dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 8495211 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 24, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a singer, 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 had satisfied at least three of ten initial evidentiary criteria, as required . 
The matter is now before us on appeal. 
The Petitioner has requested to withdraw the appeal. We will grant the request and enter a finding of 
willful misrepresentation of a material fact. 
I. LAW 
Section 203(b )(1 )(A) of the Act makes immigrant visas available to aliens 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 
After a preliminary review of the record, we notified the Petitioner of our intent to dismiss the appeal 
with a finding of willful misrepresentation of a material fact based on various adverse findings. The 
Petitioner subsequently asked to withdraw the appeal. 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. WILLFUL MISREPRESENTATION 
As mentioned above, we sent the Petitioner a notice of intent to dismiss (NOID) the appeal based on 
several findings outside of the record of proceeding. By issuing a NOID, we gave the Petitioner an 
opportunity to respond to the adverse findings, as required by 8 C.F.R. § 103.2(b)(l6)(i). We also 
advised the Petitioner that, ifhe did not overcome the adverse findings, then we would make a finding 
of willful misrepresentation of a material fact. We farther 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 and did not address the adverse findings in any way. For the reasons discussed below, we 
find that the Petitioner willfully misrepresented claimed awards and media coverage, which are 
material to the adjudication of the instant petition. 
A. Evidence of Record 
The Petitioner claims to be an alien of extraordinary ability in the arts, specifically as a singer. He claims 
to have received several awards, including an Azerbaijan's Best Award for 'I I' in 
2015, and second place in Group[}f the XVII International Music Without Limits Competition in 2017. 
A purported photograph of the Petitioner's Azerbaijan's Best Award trophy appeared to show signs of 
alteration. Further research established that the Petitioner submitted an altered image of a trophy from 
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2017. 1 An article inl I indicates that the award was first presented in 2016. 2 A list of winners 
published on the website for the Music Without Limits competition named a different second place 
winner in GroupD and did not name the Petitioner at all. 3 Therefore, we conclude that the Petitioner 
submitted images that were altered to create the false appearance that he had won the awards. 
The Petitioner also submitted images of several purported magazine covers and articles, for example: 
• Gza, issu .__ ___ ...,---~2_0_1_6~an
7
d issud._ _____ ~12018; 
• Cxeli Shokoladi, issue 2016; 
• Beawnonde, issue and 
• Tbiliselebi, issu 2014, and issue .... l ______ __.I 2016. 
These images also showed indications of digital alteration. Attempts to verify the articles further support 
the conclusion that the submitted images have been altered. For example, Gza has a searchable archive 
of past magazine covers. 4 The covers on the website lar~ely match covers that the Petition~bmitted, 
but his name and photograph are not on the true covers.) Likewise, the true cover for issuLJof Cxeli 
Shokoladi (dated 12012, not I 12016) does not feature the Petitioner's photograph or name, 
but the other, unrelated headlines are authentic. 6 
Tbiliselebi's searchable archive does not reveal any articles about the Petitioner or magazine covers 
showing his image. The date ranges of authentic issues do not match the date ranges on the submitted 
cover images. 7 Text searches for phrases from the purported articles likewise have not confirmed that 
those articles exist. 
We could not locate an online archive for Beaumonde, but the purported article in the record shows 
evidence of alteration. That magazine purportedly published an interview with the Petitioner in both 
I I and English. In both languages, the Petitioner's name, and the title of Beauman de, are in a 
visibly different font from the surrounding ter, conrstent with substitution. We note that the subject of 
the interview identified his ho~oscopelsign as whereas the Petitioner's earlyl I birth date 
corresponds to the Zodiac sig Therefore, several lines of evidence converge on the conclusion 
that the Petitioner submitted an altered article that was originally about someone else. 
We conclude, therefore, that the Petitioner ( or someone acting on his behalf) altered authentic magazine 
covers and articles, and wrote fictitious articles, to create the false appearance of media coverage. 
1 Images of authentic 2017 trophies can be found online at https://gramho.com/media/l 708046161069654356; 
https:/ /pbs.twimg.com/media/DUdcnvaXkAA84gy.jpg; and https://az.baku.ws/uploads/posts/2018-0 l /1516784482 _img_ 
7100.jpg ( all last visited Sept. 15, 2020). 
2 https://www.azemews.az/culture/l 6 l 354.html (last visited Sept. 15, 2020). 
3 http://www.musicwithoutlimits.lt/wp-content/uploads/2013/09/LA UREA TES-2017 .pdf (last visited Sept. 15. 2020). 
4 http://gza.kvirispalitra.ge/arqivi.html (last visited Sept. 15, 2020). 
5 The original cover images are available online at http://gza.kvirispalitra.ge/images/stories/KDA/2017/kda-36.jpg (last 
visited Sept. 14, 2020) and http://gza.kvirispalitra.ge/images/stories/KDA/2018/gzakda44.jpg (last visited Sept. 15, 2020). 
6 An image of the authentic cover and a list of the issue's contents are available at https://www.lit.ge/periodic/305-cxeli­
shokoladi-75-ianvari-2012/ (last visited Sept. 14, 2020). 
7 The archive is available at http://tbiliselebi.ge/index.php (last visited Sept. 14, 2020). 
3 
This is not a complete list of altered or falsified materials in the record, but the above examples suffice 
to explain our conclusion that the Petitioner's evidence is not authentic. 
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). 
U.S. Citizenship and Immigration Services (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. 582, 591 (BIA 1988). 
In this case, the discrepancies in the documents relating to the petition constitute substantial and 
probative evidence. The Petitioner submitted evidence purporting to show media coverage, which is 
material to the petition under 8 C.F.R. § 204.5(h)(3)(iii). Purported prize trophies and certificates are 
material to the petition under 8 C.F.R. § 204.5(h)(3)(i). When given an opportunity to rebut these 
findings, the Petitioner offered no rebuttal or explanation for the inconsistencies and instead withdrew 
the petition. If the Petitioner had not withdrawn the appeal, we would have dismissed the appeal based 
on these misrepresentations. See Cintron, 16 I&N Dec. at 9; see also 8 C.F.R. § 103.2(b)(14). 
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 
4 
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 (images of prize materials, magazine covers, and 
articles) intended to falsely create the appearance of awards and media coverage in his field. The 
Petitioner's submission of these falsified documents in support of his immigrant visa petition 
constitutes a false representation to a government official. 
Next, we find that the Petitioner willfully made the misrepresentation. The Petitioner has not asserted 
that he believed the prizes or articles to be authentic, or explained how he came to be in possession of 
them. When given the opportunity to address our findings, the Petitioner withdrew the appeal rather 
than offering any explanation or rebuttal that he submitted the evidence accidentally, inadvertently, or 
in an honest belief that the assertions previously offered in support of the petition were true. 
Furthermore, the Petitioner signed Form 1-140, 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 articles and letter, specifically citing them as evidence in support 
of the petition. Part 8 of Form 1-140 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." 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. In light of 
the falsified evidence we described above and in the NOID, we find that the Petitioner's 
misrepresentations were material to his eligibility. 
IV. CONCLUSION 
By filing the instant petition and submitting falsified evidence of prizes and media coverage, the 
Petitioner sought to procure a benefit provided under the Act through willful misrepresentation of a 
material fact. This finding may be considered in any future proceeding where admissibility is an issue. 
While the Petitioner has chosen to withdraw his appeal, this does not negate our finding that he sought 
to procure immigration benefits through willful misrepresentations of material facts, which may render 
him inadmissible in future proceedings. 
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ORDER: The appeal is dismissed based on its withdrawal by the Petitioner. 
G