dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 20234562 
Motion on Administrati ve Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 10, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a singer , seeks classification as an individual of extraordinary ability . This first 
preference classification makes itmnigrant 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, and we subsequently dismissed the 
appeal. The matter is now before us on a motion to 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 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 imp lementing 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 achievemen ts 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 doc umentation 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 
mate rial 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 the individual 's occupation. 
Where a petitioner mee ts these initial evidence req uirements, we then cons ider the totality of the 
material provide d in a final merits determina tion and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individu al is among the sma ll percentage 
at the very top of the fiel d of endeav or. See Kazarian v. USCIS, 596 F.3d 111 5 (9th Cir. 2010) . 
( discussing a two -part review where the documentati on is first counted and then, if fulfilling the 
required number of criteria, consi dere d in the context of a final merits detenninati on); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131 -32 (D.D.C.2 01 3); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash . 20 11 ). 
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 
reconsideration, a petitioner must not only meet the 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 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) . In these proceedings , it is the 
petitioner ' s burden to establish by a preponderanceofthe evidence eligibility for the requested benefit 
MatterofChawath e, 25 I&N Dec. 369,375 (AAO 2010). 
II. ANALYSIS 
At initial filing , the Petitioner claimed eligibility under seven categories of evidence : awards under 8 
C.F.R. § 204 .5(h)(3)(i), published material under 8 C.F.R. § 204.5(h)(3)(iii) , judgingunder 8 C.F.R . 
§ 204.5(h)(3)(iv) , original contributions of major significance under 8 C.F.R. § 204.5(h)(3)(v) , display 
under 8 C.F.R. § 204.5(h)(3)(vii), leading or critical role under 8 C.F.R. § 204.5(h)(3)(viii) , and high 
salary under 8 C.F.R. § 204.5(h)(3)(ix). In response to the Director's request for evidence (RFE) , the 
Petitioner maintained her eligibility for these seven criteria . In denying the petition , the Director 
determined that the Petitioner satisfied only one criterion relating to judging . 
On appeal , as discussed in our decision , the Petitioner asserted that she met the other six claim criteria , 
but she only specifically addressed two of the criteria, published material and display. Because the 
Petitioner made no specific allegation of error regarding the awards , original contributions of major 
significance, leading or critical role , and high salary criteria , we considered those issues to be 
abandoned . Furthermore , although the Petitioner claimed that she "will submitted additional argument 
and supporting evidence within 30 days ," the record did not contain such submission, more than eight 
months later from our decision. 
As such , we considered the record to be complete and adjudicated the appeal based on the record in 
the proceeding. We determined that although the Petitioner demonstrated her eligibility for the display 
criterion, we concluded that she did not establish that she met the published material criterion . Because 
the Petitioner did not submitthe required evidence of either a one-time achievement or documents that 
met at least three of the ten lesser criteria , we did not provide the type of final merits determination 
referenced in Kazarian, 596 F.3d at 1119-20. In addition , we reserved the issue relating to her intent 
to continue her work in her area of expertise in the United States under section 203(b )(l)(A)(ii) of the 
Act, 8 C.F.R. § 204 .5(h)(5) . 
On motion, the Petitioner asserts that " [n]either AAO manual, Form I-290B instructions or the federal 
regulations in Code of Federal Regulations related to the adjudication by AAO cover the legal 
principle of abandonment of the issues on appeal " and claims that "[b ]y imposing a new standard that 
is not explicitly stated in the regulations or instructions , the agency has violated due process ." The 
AAO Practice Manual states : 
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( f) Statement or Brief Identifying an Error 
An appeal must specifically identify any erroneous conclusion of law or statement of 
fact in the unfavorable decision on Form I-290B, in a written statement attached to 
Fonn I-290B, in a brief, or in another document submitted with the appeal. 
General assertions that fail to specifically identify any error may result in the AAO 
summarily dismissing an appeal. The appellant must state any arguments it wishes the 
AAO to consider on appeal, even if the arguments were previously raised in earlier 
filings before the field office. 
(footnotes omitted). AAO Practice Manual, Ch. 3. 7(f), https://www.uscis.gov/aao-practicemanual. 
In addition, the instructions on page 4 of Form I-290, Notice of Appeal or Motion, as well as on the 
actual form on page 2, state: "Provide a statement that specifically identifies an erroneous conclusion 
of law or fact in the decision being appealed." See https://www.uscis.gov/i290b. Further, the 
regulation at 103 .3(a)(l )(v) provides for appeals "to identify specifically any erroneous conclusion of 
law or statement of fact for the appeal." 
As discussed in our prior decision and indicated above, the Petitioner provided a statement 
accompanying her appeal that specifically challenged the Director's findings relating to only two 
criteria - published material and display. Her statement did not specifically identify any erroneous 
conclusion of law or statement of fact as it pe1iained to the other four claimed criteria. Moreover, the 
Petitioner did not submit additional arguments and suppmiing evidence subsequent to the filing of her 
appeal in which she indicated on Form I-290B and in her statement that she would do within 30 days.1 
Because the Petitioner did not allege such errors relating to the awards, original contributions of major 
significance, leading or critical role, and high salary criteria, we did not address those prior eligibility 
claims and considered them to be abandoned. 
Fmihermore, the Petitioner did not establish that we imposed a new standard in considering her prior 
eligibility claims not raised on appeal to be abandoned. See Matter of R-A-M-, 25 I&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 'y 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 *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's 
claims were abandoned as he failed to raise them on appeal to the AAO). See also Greenbriar, Ltd. 
v. City of Alabaster, 881 F.2d 1570, l 573n.6 (11th Cir. l 989)(statingthat passing references to issues 
are insufficient to raise a claim for appeal, and such issues are deemed abandoned). We note that 
although the Petitioner claims that these "cited cases referred to removal proceedings rather than 
administrative proceedings and do not share the same issues," Hristov involved an appeal of an AAO 
decision relating to an extraordinary ability petition. Regardless, we generally do not address issues 
1 Appellants may, but are not required to, submit a supplemental brief or additional evidence. If the appellant elects not to 
file a b1ief, the appeal must otherwise specifically identify any erroneous conclusionoflaworfact. AAOPracticcManual, 
supra, at Ch. 3.8. 
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that are not raised with specificity on appeal. Issues or claims that are not raised on appeal are deemed 
to be waived. See, e.g., Matter ofM-A-S-, 24 I&N Dec. 762, 767 n.2 (BIA 2009). See also Getty Oil 
Co. v. Andrus, 607 F.2d253, 255-56 (9th Cir.1979) (the court concluded that the law does not require 
the plaintiff to affirmatively waive claims; instead, he waives claims if he fails to assert them on 
appeal). 
The Petitioner also contends that we "exercise de nova review," which "means that the AAO looks at 
the record anew and is not required to defer to findings made in the initial decision" and "may address 
new issues that were not raised or resolved in the prior decision." We exercise de nova review of all 
issues of fact, law, policy, and discretion. See Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 
However, the Petitioner has not demonstrated that our de nova review authority mandates or requires 
us to evaluate and address all previous eligibility claims or other prior arguments that were not raised 
or not contested on appeal. As in the case here, the burden remains with the Petitioner to establish 
eligibility and specifically identify any erroneous conclusion of law or statement of fact for the 
previously claimed four criteria. See 8 C.F.R. § 103 .2(b ). 
For the reasons discussed above, the Petitioner did not establish that we erroneously applied law or 
policy. Accordingly, we will dismiss her motion to reconsider. 
III. CONCLUSION 
The Petitioner has not shown that we incorrectly applied law or policy in our previous decision based 
on the record before us. 
ORDER: The motion to reconsider is dismissed. 
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