dismissed EB-1A Case: Music

identifYing data deleted to 
prevent clearly unwarranted 
invasion of persona) privacy 
PUBLIC COpy 
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u.s. Citizenship 
and Immigration 
Services 
DATE: JUL 3 , 2012 orfice: NEBRASKA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U,S,c' ~ 115J(b)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed plcase find the decision of the Administrative Appeals Office in your casc, All "f the 
documents related to this matter have heen returned to the office that originally decided your case, Please 
he advised that any further inquiry that you might have concerning your case must he made to that office, 
If you helieve the AAO inappropriately applied the law in reaching its decision, or you havc 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 he aware that 8 c'F.R. § 103.5(a)(I)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
)I",..,. ,{ • 
. ,.:,~.,.*~. 
(/ 
Perry Rhe~'" 
Chief, Administrative Appeals Office 
WW\\l.lIscis.go\' 
Page 2 
DISCUSSION: The employment-based immigrant visa petItIon was denied by the Director, 
Nebraska Service Center, and 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. pursuant to 
section 203(b)(1 )(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § I 153(b)(l)(A) as 
an instrumental musician and teacher. I The director determined that the petitioner had not 
established the requisite extraordinary ability and failed to submit extensive documentation of her 
sustained national or international acclaim. 
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)(I)(A)(i) of the 
Act and 8 C.F.R. § 204.5(h)(3). The implementing regulation at 8 C.F.R. § 204.S(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, the petitioner asserts that she meets the regulatory categories of evidence at 8 C.F.R. 
§§ 204.5(h)(3)(i), (vii), and (ix). For the reasons discussed below, the AAO will uphold the 
director's decision. 
1. 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, 
(ii) the alien seeks to enter the United States to continue 
work in the area of extraordinary ability, and 
1 AccorLling to information on the Form J-140, Immigrant Petition for Alien Worker, the petitioner was last admitled 
to the United States on June 22, 2010 as an F-l nonimmigrant student. 
Page 3 
(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,t 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. Id.; 8 CF.R. § 204.5(h)(2). 
The regulation at 8 CF.R. § 204.5(h)(3) requires that the petitioner demonstrate the alien's sustained 
acclaim 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 CF.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. USClS, 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? With respect to the criteria at 
8 CF.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." Id. 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 of 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 sufIicient evidence, "the proper conclusion is that the applicant has failed to 
satisfY the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 
(citing to 8 CF.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. It!. 
~ Specifically, the court stated that the AAO had unilaterally imposed novel suhstantive 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). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria' 
DOCllmentation of the alien '5 receipt of lesser nationally or internationally 
reco!;nized prizes or awards for excellence in the field of endeavor. 
The AAO withdraws the director's tinding that the petitioner meets this regulatory criterion. The 
petitioner submitted the following: 
1. A 2007 of Merit" stating: 'This IS to certify that rthe 
2. An August 2007 certiticate stating: "This is hereby to certify that [the petitioner] has 
the honor to 
3. A May 2006 "Certificate of Honor" stating: "This IS hereby to certify that lthe 
4. An 
Grade prize"; and 
5. An August 10,2008 "Certificate of Merit'" ctot;n" 
petitioner] has participated the program 
honor to receive Top Prize." 
The English language translations accompanying the above certificates did not include a 
statement from translator_ indicating that he was competent to translate from Chinese 
to English as required by the regulation at 8 C.F.R. § 103.2(b )(3). Any document containing 
foreign language submitted to USCIS shall be accompanied by a full English language 
translation that the translator has certitied as complete and accurate, and by the translator" s 
certification that he or she is competent to translate from the foreign language into English. Id. 
Further, the petitioner did not submit evidence of the national or international reco!;nition of her 
particular prizes. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) specifically 
requires that the petitioner's prizes be nationally or internationally recognized in the field of 
endeavor and it is her burden to establish every element of this criterion. A music competition may 
be open to entries from throughout a particular country or countries, but this factor alone is not 
adequate to establish that a specific prize [rom the competition is "nationally or internationally 
.1 On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
recognized." With regard to items 1 - 5, there is no documentary evidence demonstrating that the 
petitioner"s prizes were recognized beyond the presenting organizations and therefore 
commensurate with nationally or internationally recognized prizes for excellence in the field. 
Accordingly, the petitioner has not established that she meets this regulatory criterion. 
Documentation of the alien's memhership in associations in the field for which 
classification is sought, which require outstanding achievements of their 
memhers, as judged hy recognized national or international experts in their 
disciplines or fields. 
The director discussed the evidence submitted for this criterion and found that the petitioner 
failed to establish her eligibility. On appeal, the petitioner does not contest the director's 
findings for this criterion or offer additional arguments. The AAO, therefore, considers this 
issue to be abandoned. Sepulveda v. US. Att'y Gell., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); 
Hristov v. Roark, No. 09-CV-27312011, 2011 WL4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) 
(the court found the plaintitl's claims to be abandoned as he failed to raise them on appeal to the 
AAO). Accordingly, the petitioner has not established that she meets this regulatory criterion. 
Puhlished material ahout the alien in professional or major trade puhlications or 
other major media, relating to the alien's work in the field for which classification is 
sought. SlIch evidence shall include the title, date, and author of the material, alld 
any necessary translation. 
The director discussed the evidence submitted for this criterion and found that the petitioner 
failed to establish her eligibility. The AAO notes that none of the articles submitted by the 
petitioner meet all of the requirements of the regulation at 8 C.F.R. § 204.S(h)(3)(iii). For 
example, the articles were deficient in that they did not include a date or an author, they were not 
about the petitioner, they lacked a full English language translation, or they lacked evidence that 
they were published in professional or major trade publications or other major media. On 
appeal, the petitioner does not contest the director's findings for this criterion or offer additional 
Evidence ol the di,\play ol the alien's work in the field at artistic exhibitions or 
."ihowcas'es'. 
The director"s February 7, 2011 decision did not specifically address this regulatory criterion. 011 
appeal, counsel points out that the director's October 28, 20 10 request for evidence stated that the 
petitioner's evidence had met this criterion. The AAO withdraws the director's finding on this 
issue. Neither the petitioner nor counsel has explained how music competitions equate to visual art 
exhibits. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(vii) requires "[e]vidence 
of the display of the alien's work in the field at artistic exhibitions or showcases," The petitioner 
is a musician. When she is performing on stage or in a competition, she is not displaying her 
music in the same sense that a painter or sculptor displays his or her work in a gallery or 
Page n 
museum. The petitioner is performing her work. she is not displaying her work. In addition. to 
the extent that the petitioner is a performing artist, it is inherent to her occupation to perform. 
The AAO notes that the ten criteria in the regulations are designed to cover different areas; not 
every criterion will apply to every occupation. 
The interpretation that 8 C.F.R. § 204.5(h)(3)(vii) is limited to the visual arts is longstanding and 
has been upheld by a federal district court. Negro-Plumpe v. Okin, 2:07-CY-820-ECR-RJJ at "I, 
*7 (D. Nev. Sept. 8, 20(8) (upholding an interpretation that performances by a performing artist 
do not fall under 8 C.F.R. § 204.5(h)(3)(vii)). As the petitioner is not a visual artist and has not 
created tangible pieces of art that were on display at exhibitions or showcases, the petitioner has 
not submitted qualifying evidence that meets the plain language requirements of the regulation at 
8 C.F.R. § 204.5(h)(3)(vii). Accordingly, the petitioner has not established that she meets this 
regulatory criterion. 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relatioll to others ill the field. 
The AAO withdraws the director's tinding that the petitioner meets this regulatory criterion. The 
petitioner submitted a "Work and Income Statement" from Horizon Real Estate Company. Ltd. 
stating: 
This is to certify that [the petitioner], Female, ... has been working in our corporation as 
Ad Art Director since July 2007 to July 2009. Mainly responsible for planning 
management company advertising performance project. [The petitioner] has been 
entitled to a monthly salary RMB 5,000, with a year-end bonus RMB 20,000. Therefore, 
his [ sic] total income in a year be RMB 80,000. 
His [sic] personal income tax has been deducted by the company. 
The petitioner also submitted a "Work and Income Statement" trom Guizhou Danee of Earth 
Culture Company, Ltd. stating: 
This is to certify that [the petitioner], Female, ... has been working in our corporation as 
Ad Art Director since July 2007 to July 2009. Mainly responsible for planning 
management company advertising performance project. [The petitioner] has been 
entitled to a monthly salary RMB 5,000. Therefore, his [sic] total income (with a year­
end bonus) in a year be RMB ]()O,OOO. 
His [sic] personal income tax has been deducted by the company. 
The AAO notes that the documentation submitted by the petitioner indicates that her field of 
expertise is music performance and teaching, not Ad Art Direction. For example, the petitioner 
submitted a July 1, 2009 certificate stating that she received a bachelor's degree in Music 
Performance from Guizhou University and a July 1, 2009 Certificate of Teacher Qualification for 
senior high school music from the Education Bureau of Guiyang. The record contains no 
Page 7 
documentary evidence of the petitioner's achievements or recognition as an "Ad Art Director.·' 
The plain language of the regulation at 8 CF.R. § 204.5(h)(3)(ix) requires evidence that thc 
petitioner "has commanded a high salary or other signiticantly high remuneration for services. in 
relation to others in the fielt!' (emphasis added). Neither the petitioner nor counsel has explained 
how working as an Ad Art Director relates to the occupation of instrumental musician or music 
teacher. See, e);., Lee v. INS., 237 F. Supp. 2d 914 (N.D. IlL 2002) (upholding a finding that 
competitive athletics and coaching are not within the same area of expertise). The petitioner has 
failed to submit documentary evidence of her salary or remuneration as an instrumental musician 
or music teachcr. 
In response to the director's request tor evidence, the petitioner submitted a November 22. 2010 
certiticate stating: "[The petitioner] has been invited to perform at Guizhou Province Electricity 
Bureau many times and has earned the paid [sic] accordingly." The petitioner also submitted a 
November 22, 2010 certificate from the "Labor Union of Justice Bureau of Guizhou Province" 
stating: "[The petitioner] has been invited to Annual Chinese New Year Party trom 1997 to 
current and has earned the paid [sic] accordingly." The English language translations 
accompanying the preceding certificates were not certified by the translator as required by the 
regulation at 8 CF.R. § 103.2(b)(3). Further, neither certificate specifies the amount of 
remuneration received by the petitioner for her services. 
The petitioner's response included an internet printout trom tiaona.com providing what counsel 
identities as "average salary" information "regarding China' Zheng' Performers." The internet 
printout lists the national "average monthly salary level" of a Zheng musician as ¥3,150. The 
petitioner also submitted a "Certificate of Salary Wage of Song and Dance Troupe of Guizhou 
Province" listing the salary for various job titles, a "Guiyang Dance Theater Certificate of Salary 
Wage" listing the average salary for various job titles, a certificate from the Guizhou Opera 
Company listing the average salary for its employees, and a document entitled "Statistics of All 
Employment Average Salary of 2008 in Guizhou Province," but the English language 
translations accompanying the preceding documents were not certified by the translator as 
required by the regulation at 8 CF.R. § 103.2(b)(3). Further, the petitioner's reliance on "average 
salary" information is not an appropriate basis for comparison. The plain language of the 
regulation at 8 CF.R. § 204.5(h)(3)(ix) requires the petitioner to submit evidence demonstrating 
that she has received "a high salary or other significantly high remuneration" in relation to others 
in the field rather than simply earnings that are above average in her field. 
There is no documentary evidence showing that the petitioner has received a high salary or other 
significantly high remuneration for services relative to other instrumental musicians and music 
teachers performing similar work. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Commr. 
1994) (considering professional golfer's earnings versus other PGA Tour golfers); see a/so 
Crimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer's salary 
versus other NHL enforcers); Mllni v. INS, 891 F. Supp. 440, 444-45 (N. D. IlL 1995) 
(comparing salary of NHL defensive player to salary of other NHL defensemen). Accordingly, 
the petitioner has not established that she meets this regulatory criterion. 
Page 8 
B. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three categories of 
evidence. 
lit. CONTINUING WORK IN THE AREA OF EXPERTISE IN THE UNITED STATES 
Beyond the decision of the director, the statute and regulations require that the petitioner seeks to 
continue work in her area of expertise in the United States. See section 203(b)(l)(A)(ii) of the 
Act, 8 U.S.c. § 1153(b)(1)(A)(ii); 8 C.F.R. § 204.5(h)(5). Such evidence may include letter(s) 
from prospective employer(s), evidence of prearranged commitments such as contracts, or a 
statement from the petitioner detailing plans on how she intends to continue her work in the 
United States. On the Form I-140, Immigrant Petition for Alien Worker, Part 6, "Basic 
information about the proposed employment." was left blank. In this case, the petitioner has not 
submitted lettcr(s) from prospective employer(s), evidence of prearranged commitments such as 
contracts, or a statement detailing plans on how she intends to continue working in the United 
States. Accordingly, the petitioner has not submitted "clear evidence" that she will continue to 
work in her area of expertise in the United States as required by the regulation at 8 C.F.R. 
§ 204.5(h)(S). 
IV. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly 
demonstrate that the alien has achieved sustained national or international acclaim and is one of the 
small percentage who has risen to the very top of the field of endeavor. 
Even if the petitioner had 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: (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" 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.S(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. While the 
AAO concludes that the evidence 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 antecedent regulatory requirement of three categories of evidence. 
Id. at 1122. 
4 The AAO maintains de novo review of all questions of fact and law. See So/tane v. DOl, 381 F.3d 143, 145 (3d Cir. 
2(04). 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 a/so section 100(a)(1) of the Act; section 
204(h) of the Act; DHS Delegation Number 0150.1 (effective March I, 2003); 8 C.F.R. § 2.1 (2003); 8 C.F.R. 
§ 103.1(1)(3)Oii) (2003); Matter of Aure/in, 19 I&N Dec. 458, 460 (HIA 1987) (holding that legacy INS, now 
USCIS, is the sole authority with the jurisdiction to decide visa petitions). 
Page Y 
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.