dismissed EB-1A Case: Music

identifying data deleted to 
prevent clearly unwarr~ted 
invasion of personal pnvac~ 
PUBLIC COpy 
DATE: Office: TEXAS SERVICE CENTER 
APR 26 2011 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration ScrViCl'\ 
Administrative Apreals Office (/\/\0) 
20 Massachusells Ave., ~·.W .. ~lS 20l)() 
Wa~hington. DC 2()S2Y·20l)O 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
SRC 07 13752403 
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)( I )(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any funher inquiry that you might have concerning your case must bc made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $585. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
'j . - , I , ; ,l 
I j eU \il i !iil~ 
i . ie~TY Rhew 
"L .! Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied this employment-based immigrant 
visa petition on May 29, 2008. The Administrative Appeals Office (AAO) dismissed the 
petitioner's appeal of that decision on July 29, 2009. The matter is now before the AAO on a 
motion to reconsider and a motion to reopen. The motions will be dismissed, the previous decision 
of the AAO will be affirmed, and the petition will remain denied. 
In the decision of the AAO dismissing the petitioner's original appeal, the AAO found that the 
petitioner failed to establish that he meets at least three of the regulatory criteria pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3). The AAO specifically and thoroughly discussed the 
petitioner's evidence and determined that the petitioner failed to establish eligibility for the 
awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i). the published material 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), the judging criterion pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3)(iv), the original contributions criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(v), the display criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(vii), the leading or critical role criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(viii), and the high salary criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ix). In fact, the AAO found that the petitioner failed to establish cligibility for any 
of the criteria under the regulation at 8 C.F.R. § 204.5(h)(3), in which the petitioner must submit 
qualifying evidence under at least three of fhe ten regulatory categories of evidence to establish 
the basic eligibility requirements. 
Counsel argues that the regulation at 8 C.F.R. § 204.5(h)(2) "goes beyond the parameters of the 
statutory definition" of section 203(b)(1 )(A) of the Act. Specifically, counsel argues that section 
203(b)( I )(A) of the Act only requires that an alien of extraordinary ability demonstrate 
"sustained national or international acclaim and whose achievements have been recognized in the 
field through extensive documentation." However, counsel further argues that the regulation at 8 
C.F.R. § 204.5(h)(2) requires an alien to demonstrate a higher standard than provided by the 
statute by requiring that "[ e lxtraordinary ability means a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of 
endeavor." 
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" Cong .. 
2d Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29,1991). In addition, the commentary 
for the proposed regulations implementing section 203(b)(l)(A)(i) of the Act provide that the 
"intent of Congress that a very high standard be set for aliens of extraordinary ability is reflected 
in this regulation by requiring the petitioner to present more extensive documentation than that 
required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991). The petitioner 
must submit evidence demonstrating that the beneficiary "is one of that small percentage who 
have risen to the very top of the field" and has demonstrated the beneficiary's "career of 
acclaimed work in the field" as contemplated by Congress. H.R. Rep. No. 101-723,5'.1 (Sept. 1'.1, 
1990). 
Page 3 
Therefore. the AAO finds that the regulation at 8 C.F.R. * 204.5(h)(2) is consistent with 
Congressional intent when the "extraordinary ability" visa was created under the Immigration 
Act of 1990. Pub. L. No. 101-649, 101 Stat. 4978. Even looking at the plain language of the 
statute, it is clear that the standard for the classification sought is quite high. As quoted above, an 
alien must demonstrate "sustained national or international acclaim" through "extensive 
documentation." Courts have recognized that the classification sought is an "extremely restrictive 
one." Lee v. ZiRlar, 237 F. Supp. 2d 914, 919 cited with approval in Kazarian v. USc/S, 596 F.3d 
1115, 1120 (9
th 
Cir. 2010); Rijal v. USc/S, 2011 WL 22067 (W.O. Wash. Feb. 22, 2011); Yasar v. 
DHS, 2006 WL 778623 (S.D. Tex. March 4,2006). 
The phrase "small percentage" appears in the regulatory definition of extraordinary ability at 
8 C.F.R. * 204.5(h)(2), which is binding on USCIS employees in their administration of the Act. 
See, e.R., Panhandle Eastern Pipe Line Co. v. Federal EnerfiY Regulatory Commission. 613 F.2d 
1120 (C.A.D.C., 1979) (an agency is bound by its own regulations); Reuters Ltd. v. F. C. c., 781 
F.2d 946. (C.A.D.C.,1986) (an agency must adhere to its own rules and regulations; ad hoc 
departures from those rules, even to achieve laudable aims, cannot be sanctioned). An agency is 
not entitled to deference if it fails to follow its own regulations. u.s. v. He.tfiler, 420 F.2d 809, 
(C.A.Md. 1969) (government agency must scrupulously observe rules or procedures which it has 
established and when it fails to do so its action cannot stand and courts will strike it down). 
Significantly, a federal court rejected the idea that the regulatory definition of extraordinary 
ability is opcn to de novo review by courts. Specifically, the court in Muni v. INS, 891 F. Supp. 
440, 443 (N.D. Ill. 1995), stated that because section 203(b)(l)(A) does not address the precise 
definition of extraordinary ability, the regulatory "definition of that term is binding unless 
unreasonable." The court then quoted the definition at 8 C.F.R. § 204.5(h)(2) and concluded the 
definition "is a permissible interpretation of [section] 203(b)(I )(A) lof the Act I and therefore is 
controlling here," Id. Notably, the Ninth Circuit stated: "If a petitioner has submitted the 
requisite evidence. USCIS determines whether the evidence demonstrates both a "level of 
expertise indicating that the individual is one of that small percentage who have risen to the very 
top of thel irl field of endeavor," 8 C.F.R. § 204.5(h)(2)." Kazarian, 596 F.3d at 1119. As the 
definition appears in our regulation and has not been overturned by a federal court when 
challenged, we are bound by that definition. 
In addition, counsel briefly addressed the criteria on motion and simply requested the AAO to 
reconsider its decision for each criterion. For example, regarding the awards criterion, counsel 
claimed: 
IS lelf-petitioner-movant has provided more evidence of national and international 
(in the United States) awards and claims. Thus, he asks the AAO to reconsider its 
withdrawal of the determination by the Director and find that he has met this 
criterion. 
Regarding the published material criterion, counsel argued: 
Page 4 
ITlhe Director determined that there is evidence that would lend support to sclf­
petitioner's claim of published material about the alien in major media. Thus, 
self-petitioner-movant requests the AAO to reconsider its withdrawal of the 
Director's determination of this criterion. 
Regarding the judging criterion, counsel argued: 
ITlhis criterion is not tied up to sustained national or international acclaim to 
require more instances of being a judge of others. Hence, self-petitioner-movant 
requests reconsideration of the AAO's determination on this criterion. 
Regarding the original contributions criterion, counsel stated: 
It's not just his looks and his singing that meet this criterion under 8 C.F.R. 
§ 204.5(h)(3)(v). Indeed, he has submitted numerous documentation in his 
performances in the Philippines, Hong Kong, and the United States. 
Regarding the display criterion, counsel claimed: 
Self-petitioner has submitted sufficient documentation in terms of newspapers and 
periodical clippings of photographs and CD's of performances that prove his 
sustained national acclaim as Elvis Presley of the Philippines. 
His album of recordings are for sale in California and the Philippines. And he has 
done numerous concerts and appearances in the Philippines, Hong Kong, and the 
United States. 
Regarding the leading or critical role criterion, counsel argued: 
The 2006 Images of the King Contest sponsored by the Elvis Presley Enterprises 
in Memphis, Tennessee from August 15-19, 2006, was an international 
competition among Elvis Presley impersonators of about thirty contestants, with 
self-petitioner solely representing the Philippines, and Asia with a Japanese 
contestants. 
Self-petitioner had also appeared on October 23, 2003 at the MGM Asia Lunch 
Party sponsored by the well-rounded The Kee Club of Hong Kong. 
Finally, regarding the high salary criterion, counsel stated that the "lsJelf-petitioner concludes 
that he has not commanded a high salary for his services to date in the United States and in the 
Philippines." 
Page 5 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions to establish that the decision was based on an incorrect application 
of law or U.S. Citizenship and Immigration (USerS) policy. 8 C.F.R. § 103.5(a)(3). A motion to 
reconsider contests the correctness of the original decision based on the previous factual record. 
as opposed to a motion to reopen which seeks a new hearing based on new or previously 
unavailable evidence. See Matter oj Cerna, 20 I&N Dec. 399, 403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised 
earlier in the proceedings. Rather, the "additional legal arguments" that may be raised in a 
motion to reconsider should flow from new law or a de novo legal determination reached in its 
decision that may not have been addressed by the party. Further, a motion to reconsider is not a 
process by which a party may submit, in essence, the same brief presented on appeal and seek 
reconsideration by generally alleging error in the prior decision. Instead, the moving party must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in 
the initial decision or must show how a change in law materially affects the prior decision. See 
Marrero/Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991). 
The motion to reconsider does not allege that the issues, as raised on appeal. involved the 
application of precedent to a novel situation, or that there is a new precedent or a change in law 
that affects the AAO's prior decision. Instead, counsel generally reiterates prior arguments that 
are based on the same factual record. See Matter of Medrano, supra. As noted above. a motion 
to reconsider must include specific allegations as to how the AAO erred as a matter of fact or law 
in its prior decision, and it must be supported by pertinent legal authority. Because counsel has 
failed to raise such allegations of error in his motion to reconsider, we will dismiss the motion to 
reconsider. 
Regarding the motion to reopen, almost all of the documentary evidence submitted by counsel on 
motion pertains to events occurring after the filing of the petition. Eligibility must be established 
at the time of filing. Therefore, we will not consider any of this evidence to establish the 
petitioner's eligibility. 8 C.F.R. §§ 103.2(b)( 1), (12); Matter of Katighak. 14 I&N Dec. 45, 49 
(Reg!. Commr. 1971). A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter oj Izummi, 22 I&N Dec. 169, 175 (Comm·r. 1998). 
That decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981). that 
we cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 
176. Moreover. counsel submitted documentary evidence that was submitted previously and 
thoroughly discussed in the AAO's original decision. The only evidence submitted on motion 
that reflects an event occurring prior to the filing of fhe petition is an unidentified document 
rcgarding the MGM Asia Launch Party on October 29, 2003. 
A motion to reopen must state the new facts to be provided and be supported by affidavits or 
other documentary evidence. 8 C.F.R. § 103.5(a)(2). Based on the plain meaning of ·'new." a new 
fact is found to be evidence that was not available and could not have been discovered or presented 
Page 6 
in the previous proceeding. I As cited above, with the exception of one document, counsel 
submitted evidence that was either submitted previously or pertained to events OCCUlTing after the 
filing of the petition. Moreover, counsel failed to explain why the unidentified document regarding 
the MGM Asia Launch Party on October 29, 2003, was previously unavailable and could not have 
been submitted earlier. The petitioner has been afforded at least three different opportunities to 
submit this evidence: at the time of the original filing of the petition on March 29,2007, in response 
to the director's request for additional evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8) 
on August 15, 2007, and at the time of the filing of the appeal on September 2, 2008. A review of 
the evidence that counsel submits on motion reveals no fact that could be considered "new" under 8 
C.F.R. § 103.5(a)(2) and, therefore, cannot be considered a proper basis for a motion to reopen. 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. 
Doherty, 502 U.S. 314,323 (l992)(citing INS v. Ahudu, 485 U,S. 94 (1988)), A party seeking to 
reopen a proceeding bears a "heavy burden," INS v. Ahudu, 485 U.S. at 110. With the CUI1'ent 
motion, the petitioner has not met that burden, The motion to reopen will be dismissed. 
It is noted that in the AAO's original decision the AAO determined that the petitioner failed to 
meet the awards criterion because the petitioner failed to demonstrate that winning the "Be 
Elvis" contest reflected a nationally or internationally recognized prize or award for excellence 
in the field pursuant to the regulation at 8 C.F,R. § 204.5(h)(3)(i). Even if the petitioner 
established that his "Be Elvis" award is nationally or internationally recognized for excellence in 
the field, which he did not, the plain language of the regulation requires the petitioner to submit 
more than one prize or award. In this case, the petitioner submitted evidence of onl y one prize or 
award. 
Similarly, the AAO found that the pelitlOner failed to meet the published material criterion 
_ the petitioner submitted only one article, "Becoming Elvis Presley," by 
on March 21, 2004, in the Manila Bulletin that was about him regarding his work. 
However, as evidence to demonstrate that the Manila Bulletin is a professional or major trade 
publication or other major media, the petitioner submitted screenshots from Wikipediu. As there 
are no assurances about the reliability of the content from this open, user-edited Internet site, we 
will not assign weight to information from Wikipedia. See Luamilem Badasa v. Michael 
Mukasey, 540 F,3d 909 (8th Cir. 2008).2 Moreover, the petitioner submitted a screenshot from 
I The word "new" is defined as "I. having existed or been made for only a short time ... 3. Just discovered, found, or 
learned <nell' evidence>. .... WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (19R4 )(cmphasis in 
original). 
~ S('(! abo the online content from http://en.\vikipedia.ot'!.!/\viki/\Vikipedia: G~neral di~d<lirner. accessed on April 
12. 20 I I, and copy incorporated into the record of proceeding is subject to the following general disclaimer: 
Page 7 
BusinessWeek that provides a brief history of the Manila Bulletin Publishing Corporation but 
failed to retlect any information about the Manila Bulletin, so as to establish that is a 
professional or major trade publication or other major media. Even if the petitioner established 
that the Manila Bulletin is a professional or major trade publication or other major media. which 
he did not, the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iii) requires the 
petitioner to submit more than one article. In this case, the petitioner submitted evidence of only 
one article that was about him and his work. 
It is further noted that the plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(iv) requires 
"[ e [vidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the .Iaflle or an allied field of specification for which classificatiolJ is SOIlKill [emphasis 
added]." The petitioner submitted a Certificate of Appreciation from the Philippine Amusement 
and Gaming Corporation (PAGC) for judging the "Battle of the Bands" on October 17, 2005. 
Although the petitioner submitted documentation regarding PAGC, the petitioner failed to submit 
any documentary evidence demonstrating that his judging of the "Battle of the Bands" is in the 
same or an allied field of specialization for which classification is sought. Again, the petitioner is an 
Elvis Presley impersonator. We are not persuaded based on the Certificate of Appreciation that 
judging bands is in the petitioner's field of specialization. For example, the petitioner failed to 
establish that he judged other Elvis Presley impersonators or other impersonators in general at the 
"Battle of the Bands." As such, the petitioner failed to establish that he meets the plain language of 
the regulation at 8 C.F.R. § 204.5(h)(3)(iv). 
Finally, the AAO notes that on motion counsel claims the petitioner's eligibility for the leading or 
critical role criterion, in part, based on the petitioner's participation at the MGM Asia Launch Party 
on October 29, 2003. However, a review of the document fails to retlect the petitioner's actual 
participation at the party. Although the document indicates that there was an "Elvis Theme.'· 
there is nothing indicating that he actually participated, such as the petitioner's name listed as 
one of the performers. Accordingly, the petitioner has failed to meet the requirements of a motion 
to reopen or reconsider. 
WIKIPEDIA MAKES NO GURANTEE OF VALIDITY. Wikipedia is an online open-content 
collaborative encyclopedia, that is, a voluntary association of individuals and groups working to 
develop a common resource of human knowledge. The structure of the project allows anyone 
with an Internet connection to alter its content. Please be advised that nothing found here has 
necessarily been reviewed by people with the expertise required tu provide you with complete. 
accurate or reliable information . ... Wikipedia cannot guarantee the validity of the information 
found here. The content of any given article may recently have been changed. vandalized or 
altered hy someone whose opinion does not correspond with the state of knowledge in the relevant 
fields. 
Page 8 
The AAO notes that even considering the petitioner's evidence under the parameters set forth in the 
Kazarian opinion, which was issued after the filing of the petitioner's motion, the outcome 
would remain the same. 
The Kazarian court found that, after a review of the regulatory criteria, USClS must conduct a 
final merits determination that considers all of the evidence in the context of whether or not the 
petitioner has demonstrated: (I) 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," 8 C.F.R. 
§ 204.5(h)(2); 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." See section 203(b)( I )(A)(i) 
of the Act, 8 U.S.c. § I I 53(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian. 596 F.3d 
at 1115. The petitioner failed to establish eligibility for any of the criteria. in which at least three 
are required under the regulation at 8 C.F.R. § 204.5(h)(3). 
In this case, the accomplishments of the petitioner fall far short of establishing that he "is one of 
that small percentage who have risen to the very top of the field of endeavor" and that he "has 
sustained national or international acclaim and that his or her achievernents have been 
recognized in the field of expertise." See 8 C.F.R. § 204.5(h)(2), section 203(b)(I)(A)(i) of the 
Act. 8 U.S.C. § I I 53(b)(l)(A)(i), and 8 C.F.R. § 204.5(h)(3). 
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[a] petition for an alien of extraordinary 
ability must be accompanied by evidence that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise:' The 
petitioner's evidence must be evaluated in terms of these requirements. The weight given to 
evidence submitted to fulfill the criteria at 8 c.r.R. § 204.5(h)(3). therefore, depends on the 
extent to which such evidence demonstrates, reflects, or is consistent with sustained national or 
international acclaim at the very top of the alien's field of endeavor. A lower evidentiary 
standard would not be consistent with the regulatory definition of "extraordinary ability" as "a 
level of expertise indicating that the individual is one of that small percentage who have risen to 
the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). As stated in our original decision. 
we do not find that the petitioner's single receipt of the "Be Elvis" award in 2002, the single 
article about him in 2004, and the single act of judging an apparent amateur band competition in 
2005, as well as the documentary evidence already addressed and discussed in the AAO's 
decision of the other criteria. is sufficient to establish the sustained national or international 
acclaim required for this highly restrictive classification. 
Review of the record does not establish that the petitioner has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. 
Page 9 
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. 
ORDER: The motion to reconsider and the motion to reopen are dismissed, the decision of the 
AAO dated July 29, 2009, is affirmed, and the petition remains denied.