dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 23, 2024 In Re: 34870784 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner is a musician who seeks first preference immigrant classification as an individual of 
extraordinary ability. See Immigration and Nationality Act (the Act) section 203(b)(l)(A) , 8 U.S.C. 
§ 1153(b)(l)(A). This first preference classification makes immigrant visas available to those who 
can demonstrate their extraordinary ability through sustained national or international acclaim and 
whose achievements have been recognized in their field through extensive documentation. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies as an individual of extraordinary ability either as the recipient of 
a one-time achievement that is a major, internationally recognized award, or as someone who initially 
satisfied at least three of the ten required regulatory criteria listed at 8 C.F.R. § 204.5(h)(3)(i) - (x). 
The Director determined that of the eight criteria that the Petitioner claimed, he satisfied only one 
criterion. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal because the Petitioner did not establish that he meets the criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(iii), (vi), (viii) and (x). 
The Petitioner has maintained and continues to do so on appeal that he meets the criterion at 
8 C.F.R. § 204.5(h)(3)(v), which relates to original contributions of major significance. However, as 
discussed below, the Petitioner would not establish that he met three out of ten criteria even if he 
established that he met this criterion. As such, we need not address this criterion, nor do we need to 
provide the type of final merits determination referenced in Kazarian, 596 F.3d at 1119-20. 
Accordingly, we will reserve these issues. 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). 
I. LAW 
To qualify as a noncitizen with extraordinary ability, a petitioner must demonstrate that: 
• They have "extraordinary ability in the sciences, arts, education, business, or athletics;" 
• They seek to continue work in their field of expertise in the United States; and 
• Their work would substantially benefit the country. 
Section 203(b )(l)(A)(i)-(iii) of the Act. 
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 
international recognition of a beneficiary's 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 it must provide sufficient qualifying documentation demonstrating that the beneficiary 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). 
Where a petitioner demonstrates that the beneficiary 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) (discussing a two-part review where the documentation is first counted and then, 
if fulfilling the required number of criteria, considered in the context of a final merits determination); 
see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 
2d 1339 (W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner is a Brazilian bass player who also composes and arranges music and makes 
instructional videos on bass playing techniques. Because the Petitioner does not claim or submit 
evidence to show that he received a major, internationally recognized award, he must provide evidence 
showing that he satisfies at least three of the alternate regulatory criteria listed at 
8 C.F.R. § 204.5(h)(3)(i) - (x). 
The Petitioner claims that he meets the eight criteria that are summarized below: 
• (i), Recipient of lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iii), Published material about the Petitioner; 
• (v), Original contributions of major significance; 
• (vi), Authorship of scholarly articles; 
• (vii), Display of the Petitioner's work at artistic exhibitions; 
• (viii), Performance in a leading or critical role for distinguished organizations or 
establishments; and 
• (x), Commercial success in performing arts as shown by box office receipts or record sales. 
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The Petitioner submitted evidence showing that his musical performances were featured at various 
venues. We therefore agree with the Director's determination that the Petitioner satisfied the criterion 
at 8 C.F.R. § 204.5(h)(3)(vii). Notwithstanding this favorable determination on one criterion, the 
Director determined that the Petitioner did not satisfy any of the remaining seven criteria claimed. 
Accordingly, we will address six of the seven remaining criteria in the discussion to follow, starting 
with the criterion at 8 C.F.R. § 204.5(h)(3)(i), which requires evidence that the Petitioner received a 
prize or award with national or international recognition for excellence in his field. 
The record contains evidence that the Petitioner was the winner of the 
I IAward in 2017 where he was first selected as one often finalists and then went on to win 
the contest after receiving the greatest number of popular votes among the finalists. Although the 
Director acknowledged the Petitioner's win and corresponding cash prize, she determined that the 
level of media coverage the Petitioner received as the award winner was not commensurate with 
national or international recognition. The Director noted that evidence of a press conference and two 
brief articles did not indicate national or international recognition; she further found that a short story 
mentioning the Petitioner on TV Globo was also insufficient because it did not mention the award in 
question and focused only on announcing the Petitioner's participation at a future event. 
On appeal, the Petitioner does not address the deficiencies discussed at length in the Director's 
decision; instead, he asserts that winning the award "clearly demonstrates the high 
level of national and international recognition." We disagree. To satisfy this criterion, the Petitioner 
must not only provide evidence that he won an award, but also that the award he won has national or 
international recognition. Thus, merely winning the award is not enough. Here, in addition to 
underscoring that he won the I I award, the Petitioner highlights the benefits he 
received as the award winner, such as the cash prize and opportunity to work with a "winning 
conductor," and he points out that the contest has corporate backing from I I and national 
backing from Brazil's Ministry of Culture. However, while these factors indicate that there is value 
and distinction for the award winner, they are not sufficient evidence that the 
I IAward garnered national or international recognition. Because the Petitioner has not 
addressed the Director's concerns or provided sufficient evidence of his award's national or 
international recognition, he has not established that he met this criterion. 
Next, we will discuss the criterion at 8 C.F.R. § 204.5(h)(3)(ii), which pertains to membership in 
professional associations. To meet this criterion, the Petitioner must show that he is or was a member 
in an association in his field, that the association requires outstanding achievements of its members, 
and that this requirement is judged by national or international experts in the field. The Petitioner's 
claim concerning this criterion hinges on his membership in ABRAMUS ("Associacao Brasileira de 
Musica e Artes"), a copyright association, 0MB ("Ordem dos Musicos do Brasil"), a regulatory body 
for Brazilian musicians, and the Latin Recording Academy. The Director quoted portions of the 
ABRAMUS bylaws and discussed documents pertaining to 0MB members and determined that 
neither contains evidence indicating that outstanding achievement is required of its members. 
Likewise, after reviewing a letter from a voting member of the Latin Recording Academy and the 
conditions for membership, the Director determined that requiring prospective members to be involved 
in the Latin music industry and to have a certain number of releases is not sufficient to establish that 
outstanding achievement is a prerequisite for attaining a voting membership in the academy. 
3 
On appeal, the Petitioner discusses all three memberships. First, he highlights ABRAMUS's "role in 
protecting the rights of artists" and its "dedication to promoting value and representing the interests of 
its members through effective copyright." He then points out that the Latin Recording Academy is a 
"prestigious organization" that is internationally recognized for producing the Latin Grammy Awards 
and claims that "[t]he criteria for becoming a voting member include the demonstration of 
extraordinary abilities." The Petitioner does not, however, specify what those "extraordinary abilities" 
are or point to evidence, such as the organization's bylaws, that supports his claim. As acknowledged 
by the Director, the Latin Recording Academy's voting member requirements, which are listed on a 
printout from the organization's website, include a certain number ofreleased singles. The Petitioner 
has not provided evidence that meeting this requirement connotes "extraordinary abilities" or 
outstanding achievements, the latter of which is an element of the criterion in question. Further, the 
Petitioner's reliance on support letters from two "respected figures in the music industry" is misplaced 
as neither individual's praise of the Petitioner's "talent and professionalism" nor vague references to 
the "rigorous criteria" for membership and "critical role of the academy" constitutes sufficient 
evidence that the Latin Recording Academy's voting membership is conditional upon a showing of 
the prospective member's outstanding achievements. Accordingly, the Petitioner has not established 
that he satisfied the criterion at 8 C.F.R. § 204.5(h)(3)(ii) through his membership in ABRAMUS, 
0MB, or in the Latin Recording Academy. 
Next, the criterion to be discussed, 8 C.F.R. § 204.5(h)(3)(iii), requires evidence of published material, 
which "shall include the title, date, and author of the material," about the Petitioner and his work and 
was published in a professional or major trade publication or other major media. 
In the denial, the Director identified a total of 31 articles, including one from RollingStone Brasil, that 
could not be considered because they lacked a required regulatory element, such as a title, date, or 
author. Although the Director considered the Petitioner's claim that articles are often authored by 
editorial boards or groups of staff writers, she explained that an author and date are both required, not 
optional elements for meeting this criterion, and she pointed out that the media outlets' specific staff 
writers were not identified. The Director went on to address submitted screenshots from the Globo 
Television Channel, pointing out that they do not include discussions about the Petitioner or his work, 
but rather they only referenced him or included his photograph. The Director also listed seven articles 
sourced from the online publication No Treble, finding that the write-ups consisted of primarily short 
introductions of the music and band members and did not discuss the Petitioner or his work. The 
Director then listed four Y ouTube videos from Sesc Brasil, observing that all four appear to be guitar 
lessons and programs rather than published material about the Petitioner. And lastly, the Director 
acknowledged the Petitioner's submission of certain viewer metrics, such as the number of No Treble 
"sessions" that were viewed in a 12-year period and statistics from semrush.com about two of the 
publications. However, the Director pointed to the lack of context for the submitted metrics and 
determined that they did not offer a meaningful way of gauging whether something is a professional 
or major trade publication or other major media. The Director also commented on the lack of 
circulation statistics for three other publications - Viver&, Segs, and Recanto Adormecido - and 
further noted a lack of information about the intended audience. In sum, the Director determined that 
the Petitioner did not provide any submissions that fully met this criterion. 
4 
On appeal, the Petitioner asserts that his "media presence is extensive" and that his talents "have been 
recognized in well-known publications." He then specifies three online magazines - Bass Player 
Magazine, No Treble, and Sea of Tranquility - which he claims are "esteemed information outlets 
within the music community" and are "celebrated for their thorough and influential contributions to 
the music industry," but he does not point to evidence in the record that specifically addresses the 
considerable deficiencies listed in the denial. And although the Petitioner underscores that he was 
featured "in credible and well-regarded media platforms," we disagree with his reasoning, which relies 
primarily on the perceived reputation of the publications to the exclusion of adequate consideration of 
the specific regulatory requirements pertaining to this criterion. In fact, the Petitioner did not address 
any of the deficiencies catalogued at length in the denial, where the Director explained in detail how 
the Petitioner's submissions fell short of meeting this criterion, such as lack of adequate viewership 
metrics or the absence of an article's date or author. As such, the Petitioner has not overcome the 
adverse determination regarding the criterion at 8 C.F.R. § 204.5(h)(3)(iii). 
We now tum to the criterion at 8 C.F.R. § 204.5(h)(3)(vi), which requires evidence of the Petitioner's 
authorship of scholarly articles in professional or major trade journals or other major media. The 
Director found that while the evidence shows that the Petitioner worked with the magazine 
the transcribed musical composition and corresponding Petitioner biography submitted as 
supporting evidence does not show that the Petitioner actually authored any articles. Nor does the 
evidence show that the published material was scholarly and that I where the material was 
published, can be deemed a professional or major trade journal. And because the Director found that 
the Petitioner did not provide circulation statistics or other circulation data, she determined that there 
was insufficient evidence that I I falls within the category of major media. 
On appeal, the Petitioner argues that he submitted evidence from I I website, which lists 
him as "a contributor" and states that his "association with" the online publication "further emphasizes 
[his] standing as a noteworthy figure in the field." He also contends that his collaboration with I I 
I "suggests that his work is both substantial and influential." However, the factors that the 
Petitioner highlights are not in question, nor are they relevant for the purpose of meeting the 
requirements of this criterion. As a threshold matter, the Petitioner claims that he has contributed and 
collaborated with I I but he does not claim or provide evidence that he was the author of 
any articles. As all elements of a criterion must be met to satisfy a criterion, the determination that 
the Petitioner did not author any articles is alone sufficient to preclude him from satisfying the criterion 
at 8 C.F.R. § 204.5(h)(3)(vi). That said, the Director went on to conclude thatl ldoes not 
qualify as major media, pointing to the lack of supporting evidence, such asl circulation 
statistics or other comparative circulation data. Regardless, because the Petitioner has not submitted 
evidence to establish published articles, he has not met the criterion at 8 C.F.R. § 204.5(h)(3)(vi), and 
he has not overcome the Director's adverse determination with regard thereto. 
Next, we will discuss the criterion at 8 C.F.R. § 204.5(h)(3)(viii), which requires evidence that the 
Petitioner performed in a leading or critical role for a distinguished organization. In addressing this 
criterion, the Director listed five recommendation letters from individuals who discussed the 
Petitioner's endorsement and promotion of their respective products. The Director discussed the 
contents of each letter, quoting certain statements made by each individual about the Petitioner's role 
with respect to their products. The Director acknowledged that while each individual is 
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complementary of the Petitioner's musical talent and marketing work, no one provided details 
explaining how his role was leading or critical within their respective organizations. 
On appeal, the Petitioner addresses three of the previously provided recommendation letters. He 
asserts that in one letter, the CEO of I stated that the Petitioner made "critical contributions" 
that impacted the company's product development and marketing strategies and that by offering clinics 
and demonstrations at industry events he had a "pivotal role in promoting and refining the company's 
offerings." The Petitioner also discusses the letter froml lwhich he claims "reinforces [his] 
significance as a top-level bass player for and the letter froml 
which he claims "highlights [his] engagement since 2020 as an 
endorsed artist who has been instrumental in their marketing campaigns and product demonstrations 
worldwide." While these recommendation letters show that the Petitioner benefited the organizations 
whose products he endorsed and promoted, they lack detailed and probative information that 
specifically addresses how the Petitioner's contributions were of significant importance to the 
organization. See 6 USCIS Policy Manual, F.2(8)(1), https://www.uscis.gov/policy-manual. The 
Petitioner therefore has not established that his role in any of the noted organizations was either leading 
or critical. 
Lastly, we will address the criterion at 8 C.F.R. § 204.5(h)(3)(x). As noted by the Director, this 
criterion focuses on sales volume and box office receipts as a measure of commercial success, which 
is the key element of this criterion. Although the Director acknowledged the submission of evidence, 
such as Paypal payments and Hotmart sales reports, she found that the total revenue balances sourced 
from these platforms did not offer context to determine that the generated funds reflect commercial 
success as contemplated by this criterion. The Director also determined that evidence from the website 
MyEduzz, which shows that the Petitioner generated revenue from giving courses in bass, is distinct 
from evidence of revenue generated from audio or video sales and does not reflect commercial success 
sufficient to meet this criterion. And while the Director acknowledged evidence of the Petitioner's 
followers on various social media platforms such as Tnstagram, as well as streams and videos on 
streaming and viewing platforms like Spotify and Y ouTube, she determined that without a basis for 
comparison such evidence has limited evidentiary weight; she further noted that the Petitioner has not 
established that a certain number of streams or views is adequate to gauge commercial success, nor 
did he offer evidence showing that his presence on these platforms resulted in a volume of sales 
reflecting commercial success as compared to other musicians. 
On appeal, the Petitioner underscores the number of views he received on Y ouTube, asserting that 
"900,000 views ... demonstrate[es] substantial listener engagement and popularity." We find, 
however, that while listener engagement and popularity may lead to commercial success, these factors 
in and of themselves are not conclusive evidence thereof. The Petitioner also highlights his "ability 
to mobilize his audience for philanthropic efforts," pointing out that he performed at a charity 
fundraising event that resulted in BRL $1,239,000. However, despite the Petitioner's performance 
being a likely contributing factor in raising these funds, nothing shows that his performance, to the 
exclusion of other factors, such as the philanthropic cause itself, was solely responsible for the funds 
that were generated. In other words, the funds generated for a charitable cause cannot be solely 
attributed to the Petitioner's performance and thus the funds are not sufficient evidence of his 
commercial success. 
6 
We further note that the Petitioner continues to highlight earnings he made from selling his bass 
courses, despite the Director's finding that funds generated from sales of his music, rather than those 
derived from lessons, are reflective of commercial success. In addition, the Petitioner points to courses 
he developed between May 2023 and February 2024, thus assigning evidentiary value to events that 
occurred after this petition's March 2023 filing date and therefore would not be sufficient to establish 
eligibility at the time of filing. See 8 C.F.R. § 103.2(b)(l). 
In light of the deficiencies described above, the Petitioner has not established that he has satisfied the 
criterion at 8 C.F.R. § 204.5(h)(3)(x). 
III. CONCLUSION 
Given the deficiencies described above regarding six of the eight claimed criteria, we need not 
determine whether the Petitioner meets the requirements of the criterion at 8 C.F.R. § 204.5(h)(3)(v), 
and we will reserve this issue. See INS v. Bagamasbad, 429 U.S. at 25-26. 
In sum, the Petitioner has not shown that he met either a one-time award, or three of ten initial criteria. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields. USCTS 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 that he 
is one of the small percentage who have 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). 
ORDER: The appeal is dismissed. 
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