he is coming to the United States to continue working in his field, or that his presence would 
substantially benefit prospectively the United States. As the Petitioner has not established his 
sustained national or international acclaim or standing as one of the few at the top of his field, and thus 
is not eligible for the requested classification, we reserve these issues. 1 
III. CONCLUSION 
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. 
1 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach). 
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