dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 11119901 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUN. 24, 2021 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an orchestra concertmaster, seeks classification as an alien of extraordinaiy 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 Petitioner had 
not demonstrated international recognition of her achievements in the field through a one-time 
achievement or satisfied any of the alternate initial evidentiary criteria, of which she must meet three. 
The Petitioner filed an appeal that we dismissed, determining that she had met one of the ten criterion, 
the artistic exhibitions criterion, but not the requisite three . 1 The Petitioner then filed a combined 
motion to reopen and reconsider which we dismissed, concluding that she had not met the criteria 
related to lesser awards, leading or critical role, and original contributions. 2 The Petitioner now 
submits a second combined motion to reopen and 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 both motions . 
I. LAW 
A motion to reopen must state new facts and be supported by affidavits or other documentary evidence. 
8 C.F.R. § 103.5(a)(2). A motion to reconsider must state the reasons for reconsideration; be 
supported by any pertinent precedent decision to establish that the decision was based on an incorrect 
application of law or policy; and establish that the decision was incorrect based on the evidence in the 
record at the time of the decision. 8 C.F.R. § 103 .5(a)(3) . We may grant a motion that satisfies these 
requirements and shows proper cause for reopening the proceeding or reconsideration of the prior 
decision. 8 C.F.R. § 103.S(a)(l). 
1 See Matter of A-G-M- , ID# 2524769, 2019WL 1556942 (AAOMar. 20,2019). 
2 See In Re: 5690707 , 2020 WL 996542(AAOFeb . 12,2020). 
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. 20l3);Rijalv. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
We dismiss the motions for the reasons set forth below. 3 
A. Motion to Reconsider 
In the instant motion to reconsider, the Petitioner does not indicate or provide evidence demonstrating 
how our prior decision was based upon an incorrect application of law or policy. She therefore has 
not established that she meets the requirements of a motion to reconsider and we will dismiss it 
accordingly. 
B. Motion to Reopen 
On second motion, the Petitioner presents new evidence relating to the leading or critical role criterion 
found at 8 C.F .R. § 204. 5 (h )(3 )( viii) and asserts for the first time that she satisfies the criterion relating 
to salary at 8 C.F.R. § 204.5(h)(3)(ix). 
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) 
On this motion, the Petitioner does not specifically contest our conclusion that the I I I I (Orchestra) does not enjoy a distinguishedreputation. 4 Instead, she claims that 
3 The Petitioner does not contest the findings in our previous decision regarding the evidentiaiy criteria at 8 C.F.R § 
204.5(h)(3)(i) and (v). We will therefore consider these issues to be waived. See, e.g., Matter ofM-A-S-, 24 I&N Ike. 
762,767 n.2 (BIA 2009). 
4 We note that the Petitioner submits new evidence with respect tol I but does not indicate that this is to address 
our previous ground for dismissal. Specifically, she does not explain or show how this evidence demonstrates that the 
Orchestra enjoys a distinguished reputation. 
2 
she meets this criterion as she served in a leading role forL--------~---r-----, __ ---,-J 
She asserts that her role as the concertmaster for the Orchestra is a leading one for~--~as "[t]he 
live orchestra is an indispensable part of every I performance." She contends that a live 
orchestra is "imperative and critical to thel I shows in reviving traditional Chinese culture -
which is the mission! I seeks to accomplish .... " However the Petitioner submits no new 
evidence on motion to conoborate this claim. She further asse1is that her role as concertmaster in the 
Orchestra is critical tol I as she "is leading the orchestra in over 100 perfonnances everyyear," 
but again submits no new evidence supporting this contention on second motion. Rather, in her motion 
brief she refers us to previously submitted letters of recommendation and support to conoborate her 
assertion. As we have already reviewed and considered this evidence, we will not address it again in 
this proceeding. Absent the submission of new evidence, the Petitioner has not met the requirements 
for a motion to reopen or shown that she has performed in a leading or critical role forl I 
In order to meet the plain language of the criterion at 8 C.F.R. § 204.5(h)(3)(viii), the Petitioner must 
show both that she has played in a leading or critical role for an organization and that the organization 
has a distinguished re utation. As previously discussed, she has not shown that she served in a leading 
or a critical role for Thus while we acknowledge that she has submitted new evidence 
relating t ~--~ s reputation, we need not address whether or not this documentation establishes 
that the organization has a distinguished reputation. 5 
For the foregoing reasons, the Petitioner has not demonstrated that she meets this criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remunerationforservices, in relation to others in thefield. 8 C.F.R. § 204.5(h)(3)(ix) 
The Petitioner claims for the first time on second motion that she meets this criterion and submits 
evidence related to her salary and non-salaried compensation from her employment withl I 
Here we note that a post-appellate motion to reopen is not the proper forum to advance new claims of 
eligibility that the Petitioner did not advance at any prior stage in the proceeding. We note as well that 
a petitioner abandons issues not raised on appeal. See Sepulveda v. US. Atty Gen., 401 F.3d 1226, 
1228 n. 2 (11th Cir. 2005); see also Hristov v. Roark, No. 09-CV-27312011, 2011WL4711885 at *1, 
*9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiff's claims to be abandoned as he failed to 
raise them on appeal to the AAO). Notwithstanding the foregoing, for the reasons discussed below, 
the evidence submitted by the Petitioner on second motion is insufficient to demonstrate that she meets 
this criterion. 
As it relates to her compensation, Petitioner provides an employment verification letter fromD 
c::Jand a copy of her 2017 Form W-2, Wage and Tax Statement. She asserts that, in addition to her 
$48,800 salary, she receives non-salaried compensation totaling $17,760. 6 She claims therefore that 
her "total equivalent yearly compensation/remuneration in 2017 was about $66,640." ( emphasis 
in original.) The Form W-2 and employment verification letter establish that the Petitioner 
5 See INS v. Bagamasbad,429U.S. 24, 25 (1976) (finding that "courts and agencies are not required to make findings on 
issues the decision of which is unnecessary to the results they reach.") 
6 She calculates this remuneration by assuming that she will be on tour for 24 weeks, working 7 days per week, and 
receiving3 meals per day at a value of$20permeal. 
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commanded a salary of $48,800 at the time her petition was filed. The employment verification letter 
confirms that she received "non-salaried compensation, including board (2 to 4 meals each day, plus 
snacks and beverages, adjusted according to touring and performing schedules)." However, the 
Petitioner provides no independent corroborative evidence to support her assertion that the total value 
of her non-salaried compensation was $17,760 in 2017. The employment verification letter does not 
provide a dollar value for board, and the record lacks other evidence such as receipts, or other relevant 
materials, establishing that she earned this additional remuneration resulting in total compensation of 
$66,640 as claimed. The Petitioner must resolve this incongruity in the record with independent, 
objective evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 
1988.) In the absence of evidence resolving whether the Petitioner earned $48,800 or$66,640in 2017, 
the record is insufficient to allow for a comparison of her salary or remuneration with that of others in 
her field, or to otherwise establish that she has commanded a high salary or other significantly high 
remuneration for services, in relation to others in her field. 7 
For the foregoing reasons, the new documentation submitted on second motion does not overcome our 
previous decision, finding that evidence submitted on first motion did not demonstrate her eligibility 
for the additional criteria. 
In addition, we will dismiss the motions because they do not include "a statement about whether or 
not the validity of the unfavorable decision has been or is the subject of any judicial proceeding and, 
if so, the court, nature, date, and status or result of the proceeding." See 8 C.F.R. § 103.5(a)(l)(iii)(C), 
(a)(4). 
III. CONCLUSION 
The assertions made by the Petitioner on motion do not establish that our previous decision was based 
an incorrect application oflaw or policy. In addition, the new evidence submitted on motion does not 
overcome the grounds underlying our previous decision or demonstrate the Petitioner's eligibility for 
this classification. 
ORDER: The motion to reconsider is dismissed. 
FURTHER ORDER: The motion to reopen is dismissed. 
7 We note that thePetitioneralso provides salaiy documentation for others in the field. We ha vereviewed this evidence, 
but do not discuss it here as she has not established the salaiy or remuneration with which this evidence should be 
compared. 
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