dismissed EB-1A Case: Music

I 
U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF D-0-G- DATE: MAY 3, 2017 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a musician, seeks classification as an individual of extraordinary ability in the arts. 
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 Form I-140, Immigrant Petition for Alien 
Worker, concluding that the Petitioner only satisfied one of the initial evidentiary criteria, while the 
regulation requires that he meet at least three. 
On appeal, the Petitioner submits additional evidence and asserts that he has shown how he qualifies 
for this immigrant classification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Section 203(b) of the Act states in pertinent part: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. - An alien is described in this 
subparagraph 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, 
Matter of D-0-G-
(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 S.tates. 
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). 
Satisfaction of at least three criteria, however, does not, in and of itself, establish eligibility for this 
classification. See Kazarian v. US CIS, 596 F .3d 1115 (9th Cir. 201 0) (discussing a two-part review 
where the documentation is first counted and then, if it fulfills the required number of criteria, is 
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), aff'd, 683 
F.3d. 1030 (9th Cir. 2012); Matter o.fChawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that 
the "truth is to be determined not by the quantity of evidence alone but by its quality" and that U.S. 
Citizenship and Immigration Services (USCIS) examines "each piece of evidence for relevance, 
probative value, and credibility, both individually and within the context of the totality of the 
evidence, to determine whether the fact to be proven is probably true"). Accordingly, where a 
petitioner submits qualifying evidence under at least three criteria, we will determine whether the 
totality of 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. 
II. ANALYSIS 
The Petitioner presents his occupation as an artist, musician, and music teacher. As he has not 
established that he has received a major, internationally recognized award, the Petitioner must satisfy 
at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). In denying the 
petition, the Director found that the Petitioner met the judging criterion at 8 C.F.R. § 204.5(h)(3)(iv). 
On appeal, the Petitioner maintains that he also meets the prizes or awards criterion at 8 C.F.R. 
§ 204.5(h)(3)(i), the published material criterion at 8 C.F.R. § 204.5(h)(3)(iii), the contributions of 
major significance criterion at 8 C.F.R. § 204.5(h)(3)(v), the artistic display criterion at 8 C.F.R. 
§ 204.5(h)(3)(vii), the leading or critical role criterion at 8 C.F.R. § 204.5(h)(3)(viii), and the 
commercial success criterion at 8 C.F.R. § 204.5(h)(3)(x). The Petitioner further argues that he has 
demonstrated his sustained national or international acclaim. We have reviewed all of the evidence 
in the record of proceedings, and it does not support a finding that the Petitioner meets the plain 
language requirements of at least three criteria. 
2 
.
Matter of D-0-G-
A. Evidentiary Criteria 
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 claimed he received a prize or award at the in 
Netherlands, in 1981. He provided jury reports from this competition, which show the scores for the 
performance of the They do not, however, name ·the 
Petitioner. The record does not otherwise show that the Petitioner played in or was affiliated with 
the Consequently, the record does not establish that the 
Petitioner himself received an award. Furthermore, the jury reports indicate "Prize: but do not 
otherwise provide detail regarding an award received. Without additional information, the Petitioner 
has not established that the award identified was nationally or internationally recognized for 
excellence in the field. As a result, the Petitioner has not submitted evidence that meets the plain 
language of this criterion. 
Published mate"rial about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification 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). 
On appeal, the Petitioner claims eligibility for this criterion based on press releases for performances 
that appeared in Germany. The Petitioner has not offered probative evidence under this criterion, 
however, because he did not provide copies of the original foreign language press releases. 
Although he provided English language translations, the original German text is merely presented 
typed on a blank page. The regulations indicate that a petitioner may provide original or 
photocopied versions of the documents required to support any benefit request. 8 C.F.R. 
§ 103 .2(b )(ii)( 4). Without a copy of the original work, the Petitioner has not provided acceptable 
documentation as specified in the regulation. As a result, the Petitioner's assertions regardiQg the 
contents of the press releases are of limited probative value and insufficient to satisfy his burden of 
proof. Furthermore, the Petitioner did not demonstrate that the sources identified are professional or 
major trade publications, or other major media. Finally, while the Petitioner included the title of the 
articles, he did not include the date and author for each piece. Consequently, he has not submitted 
evidence that meets the plain language requirements of this criterion. 
Evidence of the alien 's participation, either individually or on a panel, as a judge of the work of 
others in the same or an allied field of specification for w,hich class(fi.cation is sought. 8 C.F .R. 
§ 204.5(h)(3)(iv). 
The Petitioner provided a letter from Regional Director of 
reflecting that the Petitioner served as an adjudicator at the 2007 
The Director determined 
that the Petitioner submitted evidence that met the requirements of this· 
3 
\ 
.
Matter of D-0-G-
criterion. We agree that this evidence IS sufficient to demonstrate the Petitioner's judging 
expenence. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
The Petitioner did not describe his significant contrib\ltions in the field, nor did he detail how 
he has 
impacted the field through his work before the Director. On appeal, the Petitioner only identifies a 
previously submitted 
letter from Professor of at 
as evidence under this criterion. The Petitioner indicates that 
the letter from "establishes the petitioner' s/beneficiary' s eligibility for 
the benefit requested." 
The reference letters on record do not identify contributions in the Petitioner's field that qualify as 
original contributions of major significance in the field. Within his letter, 
indicated that the Petitioner made a significant contribution to the university's 
orchestra. However, the plain language of this regulatory criterion requires that contributions rise to 
the level of major significance in the field as a whole, rather than to a project or to an organization. 
See Visinscaia v. Beers, 4 F. Supp. 3d at 135-136. Although he stated that the Petitioner "is one of 
the [sought] after music teachers and performers in Germany," he did not explain how the Petitioner 
has made an impact in the field as a whole. 
The remaining letters on record are essentially references that do not specify significant 
contributions the Petitioner has effected in his field of endeavor. The letters show that the Petitioner 
has earned admiration for his talent and experience, but this is not sufficient to meet his burden of 
proof. For example, the record does not indicate the Petitioner's influence on other musicians in the 
field, nor does it show that the field has significantly changed as a result of his work. Consequently, 
the Petitioner has not submitted evidence that meets the plain language requirements of this 
criterion. 
Evidence of the display of the alien's wqrk in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
The Petitioner's appeal brief highlights his orchestral performances at 
as qualifying under this criterion. He references, for example, the letter from 
that describes the Petitioner's performances as violin in the university ' s 
orchestra. This evidence is sufficient to meet the plain la~guage of this criterion. 
Evidence that the alien 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 Petitioner claimed he met this criterion through his services as a leader for the 
from 1989 to 1996. As evidence of this 
4 
.
Matter of D-0-G-
service, the Petitioner provided a press release and a 1994 letter from 
Lecturer in Conducting Orchestras at the 
from indicates that he knew the Petitioner as the of the 
The letter 
The record does not, however, contain information establishing as an organization or 
establishment with a distinguished reputation. In support of such a finding, the Petitioner makes the 
following statement on appeal: 
The is] headed by Director of the 
as an independent joint venture of the 
and of the enJoys a 
distinguished reputation in the field that reaches far beyond regional borders. 
The Petitioner included additional facts regarding the long history of the 
but did not otherwise provide documentation to support the characterization of as an 
entity that "enjoys a distinguished reputation in the field that reaches far beyond regional borders." 
In addition, the Petitioner's indication that leads contradicts evidence that refers 
to the Petitioner in such a position. In light of the above, the Petitioner has not submitted qualifying 
evidence that meets the plain language requirements of this criterion. 
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). 
On appeal, the Petitioner states his previous evidence that refers to "employment that stretches out 
over a period from 1986 to 2011, and which, in a comparable manner, proves a sustained 
commercial success in the performing arts and in education." As the Petitioner has not offered box 
office receipts 
or sales materials, we will construe his appellate statement as a request to consider the 
material as comparable evidence. The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to 
submit comparable material if he or she is able to demonstrate that the standards at 8 C.F .R. 
§ 204.5(h)(3)(i}"(x) do not readily apply to his occupation. 
In this case, however, the Petitioner has not shown that the commercial success criterion is not readily 
applicable to his field. On the contrary, the Petitioner's claim relates to participation in orchestras, 
which generally engage in commercial activities, demonstrable through box office results and ticket 
sales. Therefore, it appears that this criterion is directly applicable to his occupation. As a result, the 
Petitioner has not submitted evidence that satisfies this criterion, nor has he established eligibility by 
relying on comparable evidence, in accordance with 8 C.F.R. § 204.5(h)(4). 
III. CONCLUSION 
As discussed above, the record only satisfies two of the regulatory criteria. As a result, 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 listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). Had the Petitioner 
5 
Matter of D-0-G-
submitted the requisite evidence under at least three evidentiary categories, the next step would be a 
final merits determination that considers all of the evidence in the context of whether or not the 
Petitioner has demonstrated: (1) a "level of expertise indicating that the individual is one of that 
small percentage who have risen to the very top of the field of endeavor," and (2) that the foreign 
national "has sustained national or international acclaim and that his or her achievements have been 
recognized in the field of expertise." 8 C.F.R. § 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 
1119-20. Although we do not need to provide the type of final merits determination referenced in 
Kazarian, a review of the record in the aggregate supports a finding that the Petitioner has not 
established the level of expertise required for the classification sought. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-0-G-, ID# 307205 (AAO May 3, 2017) 
6