dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 15738320 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 16, 2021 
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. § 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 matter is now before us on appeal. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
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 )(A) of the Act makes immigrant visas available to individuals 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 pet1t10ner 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). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit 
comparable evidence if they are able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)­
(x) do not readily apply to the individual's occupation. 
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. ANALYSIS 
At the time of filing, the Petitioner was studying for a doctorate in musical arts at thel I 
New York! I The Petitioner is a collaborative pianist, who routinely performs with singers 
or other musicians. Before he entered the United States as a student, the Petitioner performed with the 
~---------------~ first as a singer, then as a rehearsal pianist and later as its 
"principal concert piano accompanist." 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or shown that he 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 initially claimed to have satisfied nine of these criteria, summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iii), Published material about the individual in professional or major media; 
• (iv), Participation as a judge of the work of others; 
• (v), Original contributions of major significance; 
• (vi), Authorship of scholarly articles; 
• (vii), Display at artistic exhibitions or showcases; 
• (viii), Leading or critical role for distinguished organizations or establishments; and 
• (x), Commercial success in the performing arts. 
The Director concluded that the Petitioner met two criteria, numbered (iv) and (vii). We will not 
disturb these conclusions. 
2 
On appeal, the Petitioner asserts that he also meets two other criteria, numbered (v) and (viii). The 
Petitioner does not directly contest the Director's conclusions regarding the other five previously 
claimed criteria, and therefore we consider those issues to be abandoned. 1 The Petitioner also states 
that his "qualifications should also be analyzed under the comparable evidence standard of 8 C.F.R. 
§ 204.5(h)( 4)" but does not elaborate. 2 This general assertion does not specifically identify an 
erroneous conclusion of fact or law as required by 8 C.F.R. § 103.3(a)(l)(v). 
Upon review of the record, we conclude, as discussed below, that the Petitioner has not met the 
requirements of the two claimed criteria discussed on appeal. 
Evidence of the alien's original scient#fic, scholarly, artistic, athletic, or business-related 
contributions of major significance in the.field. 8 C.F.R. § 204.5(h)(3)(v) 
Several individuals provide letters praising the Petitioner's work with the~ and elsewhere, but praise 
for the Petitioner's abilities does not establish ma· or si nificance in the field. The president and conductor 
ofth asserts that.___----.,...---------,--------,1an album that the Petitioner recorded with the 
~-~ "was awarded as the Best~----~Album by the Top Ten Most Popular CD Albums of the 
Year 201 O," but the record contains no evidence to support this assertion. The Petitioner submits a 
printout of an Amazon listing for the album, which shows much lower sales rankings: 
#1,287,308 in CDs & Vinyl 
#14,332 inl I Music 
#53,675 in Opera & Vocal (CDs & Vinyl) 
#191,512 in Classical (CDs & Vinyl) 
Furthermore, the Petitioner has not explained how his accompaniment oti~--~bn the album amounts 
to a contribution of major significance not only to the production of that album, but in the field overall. 
The principal ofi I Music School states that the school hosts an annual "educational lecture and 
~-~!recital." In 2014, when the Petitioner spoke and performed, the school "estimated around 350-400 
attendees for that night," but ultimately sold 576 tickets. The principal does not explain how this event 
was of major significance in the field. 
The Petitioner has not established any original contribution that has had an identifiable impact beyond 
the occasions where he performed and the institutions hosting or sponsoring those performances. 
Therefore, the Petitioner has not met the requirements of this regulatory criterion. 
1 See Matter of R-A-M-. 25 l&N Dec. 657. 658 n.2 (BIA 2012) (stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also Sepulveda v. US Att:v Gen., 401 F.3d 1226. 1228 n. 2 
(11th Cir. 2005). citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-
CV-27312011, 2011 WL 4711885 at *I. *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed to 
raise them on appeal to the AAO). 
2 The Petitioner cites an unpublished appellate decision from 2018, in which we referred to comparable evidence when 
determining that a musician had satisfied the "display" criterion at 8 C.F.R. § 204.5(h)(3)(vii). In the present case, the 
Director already took that reasoning into account, concluding that the Petitioner had satisfied the "display" criterion. 
Having initially claimed to satisfy nine of the ten regulat01y criteria, the Petitioner does not explain on appeal which criteria 
do not readily apply to his occupation. 
3 
Evidence that the alien has performed in a leading or critical role/or organizations or 
establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii) 
The Petitioner asserts that he performed in a critical role when he accom anied the on occasions 
such as the live performance released as the album~-----------~ and rehearsals for 
the 20041 !Olympics. The evidence submitted, however, is not sufficient to show that theDhas 
a distinguished reputation. 
As noted above, the record does not corroborate the claim thatl l's album is an award-linningl 
bestseller. Regarding thel !Olympics, the~---------~ asserts that the 
won the silver medal," but a submitted printout from the event's website indicates that thee=] was one 
of 1 71 I that won silver medals during a qualifying round. There is no indication that the 
I lwon a medal in the final round of competition. 
Also noted above, the Petitioner spoke and performed a~ !Music School. While the Petitioner's 
lecture and performance sold more tickets than anticipated, the Petitioner has not established that this one­
night appearance constituted a critical role for the school, or that the school has a distinguished reputation. 
The Petitioner asserts that he also performed in a critical role for thel • l which consists 
of graduate students at the school where the Petitioner studied. A professor emeritus at the university 
states that the Petitioner was "one of the regular accompanists for ourCJ program," participating in 
rehearsals an~ "degree recitals." He does not claim that the Petitioner's involvement was 
critical to theLJprogram, and the Petitioner does not establish thatl I program has 
a distinguished reputation relative to other academicOprograms. 
The Petitioner played piano on~------~ an extended play record (EP) by violist ~I--~ ~--~I The album's producer and engineer states that the Petitioner's involvement was an important 
participant in the recording. The Petitioner does not identify the organization or establishment for which 
his participation amounted to a leading or critical role. The recording was produced and issued byD 
I I but the record does not establish the reputation of that company. 
(Reputation is a matter of outside perception, and the company's own promotional materials are not first­
hand evidence of how others regard the company.) The record indicates that the EP won two bronze 
medals from thel !Music Awards, but the record does not establish the significance of those awards 
or provide any information about the awarding entity or its nomination/award selection process.3 
Therefore, the awards do not establish the distinguished reputation of any entity involved with the EP. 
The Petitioner has not established that he performed in a leading or critical role for organizations or 
establishments with a distinguished reputation. 
3 We note that the award letter misspells the violist' S name as I I' and does not indicate t~at any redals 
were actually furnished with the award. Instead, the letter invites the awardee to purchase "the very specia Music 
Awards medallion" if she wishes "to make [her] achievement visible to others." 
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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 lesser 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 conclusion 
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. U.S. Citizenship and 
Immigration Services 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 established that individuals who have worked with 
him have great respect for his talents and his ability, but he has not shown that this reputation extends 
beyond those who have worked directly with him in this way. The Petitioner has not demonstrated 
recognition indicative of the required sustained national or international acclaim, or which 
demonstrates a "career of acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 
101-723, 59 (Sept. 19, 1990); see also section 203(b)(l)(A) of the Act. Moreover, the record does not 
otherwise demonstrate that the Petitioner 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). 
The Petitioner has not demonstrated eligibility as an individual of extraordinary ability. The appeal 
will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
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