dismissed EB-1A Case: Music

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PUBLIC COpy 
U.S. Department of Homeland Security 
U.S. Citi/cnsilip and Immigration Sl'n'itT' 
Administralive ;\ppcah Office (;\:\0) 
20 Massac'huserts Ave" N,W .. MS 2()')() 
Wasilin2lon. DC ~()"2()·2(19(1 
u.s. Citizenship 
and Immigration 
Services 
DATE: APR 2 3 2012 Office: 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. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the 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 I-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
;;' ~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.lIscis.gov 
Pagc 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 § 1153(b)(1)(A) as 
a choir singer, solo artist, and choral conductor. 1 The director determined that the petitioner had 
not established the requisite extraordinary ability and failed to submit extensive documentation of 
his 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)(1)(A)(i) of the 
Act and 8 CF.R. § 204.5(h)(3). The implementing regulation at 8 CF.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an award, the 
regulation outlines ten categories of specific objective evidence. 8 CF.R. § 204.5(h)(3)(i) through 
(x). The petitioner must submit qualifying evidence under at least three of the ten regulatory 
categories of evidence to establish the basic eligibility requirements. 
On appeal, counsel states that the petitioner "has satisfied four of the ten requirements to establish 
extraordinary ability." More specifically, counsel asserts that the petitioner meets the regulatory 
categories of evidence at 8 CF.R. §§ 204.5(h)(3)(i), (ii), (v), and (viii). For the reasons discussed 
below, the AAO will uphold the director's decision. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
1 According to information on the Form 1-140, Immigrant Petition for Alien Worker, the petitioner was last admitted 
to the United States on October 3, 2009 as a B-2 nonimmigrant visitor for pleasure. 
Page 3 
(ii) the alien seeks to enter the United States to continue 
work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 WIst 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 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.S(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 C.F.R. § 204.5(h)(3)(i)-(x). 
In 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) reviewed the denial of a 
petition filed under this classification. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). Although 
the court upheld the AAO's decision to deny the petition, the court took issue with the AAO's 
evaluation of evidence submitted to meet a given evidentiary criterion. 2 With respect to the criteria at 
8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while USCIS may have raised legitimate 
concerns about the significance of the evidence submitted to meet those two criteria, those concerns 
should have been raised in a subsequent "final merits determination." 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 sufficient evidence, "the proper conclusion is that the applicant has failed to 
satisfY the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 1122 
(citing to 8 C.F.R. § 204.5(h)(3». 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then considered 
in the context of a final merits determination. In this matter, the AAO will review the evidence under 
the plain language requirements of each criterion claimed. As the petitioner did not submit qualifying 
evidence under at least three criteria, the proper conclusion is that the petitioner has failed to satisfy 
the regulatory requirement of three types of evidence. Id. 
2 Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 4 
II. ANALYSIS 
A. Evidentiary Criteria3 
Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor. 
On appeal, counsel argues that the petitioner's participation in the World Youth Choir is an 
internationally recognized prize for excellence in choral singing. The petitioner submitted 
documentation indicating that he was selected to participate in the summer (July 2006) and 
winter (December 2006 - January 2007) sessions of the World Youth Choir. The petitioner also 
submitted information from the World Youth Choir's website stating: 
Since its creation in 1989, the World Youth Choir (WYC) has established itself as one of 
the most remarkable musical and intercultural experiences offered to young musicians. 
Approximately 100 choral singers from around the globe between the ages of 17 and 26, 
come together each year to represent one of today's most significant youth choirs. As 
participation increases each year, today, the WYC is composed of more than forty 
nationalities, representing all continents. 
The WYC engages some of the world's most renowned choral conductors to rehearse 
intensively and prepare an ambitious concert program from various vocal and choral 
traditions and styles. Thus, the WYC promotes the artistic development of young choral 
singers, transforming them into professional performing artists. 
The artistic scope of the project is in itself a major achievement, facilitating intercultural 
dialogue through youth exchange. The WYC also represents for its members a unique 
experience in terms of personal relationships. Regardless of political or cultural 
differences, young people with a love for singing and choral music share one month of 
their life together. This allows for work and leisure, conversation and debate, creating 
lifelong friendships. 
Counsel does not explain how the petitioner's participation in the WYC's musical sessions and 
intercultural experiences equates to the petitioner's receipt of "prizes or awards." Instead, the 
petitioner's participation reflects his involvement in a developmental and intercultural exchange 
program organized by the International Federation for Choral Music (IFCM). The AAO notes 
that participation in the WYC sessions is limited to "young musicians" "between the ages of 17 
and 26" and that "the WYC promotes the artistic development of young choral singers, 
transforming them into professional performing artists." Experienced professionals in the field 
who have already completed their "artistic development" do not audition for such developmental 
programs. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires evidence of 
the petitioner's receipt of "nationally or internationally recognized prizes or awards for 
:l On appeal, the petitioner does not claim to meet any of the regulatory categories of evidence not discussed in this 
decision. 
Page 5 
excellence in the field of endeavor." [Emphasis added.] The AAO cannot conclude the 
petitioner's participation in the WYC constitutes his receipt of a nationally or internationally 
recognized "prize" or "award" for excellence in the field of endeavor. Accordingly, the 
petitioner has not established that he meets the plain language requirements of this regulatory 
criterion. 
Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their 
members, as judged by recognized national or international experts in their 
disciplines or fields. 
On appeal, counsel argues that the petitioner "is a member of organizations that clearly demand 
extraordinary ability in music." Specifically, counsel points out that the petitioner performed as 
a member of the Philippine Madrigal Singers (PMS), Los Angeles Master Choral (LAMC), 
Harana Men's Chorus (HMC), EI Paso Opera and Chorale (EPOC), and the Cathedral of Our 
Lady of the Angels' Choir (COLAC) in Los Angeles. Counsel also states that the petitioner is a 
member of the Philippine Choral Directors Association (PCDA). In response to the director's 
request for evidence, the petitioner submitted information from the PCDA's website stating: 
Join PCDA in a few easy steps 
We are inviting all choral conductors, directors, leaders and/or managers to join the 
premier organization of choral artists in the Philippines. Choristers and choral 
enthusiasts are also welcome. 
We have just made it easier for you to join us or renew your membership with the new 
online application form. 
* * * 
APPLY ONLINE 
1. Pay the membership application fee of P500 at any Banco De Oro Branch. Deposit 
your payment to Philippine Choral Directors Association Inc. Savings Account 
Number 1070172934, BOO Visayas Avenue Branch. . 
2. Fill up the online application form at the bottom of this page. 
3. Click "Submit" after supplying all the required information. 
The AAO cannot conclude that paying a membership fee and completing an online application are 
indicative of outstanding achievements. There is no evidence (such as bylaws or rules of 
admission) showing that the PCDA requires outstanding achievements of its members, as judged 
by recognized national or international experts in the petitioner's field. 
In order to demonstrate that membership in an association meets this criterion, a petitioner must 
show that the association requires outstanding achievement as an essential condition for 
Page 6 
admission to membership. Membership requirements based on employment or actIvIty in a 
given field, minimum education or experience, standardized test scores, grade point average, 
recommendations by colleagues or current members, or payment of dues, do not satisfy this 
criterion as such requirements do not constitute outstanding achievements. Further, the overall 
prestige of a given association is not determinative; the issue here is membership requirements 
rather than the association's overall reputation. 
Regarding the petitioner performing as a member of the PMS, the LAMC, the HMC, the EPOC, 
and the COLAC, counsel does not explain how these choral groups equate to "associations in the 
field" such as the PCDA. Further, while the petitioner submitted general information about the 
preceding choral groups, there is no documentary evidence showing that they require outstanding 
achievements of their members, as judged by recognized national or international experts in the 
petitioner's field. Demonstrating the necessary vocal talent and music experience in order to 
secure a position with these choral groups does not rise to the level of "outstanding 
achievements." Thus, the petitioner has not established that his participation with the preceding 
choral groups meets the plain language requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(ii). 
Accordingly, the AAO withdraws the director's finding that the petitioner meets this regulatory 
criterion. 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The director discussed the evidence submitted for this criterion and found that the petitioner 
failed to establish his 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. u.s. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); 
Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) 
(the court found the plaintiffs claims to be abandoned as he failed to raise them on appeal to the 
AAO). Accordingly, the petitioner has not established that he meets this regulatory criterion. 
Evidence of the alien's participation, either individually or on a panel, as a judge of 
the work of others in the same or an allied field of specification for which 
classification is sought. 
The director discussed the evidence submitted for this criterion and found that the petitioner 
failed to establish his 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, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. 
Accordingly, the petitioner has not established that he meets this regulatory criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
Page 7 
In the director's decision, she determined that the petitioner failed to establish his eligibility for 
this regulatory criterion. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) 
requires "[e]vidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field." [Emphasis added.] Here, the evidence 
must be reviewed to see whether it rises to the level of original artistic contributions "of major 
significance in the field." The phrase "major significance" is not superfluous and, thus, it has 
some meaning. Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 
1995) quoted inAPWUv. Potter, 343 F.3d 619, 626 (2nd Cir. Sep 15,2003). 
The petitioner submitted the following: 
1. A Certificate of Appreciation from the Filipino-American Association of Iowa 
stating: "Certificate of Appreciation presented to [the petitioner] University of 
Philippines Madrigal Singers ("U.P. Madz") 'A Choir of International Acclaim and 
Talent' The Jordan Stage ... Drake University· Des Moines, Iowa, USA September 
-2. A November _ Certificate of Appreciation presented to the petitioner "in 
grateful appreciation for the valuable support extended to the Project 
Mindanao MADZ ET AL Choral Cliniquing held from ••••••• 
WMSU [Western Mindanao State University],,; 
3. A Certificate of Appreciation presented to the petitioner by Camarines Sur National 
High School "in grateful recognition and appreciation for his/her invaluable 
contribution during the UP CCP Sining Sa Eskwela Regional Training for Teachers, 
September 7-11,2004"; 
4. A February-=ertificate of Appreciation presented to the petitioner "for his 
most valuable contribution to the Music Ministry of the Bukidnon Area Conference 
of the United Church of Christ of the Philippines through his active support and 
participation in the advancement of The Builders Symphony Choir"; 
5. A Certificate of Appreciation presented to the petitioner by the Mayor of Tagum and 
the Chairperson of the City of Tagum Tourism Council stating: "For your invaluable 
contribution to the Music and the Arts in the City of Tagum. Given this. day 
November _ during the SING PHILIPPINES Choral Education & Festival 
MINDANAO Leg in the City of Tagum"; 
6. A Certificate of Recognition presented to the petitioner "in grateful recognition for 
serving as lecturer/trainer of the Choral Workshop conducted to MVC [Mountain 
View College] choral groups on Novembe_ 
7. A Certificate from the South Cotabato Music Artists Association presented to the 
petitioner "for his contribution to the arts through the conduct of SING PHILIPPINES 
Choral Education & Choral Festival on N 
8. A Certificate of Appreciation presented to the petitioner "for successfully facilitating 
the CHORAL TRAINING WORKSHOP conducted for the Payatas Trece Children's 
Choir ... held at the City from August 
9. A Certificate of Appreciation from the Provincial Government of South Cotabato for 
the petitioner'S services during "the CHOIR COMPETITION in line with the 
Page 8 
celebration of the _ National Arts Month held on February _ at South 
Cotabato Gym and Cultural Center"; 
10. A Certificate of Appreciation presented to the petitioner for his participation "as 
resource speaker on the Seminar-Workshop on the Basic Course on Acting, Singing 
and Dancing held at the Shrine of Our Lady of Manaoag Pilgrim's Center, Manaoag, 
Pangasinan on August 
11. A Certificate of Appreciation presented to the petitioner for his participation as a 
trainer at the Hands-On Choral Workshop held at the Cultural Center of the 
Philippines from 
12. A Certificate of Appreciation presented to the petition for his participation as a trainer 
at the _Hands-On Choral Workshop held at the Cultural Center of the 
Philippines from 
13. A Certificate of Appreciation presented to the petitioner as a trainer at the_ 
Hands-On Choral Workshop at the Cultural Center of the Philippines from_ 
Octobe_and 
14. A Certificate of Appreciation presented to the petitioner "for facilitating th~ 
Hands-On Choral Workshop held at the Cultural Center of the Philippines from 
Octo 
The petitioner submitted four additional certificates issued in the Filipino language, but he failed 
to submit certified English language translations of the certificates 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 certified 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. 
The preceding certificates do not indicate how the petitioner's contributions as a choral trainer 
were original, nor do they provide information regarding how the petitioner's contributions have 
impacted the field at a level indicative of contributions of "major significance" in the field. 
There is no documentary evidence demonstrating that the petitioner's work as a trainer was 
recognized beyond the preceding events and workshops such that his work constitutes artistic 
contributions of major significance in the field. The plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v) requires that the petitioner's original contributions be "of major significance in 
the field" rather than limited to a particular educational institution, workshop, or community 
event. The record lacks documentary evidence showing that the petitioner has made original artistic 
contributions that have significantly influenced or impacted his field. 
The petitioner submitted a letter from 
Mindanao (UM) Chorale, stating: 
University of 
With the hope to raise the bars of excellence in this field, the UM Chorale never cease to 
join choral workshops. To mention the top of the line MADZ ET AL choral workshop 
where the compelling and very passionate [the petitioner] happens to be one of the 
invited conductors to do the workshop. In this workshop, we get to experience all the