dismissed EB-1A Case: Music

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privac) 
PUBLIC copy, 
DMYTRO ILYUK 
297 AVENUE X 
BROOKLYN, NY 11235 
U.S. Department of Homelrnd Sccurif) 
0.S. Citimnbhip and Imnrigration Scr~ices 
Oflicr o/'.ldrrr,niso.o~iv~~ .,ll,pcol.t MS 20')O 
Washington. 1)C 20529-20')O 
U.S. Citizenship 
and Immigration 
FILE: - Office: TEXAS SERVICE CENTER Date: AUG 0 2 201D 
SRC 08 800 03889 
PETITION: lmlnigratit Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) ofthe immigration and Nationality Act; 8 U.S.C. $ I I53(b)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any fi~rther inquiry that you might have concerning your case must he made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1.2908, Notice of Appeal or 
Motion, with a fee of $585. Please be aware that 8 C.F.R. $ 103.5(a)(l)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you. 
erry Rhew 
LChiel Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, on June 4, 2009, and is now befbre the Administrative Appeals Office (AAO) on 
appeal. The appeal will be summarily dismissed. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(l)(A), as an 
alien of extraordinary ability as a musician. The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of his 
sustained national or international acclaim. 
On appeal, counsel stated: 
Immigrant Petition 1-140 was filed on behalf of [the petitioner], as an alien of 
extraordinary ability in the area of music. He is extraordinary musician, composer 
and sound director. Evidence presented did establish that petitioner sustained 
international acclaim and requirements of section 203(b)(l)(A) were met. Petitioner 
has submitted evidence to establish that he meets at least 3 out of 10 criteria of 
section 204.5(h)(3). Evidence attached to this appeal confirm that petitioner is truly 
an extraordinary musician. one of a very few who has risen to the top of the field of 
endeavor. He is known throught [sic] the world as a top sound/music directors, 
performers and truly unique talent. Please review this case in its entirety and 
approve the 1-140 petition. 
As stated in the regulation at 8 C.F.R. 5 103.3(a)(l)(v), an appeal shall be summarily dismissed if 
the party concerned fails to identify specifically any erroneous conclusion of law or statement of 
fact for the appeal. Counsel here has not specifically addressed the reasons stated for denial and has 
not identified any erroneous conclusion of law or statement of fact. Moreover, we note that the 
majority of the evidence submitted by counsel on appeal refers to events occurring afier the filing of 
the petition on December 3, 2007. Eligibility must be established at the time of filing. Therefore, 
even if counsel provided a proper basis for filing the appeal, we would not consider this evidence 
to establish the petitioner's eligibility. 8 C.F.R. $Q: 103.2(b)(l). (12); Multer of Kutighuk, 14 
I&N Dec. 45. 49 (Regl. Commr. 1971). A petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts. Mutter oflzummi, 22 I&N Dec. 169, 175 
(Comm'r. 1998). That decision further provides, citing Mutler of Burdouille, 18 I&N Dec. 114 
(BIA 1981). that we cannot "consider facts that come into being only subsequent to the filing of 
a petition." Id. at 176. In addition, regarding the other evidence submitted on appeal in the form of 
reference letters, counsel failed to specifically identify the criteria under the regulation at 8 C.F.R. 
5 204.5(h)(3) the petitioner claims to meet. It is not apparent from the review of the evidence to 
which criteria the evidence pertains. The burden is on the petitioner. and we will not infer or 
second-guess the intended criteria. As counsel failed to provide any specific statement or 
argument regarding the basis of her appeal. the appeal must be summarily dismissed. 
ORDER: The appeal is dismissed.