dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 5756471 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC. 10, 2019 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a violinist, 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 meets at least three of the ten initial evidentiary criteria for this 
classification. 
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 de nova review , we will dismiss the appeal. 
I. LAW 
Section 203(b)(l) of the Act makes visas available to immigrants 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 petitioner can demonstrate sustained 
acclaim and the 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 
categories 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). 
II. ANALYSIS 
The Petitioner is a violinist who performs as a soloist and with several ensembles in the~I ---~ 
metropolitan area. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that she has received a major, internationally 
recognized award, she must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Petitioner met two of these evidentiary 
criteria, relating to judging the work of others in the same field and display of her work in the field at 
artistic exhibitions or showcases. The Petitioner submitted copies of programs for her performances 
at concerts and recitals and therefore we agree with the Director that she meets the display criterion at 
8 C.F.R. § 204.5(h)(3)(vii). We also find sufficient evidence to establish that she has participated as 
a judge of the work of other musicians at thel I International Music Competition and therefore 
meets the evidentiary criterion at 8 C.F.R. § 204.5(h)(3)(iv). 
On appeal, the Petitioner asserts that she also meets the evidentiary criteria relating to awards, 
authorship of scholarly articles, and leading or critical roles. 1 After reviewing all of the evidence in 
the record, we find that the evidence does not support a finding that the Petitioner satisfies the 
requirements of at least three criteria. 
Documentation of the individual'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) 
In order to satisfy this criterion, the Petitioner must demonstrate that she has received lesser nationally 
or internationally recognized prizes or awards for excellence in the field of endeavor. 2 Relevant 
considerations regarding whether the basis for granting the prizes or awards was for excellence in the 
1 The record reflects that the Petitioner initially claimed that she meets the published materials criterion at 8 C.F.R. § 
204.5(h)(3)(iii), but she has not pursued this claim on appeal. Accordingly, we will not further address the criterion here. 
2 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14 6 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html. 
2 
field include, but are not limited to: the criteria used to grant the awards or prizes, the national or 
international significance of the awards or prizes in the field, and the number of awardees or prize 
recipients as well as any limitations on competitors. 3 
The Petitioner states that she received the following awards and documented her receipt by submitting 
copies of her award certificates: 4 
• First Prize E~n_s_e_m_b_l~e,~ ____ ___,Competition ~ 12017) 
• Second Prize - International Music I ~ I 2016) 
• First Prize, International Competition (no <lat~) 
• Second Prize, International Competition ~I ~--~2-0_1_4_) _~ 
The Director determined that the Petitioner did not establish that any of the awards qualify as 
nationally or internationally recognized prizes or awards for excellence in the field. For the reasons 
discussed below, we agree with that determination. 
Counsel stated that the I I Competition is an international music competition open to 
instrumental, vocal, and ensemble performers and "split into five age groups ranging from ages 5 to 
33." Further, counsel indicated that the grand and first prize winners perform at the "Winner's 
Concert" at I I while second and third place winners perform at I I A letter 
from pianist I I states that they recruited the Petitioner to play in a quintet which won the 
first prize ensemble award at this competition and performed in th~ I as a 
reward for their placement. 
However, the record does not contain any additional information or supporting evidence regarding the 
.__ _____ ___,~ompetition to support the Petitioner's claim that her first prize award is considered 
a nationally or internationally award for excellence in the field of classical music. Without evidence 
of the entrance requirements and restrictions, information on the number of competitors in the 
Petitioner's age category, or evidence of the level ofrecognition associated with this award, we cannot 
find that the Petitioner has satisfied each element of the criterion. 
The I I International Competition I I is described in the record as a 
"distinguished international music competition," established in 2013, which attracts participants from 
throughout the United States and across the world. The Petitioner submitted a screenshot of the 
repertoire and competition rules from the I I website, as well as an advertisement for the 
competition that appeared in the Korean-language publication "Music Education Newspaper," which 
provided information and audition instructions for the c=Jannual competition held in 2015. The 
3 Id. (indicating that an award limited to competitors from a single institution, for example, may have little national or 
international significance.) 
4 Subsequent to the fj)ing r the petition, the Petitioner provided a copy of a Certificate of Recognitiof framl I 
State Senator! recognizing her as "Best Teacher" at the I !International Music I inD 
2018. Because this evidence post-dates the filing of the petition, this evidence cannot be used to satisfy the awards criterion 
at 8 C.F.R. § 204.5(h)(3)(i). See 8 C.F.R. § 103.2(b)(l) (eligibility for the requested benefit must be established "at the 
time of filing" and "must continue through adjudication"). 
3 
advertisement indicates that the age limit for the competition is "pre-K up to age 32," and notes that 
grand and first prize winners are given the opportunity to perform at a winners' recital atl I D The Petitioner also submitted articles indicating that two previous I I winners, a Spanish 
trombonist and a Taiwanese soprano, had their respective results re orted in the media in their home 
countries. 5 Finally, she provided a screenshot from the website calendar indicating that 
the latestl I winners' concert had taken place at:_-=._-_-_-_-~---~in~2018. 
As noted, the Petitioner's first prize certificate froml I is not dated and is not supported by 
evidence indicating when she won this award and performed in the winners' concert. Further, the 
record does not contain official results or other evidence demonstrating the number of entrants in the 
competition or in the Petitioner's category in the year in which she won, or the total number of first 
prize awards given. Finally, the submitted statements indicate that entry to the competition was age­
restricted and limited to musicians aged 32 or younger, and not open to all musicians who may have 
been competitive for top prizes. 
In addition, although the supporting evidence indicates that the compet1t10n seeks and attracts 
participants from different countries, we note that showing a diverse pool of competitors, without 
more, does not establish the requisite recognition. While the evidence reflects that two otherl I 
winners received some media attention for their awards, the record lacks sufficient evidence verifying 
that prizes and awards issued by this competition are nationally or internationally recognized awards 
for excellence in the field, or evidence that the Petitioner herselfreceived any recognition from outside 
the issuing organization. 
Regarding the I I International Competition LJ, where the Petitioner received a second 
prize award in 2014, the Petitioner submitted: an article titled.__ _____________ __. 
I I which appeared in the 2015 edition of a Korean-language magazine called 
Auditorium; an review titled '-------.----------.---~ which appeared in La Musica, a 
Korean-language marzine rublished by.__ _____ ~ the Petitioner's 0-1 employer and p.l..s..u.._a_, 
sponsor or partner of a screenshot of the "Rules and Repertoire" requirements from the L__J 
website; and a screenshot from thel I website indicating that anD winners' concert 
was on the recital hall's calendar forl 12017. 
While the articles in Auditorium and La Musica provide additional background information regrding I I l they do not support the Petitioner's claim that her second prize award at the inaugural 
competition in 2014 qualifies as a nationally or internationally recognized prize or award. The article 
in Auditorium notes that is open to musicians from elementary school to age 33, is judged by 
music faculty at.__ __ ~' s best music schools, and indicates that Korean students did well in the 
competition's inaugural year. The article from La Musica indicates that the second annual I I 
competition held in 2015 drew over 200 video auditions from musicians in the United States, Korea 
and Europe. The article also highlights several Korean violinists who received first or grand prizes 
during the first twoD competitions, but does not mention the Petitioner or her second place finish 
in the 20141 ~ompetition. Further, while these articles confirm thatOdrew participants from 
5 The articles appeared on the websites caudetedigital.com and taiwantoday.tw. According to the submitted web traffic 
statistics from the website SimilarWeb, the former is ranked 14,576 in Spain and the latter ranked 21,835 in Taiwan. 
4 
outside the United States, the evidence does noes not establish that the competition awards nationally 
or internationally recognized prizes. 
As with the other awards the Petitioner received, the record does not contain sufficient evidence 
regarding the official results, the number of competitors and prize winners in each age and instrument 
category, or other evidence related to the specific category in which she received an award. We cannot 
determine that the Petitioner's second prize award is a nationally or internationally recognized prize 
or award for excellence. 
Finally, with respect to her second prize finish at thel I International Music I I 
.__ __ ___,I, the submitted evidence is limited to a copy of the award certificate, and a brief description 
of the competition in counsel's cover letter in support of the petition. While the Petitioner submitted 
additional evidence related to her other awards in response to a request for evidence, she provided no 
further evidence related to this award and therefore did not meet her burden to establish that the award 
meets each element of this evidentiary criterion. 6 
For the foregoing reasons, the Petitioner did not establish that she meets this criterion. 
Evidence of the individual's authorship of scholarly articles in the field, in professional 
or major trade publications or other major media. 8 C.F.R. § 204.5(h)(3)(vi) 
The Petitioner provided evidence that she authored four articles which appeared in La Musirn 
magazine, as well as an article that appeared in the Korean publication Mom & I, which she describes 
as a "lifestyle magazine." 
We note that, in fields outside of the academic arena, a scholarly article should be written for learned 
persons in the field. 7 Each of the articles the Petitioner wrote for La Musica, is about a particular piece 
of classical music. For example, in the article 1.__ __________________ J' the 
Petitioner writes about Brahms' Piano Quartet No. 3 in C minor, discussing Brahms' inspiration for 
this work, the history of its composition, details regarding its publication, the mood of the piece, and 
some recommended recordings. The Petitioner did not establish that the intended audience of this and 
other articles published in La Musica is learned persons in the field of music. Further, the record does 
not contain evidence that La Musica, which appears to be published independently by~ 
.__ ____ __.I an artist management company, is a professional publication, a major trade publication, 
or other major medium. For similar reasons, the Petitioner has not demonstrated that her article for 
the lifestyle magazine Mom & I satisfies both elements of this evidentiary criterion. Accordingly, we 
agree with the Director's determination that this criterion was not met. 
6 In addition, we note that the Petitioner's! laward certificate is datedl 12015, but the Petitioner also 
submitted certificates fromc=J indicating that she served as a judge at this event apn.uajly. Her judging certificates 
are datedLJ2015,02~201 7, ~18. If the competition is held inLJ it is unclear why her award 
certificate as a participant would be dated inL___J2015. 
7 See USCIS Policy Memorandum PM 602-0005.1, supra, at 9 ( defining "learned" as "having or demonstrating profound 
knowledge or scholarship"). 
5 
Evidence that the individual 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) 
The Petitioner asserts that she meets this criterion because "she has performed the most leading roles 
a violinist can attain including as concertmaster, assistant concertmaster, principal second violin and 
as soloist for multiple distinguished organizations." 
As it relates to a leading role, the evidence must establish that a petitioner is or was a leader. A title, 
with appropriate matching duties, can help to establish if a role is or was, in fact, leading. 8 Regarding 
a critical role, the evidence must demonstrate that a petitioner has contributed in a way that is of 
significant importance to the outcome of the organization or establishment's activities. It is not the 
title of a petitioner's role, but rather the performance in the role that determines whether the role is or 
was critical. 9 A distinguished organization is one that is "marked by eminence, distinction, or 
excellence." 10 
On appeal, the Petitioner highlights her roles with the following organizations: 
• 
• 
• 
Philharmonic Orchestra (Principal Violin II) Ir------'--, 
.,__ ___ _.__C_la_,ssical Symphony Orchestra (Assistant Concertmaster and soloist) 
'-------' 
Quintet Ensemble (member) 
The Director determined that there was insufficient evidence that the Petitioner has held a leading or 
critical role with these or other organizations, but did not address whether the evidence demonstrated 
that she has worked with distinguished organizations or establishments. 
With respect to the Petitioner's role with thel ~hilharmonic, we note that her initial submission 
contained no mention or evidence related to this orchestra or her claimed leadership position within 
it. The Petitioner later provided a letter froml I the orchestra's president, who states that 
the Petitioner joined the I I Philharmonic in January 2016, noting fhat "she wf8 able to come in 
to perform and also coach her colleagues in both the violin sections."~---~ indicates that the 
Petitioner commenced her position as Principal Violin II in November 2017, and is responsible for 
leading her section. Finally, I I writes that "most recently" the Petitioner was nominated to 
the Board of Directors as a Trustee. The I I Philharmonic' s music director and conductor,! I I I states that the Petitioner "has played a critical and leading role" for the orchestra 
and "has been promoted to the principal position of the violin section." He also states that the 
Petitioner has been a member of the orchestra's board since May 2017, and notes that her "resources 
and ideas have proven essential to the growth of the organization." 
While the Petitioner's Principal Violin II position may be considered leading or critical to the 
orchestra, the record does not establish that thel !Philharmonic has a distinguished reputation. 
The Petitioner provided a New York Times article from 1987 titled 'I I 
8 See USCIS Policy Memorandum PM-602-0005.1, supra, at 10. 
9 Id. 
io Id. 
6 
.__ ____ ~t' published in th re ion section of the paper. The article discusses the 
history of the ensemble (which is based in._______,,. ___ ______. New Jersey), as it prepared to open its 50th 
anniversary season. The article also describes its membership noting that "[ d]octors, lawyers, 
housewives and saleswomen sit side by side in the orchestra with retired members of groups like the 
.__ ___ ~I Philharmonic." The article mentions previous guest artists and discusses the upcoming 
season. The Petitioner did not submit any other media coverage of the orchestra or other evidence in 
support of its claim that it currently enjoys a distinguished reputation. Based on the limited evidence, 
the organization seems to be noted for its longevity, which is not in and of itself a determining factor 
when considering whether a given organization or establishment has a distinguished reputation for 
purposes of this criterion. 
Regarding the I I Clasral Symphony Orchestra I I, the Petitioner submitted an 
undated letter from I , its conductor and musical director.I I states th~was 
founded in 2011 and states that it "has quickly been established as a cultural icon" inc===] and 
"around the world." He notes several instances in whilh the PeTioner was featured as a violin soloist, 
and mentions the Petitioner's role as director of the.__ __ _. s sister organization, the I I 
Classical Youth Orchestral ~- I I does not, however, indicate that the Petitioner is the 
assistant concertmaster for the I I although we note her role is mentioned in an I I 
program. The Petitioner also submitted several articles that describe leadership positions within an 
orchestra's violin section. While this evidence indicates that an assistant concertmaster position is 
generally considered leading or critical, the record does not establish that I I or its sister youth 
orchestra have a reputation that is recognized as distinguished. The Petitioner provided little 
independent evidence regarding these organizations and their standing among professional and youth 
orchestras. Counsel's assertion that thq ~ "has been highly praised by the press and public in 
the United States, Korea and German" is not substantiated. Assertions of counsel do not constitute 
evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) ( citing Matter of Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)). 
With respect to the Petitioner's membership in th~ I Quintet, the record does not establish 
that this small ensemble is an "organization or establishment" as required by the regulatory language. 
I I states that the Petitioner was a "key and essential member of the quintet" and mentions that 
the ensemble won first prize at the 20171 !Competition, but the record does not 
document any other performances by the quintet. Further, the Petitioner did not submit evidence 
demonstrating that this quintet enjoyed a distinguished reputation. 
The Petitioner also submitted a letter from I I music director of the ~I----~ 
Orchestra, who states that he recruited the Petitioner to join the orchestra as assistant concertmaster 
and promoted her to concertmaster in 2015, noting that this is a critical role which is essential to the 
orchestra's mission. The record also contains a program from a 2015 concert at f church ipl I 
New Jersey, which lists the Petitioner as concert master. However, other than~--~ts letter, the 
Petitioner did not submit any evidence related to this ensemble and therefore she did not establish that 
it has a distinguished reputation. 
The Petitioner further asserts that the record contains evidence that she "performed leading roles that 
were incredibly valuable" to.__ _____ ~ I l~oque Charube] Hall, The I I 
International Summer Music Academy Orchestra, EnsembleLJ th~'----~ School of Music and 
7 
Art, and La Musirn magazine. The record includes a program indicating that the Petitioner performed 
a recital in thee=] Baroque Chamber Hall's debut concert series in 2012, but this evidence does not 
establish her leading or critical role with an "organization or establishment." Similarly, the Petitioner 
provided a program from a ~erformance of The II International Summer Music Academy 
Orchestra held in]~----~in 2006, in which sh~d as a member of the first violin section. 
The record does not reflect that this was a leading or critical role, nor does it contain any additional 
evidence regarding her performance with this ensemble. 
With reslect to Ensembl~ the Petitioner provided a letter from the ensemble's founder and artistic 
director,_ I who notes the Petitioner's "performance as an orchestral member" of the 
ensemble, but did not further discuss her role. As a result, the letter was insufficient to meet the 
Petitioner's burden to establish that her role for this ensemble was leading or critical. The record also 
contains a program from one EnsembleD performance in which the Petitioner is listed as a member 
of the violin section. However, the record lacks evidence ofEnsembleDs distinguished reputation 
to support counsel's assertion that the group "is making a tremendous impact in I I's classical 
music scene" and "redefining the role of the 21st century chamber orchestra." 
Finally, with respect to her roles with I l La Musica, and the I I School of 
Music and Art, the record does not contain letters from these organizations describing her roles and 
responsibilities and therefore does not support a finding that she meets this criterion based on those 
roles. The record reflects that the Petitioner has performed in concerts and recitals sponsored bye=] 
I f, in faculty concerts of I I and as I lof La Musica, but this evidence alone is 
insufficient to meet her burden to demonstrate how her role was leading or critical to these 
organizations. Further, the Petitioner did not submit evidence demonstrating that any of these 
organizations enjoy a distinguished reputation. Accordingly, we agree with the Director's 
determination that this criterion was not met. 
B. 0-1 Nonimmigrant Status 
The record reflects that the Petitioner was granted 0-1 status, a classification reserved for 
nonimmigrants of extraordinary ability. Although USCIS has approved at least one 0-1 nonimmigrant 
visa petition filed on behalf of the Petitioner, the prior approval does not preclude USCIS from denying 
an immigrant visa petition which is adjudicated based on a different standard - statute, regulations, 
and case law. Furthermore, our authority over the USCIS service centers, the office adjudicating the 
nonimmigrant visa petition, is comparable to the relationship between a court of appeals and a district 
court. Even if a service center director has approved a nonimmigrant petition on behalf of an 
individual, we are not bound to follow that finding in the adjudication of another immigration petition. 
Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785 (E.D. La.), ajj'd, 248 F.3d 
1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
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 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 
8 
have reviewed the record in the aggregate, concluding that it does not support a finding that the 
Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. 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 significance of her work is indicative of the required sustained national or 
international acclaim or that it is consistent with 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 has garnered 
national or international acclaim in the field, and she is one of the small percentage who has risen to 
the very top of the field of endeavor. See section 203(b )(1 )(A) of the Act and 8 C.F .R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated her eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
9