dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 17041987 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 27, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a violist, seeks classification as an individual of extraordinary 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 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). 
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 
The Petitioner has played the viola in various orchestras since 1990. Most of his earliest positions were 
in various orchestras inl I In 2002, he joined the~-----~ Symphony, reaching the 
principal viola chair in 2008. The Petitioner later played principal viola with the I I 
Symphony Orchestra and, starting in 2016, thd O lorchestra. The Petitioner 
entered the United States in 2017 as an 0-1 nonimmigrant, following the approval of a petition filed by 
I I 
We acknowledge that 0-1 nonimmigrant status relates to extraordinary ability. Nevertheless, the 
record of proceeding for the approved nonimmigrant petition is not before us, and we cannot determine 
whether the facts in that case were the same as those in the present proceeding, or whether the 
nonimmigrant petition was approved in error. 
The Petitioner makes inconsistent claims about his most recent employment. When the Petitioner 
filed the petition in January 2020, he claimed to still be working forl lfrom "2016-present." 
But in a subsequent response to a request for evidence (RFE), the Petitioner asserts that he played for 
c===] "from 2016 - 2019 ," meaning the employment ended before he filed the petition. I I 
l_J's 2016 job offer letter specifies a three-year term of employment, but because this letter predates 
the employment, it does not establish that I I actually employed the Petitioner until 2019. An 
itinerary in the record ends at September 2018, which is broadly consistent with U.S. Citizenship and 
Immigration Services (USCIS) records showing that the approval of the 0-1 nonimmigrant petition 
was revoked in September 2018. 
In a July 2019 letter, the manager of thel I Symphony Orchestra states that the 
Petitioner "has played in the orchestra for one season." The present record of proceeding does not 
indicate that the Petitioner was authorized to work in the United States between the September 2018 
revocation of his 0-1 status and January 2020 when he filed the petition. 
2 
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 four of these criteria, summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (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 of the criteria, numbered (vii) and (viii). On appeal, 
the Petitioner asserts that he also meets the criterion numbered (i). The Petitioner does not contest the 
Director's conclusions regarding the criterion numbered (x), and therefore we consider that issue to 
be abandoned. 1 
Upon review of the record, we agree with the Director that the Petitioner has satisfied only two criteria. 
We will discuss the remaining claimed criterion below. 
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's sole argument on appeal is that he received a nationally recognized award inl~--~ 
and that the Director erred by concluding otherwise. 
In October 2000,_J ---.--~-_,I including the Petitioner, received a certificate which reads, in part: 
This certificate was awarded to 
For the best performance of the I ts composer's work 
In the 
~-------~NATIONAL MUSIC COMPETITION 
(STRING QUARTETS) 
A separate certificate from the same competition indicates that the quartet "was awarded the First Prize." 
It is not clear whether the two certificates refer to the same prize. Although the competition took place 
inl I the certificates are almost entirelj in English. The Petitioner asserts that this "music 
competition is nationally recognized inll' but he submits no evidence to support this claim. The 
assertion that the prize "is named after ... a historically famousl I Composer" is not evidence of 
the prize's recognition. 
1 See Matter of R-A-M-. 25 T&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. U.S. 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 *l. *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs claims were abandoned as he failed to 
raise them on appeal to the AAO). 
3 
In the denial notice, the Director concluded that the Petitioner did not establish that the prize is nationally 
or internationally recognized. The Director noted, by way of example, that the Petitioner did not show 
that the awarding of the prize attracted any media coverage. 
On appeal, the Petitioner states that the concert "predates online record keeping - especially forl~--~ 
so finding publications or news stories about the concert is impossible." The Petitioner makes this 
assertion with no evidence. Even ifwe were to accept the Petitioner's unsupported claim that there were 
no online news publications inl I in 2000, this would not rule out the existence of other forms of 
news archives. 
The Petitioner submits a new letter from the founder of thd ..... _______ _____.l in~I -----~ 
Because the RFE did not mention the awards criterion or specifically request any further evidence relating 
to awards, we will consider this new submission now. The individual states that I I founded the 
I l Music Competition; that the competition included a concert broadcast to "half a 
million international listeners"; and that "[t]he concert was hailed as a success by the International Artist 
Managers' Association in the UK during their I !Orchestras Summit in 2001." 
The Petitioner does not corroborate any of these claims, put forward in a letter written 20 years after the 
fact. A letter from one of the festival's own founders is not evidence of recognition outside the 
organization. And even then, the letter emphasizes the response to the concert rather than the recognition 
accorded to the awards. The Petitioner claims that this individual "states that first prize in the competition 
is recognized as a very high honor," but the letter includes no such assertion about the prize. 
The Petitioner does not establish that the Director erred with respect to the prize that the Petitioner 
received in October 2000. Because this issue is the only stated basis for the appeal, the Petitioner has not 
otherwise established eligibility or overcome the denial of the petition. 
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 those who are individually at 
the top of their respective fields. Affiliation with well-known establishments is one of many factors 
to be taken into consideration, but does not establish eligibility on its face. USCIS 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 not shown that the recognition of his work is indicative of the required sustained national or 
international acclaim or 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). 
4 
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. 
5