dismissed EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 02, 2024 In Re: 33901196 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a musician, seeks 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 Nebraska Service Center denied the petition, concluding the record did not 
establish that the Petitioner meets at least three of the ten initial evidentiary criteria set forth in the 
regulations. 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. 
I. LAW 
Section 203(b )( 1)(A) of the Act makes immigrant visas available to individuals who: have 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; seek to enter the United States to continue work in the area of extraordinary 
ability; and demonstrate that their entry will offer substantial prospective benefits to the country. 
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 that petitioner does not submit this evidence, 
then they must provide sufficient qualifying documentation that a 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 authorship of scholarly articles). 
Where a 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 Amin 
v. Mayorkas, 24 F.4th 383, 394 (5th Cir. 2022); 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). 
TI. ANALYSIS 
The Petitioner is a guitarist, composer and 
educator who regularly records and performs with his own 
jazz groups. The record reflects that he also frequently collaborates with other artists, most notably, 
as a guitarist on two Latin Grammy-nominated albums by Roxana Amed. The Petitioner completed 
his undergraduate education and an advanced diploma in music in Australia and earned his masters 
and doctoral degrees in music from the where he has since served as an 
instructor. He states that he intends to continue working as a musician in the United States. 1 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has received a major, internationally 
recognized award, he must satisfy at least three of the ten regulatory criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x). The Director found that the Petitioner met two of these criteria, relating 
to judging the work of others in his field and display of his work at artistic exhibitions or showcases. 
See 8 C.F.R. § 204.5(j)(3)(iv) and (vii). The record supports the Director's determination that the 
Petitioner meets these two criteria. 
On appeal, the Petitioner asserts that he also meets the criteria relating to published materials about 
him in professional or major trade publications or major media and authorship of scholarly articles. 
See 8 C.F.R. § 204.5(h)(3)(iii) and (vi). 2 Further, he contends that the Director erroneously failed to 
consider comparable evidence under 8 C.F.R. § 204.5(h)(4), noting that the decision did not address 
his submission of several letters of support from renowned musicians. 
After reviewing all the evidence in the record, we conclude the Petitioner has not demonstrated that 
he meets at least three of the ten evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
1 The record shows the Petitioner has been working in the United States for several years pursuant to 0- lB nonimmigrant 
status. We acknowledge that this status is granted to persons of extraordinary ability in the arts. However, the 
nonimmigrant and immigrant extraordinary ability categories have different definitions, evidentiary requirements, and 
standards for persons in the arts. "Extraordinary ability in the field of arts" in the nonimmigrant 0-1 classification means 
'"distinction." 8 C.F.R. § 214.2(o)(3)(ii). But in the immigrant context, "extraordinary ability" reflects that the individual 
is among the small percentage at the very top of the field. Regardless, each petition is separate and independent and must 
be adjudicated on its own merits, under the corresponding statutory and regulatory provisions. 
2 Although the Petitioner previously claimed to meet the criterion at 8 C.F.R. § 204.5(h)(3)(i), relating to lesser nationally 
or internationally recognized awards, he does not contest the Director's decision relating to this criterion on appeal or 
otherwise refer to it in his appeal brief. An issue not raised on appeal is waived. See, e.g., Matter ofO-R-E-, 28 I&N Dec. 
330,336 n.5 (BIA 2021) (citing Matter o/R-A-M-, 25 l&N Dec. 657,658 n.2 (BIA 2012)). 
2 
l. Published Materials 
To meet the criterion at 8 C.F.R. § 204.5(h)(3)(iii), a petitioner must submit "published material about 
[them] in professional or major trade publications or other major media relating to [their] work in the 
field for which classification is sought." This evidence must include the title, date and author of the 
material, and any necessary translation. 
Evidence submitted in support of this criterion may include documentation such as print or online 
newspaper or magazine articles, popular or academic journal articles, books, textbooks, similar 
publications, or a transcription of professional or major audio or video coverage of the person and the 
person's work. See generally 6 USCIS Policy Manual F.2(B)(l), https://www.uscis.gov/policy­
manual ( discussing how USCIS evaluates evidence submitted in support of the evidentiary criteria at 
8 C.F.R. § 204.5(h)(3)(i)-(x)). In evaluating whether a submitted publication is a professional 
publication, major trade publication or major media, relevant factors include the intended audience 
(for professional and major trade publications) and the relative circulation, readership or viewership 
(for major trade publications and other major media). Id. 
The record reflects that the Petitioner provided 15 exhibits in support of this criterion. This evidence 
included articles about the Petitioner published online by AllEvents.in, JazzEncounters.com, 
Voyagemia.com, Australianj azz.net, J azzlocal32.com, J azzdaGama.com, ModemJ azzToday .com, 
JazzBluesFlorida.com, and Listen/Hear Collective. He also submitted his artist/musician profile pages 
from the websites All About Jazz, Indaba Music, and RAW. Finally, the Petitioner submitted reviews 
ofl Ialbums _______ which were published by LatinJazzNet.com. 
In a request for evidence (RFE), the Director addressed each evidentiary exhibit, noting that some 
were missing the required date and author while some lacked a URL address. The Director also 
observed that the record did not include evidence to demonstrate that any of the materials were 
published in "a form of major media." The Director advised the Petitioner that to demonstrate the 
publications qualify as professional or major trade publications or other major media, he may submit 
comparative circulation data and/or evidence regarding the intended audience of the publications. 
In response, the Petitioner submitted additional information regarding the websites AllEvents.in, 
AllAboutJazz.com, and VoyageMIA.com. In an accompanying cover letter, he stated the additional 
evidence establishes that "these are major media sources." The Director reviewed the additional 
evidence but noted that the article from AllEvents.in did not include the date of publication or the 
author, while the material from All About Jazz appeared to be an artist profile page (with no author or 
date of publication) rather than a published article. The Director concluded the evidence submitted in 
response to the RFE was insufficient to demonstrate that any of the submitted articles were published 
in "a form of major media." 
On appeal, the Petitioner asserts that the Director erroneously failed to consider whether the submitted 
articles were published in professional or major trade publications, and instead improperly imposed a 
requirement that only "major media" can satisfy the plain language of this regulation. He contends 
that the submitted articles "were included in professional and trade publications specifically focused 
on jazz" which cater to "jazz musicians." The Petitioner also asserts that the Director overlooked 
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USCIS policy guidance instructing officers that an individual and their work need not be the only 
subject of the published material when reviewing evidence submitted in support of this criterion. 
Turning to the submitted evidence, we agree with the Director's determination that the two 
LatinJazzNet.com articles reviewing I Ialbums do not meet the 
plain language of this criterion. Both articles mention the Petitioner's name as one of the guitarists 
that played on Ms.I lalbums, but the articles are not about him. A petitioner and their work 
need not be the only subject of the published material, but any published material that covers a broader 
topic should include a substantial discussion of the petitioner and their work in the field in order to 
meet the plain language of this criterion. See generally 6 USCJS Policy Manual, supra, at F.2(B)(4). 
Here, the two articles from LatinJazzNet.com did not include this substantial discussion of the 
Petitioner and his work. 
The Petitioner also submitted his online artist/musician profile pages from All About Jazz, Jndaba 
Music, and RAW. These pages do not identify a date or author; rather it appears that these websites 
allow member musicians to create and maintain their own artist pages, which serve, in part, as a 
promotional tool. 3 Although the Director noted in the decision that these materials appear to be self­
created artist profiles rather than articles written and published by the websites about the Petitioner 
and his work, the Petitioner does not address this observation on appeal. We agree with the Director's 
determination that these materials do not meet the plain language of the regulation. 
As noted, the Petitioner contends on appeal that the submitted articles appeared in "professional and 
trade publications specifically focused on jazz." While he appears to suggest that every website with an 
apparent focus on jazz music qualifies as a professional or trade publication in his field, the record does 
not contain adequate support for this claim. In evaluating whether a submitted publication is a 
professional or trade publication, relevant factors include evidence relating to the publication's intended 
audience. The evidence should show that the intended audience is professionals in the Petitioner's field. 
For example, a magazine or website published by a professional association or industry trade group may 
be a qualifying medium intended for professionals or experts in a certain field. 
The Petitioner submitted three articles about him from the websites Jazzlocall23.com and 
JazzdaGama.com, but the limited information provided regarding these online publications indicates 
they are biogs and not professional or trade publications. He also submitted a copy of an interview 
that was published online by Listen/Hear Collective, but there is no date, author or URL provided, or 
supporting evidence regarding the intended audience for this website. However, based on the 
screenshots provided, it appears the publisher is a record label and not a professional or major trade 
publication. 
The record includes articles about the Petitioner published by AustralianJazz.net, 
ModemJazzToday.com, and JazzandBluesFlorida.com. These websites are described in the 
supporting evidence, respectively, as "an online publication about Australian jazz and improvised 
music," "a radio program that focuses on today's jazz," and "a prominent and trusted paid content 
3 For example, the All About Jazz website provides instructions on how to create a free musician page and states "we've 
amassed over 143,000 musician pages at All About Jazz comtesy of musicians, publicists, record labels and super fans." 
See "Jazz Musicians," https://allaboutjazz.com/musicians. 
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promotion platform dedicated to the vibrant jazz and blues scene in Florida." The Petitioner has not 
submitted sufficient evidence of the intended audience of these publications to demonstrate that they 
qualify as "professional or major trade publications" under the plain language of this criterion. Again, 
the Petitioner's unsupported proposition that any jazz-related website qualifies as one of these types 
of media is not persuasive. 
The two remaining articles were published by AllEvents.in and VoyageMIA.com. The AllEvents.in 
article provides some biographical information about the Petitioner and previews his I I 
I I show held in on May 12 of an unidentified year. The article does not include the 
author or date of publication. Further the evidence submitted about AllEvents. in does not demonstrate 
that website qualifies as a professional or major trade publication. Finally, based on the submitted 
evidence, VoyageMIA.com is a local magazine focused on Miami's "small businesses, independent 
artists and entrepreneurs" and "local institutions" rather than a professional or major trade publication. 
For all the reasons discussed, the Petitioner has not established that he meets the criterion at 8 C.F.R. 
§ 204.5(h)(3)(iii). 
2. Authorship of Scholar Articles 
To meet this criterion, a petitioner must ( 1) provide evidence that they have authored scholarly articles 
in the field and (2) demonstrate that the articles appeared in professional publications, major trade 
publications or major media publications. In the academic arena, a scholarly article reports on original 
research, experimentation or philosophical discourse, will typically have footnotes, endnotes or a 
bibliography and may include charts, graphs, videos, or pictures as illustrations of the concepts 
expressed in the article. See generally 6 USCIS Policy Manual, supra, at F.2(8)(1). 
The Petitioner claims eligibility under this criterion based on his doctoral dissertation titled 
________________________________ He provided 
the abstract for his dissertation, evidence that it was registered with the U.S. Copyright Office, and 
evidence that it is available for viewing or download in the "open access" section of the website 
Scholars hip owned by the 4 Scholarship is described in the 
record as "the institutional repository and research information hub of the [ Iwhich 
includes "research and scholarly works prepared by faculty, students, and staff of the university." 
Based on information provided on the website, the university's students may upload or "deposit" their 
own academic work in the repository with the approval of a sponsoring department or faculty 
member. 5 
The Director determined that the Scholarship! !website does not qualify as "major media." On 
appeal, the Petitioner maintains that the Director failed to consider whether the _______ 
website is a "professional publication." He asserts that the evidence "unequivocally establishes 
Scholarship is a professional website which features scholarly works." 
4 The Petitioner also provided evidence that his dissertation was posted at www.theguitar-blog.com but has not pursued a 
claim that this blog is a professional or major trade publication or other major medium. 
5 See "Scholarship IFAQs," https://guides.libraryl l/scholarshipl.____ 
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In support of his claim, the Petitioner refers to a non-precedent decision in which we determined that 
an individual satisfied the criterion at 8 C.F.R. § 204.5(h)(3)(vi) by providing evidence that their Ph.D. 
dissertation had been published in a "digital library." However, this decision was not published as a 
precedent and therefore does not bind USCIS officers in future adjudications. See 8 C.F.R. § 103.3(c). 
Upon review, we conclude that the Petitioner has not met this criterion. The record does not contain 
evidence that Scholars hip qualifies as a professional or major trade publication. In evaluating 
whether a submitted publication is a professional publication or major trade publication, relevant 
factors include the intended audience of the publication. See generally 6 USCIS Policy Manual, supra, 
at F.2(B)(l). Here, the evidence does not establish the intended audience of ______ 
institutional repository or support a determination that it is intended for persons working in a particular 
profession. Further, the Petitioner has not articulated how the _______ general 
"institutional repository" is comparable to the examples of qualifying professional publications 
provided in USCIS policy guidance which include academic journals, "professionally relevant peer­
reviewed journals," books, textbooks, and professional online publications. See generally id. 
Finally, there is insufficient evidence that Scholarship! which accepts uploads or "deposits" 
of work from students and staff and makes them searchable and accessible online, can be considered 
the "publisher" of these works. The record does not contain sufficient information regarding this 
"deposit" process for us to determine whether Scholarship is a publication much less a 
professional publication as contemplated by the regulation at 8 C.F.R. § 204.5(h)(3)(vi). 
Accordingly, for the reasons discussed, the Petitioner has not demonstrated that he meets this criterion. 
B. Comparable Evidence 
On appeal, the Petitioner asserts the Director "erroneously failed to consider additional comparable 
evidence" to establish his eligibility. Specifically, he emphasizes he "submitted numerous letters of 
support from other renowned musicians and professionals attesting to [his] extraordinary abilities," 
noting that the evidence was "wholly ignored ... without any mention or justification." 
The regulation at 8 C.F.R. § 204.5(h)(4) allows petitioners the opportunity to submit comparable 
evidence to establish eligibility, if it is determined that the evidentiary criteria described in the 
regulations do not readily apply to the person's occupation. Here, the Petitioner did not indicate he 
was submitting the reference letters as comparable evidence to satisfy one of the criteria at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x), nor did he otherwise indicate their relevance to one or more of these criteria. 
General claims that USCIS should accept witness letters as comparable evidence are not persuasive. 
See generally 6 USCIS Policy Manual, supra, at F.2(B)(l). 
We acknowledge the Petitioner's claim that the letters provide relevant information regarding his 
expertise and his level of acclaim and recognition in his field. Such evidence is relevant to the final 
merits determination and would be taken into consideration had the Petitioner demonstrated that he 
meets the initial evidence requirement of at least three of the ten criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x). However, the Petitioner has not established that the Director erred by not evaluating the reference 
letters as comparable evidence under 8 C.F.R. § 204.5(h)(4). 
6 
III. CONCLUSION 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of final 
merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we advise that we 
have reviewed the record in the aggregate, concluding that it does not support a finding that the 
Petitioner has the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification. USCIS has long held that even athletes 
performing at the major league level do not automatically meet the "extraordinary ability" 
standard. Matter ofPrice, 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 sustained 
national or international acclaim in the field, and that he is one of the small percentage who has 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). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons, with each considered 
as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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