dismissed EB-1A Case: Music

(b)(6)
DATE: fEB 1 9 2013 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(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 further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
T:\4.r Q_-
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Ron Rosenberg . 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, initialiydenied the employment-based immigrant 
visa petition on 
September 30, 2010, due to abandonment. On October 22, 2010, the petitioner filed a 
motion to reopen. The director subsequently granted the motion to reopen and, in a separate decision on 
August 21, 2012, denied the underlying petition on the merits. The visa petition is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, specifically as a 
musician, pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. . 
§ 1153(b )(1 )(A). The director determined the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as an alien of extraordinary ability. 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the statute, 
that the petitioner demonstrate the alien's "sustained national or international acclaim" and present) 
"extensive documentation" of the alien's achievements. See section 203(b)(1)(A)(i) of the Act and 
8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an alien can 
establish sustained national or international acclaim through evidence of a one-time achievement of a 
major, internationally recognized award. Absent the receipt of such an award, the regulation outlines 
ten categories of specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
On appeal, counsel submits a brief along with documentation that the petitioner has largely submitted 
previously. Counsel asserts that the petitioner has established his eligibility as an alien of extraordinary 
ability and has met five of the criteria outlined in the regulations. Specifically, counsel states that the 
petitioner has met the criterion for lesser 11:ationally or internationally recognized awards, the criterion 
for membership, the critedon for published material in professional or major trade publications, the 
criterion for original contributions of major significance in the field, and the criterion for serving in a 
leading or critical role for an organization with a distinguished reputation. Considering the evidence in 
the record, the petitioner has not established eligibility for the benefit sought by a preponderance of the 
evidence. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -~ Visas shall first be made available ... to qualified immigrants who are 
aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. --An alien is described in this subparagraph 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, 
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(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. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have consistently recognized that Congress intended to set a very high standard for individuals 
seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101
51 
Cong., 2d Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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. !d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
(lCclaim and the recognition of his or her achievements in the field. Such acclaim must be established 
either through evidence of a one-time achievement (that is, a major, international recognized award) or 
through the submission of qualifying evidence under at least three of the ten categories of evidence 
listed at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a petition 
filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010): Although the court 
upheld the AAO's decision to deny the petition, the court took issue with the AAO's evaluation of 
evidence submitted to meet a given evidentiary criterion.1 With respect to the criteria at 8 C.F.R. 
§ 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, those concerns should have 
been raised in a subsequent "final merits determination." /d. at 1121-22. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part o(the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the petitioner 
failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed to satisfy the 
regulatory requirement of three types of evidence (as the AAO concluded)." /d. at 1122 (citing to 
8 C.F.R. § 204.5(h)(3)). 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the· context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of three types of evidence. /d. 
1 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary 
requirements beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. 
§ 204.5(h)(3)(vi). 
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II. ANALYSIS 
A. Prior 0-1 Nonimmigrant Visa 
While U.S. Citizenship and Immigration Services (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 based on a different, if similarly phrased, 
standard. The regulatory requirements for an immigrant and non-immigrant alien of extraordinary 
ability in the arts are dramatically different. 8 C.F.R. § 214.2( o )(3)(ii) defines extraordinary ability in 
the arts (including the performing arts) as simply "distinction," which is further defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree 
of skill a·nd recognition substantially above· that ordinarily encountered to the extent that 
a person described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation relating to the immigrant classification, 8 C.F.R. § 204.5(h)(2), however, defines 
extraordinary ability in any field as "a level of expertise indicating that the individual is on of that small 
percentage who have risen to the very top of the field of endeavor." While the ten immigrant criteria set 
forth at 8 C.F.R. § 204.5(h)(3) appear in nonimmigrant regulations, 8 C.F.R. § 214.2(o)(3)(iii), they 
refer only to aliens who seek extraordinary ability in the fields of science, education, business or 
athletics. Rather, separate criteria for nonimmigrant aliens of extraordinary ability in the arts are set 
forth in the regulation at 8 C.F.R. § 214.2(o)(3)(iv). The distinction between these fields and the arts, 
which appears in 8 C.F.R. § 214(o) does not appear in 8 C.F.R. § 204.5(h). As such, the petitioner's 
approval for a non-immigrant visa under the lesser standard of "distinction" is not evidence of his 
eligibility for the similarly titled immigrant visa. Regardless, each petition must be adjudicated on its 
own merits under the regulations which apply to the benefit sought. Thus, the petitioner's eligibility 
will be evaluated under the ten regulatory criteria relating to the immigrant classification, discussed 
below. 
Furthermore, it must be noted that many 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 Brothers Co. Ltd. v. 
Sava, 724 F. Supp. 1103 (E.D.N.y. 1989). Because USCIS spends less time reviewing 1-129 
nonimmigrant petitions than 1-140 immigrant pe.titions, some nonimmigrant petitions are simply 
approved in error. Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d at 29-30; see also Texas A&M 
Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004) (finding that prior 
approvals do not preclude USCIS from denying an extension of the original visa based on a 
reassessment of petitioner's qualificatjons ). 
The AAO is not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See, e.g., Matter of 
Church Scientology International, 19 I&N De.c. 593, 597 (Comm'r. 1988). It would be absurd to 
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suggest that USCIS or any agency must treat acknowledged errors as binding precedent. Sussex 
Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, the AAO's authority over the service centers is comparable to the relationship between 
a court- of appeals . and a district court. Even if a service center director had approved the 
nonimmigrant petitions on behalf of the beneficiary, the AAO would not be bound to follow the 
contradictory decision of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 
282785 (E.D. La.), aff'd, 248 F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
B. Evidentiary Criteria2 
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). 
The director found that the petitioner failed to meet this criterion. Specifically, the director determined 
that the petitioner failed to submit sufficient information about the _ award to meet 
the plain language requirements of the regulation. On appeal, counsel submits new background 
infoml.ation on the United Nations Educational, Scientific and Cultural Organization (UNESCO) and 
· UNESCO's designati.on of "Intangible Cultural Heritage of Humanity." The documentation, which 
consists of webpages from UNESCO's website, shows the among the list of 
Intangible Cultural Herital!e of Humanitv. Counsel also sul5mits printed webpages m Spanish from the 
website for the which provides _information about the and 
provides a 
translation. 
The translation of the submitted webpage states: 
The is the most prized trophv at the With time, 
it has become the highest honor within most important 
Past winners in the Salsa genre included, 
n 2004 and 2005. 
The petitioner previously included the above translation al~:mg with his response to the Notice of 'Intent 
· to Deny (NOID). The director in. the August 21, 2012 decision observed that much of the submitted 
evidence relating to this criterion was not accompanied by a certification of the translator's competence 
to translate the documents from the original language to English. The above translation was, again, not 
accompanied by a certification of the translator's competence and fails to comply with the requirements 
of 8 C.F.R. § 103.2(b )(3). Therefore, USCIS cannot accept the document as relevant, probative 
evidence. 
Even without. the certification problems of the document, the content of the translation remains 
insufficiel)t to meet the requirements of the regulatory criterion. The information provided in the 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
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translation only indicates that the is highly regarded within the context of the 
While the record contains evidence of positive reviews of the 
there is insufficient documentation to establish that the award itself is nationally or 
internationally recognized. USCIS will not oresume the national or international recognition of the 
award based on the recognition of the 
Accordingly, the AAO affirms the director's finding and concludes that the petitioner failed to satisfy 
the regulatory language for this criterion. 
Documentation of the alien's membership in associations in the field for which classification is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
Counsel claims the petitioner's eligibility for this criterion for the first time on appeal. The 
petitioner did not claim that he met this criterion or submitted evidence relating to this criterion 
along with the Form I-140 petition and accompanying documents. The petitioner then failed to 
claim eligibility for ihis criterion and submit evidence in response to the director's Notice of Intent 
to Deny (NOID) and in his motion to reopen following the director's initial denial decision. 
The methods vary by which a petitioner can be notified of evidentiary requirements. For example, a 
petitioner is considered to be on notice through the specific requirements outlined within the 
regulations, or through various forms of communication from USCIS to a petitioner or applicant 
noting an evidentiary deficiency or requesting more evidence. See Matter of Soriano, 19 I&N Dec. 
764, 766 (BIA 1988). The regulation at 8 C.F.R. § 204.5(h)(3) notified the petitioner of the specific 
filing requirements to demonstrate eligibility under the extraordinary ability classification. In 
addition, the instructions to the Form I-140 petition state that the petitioner "must attach evidence 
with [the] petition showing that the alien has sustained national or international acclaim" and then 
lists the 
ten regulatory criteria. The director issued a NOID listing all of the regulatory criteria and 
then the petitioner submitted additional evidence along with his motion to reopen the denial based on 
abandonment. Therefore, the petitioner in this instance had multiple opportunities to present 
evidence and allege eligibility before the director prior to the director's issuance of the denial based 
on the merits of the underlying petition. The petitioner must claim every criterion that the petitioner 
would like to be considered before the director. In instances when the petitioner was notified of the 
types of evidence that are required to demonstrate eligibility and was afforded the opportunity to 
provide the evidence prior to the issuance of an adverse decision, new eligibility claims will not be 
considered on appeal. See Matter of Soriano, 19 I&N Dec. at 766. 
If the petitioner would like for USCIS to consider claims to additional eligibility criteria, this must 
be accomplished through the filing of a new petition. See id. at 766. Cf Matter of Jimenez, 21 I&N 
bee. 567, 570 n.2 (BIA 1996) (finding that claims of eligibility for a waiver presented for the first 
time on appeal are not properly before the Board of Immigration Appeals and that the Board will not 
issue a determination on the matter.) Although the AAO maintains de novo review of appellate 
cases and a petitioner may supplement the record in regards to previous claims, a petitioner may not 
raise a previously unclaimed eligibility criterion on appeal. Matter of Soriano, 19 I&N Dec. at 766. 
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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. 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). 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must primarily be about the petitioner and the contents must relate to the petitioner's work in 
the field under which he seeks classification as an immigrant. The published material must also appear 
in professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or international distribution and be published in a 
predominant national language. The final requirement is that the petitioner provide each· published 
item's title, date, and author and if the published item is in a foreign language, the petitioner must 
provide a translation that complies with the requirements found at 8 C.F.R. § 103.2(b)(3).. The 
petitioner must submit evidence satisfying all of these elements to meet the plain languageTequirements 
of this criterion. 
The petitioner submitted a number of newspaper clippings along with the initial visa petition and in 
response to the NOID. On appeal, counsel essentially concedes that much of the submitted articles do 
not conform to the requirements of the regulation.in stating that the petitioner "did not write down the 
journals." However, the plain language of the regulation requires such information and the petitioner's 
failure precludes those articles from consideration as relev~nt, probative evidence. Moreover, with two 
exceptions, one of which was not accompanied by a certified translation, the submitted articles were not 
about the petitioner. The articles generally discussed the bands in which petitioner played, their 
successes in · events, their upcoming plans, including plans for touring and recordings, and as 
participants in festivals or competitions. While the petitioner was often mentioned by name in the 
articles, it was only within the context of a piece that focused on a broader topic, such as the petitioner's 
band or an event. 
On appeal, counsel claims the importance of one particular article published in Counsel 
asserts that is one of the most important newspapers in The assertions of 
counsel do. not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533, 534 (BIA 1988). Also, the 
petitioner, in his response to the NOID, stated that is the third most popular newspaper in 
The petitioner also referred to articles from stating that they are 
the fourth and the first most popular newspapers in respectively:' Going on record without 
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in 
these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). To substantiate his claims, 
the petitioner submitted a printed webpage from a website titled 1 which 
includes the above mentioned publications in a list of.the "Top 10 Most visited Newspapers." 
3 Many of the clippings that petitioner states are articles from these newspapers do not show the name of the 
publication on the clippings. 
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The list does not appear to reflect circulation numbers and instead seems to rank the publications in 
order of how frequently they are visited through the website. Thus, this documentation does not serve 
as evidence of distribution and the petitioner has failed to demonstrate that the above publications 
constitute major media. 
For all of the above reasons, the petitioner has failed to satisfy the requirements of this criterion. 
Evidenc£; of the alien ·s original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
Counsel claims the petitioner's eligibility for this criterion for the first time ori appeal and submits 
new evidence in support of this criterion. As noted above, the petitioner had multiple opportunities 
to present evidence before the director and while the AAO maintains de novo review of appellate 
cases and a petitioner may supplement the record in regards to previous claims, a petitioner may not 
raise a previously unclaimed eligibility criterion on appeal. Matter of Soriano, 19 I&N Dec. at 766. 
Evidence of the displqy of the alien's work in the field at artistic exhibitions or showcases.· 8 C.F.R. 
§ 204.5(h)(3)(vii). 
The petitioner initially submitted evidence relatirtg to this criterion. The director, after reviewing the 
evidence, concluded that the petitioner failed to satisfy the regulatory requirements and the petitioner 
does not identify any faCtual or legal error in this conclusion on appeal. Consequently, the AAO 
concludes that the petitioner abandoned this claim. See Sepulveda v. ·U.S. Att 'y Gen., 401.F3d 1226, 
1228 n. 2 (11th Cir. 2005), citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 
1998); Hristov v. f!.oark, No. 09-CV-27312011, 201l WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 
20 II) (plaintiffs claims were abandoned as he failed to raise them on appeal to the AAO). 
Evidence that the alien has performed in a leading or critical role for organizations or 
. establis~ments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
Counsel also claims the petitioner's eligibility for this criterion for the first time on appeal. In light of 
the earlier findings and analysis regarding new claims on appeal, the AAO concludes that the petitioner 
cannot raise any claims and documentation relating to this criterion on appeal. Matter of Soriano, 
19 I&N Dec. at 766. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x). · 
The petitioner initially submitted documentation relating to this criterion along with the Form 1-140 
· petition. The director determined that the petitioner failed to meet this criterion. The petitioner did not 
raise a legal or factual challenge regarding this criterion on appeal and the AAO concludes that the · 
petitioner abandoned this claim. See Sepulveda, 401 F.3d at 1228 n. 2; Hristov, 2011 WL 4711885 at 
*9. 
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C. Summary 
The petitioner has failed to submit sufficient relevant, probative evidence to satisfy the regulatory 
requirement of three types of evidence. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or internationaJ acclaim and is one of the small percentage 
who has risen to the very top of the field of endeavor. ' 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion,· the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the[ir] field of endeavor" and (2) "that the alien has sustained national or international 
acclaim and· that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the AAO concludes that the 
evidence submitted to satisfy the criteria, most of which predates the filing of the petition by several 
years, is not indicative of a level of expertise consistent with the small percentage at the very top of the 
field or sustained national or international acclaim, the AAO need not explain that conclusion in a final 
merits determination. 4 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
regulatory requirement of1three types of evidence. /d. at 1122. 
i 
The petitioner has not established eligibility pursuant to section 203(b )(1)(A) of the Act and the petition 
may not be approved. 
The burden of proof in visa petition proceedings remains entirely with the petitioner: Section 291 of the 
Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will 
be dismissed. 
ORDER: The appeal is dismissed. 
4 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOJ, 381 F.3d 143, 145 
(3d Cir. 2004). In any future proceeding, the AAO maintains the jurisdiction to conduct a final merits 
determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii). See also section 
103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 
8 C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 1.--&-N~ Dec. 458, 460 (BIA 
1987) (holding· that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa 
petitions).