dismissed EB-1A Case: Music

(b)(1)
DATE: 
AUG 0 8 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of "Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please 
find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or 
policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider 
or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-
290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
;;r:(Zf--
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on April19, 2012 and dismissed the petitioner's motion to reopen and motion to reconsider on 
March 5, 2013. The petition 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 as a musician, 
pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act) , 8 U.S.C. 
§ 1153(b )(1 )(A). The director determined the petitioner had not established the sustained national or 
international acclaim necessary to qualify for classification as an alien of extraordinary ability. 
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)(l)(A)(i) of the Act and 
8 C.P.R. § 204.5(h)(3). The implementing regulation at 8 C.P.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 C.P.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 submits a brief. Although counsel ' s brief states that a letter from the Embassy of 
Nepal, along with a copy of the director's March 15, 2013 decision, is included, the record only 
contains a copy of the director's decision. For the reasons discussed below, the record supports the 
director's conclusion that the petitioner has not established eligibility for the exclusive classification 
sought. 
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, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
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NON-PRECEDENT DECISION 
(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 10151 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. !d.; 
8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.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 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.1 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." !d. 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)." !d. 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 
antecedent regulatory requirement of three types of evidence. !d. 
1 
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). 
(b)(6)
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II. ANALYSIS 
A. Evidentiary Criteria2 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
Initially, the petitioner submitted a from tht 
Region Development Center that includes a signature from the Chief Guest, the President of Nepal; a 
certificate of special class from the Radio Broadcasting Development Committee of Radio Nepal; and 
letters of appreciation. As permitted by the regulation at 8 C.P.R. § 204.5(g)(2), the director 
specifically and clearly requested additional evidence regarding the submitted certificates, including 
the criteria for the awards, the significance of the awards, the reputation of the organization or panel 
issuing the award, the candidate pool for the award, the number of prizes or awards issued each year 
and previous winners of the awards. The petitioner failed to include any of the additional requested 
evidence in his response. The director determined that the record contained no evidence explaining the 
significance of the awards, the evaluation criteria, or the reputation of the issuing authority. He also 
determined that the record contained no evidence that the field, nationally or internationally, recognizes 
either of the awards. On motion, counsel asserted that the signature of the President of Nepal 
demonstrates that the is nationally recognized and the petitioner submitted information 
from Wikipedia about the _ of Nepal that does not address the Award of Honor. The 
director concluded that the petitioner had not submitted the evidence requested in the previous request 
for evidence and noted that there are no assurances about the reliability of the content from 
Wikipedia, an open, user-edited internet site. See Lamilem Badasa v. Michael Mukasey, 540 P.3d 
909 (81h Cir. 2008). 
On appeal, as previously stated, although counsel stated on appeal that the petitioner was submitting a 
letter from the Embassy of Nepal regarding the certificate, the record does not 
contain a copy of this letter. Even if the letter was in the record, the regulation states that the petitioner 
shall submit additional evidence as the director, in his or her discretion, may deem necessary. The 
purpose of the request for evidence is to elicit further information that clarifies whether eligibility for 
the benefit sought has been established, as of the time the petition is filed. See 8 C.P.R. §§ 
103.2(b )(8) and (12). The failure to submit requested evidence that precludes a material line of 
inquiry shall be grounds for denying the petition. 8 C.P.R.§ 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given 
an opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first 
time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 
19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the submitted evidence to be considered, 
2 
The petitioner does not claim to meet or submit evidence relating to the regulatory categories of evidence 
not discussed in this decision. 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
he should have submitted the documents in response to the director's request for evidence. /d. Under 
the circumstances, the AAO would not consider the letter. 
Finally, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(i) requires the petitioner's receipt 
of more than one prize or award. Significantly, not all of the criteria at 8 C.P.R. § 204.5(h)(3) are 
worded in the plural. Specifically, the regulations at 8 C.P.R. §§ 204.5(h)(3)(iv) and (ix) only require 
service on a single judging panel or a single high salary. When a regulatory criterion wishes to include 
the singular within the plural, it expressly does so as when it states at 8 C.P.R. § 204.5(k)(3)(ii)(B) that 
evidence of experience must be in the form of "letter( s ). " Thus, the plural in the remaining regulatory 
criteria has meaning. In a different context, federal courts have upheld US CIS' ability to interpret 
significance from whether the singular or plural is used in a regulation. See Maramjaya v. USCIS, Civ. 
Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26, 2008); Snapnames.com Inc. v. Chertoff, 2006 WL 
3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an interpretation that the regulatory requirement for 
"a" bachelor's degree or "a" foreign equivalent degree at 8 C.P.R. § 204.5(1)(2) requires a single degree 
rather than a combination of academic credentials). 
Therefore, even if the petitioner had submitted satisfactory evidence regarding the Award of Honor, the 
petitioner would still not satisfy this criterion. 
Furthermore, the petitioner fails to specifically address any of the other previously submitted evidence. 
Thus, the petitioner has abandoned any claim regarding the other certificate and letters of appreciation. 
Sepulveda v. US Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005), citing United States v. 
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); see also Hristov v. Roark, No. 09-CV-
27312011, 2011 WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiff's claims were 
abandoned as he failed to raise them on appeal to the AAO). 
In light of the above, 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 and in the motions to reopen and reconsider, counsel incorrectly states that the director's 
decisions "failed to consider the letter from the Music Association ofNepal ("MAN")." In fact, both 
decisions quote directly from the letter. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish that the evidence was qualifying. On appeal, counsel repeats previous claims, without 
explaining why the AAO should find those claims any more persuasive than the director did. The 
petitioner also fails to provide any additional evidence or offer any additional arguments identifying any 
errors of law or fact in the director's analysis. Therefore, the petitioner has abandoned this issue. 
(b)(6)
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Desravines v. United States Attorney General, No. 08-14861, 343 F. App'x 433, 435 (11th Cir. 
2009) (finding that issues not briefed on appeal are deemed abandoned). 
In light of the above, the petitioner has not established that he meets the plain language requirements 
of 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, including a brochure containing a fact 
sheet for the publication Kamana, and found that the petitioner failed to establish that the evidence was 
qualifying. On appeal, counsel repeats previous claims, without explaining why the AAO should find 
those claims any more persuasive than the director did. The petitioner also fails to provide any 
additional evidence or offer any additional arguments identifying any errors of law or fact in the 
director's analysis. Therefore, the petitioner has abandoned this issue. !d. 
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 found that the petitioner established that the beneficiary satisfies the plain language 
requirements of the regulation at§ 204.5(h)(3)(iv) and the record supports that finding. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 
The director discussed the evidence submitted for this criterion, including letters pra1smg the 
petitioner's skills, and found that the petitioner failed to establish that the evidence was qualifying 
because the letters did not explain how skills is an original contribution of major significance. On 
appeal, counsel repeats previous claims, without explaining why the AAO should find those claims 
any more persuasive than the director did. The petitioner also fails to provide any additional evidence 
or offer any additional arguments identifying any errors of law or fact in the director's analysis. 
Therefore, the petitioner has abandoned this issue. !d. 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
The record does not support the director's finding that the petitioner meets this regulatory criterion. 
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-CV-820-ECR-RJJ at 7 (D. Nev. 
Sept. 8, 2008) (upholding an interpretation that performances by a performing artist do not fall under 8 
C.F.R. § 204.5(h)(3)(vii)). 
(b)(6)
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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). 
Evidence that the alien has performed in a leading or critical role for organization s or 
establishments that have a distinguished reputation. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish that the evidence was qualifying. On appeal, counsel merely states that he and the petitioner 
"reinstate [the] petitioner's argument in response to the petition that he may qualify for this 
criterion," without explaining why the AAO should find those claims any more persuasive than the 
director did. The petitioner also fails to provide any additional evidence or offer any additional 
arguments identifying any errors of law or fact in the director's analysis. Therefore, the petitioner has 
abandoned this issue. Desravines v. U.S. Atty. Gen., 343 Fed.Appx. at 435. 
Evidence that the alien has commanded a high salary or other significantly high remuneration for 
services, in relation to others in the field. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish that the evidence was qualifying because the petitioner had not submitted primary evidence of 
his income. On appeal, counsel repeats previous claims, without explaining why the AAO should 
find those claims any more persuasive than the director did. The petitioner does not submit primary 
evidence or explain why primary evidence is not required. See 8 C.F.R. § 103.2(b )(2). The 
petitioner also fails to provide any additional evidence or offer any additional arguments identifying any 
errors oflaw or fact in the director's analysis. Therefore, the petitioner has abandoned this issue. Id. 
Evidence of commercial successes in the performing arts, as shown by box office receipts or record, 
cassette, compact disk, or video sales. 
The director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish that the evidence was qualifying. On appeal, counsel repeats previous claims, without 
explaining why the AAO should find those claims any more persuasive than the director did. The 
petitioner also fails to provide any additional evidence or offer any additional arguments identifying any 
errors oflaw or fact in the director's analysis. Therefore, the petitioner has abandoned this issue. Id. 
C. Summary 
The petitioner has failed to satisfy the antecedent regulatory requirement of three types of evidence. 
(b)(6)
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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. 
Had the petitioner 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: (1) 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. 
§§ 204.5(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. 3 Rather, the proper conclusion is that the petitioner has failed to satisfy the 
antecedent regulatory requirement of three types of evidence. !d. at 1122. 
The petitioner has not established eligibility pursuant to section 203(b )(1)(A) of the Act and the petition 
may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
3 The AAO maintains de novo review of all questions of fact and law. See Soltane v. DOl, 381 F. 3d 143, 145 
(3d Cir. 2004). 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 also section 
103(a)(1) of the Act; section 204(b) of the Act; DHS Delegation Number 0150.1 (effective March 1, 2003); 8 
C.F.R. § 2.1 (2003); 8 C.F.R. § 103.1(f)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) 
(holding that legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).