dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 2365160 6 
Motion on Admini strative App eals Office Deci sion 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 31 , 2022 
Form I-140 , Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a mu sician, seek s classific ation as an individual of extraordinary ability . Thi s fir st 
preference cla ssification make s immigrant visas available to tho se who can demon strate their 
extraordinary ability through sustained national or international accl aim and whose achie vements have 
been recognized in their field through extensi ve documentation. See section 203(b )(1 )(A) of the 
Immigration and Nationality Act (the Act) , 8 U.S.C . § 1153(b )(1 )(A). 
The Director of the Nebraska Service Center denied the petition , finding that the Petition er had only 
satisfied two of the initial three required evidentiary criteria. We agreed with the Director 's decision 
and dismissed the Petitioner 's appeal. The matter is now before us on a combined motion to reopen 
and reconsider. 
In these proceedings , it is the Petitioner 's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. See section 291 of the Act, 8 U.S.C. § 1361 ; Ma tter of Chawathe, 
25 I&N Dec . 369 , 375 (AAO 2010) .1 Upon review , we will dismis s 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 demonstraterecognition 
of his or her achievements in the field through a one -time achievement(thatis , 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 
1 If a p etitioner submit s relevant, probative, and credible evidence that lea ds us to believe that the claim is "mo re likely 
than not" or"probabl y" true , it has satisfied the preponderance of the evidence standard. Chawathe, 25 I&NDec . at 375-
76. 
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 fulfi lling the 
require d number of criteria, considered in the context of a final merits detennination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C . 2013); Rijal v. USCJS, 772 F. Supp. 2d 1339 
(W.D. Wash . 2011). 
The regulation at 8 C.F.R. § 103.5(a)(l )(i) limits U.S. Citizenship and Immigration Services' authority 
to reconsider to instances where an applicant has shown "proper cause" for that action. Thus, to merit 
reopening orreconsideration , a petitioner must not only meetthe formal filing requirements at 8 C.F.R 
§ 103.5(a)(l)(iii) (such as submission of a properly completed and signed Form I-290B , Notice of 
Appeal or Motion , with the correct fee) , but also show proper cause for granting the 
motion. Specifically , a motion to reopen is based on factual grounds and must: (1) state the new facts 
to be provided in the reopened proceeding; and (2) be supported by affidavits or other documentary 
evidence. 8 C.F.R. § 103 .5(a)(2). 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 proceedings at the time of the decision . 8 C.F.R. § 103.5(a)(3). 
II. ANALYSIS 
In our decision dismissing the appeal , we agreed with the Director's determination that the Petitioner 
had only satisfied two of the initial evidentiary criteria and likewise concluded that the Petitioner did 
not satisfy the three additional criteria he claimed relating to lesser nationally or internationally 
recognized prizes or awards , original contributions of major significance in the field , and evidence 
that he had a leading or critical role for organizations or establishments that have a distinguished 
reputation. See 8 C.F.R. §§ 204.5(h)(3)(i) , (v), (viii). In support of the current motion , the Petitioner 
offers new evidence and argues that he met at least three required evidentiary criteria, thus asserting 
he warrants a final merits determination . 
A. Motion to Reopen 
First, we will address the merits of the Petitioner's motion to reopen. In support of the criterion related 
to original contributions of major significance , the Petitioner provides a 2022 review article that was 
posted on es.rollingstone.com and reference letters from_ _ a a theater producer, 
writer, and director , and two musicians -I an 
With respect to the review in the online publication of the Rolling Ston e, because the article was 
published in 2022 , it does not establish the Petitioner's eligibility at the time of filing in 2021 and thus 
the 2021 time of filing precedes the 2022 publication date of the article. See 8 C.F.R. § 103.2(b)(l ). 
With respect to the three reference letters, we find that they offer information that is similar in content 
to the Petitioner 's prior submissions. As with the previously submitted reference letters, the new 
letters also discuss the Petitioner's musical work and claim that he has created a new musical genre. 
Although all three references discuss how the Petitioner has influenced their respective works - in the 
case of the impact resulted in a collaborative project with the Petitioner - the letters are 
not sufficient to demon strate that the Petitioner's music constitutes "contribution s of major 
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significance in the field," as required under 8 C.F.R. § 204.5(h)(3)(v). As noted in our prior decision, 
evidence that the Petitioner's talents have been recognized is not sufficient to show that his work has 
been widely implemented throughout the field, has remarkably impacted or influenced the field, or 
has otherwise risen to a level of major significance. 
Accordingly, the new facts and evidence submitted in support of this motion do not establish that the 
Petitioner has shown a proper cause for reopening. 
B. Motion to Reconsider 
Next, we will address the Petitioner's motion to reconsider. In doing so, we will address the three 
criteria that served as the basis for our appeal decision. 
First, we will discuss the original contributions criterion, which requires the Petitioner to establish that 
his musical work is both original and of major significance in the field. See 8 C.F.R. § 204.5(h)(3)(v). 
In support of the motion, the Petitioner contends that the major significance of the Petitioner's work 
"is intrinsically rooted" in its originality and uniqueness. 
Notwithstanding the Petitioner's argument, originality and major significance are two separate 
elements of the criterion in question. As stated above, the original contributions criterion focuses on 
two key elements: the originality of the Petitioner's work and the "major significance" of that work in 
the Petitioner's field. Establishing that the Petitioner's work is original and unique does not 
necessarily establish that it is also of major significance. As discussed above, the evidence submitted 
thus far, including the submissions on motion, shows that the Petitioner's work has had influence on 
individuals in the music and ente1iainment industry, but it does not establish that the impact of the 
Petitioner's music rises to the level of major significance in the field. The Petitioner urges us to 
consider the evidence "as a whole," arguing that the totality of the evidence establishes "the originality, 
significance and influence of his innovative, original and unique work." We find, however, that an 
analysis of this nature was conducted on appeal, where we considered and discussed specific 
submissions comprehensively. And while we acknowledged that the submitted evidence was "not 
without weight," we concluded that the evidence submitted for this criterion did not demonstrate that 
the Petitioner's work constitutes contributions of "major significance" in the field. See Matter of 
Caronlnt'l, 19 I&NDec. 791, 795 (Comm'r. 1988). 
The Petitioner also asserts that his work has sustained national or international acclaim and points to 
his performance at the Stage as evidence of such acclaim. However, 
first we focus on whether the Petitioner has met three of the ten outlined criteria before turning to the 
question of sustained national or international acclaim in the final merits determination. The Petitioner 
has not established that our finding on appeal, that the Petitioner did not meet this criterion, was 
inconsistent with the law or USCIS policy. Likewise, the Petitioner's attempt to reintroduce 
previously submitted evidence is not sufficient to meet the requirements of a motion to reconsider. 
Such evidence was addressed in our prior decision and ultimately deemed insufficient for purposes of 
meeting the requirements of the original contributions criterion. Further, although the Petitioner 
questions the lack of evidentiary weight previously given to a licensing agreement that we dismissed 
in a footnote, he does not dispute the fact that the licensing agreement postdated the petition's filing 
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date. He also does not establish that we erred in not considering the postdated document as evidence 
of the Petitioner's eligibility at the time of filing. See 8 C.F.R. § I 03 .2(b )( 1 ). 
Next, we will discuss the criterion concerning the receipt oflesser national or international recognized 
prizes or awards of excellence. Here, as on appeal, the Petitioner once again argues that there is no 
existing prize or award that applies to his "new genre of music" and asks that we accept comparable 
evidence in the form of the "qualification of Excellent," which the Petitioner earned at a masterclass 
with I guitarist I 
Regarding the leading or critical role criterion, the Petitioner again points to his work with _ 
I relying on the company's past work with certain well-known artists as evidence 
of its distinction. In essence, the Petitioner reasse1is arguments he made on appeal regarding this 
criterion and the above criterion pertaining to lesser national or international prizes or awards; the 
Petitioner expresses his disagreement with our decision and points to evidence that we previously 
addressed, but he does not identify a law or USCIS policy that is inconsistent with our analysis, or 
explain how our analysis was incorrect as a matter of law or policy. 
Finally, the Petitioner cites to a Supreme Court precedent in which the Court determined that an agency 
decision is arbitrary and capricious "if the agency has relied on factors which Congress has not 
intended it to consider, entirely failed to consider an important aspect of the problem, offered an 
explanation for its decision that runs counter to the evidence before the agency, or is so implausible 
that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicles 
Mfrs. Ass'n of the US., Inc. v. StateFarmMut. Auto Ins. Co., 463 U.S. 29, 43 (1983). However, the 
comprehensive nature of our analysis belies the assertion that our decision is not arbitrary or capricious 
based on the Supreme Court outlined discussion of these concepts. To the contrary, in our appeal 
decision, we considered and discussed the Petitioner's evidence, and offered sound legal reasoning as 
to why the evidence did not support a favorable determination with regard to each of the three disputed 
criteria. The purpose of a motion to reconsider is to address potential error in how the law or USCIS 
policy was applied in the preceding decision. Merely disagreeing with our conclusions without 
establishing that we erred as a matter of law or pointing to USCIS policy that contradicts our analysis 
of the evidence is not a ground for reconsideration of our decision. 
In the matter at hand, the Petitioner has offered no cogent argument to demonstrate that we incorrectly 
applied the law or USCIS policy in our prior decision. See Matter of O-S-G-, 24 I&N Dec. 56, 58 
(BIA 2006) (finding that a motion to reconsider is not a process by which the party may submit in 
essence, the same brief and seek reconsideration by generally alleging error in the prior decision). 
III. CONCLUSION 
Accordingly, although the Petitioner disagrees with our prior determination, he offers no new facts 
that warrant a reopening of this proceeding, nor does he establish that our prior decision was incorrect 
as a matter of law or policy. Because the Petitioner did not demonstrate that his current motion meets 
the requirements for a motion to reopen under 8 C.F.R. § 103.5(a)(2) or the requirements of a motion 
to reconsider under 8 C.F.R. § 103 .5(a)(3), we will dismiss the motion to reopen and reconsider. 
ORDER: The motion to reopen and reconsider is dismissed. 
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