dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 20259190 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 26, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a musician , seeks classification as an individual of extraordinary ability . See Immigration 
and Nationality Act (the Act) Section 203(b )(1 )(A), 8 U .S.C. § 1153(b )(1 )(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 , finding that the Petitioner had only 
satisfied two of the initial evidentiary criteria, of which he must meet at least three. The matter is now 
before us on appeal. 
On appeal, the Petitioner contends that he meets three additional criteria, relating to nationally or 
internationally recognized prizes or awards , original contributions of major significance in the field, 
and leading or critical role for organizations or establishments. See 8 C.F.R. § 204.5(h)(3)(i), (v), 
( viii). He maintains that he qualifies for the classification. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C . § 1361 ;MatterofChawathe, 25 I&N 
Dec. 369 , 375 (AAO 2010). 1 Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(A) 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 
1 If a petitioner submits relevant, probative, and credible evidence that leads us to believe that the claim is "more likely 
than not" or"probably " true , it has satisfied the preponderance of the evidence standard . Chawathe, 25 I&N Dec. at 375-
76. 
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 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 the 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) . The regulation at 8 C .F.R. § 204.5(h)(4) allows a petitioner to submit 
comparable material if he or she is able to demonstrate that the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x) 
do not readily apply to the individual ' s occupation. 
Where a petitioner meets these initial evidentiary 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 endea vor. See Kazarian v. USCIS, 596 F. 3d 1115 , 1119-20 (9th Cir. 
2010) ( discussing a two -part review where the documenta tion is first counte d and then, if fulfilling the 
require d number of criteria, consid ered in the context of a fina l merits determinat ion); 
see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 13 1-32 (D.D. C. 2013);Rijalv. USCIS, 772 F. Supp. 
2d 1339, 1343 (W.D. Wash . 2011). 
II. ANALYSIS 
The Petitioner is a musician who leads the I music groupJ I According to 
page 4 of the petition , he intends to work as a music producer in the United States and be involved in 
"studio recording & production; songwriting, live performing and music industry consulting." The 
Director concluded that the evidence did not show that the Petitioner had received a one-time 
achievement (that is, a major , internationally recognized award) discussed in 8 C.F.R. § 204 .5(h)(3). 
On appeal , the Petitioner does not challenge this finding . As such, he must satisfy at least three of the 
ten regulatory criteria listed under 8 C.F.R. § 204 .5(h)(3)(i)-(x) to satisfy the initial evidentiary 
requirements. 
The Director concluded that the Petitioner met two of the ten criteria relating to published material at 
8 C.F.R . § 204 .5(h)(3)(iii) and artistic display at 8 C.F.R. § 204.5(h)(3)(vii). The record supports this 
determination . Specifically , the record includes an article published on www.Billboard .com that 
discusses the Petitioner and his music , and the evidence confirms that the website qualifies as a "major 
trade publication[] or other major media," as referenced in 8 C.F.R. § 204.5(h)(3)(iii) . Additionally, 
the record includes evidence showing that the Petitioner has performed his music in various events 
2 
and venues, including on thel I in the I and at the I Music 
and Arts Festival in Florida. He has therefore submitted "[e]vidence of the display of [his] work in 
the field at artistic exhibitions or showcases," satisfying the criterion under 8 C.F.R. § 204.5(h)(3)(vii). 
On appeal, the Petitioner asserts that he also meets the evidentiary criteria under 8 C.F.R. 
§ 204.5(h)(3)(i), (v) and (viii). We will address his claim with respect to the individual evidentiary 
criteria below. 
A. Evidentiary Criteria 
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). 
On appeal, the Petitioner maintains that he meets the prizes or awards criterion because he earned "a 
qualification of Outstanding or Excellence" at a masterclass with and 
because he has collaborated with musician on the songwriting, recording and 
production of original song I The Petitioner alleges that I is "one of the most 
influential artists in the world," and that I is a "renown I guitarist, .. 
. who is a living legend as a guitarist" in I Spain. According to a2019 certificate and a document 
entitled "Course Outline" froml the Petitioner "attended and successfully 
completed the following Summer Class(es): Guitar 4 Master Class by and "received a 
grade of Excellent." The Petitioner also presented documents relating to his song I I 
including online printouts from www.spotifv.com, indicating that the song featured! I 
as well as another artist named I I 
Although the Petitioner claims that these accomplishments confirm his "recognition of excellence in 
the field of endeavor," he has failed to demonstrate that his grade at a summer program or his 
collaboration with another musician in one song constitutes a prize or an award as referenced in 
8 C.F.R. § 204.5(h)(3)(i). As explained in the Director's decision, the Petitioner has not offered 
"documentary evidence to establish that comp le ting [ a summer pro gram or being involved in a musical 
collaboration] is a nationally or internationally recognized prize or award for excellence in the field of 
endeavor. Accordingly, he has not satisfied this criterion. 2 
Evidence of the alien's original scient[fic, scholarly, artistic, athletic, or business-related 
contributions of major sign[ficance in the.field. 8 C.F.R. § 204.5(h)(3)(v). 
On appeal, the Petitioner asserts that he satisfies the original contributions criterion because his 
musical work is both original and of major significance in the field. We find the record does not 
support his contention. To satisfy this criterion, the Petitioner must establish that not only has he made 
original contributions, but also that those contributions have been of major significance in the field. 
For example, a petitioner may show that the contributions have been widely implemented throughout 
2 On appeal, the Petitioner argues that he has submitted comparable evidence that satisfies the criterion under 8 C .F.R. 
§ 204.5(h)(3)(i). See 8 C.F.R. § 204.5(h)(4 ). Forthereasons we will discuss in SubheadingB of this decision, we disagree. 
3 
the field, have remarkably impacted or influenced the field, or have otherwise risen to a level of major 
significance. 
The record includes a number ofreference letters discussing the Petitioner's musical work, claiming 
that he has created a new genre of music. For example _________ the director of 
Billboard Magazine from itsl I hub, states that the Petitioner's "ability in music comes 
from his capacity to combine different influences of his I I heritage, including! lmusic 
... , with rock and folk traditions, including! I ro£l I ___________ claims that the Petitioner's ''ability to compose and perform highly 
sophisticated music involving the intersection between multiple genres is unparalleled" and that his 
"extraordinary ability in mixing musical genres from around the world - including! I I is incredibly rare in the music industry." I I 
a designer, architect and naturalist, states that the Petitioner has "sin le handed! created a new genre 
of music involving musical sounds from 
I I a music producer associated with the Music and Arts F 1 
rovides that the Petitioner ossesses an extraordinar abilit in a rarified music enre of 
a musician and composer, states that the Petitioner's "compositions are rich and eclectic, blending 
various genres like rock, blues, and folk in a novel way that makes his music unique and diff erenf" 
and that his music "has resulted in the creation of a new sound, an amalgamation of genres from around 
the world." I I the chief creative officer and managing partner at the I 
indicates that the Petitioner has "reached a level of prominence in his very unique music genre that 
perfectly combines Latin folk with rock music" and that he "is a very successful [] musician and artist 
in his niche musical genre." These, as well as other reference letters and documents not specifically 
discussed here, sufficiently confirm that the Petitioner's music -which combines musical styles from 
different part of the world - is original and unique. 
Notwithstanding this finding, however, the Petitioner has not sufficiently shown that his music 
constitutes "contributions of major significance in the field," as required under 8 C.F.R. 
§ 204.5(h)(3)(v). While the record includes some evidence that the Petitioner's musical talents have 
been recognized, it is insufficient to confirm that his work has been widely implemented throughout 
the field, has remarkably impacted or influenced the field, or has otherwise risen to a level of major 
significance. A 2017 article posted on www.billboard.com discusses the Petitioner's record 
I I stating that it "shows the growing maturity of a musician who is open to share with 
artists of different styles" and the record "is a showcase of a music artist who tries to blur the lines 
with absolute abandon." A similar article was published in Billboard which states that the 
Petitioner 
and that his record _____ "is the staging of a musical character that seeks to 
dilute borders with an utterly unbiased mind." The Petitioner has also offered evidence showing that 
he was interviewed by I at her pod cast, in which he "talk[ ed] about his struggles breaking 
free from the corporate world to pursue his dream of making music." While the documentation 
concerning media exposure indicates that the Petitioner has received some attention from the field, it 
4 
is insufficient to establish that the extent of his influence has risen to the level of "major significance 
in the field." 
Similarly, while the Petitioner and his music group have performed in a number of events 
and venues, including the _____ in the and thel I Music and 
Arts Festival, the record is insufficient to demonstrate that the reception of his work supports a finding 
that it constitutes "major significance in the field." According to the materials in the record, the 
presents to the public free performances of "music, theater, and dance feature 
emerging and established artists from the [local] area, across the nation, and around the world." This 
means that artists of different levels of influence in the field are invited to perform for the public on 
thel I and that being invited to perform on the does not necessarily 
indicate that a articular artist has made contributions of major significance in the field. Likewise, 
accordin t he invited the Petitioner and his music group I I to perform at 
th Music and Arts Festival, which I claims to have attracted "over 40,000 
attendees," because he was impressed with the Petitioner's "guitar playing skills" and "the quality of 
his vocals." While I I alleges that the Petitioner's participation in festival "is an incredible 
honor and evidences [his] superior talents [as] a musical artist," neither the letter nor other evidence 
in the record confim1s that his perf mmances in the festival or any other events or venues resulted in 
his musical style being widely adopted throughout the field, has remarkably impacted or influenced 
the field, or has otherwise risen to a level of major significance. 
Some of the Petitioner's references allege that his licensing agreement is indicative of his impact in 
the field. We disagree. The record includes a 2014 licensing agreement, under which the Petitioner 
(the licensor) allowed I I (the licensee) to "deliver[] [his 
musical work] in diverse f ormats ... and through diverse digital channels ... such as cell phones and 
internet," and that the licensee agreed to pay the Petitioner a "royalty percentage." The Petitioner has 
not submitted additional documentation concerning this licensing agreement, such as the amount of 
"royalty percentage" compensation he has received, or whether the parties are still under contractual 
obligations. Regardless, similar to having articles written about him and his work, this licensing 
agreement shows that the field has noticed the Petitioner, but it falls short of confirming that his 
musical work is of such caliber that it constitutes "contributions of major significance." 3 
Indeed, some of the Petitioner's references indicate that his musical work of combining different 
musical styles might one day impact the field in a significant way. For exampleJ I I I a music director for a number of orchestras, indicates that the Petitioner "has reached a 
point in his music career where he is on the verge of achieving worldwide fame for his unquestionably 
distinctive style and aptitude." I I a film and commercial director, states that he has "no[] 
doubt that subsequent performers, composers and critics have and will embrace his fusion of electric 
genres such as folk and rock, spawning a new type of music." an entertainment 
attorney, claims that the Petitioner "is well on his way to becoming a leading light in today's field of 
I I music, having himself coined a unique expression I I which 
almost creates a new genre of music."I I a producer and owner of I 
3 On appeal, the Petitioner submits a September2021 licensingagreementwitH I As this document 
postdates the filing of the petition in July 2021, it does not demonstrate the Petitioner's eligibility at the time he filed the 
petition. Sec 8 C.F.R. § 103.2(b )(1) (providing that a petitioner"mustestablish that he or she is eligible for the requested 
benefit at the time offilingthe benefit request and must continue to be eligible through adjudication"). 
5 
I I provides that the Petitioner "has created a fusion of two vastly different varieties of 
music and his innovation and creation of a new and different style of music will soon 
invigorate and change the music scene." These reference letters discuss the potential impact of the 
Petitioner's work. This criterion, however, requires evidence that his work has already made 
contributions of major significance in the field. Speculations of his work's potential impact, thus, are 
insufficient to satisfy this criterion. See 8 C.F.R. § 204.5(h)(3)(v). 
The opinions of the Petitioner's references are not without weight and have been considered above. 
However, for the reasons we have discussed above, the letters and other evidence in the record fail to 
demonstrate that the Petitioner's work constitutes contributions of "major significance" in the field. 
U.S. Citizenship and Immigration Services (USCIS) may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of Caron Int 'l, 19 I&N Dec. 791, 795 (Comm'r. 
1988). However, USCIS is ultimately responsible for making the final detennination regarding an 
individual's eligibility for the benefit sought. Id. The submission of reference letters supporting the 
petition is not presumptive evidence of eligibility; USCIS may, as we have in this case, evaluate the 
content of those letters as to whether they support the individual's eligibility. See id. at 795-96. Thus, 
the content of the references' statements are important considerations. The record, including the 
reference letters, does not sufficiently establish that the Petitioner's original work has been unusually 
influential, has substantially impacted the field, or has otherwise risen to the level of musical 
contributions of major significance. As such, he has not demonstrated that he meets this regulatory 
criterion. See Visinscaia, 4 F. Supp. 3d at 134-35 (upholding a finding that a ballroom dancer had not 
met this criterion because she did not demonstrate her impact in the field as a whole). 
Evidence that the alien 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). 
On appeal, the Petitioner argues that he meets this criterion because he was the "Project Leader and 
Marketing Strategist" for I 
" 
Letters from employers, attesting to an employee's role in the organization, must contain detailed and 
probative information that specifically addresses how the person's role for the organization or 
establishment was leading or critical. See 6 USCIS Policy Manual F.2(B)(2) (including an appendix 
that discusses all ten criterion), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2. 
Additionally, in determining whether an organization or establishment has a distinguished reputation, 
the relative size or longevity of an organization or establishment is not in and of itself a determining 
factor. Rather, the organization or establishment must be recognized as having a distinguished 
reputation. 
As supporting evidence, the Petitioner offers a letter from who claims in an 
August 2021 letter that while working forl I he "was leading the Latin American promotion of 
... and also planning for I 
states that the Petitioner assisted him in 
both the campaign and the and was "in charge of the integration of 
6 
digital/online strategies, market research and comparative analysis of musical festivals." He alleges 
that "[d]ue in large part of [the Petitioner's] leading efforts and the rest of an international team, 
became the best and fastest selling I in the digital age," and that the 
Petitioner's "craft and critical role in planning and executing I lwas equally as 
impressive." The record includes other documents relating to both the campaign and the festival. 
The Petitioner has not demonstrated thatj I or one of its departments or divisions qualifies as an 
organization or establishment that has a distinguished reputation. See 6 USCIS Policy Manual, supra, 
atF.2(8)(2) (appendix). Merriam-Webster's online dictionary defines "distinguished" as "marked by 
eminence, distinction, or excellence or befitting an eminent person." See www.merriam­
webster.com/dictionary/distinguished. On appeal, the Petitioner submits evidence concerning! I 
including a Variety article, materials posted on www.WallStreetWomenForum.com and 
www.wmg.com, indicating that I I is "a fonner talent-management and current investment 
company" "dedicated to innovative growth-stage businesses in the consumer, media and technology 
sectors," and that it had "worked closely with artists including These 
documents, as well as those not specifically mentioned, show tha had worked with certain well-
known performers, they are, however, insufficient to support a finding that its reputation, or the 
reputation of one of its departments or divisions, is "marked by eminence, distinction, or excellence." 
As such, the Petitioner has not shown that I I or one of its departments or divisions has a 
distinguished reputation. 
Moreover, the evidence is insufficient to establish that the Petitioner, based on his involvement in one 
campaign and one festival, was a leader within I a division or a department withinl I or that 
he contributed in a way that is of significant impmiance to the outcome of lactivities or those 
of a division or department within See 6 USCJS Policy Manual, supra, atF.2(8)(2) ( appendix). 
The Petitioner's title in I and his associated duties, are insufficient to show that he was a leader. 
Similarly, while he might have played a significant role in certain aspects - including "integration of 
digital/online strategies, market research and comparative analysis of musical festivals - of the 
campaign and the I he has failed to explain the significance of his work to the I 
as a whole or to a I I division or department. Without additional corroborating evidence 
demonstrating his leading or critical role forl I or one of its divisions or departments, and 
establishin or one of its divisions or departments has a distinguished reputation, he has not 
satisfied this regulatory criterion. 4 
B. Comparable Evidence 
On appeal, the Petitioner claims that he has submitted comparable evidence showing that he meets the 
nationally or internationally recognized prizes or awards criterion under8 C.F.R. § 204.5(h)(3)(i). The 
regulation at 8 C.F.R. § 204.5(h)(4) addresses comparable evidence and allows a petitioner the 
opportunity to submit "comparable" evidence to establish his or her eligibility, if USCIS determines 
that a criterion does not readily apply to the individual's occupation. See 6 USCIS Policy Manual, 
supra, at F.2(8)(2) (appendix). In this case, the Petitioner has not submitted sufficient evidence 
4 Additionally, we note that the Petitioner indicated on page 4 of the petition that he intends to work as a music producer 
in the United States, claiming extraordinary ability as a musician and a musical producer. He, however, has explained 
how his expe1ience in business strategies, marketing and market research relates to the field in which he claims 
extra ordinary ability. 
7 
showing that the nationally or internationally recognized prizes or awards criterion under 8 C.F.R. 
§ 204.5(h)(3)(i) does not readily apply to his occupation as a musician and music producer. The fact 
that he has not received such prizes or awards is insufficient to support a finding that the criterion 
"do[es] not readily apply to the []occupation." See 8 C.F.R. § 204.5(h)(4). Moreover, the Petitioner 
has not demonstrated that his successful completion of a summer masterclass program or his musical 
collaboration with another musician is truly comparable to nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. See id. Based on these reasons, the Petitioner 
has not established that he may rely on comparable evidence to satisfy the criterion under 8 C.F.R. 
§ 204.5(h)(3)(i). See also 8 C.F.R. § 204.5(h)(4). 
C. 0-1 Nonimmigrant Status 
We note that the record reflects that the Petitioner received 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. Many immigrant petitions are denied after USCIS approves prior nonimmigrant petitions. 
See, e.g., Sunlift Int ·z v. Mayorkas, et al., 2021 WL 3111627 (N.D. Cal. 2021); Q Data Consulting, 
Inc. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); IKEA US v. US Dep 't 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), aff'd, 905 
F. 2d 41, 42 (2d Cir. 1990). Furthermore, our authority over the USCIS service centers, the offices 
adjudicating nonimmigrant visa petitions, 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. See La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. La. 
2000). 
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 listed under 8 C.F.R. § 204.5(h)(3)(i)-(x). As a 
result, we need not provide the type of final merits determination referenced in Kazarian, 596 F. 3d at 
1119-20. Nevertheless, we note 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 individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. Here, the Petitioner 
has established that he is a musician who has gained some recognition for his work. But he has not 
shown that this recognition rises to the required level of sustained national or international acclaim, or 
that it is consistent with a "career of acclaimed work in the field" as contemplated by Congress. HR 
Rep. No. 101- 723, 59 (Sept. 19, l 990);see also Section 203(b )(l)(A) oftheAct. Moreover, the record 
does not otherwise demonstrate that the Petitioner is one of the small percentage of individuals who 
8 
have risen to the very top of the field of endeavor. See Section 203(b )(1 )(A) of the Act; 8 C.F.R. 
§ 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility for the 
classification as an individual of extraordinary ability. The appeal will be dismissed for the above 
stated reasons. 
ORDER: The appeal is dismissed. 
9