dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 18328606 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 07, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a singer, 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 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 Director then reopened the proceeding twice - fust on the Petitioner's motion, and later treating 
an untimely appeal as a motion to reopen under 8 C.F.R. § 103.3(a)(l)(v)(B)(J). Both times, the 
Director again denied the petition. We dismissed the Petitioner's appeal, concluding that, although 
she met at least three of the initial evidentiary criteria, she had not established eligibility in the final 
merits analysis. The matter is now before us on a motion to reconsider. 
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 review, we will dismiss the motion. 
I. LAW 
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). 
Further, a motion to reconsider is based on an incorrect application o_flaw or policy. The requirements 
of a motion to reconsider are located at 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
In our appellate decision, we noted that the Petitioner asserts that she "has obtained the highest level of 
fame in her nativel land international recognition in pop singing." The record shows the Petitioner 
performed on the televised! 
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lcompyition program. Media interviews in 2009 and 2014 mention 
she worked as a "specialist" at 's Ministry of Culture but provide few details about this 
employment. The Petitioner also acted in the filml I (2015), but the record does not indicate 
that she has continued to pursue acting work. We also noted that the record shows the Petitioner has spent 
an increasing amount of time in the United States since 2015. Her most recent entry was in 2017 as a 
B-2 nonimmigrant visitor for pleasure. She later changed status to an O-lB nonimmigrant with 
extraor,inary ability in the arts through a petition filed b~ I and operates 
a studio where she provides voice lessons to children. 
Because the Petitioner has not indicated or shown that she 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 Director concluded that the Petitioner satisfied only two of the initial evidentiary criteria, 
awards at 8 C.F.R. § 204.5(h)(3)(i) and judging at 8 C.F.R. § 204.5(h)(3)(iv). In our decision 
dismissing the Petitioner's appeal, we determined that she also satisfied the criterion relating to 
published material at 8 C.F.R. § 204.5(h)(3)(iii). Because we concluded that the Petitioner satisfied 
at least three of the initial evidentiary criteria, we conducted a final merits determination in which we 
reviewed the record as a whole, including the evidence the Petitioner submitted under other claimed 
criteria. 1 As discussed above, in a final merits determination, we analyze a petitioner's 
accomplishments and weigh the totality of the evidence to determine if their successes are sufficient 
to demonstrate that they have extraordinary ability in the field of endeavor. See section 203(b )(1 )(A)(i) 
of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-20. 2 Based on this review, 
we concluded that the Petitioner did not establish her sustained national or international acclaim, that 
she is among the small percentage at the very top of the field of endeavor, and that her achievements 
have been recognized in the field through extensive documentation. 
For the reasons discussed below, the Petitioner's motion to reconsider does not overcome our prior 
decision. 
1 During the course of the proceeding, the Petitioner had also claimed to meet the criteria relating to membership in 
associations at § 204.5(h)(3)(ii), display at artistic exhibitions or showcases at 8 C.F.R. § 204.5(h)(3)(vii), leading or 
critical role at 8 C.F.R. § 204.5(h)(3)(viii), and high salary at 8 C.F.R. § 204.5(h)(3)(ix). 
2 See also 6 USCIS Policy Manual F.2 https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2 (stating that 
USCIS officers should then evaluate the evidence together when considering the petition in its entirety to determine if the 
petitioner has established, by a preponderance of the evidence, the required high level of expertise for the immigrant 
classification). 
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A. Judicial Proceeding Statement 
The regulation at 8 C.F.R. § 103.5(a)(l)(iii) requires the motion to be "[a]ccompanied by a statement 
about whether or not the validity of the unfavorable decision has been or is the subject of any judicial 
proceedings and, if so, the court, nature, date, and status or result of the proceeding." The Petitioner, 
however, did not include the required statement. Therefore, the Petitioner's motion does not meet the 
applicable requirements. See 8 C.F.R. § 103.5(a)(4). 
B. Motion to Reconsider 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceeding at the 
time of the decision. See 8 C.F.R. § 103.5(a)(3). 
On motion, the Petitioner asserts that we erred in our evaluation of the submitted media coverage about 
her and relating to her work. The Petitioner maintains that she submitted "a plethora of media 
coverage" and "[t]he fact thatl lmedia continues to reach [her] is already an indication of the 
continued interest froml I population for her" and "proof of the sustained acclaim" she enjoys 
"as a topl I pop singer." Our appellate decision focused, in part, on several articles the 
Petitioner submitted that specifically relate to her and her work as one indicator of whether she has 
enjoyed "a career of acclaimed work" in the field as contemplated by Congress. H.R. Rep. No. 101-
723, 59 (Sept. 19, 1990). In our final merits determination, we concluded that the record, irluding I 
media reporting on her and her activities, indicates that the Petitioner had a successful career in 
but it does not establish that she sustained a qualifying level of acclaim up to the time of filing in July 
2018. See 8 C.F.R. § 103.2(b)(l). The Petitioner has not established on motion that we misapplied 
the law or USCIS policy in reaching this conclusion based on the evidence she submitted. 
For instance, as discussed in our decision, in a translated September 2015 interview, conducted shortly 
after a two-month visit to the United States, the Petitioner stated: 'I I is too small, you can become 
~with one clip and one song. In America everyone sings .... After [a television appearance in 
L___J, when I was walking in the streets everyone asked me [for] autographs and it is not happening 
in [the] USA." In the same interview, the Petitioner explained that she found work performing in 
I I lounges, and promotional fliers reproduced in the record corroborate this public 
statement, advertising her performances at small venues such as restaurants, coffee shops, and cultural 
centers. We noted that this interview took place almost three years before the petition's filing date, and 
the record does not show that her career gained momentum afterward. Although the Petitioner appeared 
onl I's version of Dancing with the Stars in 2016, the record does not document any comparably 
high-profile activity since then. 
In addition, the Petitioner argues on motion that although she "has risen to the very top of the field of 
pop singing in I I and not in the USA" we must also "take into the fact whatever achievements 
[the Petitioner] has reached in the USA while she has been here." Our appellate decision did examine 
the Petitioner's most recent professional accomplishments and concluded that the record does not show 
that she has earned sustained national acclaim in the United States. Rather, we f01ed ~a~:~: f ecognition 
in the United States appears to be largely confined to the I O I community in .......... ~_......... We noted 
thatl jnedia continued to interview her after she relocated to the United States, but in those 
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interviews, she discusses staying at home with a new child, teaching singing lessons, and singing at 
corporate events. The Petitioner has not documented any U.S. media coverage apart from local,I I 
language media. The Petitioner has not shown on motion that we misapplied the law or USCIS policy 
in reaching this determination based on the documentation submitted . 
For example, one such article from 2017 discussed the Petitioner's achievements between 2001 and 2015 
and stated that "[h ]er dream is to conquer I I . . . . Meanwhile she shares her mastery with 
I I children, participates in charity concerts, and recently she performed at [all [estival." 
We also noted that the Petitioner sang at the opening of a fashion show inl 11 I media 
reported that the Petitioner "performed atl !Fashion Week," but photographs from the event 
show the legend 1 I Fashion Week." We found that the Petitioner had not established that the two 
names correspond to the same event, or that one is a part of the other. Although on motion the Petitioner 
provides screenshots from the website of§ashion Week, to show the two "are very much 
related events," these items show only that Fashion Week organizes short film and fashion 
festivals including inl !during Fashion Week, not that one is fart oftr other. 
Further, we noted that the Petitioner toldl I interviewers that her performance at Fashion 
Week generated "a huge response," but the record does not include any U.S. media coverage of the event. 
Moreover, we determined that although the Petitioner's other recent performances have been tied to 
I I cultural events, some of which have been at well-known locations, such as the I I I ! the Petitioner had not shown that these appearances generated attention 
at a level consistent with national or international acclaim, or that her participation was highlighted either 
before or after the events. For instance, a printout from the I l's website discusses a 
performance by the I I but the Petitioner's name does not appear in the article. 
Further, the Petitioner asserts on motion that she was asked to act in the movie I I "to 
capitalize on her popularity and reach a wider audience," and she provides a screenshot from IMDbPro 
of the cast listing forl I showing she performed the role of I I While our appellate 
decision acknowledged that the Petitioner acted in the film, our final merits analysis did not further 
discuss it as we noted the record does not indicate that she has continued to pursue acting work. 
Disagreeing with our conclusions without showing that we erred as a matter of law or pointing to 
policy that contradicts our analysis of the evidence is not a ground to reconsider our decision. Cf 
Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006).3 ("[A] motion to reconsider is not a process by 
which a party may submit, in essence, the same brief presented on appeal and seek reconsideration by 
generally alleging error in the prior . . . decision. The moving party must specify the factual and legal 
issues raised on appeal that were decided in error or overlooked in our initial decision .... ") 
Finally, the Petitioner argues on motion that her prior approval as an 0-1 nonimmigrant 
of extraordinary ability in the arts "as a pop singer ... popular among I I' automatically 
establishes eligibility for immigrant extraordinary ability classification. Extraordinary ability in the 
field of arts in the nonimmigrant context, however, means distinction, which is not the same as 
3 O-S-G- relates to motions to reconsider before the Board oflmmigration Appeals, governed by 8 C.F.R. § 1003.2(b)(l) , 
which states: "A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the 
prior Board decision and shall be supported by pertinent authority." These requirements are fundamentally similar to those 
found at 8 C.F.R. § 103.5(a)(3), and therefore the same logic applies. 
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sustained national or international acclaim. Section 101(a)(46) of the Act explicitly modifies the 
criteria for the 0-1 extraordinary ability classification in such a way that makes the nonimmigrant 
0-1 criteria less restrictive for an individual in the arts, and thus less restrictive than the criteria for 
immigrant classification pursuant to section 203(b)(l)(A) of the Act. Therefore, while USCIS has 
previously approved an 0-1 nonimmigrant petition for the Petitioner, the prior approval does not 
preclude USCIS from denying an immigrant visa petition which is adjudicated based on a different 
standard - statute, regulations, and case law. 
III. CONCLUSION 
We conducted a de novo review of the record on appeal, thoroughly analyzed the evidence, and 
ultimately concluded that while the Petitioner satisfied at least three of the evidentiary criteria, she did 
not establish the required sustained national or international acclaim for this highly restrictive 
classification. For the reasons discussed above, the Petitioner has not demonstrated that our appellate 
decision was incorrect based on the evidence before us at the time of our decision or that it was based 
on a misapplication of law or USCIS policy. Accordingly, the Petitioner did not satisfy the 
requirements for a motion to reconsider. Therefore, we will dismiss her motion. 
ORDER: The motion to reconsider is dismissed. 
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