dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 14278047 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 27, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, ~ L seeks classification as an alien 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 California Service Center initially denied the petition and subsequently affirmed 
the decision on motion, concluding that the Petitioner satisfied only two of the ten initial evidentiary 
criteria, of which he must meet at least three . 
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 ac=J who has performed individually and with multiple ensembles. The Petitioner 
studied atl I Conservatory and the I I Academy, and currently resides in D I !where he is pursuing career opportunities as a performer, composer, and recording artist. 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has 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). In denying the petition, the Director found that the Petitioner met only 
two of the evidentiary criteria: judging under 8 C.F.R. § 204.5(h)(3)(iv) and display under 8 C.F.R. 
§ 204.5(h)(3)(vii). We agree with this determination, as the record demonstrates that the Petitioner 
served as a voting member for the Grammy Awards on behalf of the Recording Academy, as well as 
a juror for the ~------------------------~ Orchestra and 
SoundtRec.com, and farther demonstrates that he displayed his work by performing at various artistic 
and musical venues. On appeal, the Petitioner maintains that he meets three additional criteria, 
discussed below. 1 We have reviewed all of the evidence in the record and conclude that it does not 
support a finding that the Petitioner satisfies the requirements of at least three criteria. 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classification is sought. 
1 The Petitioner initially claimed that he met the lesser awards criterion at 8 C.F.R. § 204.5(h)(3)(i) and the commercial 
success criterion at 8 C.F.R. § 204.5(h)(3)(x). Although the Director addressed the evidentiary deficiencies regarding these 
criteria in the previous decisions, the Petitioner has not pursued these claims on appeal. Accordingly, we will not further 
address these criteria. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. Roark, No. 
09-CV-27312011, 2011 WL 4711885 at *I, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiWs claims to be 
abandoned as he failed to raise them on appeal to the AAO). While we would consider this evidence in a final merits 
determination per Kazarian, 596 F .3d I I 15, we have determined that the Petitioner has not met the initial evidentiary 
requirements and will therefore not reach a final merits determination. 
2 
Such evidence shall include the title, date, and author of the material, and any 
necessary translation. 8 C.F.R. § 204.5(h)(3)(iii) 
To meet the requirements of this criterion, the Petitioner must show that material has been published, 
that the material is about him and his work in the field for which classification is sought, and that it 
was published in a professional or major trade publication or other major media. In this case, the 
Petitioner provided numerous articles from vanous online publications including 
www.kibrispostasi.com, southcoastoday. com, yemas1r. com. tr, yenisafak. com, hurriyet. com. tr, 
hurriyetdailynews.com, dha.com.tr, sabah.com.tr, and radikal.com.tr, along with print articles from 
publications including Cypress Today and Hurriyet Newspaper/Kelebek (Cumartesi). The Petitioner 
also submitted screenshots and a transcript from youtube.com of a television program it claims aired 
on Turkish Radio and Television (TRT) in 2019. 
The plain language of this regulatory criterion requires that the published material be "about the 
individual." With regard to the article published by South Coast Today, this article is aboutLJ 
I I and only briefly mentions the Petitioner. Articles that are not about an alien do not 
fulfill this regulatory criterion. See, e.g., Negro-Plwnpe v. Okin, 2:07-CV-820-ECR-RJJ at *1, *7 (D. 
Nev. Sept. 8, 2008) (upholding a finding that articles regarding a show are not about the actor). 
We agree with the Petitioner that the remaining articles published by the above-referenced online 
publications contain sufficient references to and quotes from the Petitioner to qualify 
as published material about him and his work. However, the Petitioner did not establish that these 
publications qualify as major media. The Petitioner provided information about these publications 
from SimilarWeb pertaining to their rankings and viewing statistics. Although he provided evidence 
relating to general Internet traffic estimators, the Petitioner did not show the significance of those 
publications' viewing statistics or explain how such information reflects status as major media. 2 For 
example, the Petitioner did not show that the total visits or viewing statistics are high compared to 
other websites in the field. Although the size of each publication's online audience is noted, the 
Petitioner did not provide comparative circulation statistics or rankings to indicate that any of these 
publications has a widespread viewership or traffic rate on a national or international level. 
With respect to the articles from Cyprus Today and Hurriyet Newspaper/Kelebek (Cumartesi), which 
were published in their print editions, the Petitioner did not submit sufficient evidence to establish 
that they qualify as major trade publications, professional publications or other major 
media. 3 Regarding the Cyprus Today article, the Petitioner relies on an excerpt from the website 
www.pressreference.com, which provides general information and basic data about the Republic of 
Cyprus. According to the document, the Republic of Cyprus has eight daily newspapers; however, 
Cyprus Today is not listed as one of these press or news agencies. Although the Petitioner highlights 
a statistic that states total circulation is 46,000, it appears that this statistic reflects the collective 
circulation of the Republic's eight daily newspapers, and not that of Cyprus Today. In fact, this 
2 See USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADI 1-14 7 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (indicating that evidence of published material in 
professional or major trade publications or in other major media publications should establish that the circulation (on-line 
or in print) is high compared to other circulation statistics). 
3 See id. 
3 
document makes no specific reference to Cyprus Today or its circulation, such that we can determine 
the publication's status as major media. 
With regard to the article featured in Hurriyet N ewspaper/Kelebek ( Cwnartesi), the Petitioner submits 
a document entitled "Medya Radar," which appears to be a weekly circulation report for a period 
defined as "March 16 to March 22" for 14 newspapers, including Hurriyet. No year is provided, and 
the source of this document is not identified. Although the document indicates Hurriyet ranks 3rd on 
the list, it did not show the significance of these rankings and circulation statistics or explain how such 
information reflects status as ma·or media. On a eal the Petitioner rovided a co of a document 
entitled '-----~----------,------------------------'' a Reuters 
Institute Fellowship Paper published in 2016. Although the Petitioner asserts that this document 
provides relevant information regarding Hurriyet 's status as major media, this paper focuses mainly 
on advertising trends. While we acknowledge that the report includes a reproduced chart attributed to 
the Nielsen Company which demonstrates Turkish newspaper circulation numbers and "total space 
distribution" for the period from 2011-2015, this chart alone does not show the significance of these 
numbers or explain how such information reflects status as major media. Moreover, the Hurriyet 
article discussed here was written in 2011, thereby rendering statistical data for future circulation 
period irrelevant. 
The Petitioner also submits screenshots and a transcript of a television interview he claims aired on 
TRT in 2019. The screenshots submitted, however, demonstrate that the video was streamed on 
youtube.com, via what appears to be TRT' s Y ouTube channel. The Petitioner, however, did not show 
that either TRT, or TRT's YouTube channel, constitutes major media. As evidence, the Petitioner 
provided an excerpt from TRT World's website, which states that it is the "national public broadcaster 
of Turkey." However, the Petitioner did not submit independent, probative evidence to support the 
broadcaster's claims. Absent additional evidence, this information from the broadcaster's own 
website is insufficient to demonstrate that it is a professional or major trade publication or other major 
media. See Braga v. Poulos, No. CV 06 5105 SJO (C. D. CA July 6, 2007) aff'd 2009 WL 604888 
(9th Cir. 2009) ( concluding that the AAO did not have to rely on self-serving assertions on the cover 
of a magazine as to the magazine's status as major media). Furthermore, it is unclear whether the 
interview was broadcast on TRT as a television show, or solely on TRT's YouTube channel. 
Regardless, the record is insufficient to establish that either TRT, or TRT's YouTube channel, 
constitute major media. 
On appeal, the Petitioner asserts that our treatment of the evidence submitted in support of this criterion 
is inconsistent, as his receipt of 0-1 status, a classification reserved for nonimmigrants 
of extraordinary ability, was based on the same set of documentary evidence currently before us. The 
Petitioner contends that as a result of these prior approvals, this criterion has previously been 
established. Extraordinary ability in the nonimmigrant context, however, means distinction, which is 
not the same as sustained national or international acclaim. Section 101 (a)( 46) of the Act explicitly 
modifies the criteria for the 0-1 extraordinary ability classification in such a way that makes the 
nonimmigrant 0-1 criteria less restrictive for an individual in the arts, and thus less restrictive than the 
criteria for immigrant classification pursuant to section 203(b)(l)(A) of the Act. Therefore, while 
USCIS has previously approved 0-1 nonimmigrant petitions for the Petitioner, the prior approvals do 
not preclude USCIS from denying an immigrant visa petition which is adjudicated based on a different 
4 
standard - statute, regulations, and case law.4 
For the reasons outlined above, the Petitioner did not establish that he satisfies this criterion. 
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 plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the alien 
has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation [ emphasis added]." In general, a leading role is evidenced from the role itself: 
and a critical role is one in which the petitioner was responsible for the success or standing of the 
organization or establishment. 
A review of the record of proceedings reflects that the Petitioner claimed eli ibilit for this criterion 
based on his various erformances with or anizations such as the Philharmonic 
Orches .................... ......__--,. ___ ___J Opera, th ..._ _______________ ~Philharmonic, 
and the.__ ___ __, Orchestra. While the Petitioner submitted testimonial letters from directors and 
producers of these organizations confirming his participation in various performances, they do not 
reflect that he performed in a leading or critical role. For example, the letters submitted claim that he 
performed as I I However, the Petitioner provided no information regarding the number 
otj I or the total number of musicians, that participated in each performance, such that we can 
ascertain his rank and position within each symphony or orchestra. In denying the petition the 
Director determined that the Petitioner did not establish his role was leading or critical to theD 
section, let alone to the orchestras or symphonies as a whole, noting that "in an orchestra the leading 
musical role is generally held by the Concertmaster or first violin." 
On appeal, the Petitioner challenges the Director's determination, and notes that despite having 
multiple musicians on stage, "a solo performance within the entire concert may bring about the entire 
success solely attributed to a particular musician." The Petitioner asserts that his solo performances 
have attributed to the high degree of success of various concerts in which he performed. Again, 
however, the Petitioner has not provided evidence to corroborate these claims, as the record contains 
no evidence that differentiates his role from the other I I or other routine performers in 
subordinate roles within the given symphonies, orchestras, and ensemble performances. Absent 
documentation showing otherwise, we are not persuaded that the Petitioner, or every performer in a 
concert setting for that matter, performs in a leading or critical role. 
The Petitioner also maintains that he satisfies this criterion based on his creation of an original score 
to accompany a three-minute promotional video for the University! I I ]Institute. According to a letter from~ I 1e Petitioner "has been 
overwhelmingly critical to the continued success of th .__ ______ ____,_ Institute and has played 
4 The Petitioner also claims that the same evidence was deemed acceptable to satisfy the criterion at 8 C.F.R. 
§ 204.5(h)(3)(iii) in a prior immigrant petition for classification as an alien of extraordinary ability, which was ultimately 
withdrawn prior to adjudication. While the Petitioner's assertion is noted, it must be noted that in making a determination 
of statutory eligibility, USCIS is limited to the information contained in that individual record of proceeding. 8 C.F.R. 
§ 103.2(b )(16)(ii). 
5 
a leading a critical role in upholding the reputation of an elite institution likel The Petitioner 
submitted a screenshot of the promotional video, crediting the Petitioner with providing the music for 
this video. Although the Petitioner claims his work on this video demonstrates he performed in a 
leading and critical role, there is insufficient evidence to corroborate this claim. For example, the 
letter froml I indicates that the Petitioner "worked well" with the Institute's IT team in 
helping to create the video. Absent evidence pertaining to the organizational hierarchy of this team 
and the Petitioner's position therein, we cannot determine that his role was leading or critical as 
contemplated by this regulatory criterion. Furthermore, the submitted letter does not describe in 
sufficient detail the extent of the Petitioner's role in creating this video, or how his role has been 
critical to the Institute's reputation. 
Finally, we note that the Petitioner relies heavily on the testimonial letters submitted on his behalf: 
noting that they constitute "expert statements" from "world-renowned musicians." While the 
statements in these letters are noted, they are not accompanied by corroborating documentary that 
distinguishes the Petitioner's role from his fellow lor musical performers. We are not persuaded 
by vague, solicited letters that simply repeat the regulatory language but do not explain how the 
Petitioner's roles were leading or critical. Merely repeating the language of the statute or regulations 
does not satisfy the Petitioner's burden of proof See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 
1108 (E.D.N.Y. 1989), c~ff'd, 905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, 1997 
WL 188942 at *5 (S.D.N.Y.). The lack of supporting evidence gives us no basis to gauge the 
significance of the roles performed by the Petitioner. 
As the Petitioner is d lit is expected that he will perform the routine duties of~ I to perform 
on stage or in front of an audience. However, merely performing, even if the performance is 
considered noteworthy, does not equate to a leading or critical role. Although the testimonial letters 
generally praise his skilled performances and attribute large crowd attendance and sold out shows to 
his rork. there is no evidence demonstrating how the Petitioner's roles differentiated him from the 
otheii. I or other musicians in general. Without evidence establishing that the Petitioner 
performed in a leading or critical role, it is insufficient to simply submit documentary evidence 
reflecting that he performed as a flutist in a concert setting. 
We further note that even if the Petitioner were to submit supporting documenta evidence showing 
that his roles with the Orchestra, F"-----1-- __ _J Opera, the 
.__ ________________ __, Philharmonic, and the'-----~ Orchestra meet the 
elements of this criterion, which he has not, the record does not demonstrate that these organizations 
have distinguished reputations. The Petitioner submitted excerpts from the organizations' websites, 
such as the "About Us" page for the.__ _______ _. Orchestra, and claims that these documents 
establish the organizations' distinguished reputations. As noted previously in this decision, we need 
not rely on self-promotional material. Cf Braga v. Poulos, No. CV 06 5105 SJO, ~ff d 317 Fed. Appx. 
680 (C.A.9) (concluding that the AAO did not have to rely on self-serving assertions on the cover of 
a magazine as to the magazine's status as major media). The unsupported assertions of the Petitioner 
and the self-promotional material from the organizations' websites is not sufficient to demonstrate that 
the organizations have a distinguished reputation. 
Again, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires "[e]vidence that the 
alien has performed in a leading or critical role for organizations or establishments that have a 
6 
distinguished reputation." The burden is on the Petitioner to establish that he meets every element of 
this criterion. The Petitioner did not establish that he has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation consistent with the plain language 
of this regulatory criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the.field. 8 C.F.R. § 204.5(h)(3)(ix). 
In order to satisfy this criterion, the Petitioner must demonstrate that he commanded a high salary or 
other significantly high remuneration for services in relation to others in his field. Here , the Petitioner 
did not establish the total amount of salary or remuneration he has earned. The Petitioner submitted 
various contracts for his services, primarily for one-time performances where he would earn varying 
amounts of flat-rate compensation ranging from $350 to $3,000. On appeal, the Petitioner submits 
copies of three 1099 forms from 2018, demonstrating that he earned a total of $7,400 for his services 
that year. He also provided evidence in the form of PayPal and Zelle transaction receipts, 
demonstrating total earnings in the amount of $870 pursuant to contractual agreements for one-time 
performances in 2019. 
The Petitioner did not submit sufficient comparative evidence demonstrating that the contracted 
amounts per engagement is significantly higher than the remuneration of otherl I Rather, he 
provides evidence from the U.S. Department of Labor's Office of Foreign Labor Certification, 
demonstrating that the mean salary for a musician in the Petitioner's geographical area from July 2019 
to June 2020 was $39.01 per hour, or $81,141 annually. Although the Petitioner relies on this 
document as evidence that his hourly rate exceeds the mean hourly rate for musicians, he offers no 
basis for comparison showing that his compensation was significantly high "in relation to others in 
the field," which in this case isl 15 While the Petitioner has provided documentation of hourly 
and annual compensation for the field, the record lacks evidence of his own hours worked or his total 
annual compensation. Without a proper basis for comparison and evidence showing his 
comprehensive earnings during a sustained period predating the filing of the petition ( such as an 
income tax return), we cannot conclude that the Petitioner has commanded a high salary or other 
significantly high remuneration for services in relation to others in his field. Accordingly, the 
Petitioner has not established that he meets this criterion. 
B. 0-1 Nonimmigrant Status 
As noted briefly above, we note that USCIS has approved several 0-1 nonimmigrant visa petitions 
filed on behalf of the Petitioner. However, the prior approvals do not preclude USCIS from denying 
an immigrant visa petition which is adjudicated based on a different standard - statute, regulations, 
and case law. Many Form 1-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); 
IKEA US v. US Dept. of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co., Ltd. v. Sava, 724 
F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd, 905 F. 2d 41 (2d. Cir. 1990). 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 
5 The musicians occupational category on the submitted wage report includes both musicians and singers. 
7 
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, at *2 (E.D. La. 2000). 
III. CONCLUSION 
We find that although the Petitioner satisfies the judging criterion at 8 C.F.R. § 204.5(h)(3)(iv) and 
the display criterion at 8 C.F.R. § 204.5(h)(3)(vii), he does not meet any additional criteria on 
appeal. As the Petitioner cannot fulfill the initial evidentiary requirement of three criteria under 
8 C.F.R. § 204.5(h)(3), we reserve this issue. 6 Accordingly, 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 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 his 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 he 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). 
Although the Petitioner's work as al I has brought praise for his experience and technical skill, 
the record does not contain sufficient evidence establishing that he is among the upper echelon in his 
field. 
For the reasons discussed above, the Petitioner has not demonstrated his 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. 
6 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach). 
8