dismissed EB-1A Case: Music

'identifying data deleted to 
prevent clearly mwarranted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington. DC 20529-2090 - 
U.S. Citizenship 
and Immigration 
SRC 07 123 51576 
IN RE: 
APR 0 8 2010 
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. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
5 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
9 103.5(a)(l)(i). 
402 gdr rk 
/? erry Rhew 
6 chief, Administrative Appeals Office 
DISCUSSION: The Director, Texas Service Center, denied this employment-based immigrant 
visa petition on November 16, 2007. The Administrative Appeals Office (AAO) dismissed the 
petitioner's appeal of that decision on March 3, 2009. The matter is now before the AAO on a 
motion to reopen and a motion to reconsider. The motions will be dismissed, the previous decision 
of the AAO will be affirmed, and the petition will remain denied. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1 153(b)(l)(A), as an 
alien of extraordinary ability in the arts. 
On motion, the petitioner continues to argue that he meets at least three of the regulatory criteria at 
8 C.F.R. # 204.5(h)(3). 
I. Law 
Congress set a very high benchmark for aliens of extraordinary ability by requiring through the 
statute that the petitioner must demonstrate "sustained national or international acclaim" and present 
"extensive documentation" of his or her achievements. See section 203(b)(l)(A)(i) of the Act, 8 
U.S.C. # 1153(b)(l)(A)(i), and 8 C.F.R. # 204.5(h)(3). The implementing regulation at 8 C.F.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 criteria that call for the submission of specific 
objective evidence. 8 C.F.R. 55 204.5(h)(3)(i) through (x). Through the submission of required 
initial evidence, at least three of the ten regulatory criteria must be satisfied for an alien to establish 
the basic eligibility requirements. 
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 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
Page 3 
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 56 Fed. Reg. 60897, 
60898-99 (Nov. 29, 1991). As used in this section, the term "extraordinary ability" means a level 
of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the field of endeavor. 8 C.F.R. 9 204.5(h)(2). 
The regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
international acclaim through evidence of a one-time achievement (that is, a major, international 
recognized award). Barring the alien's receipt of such an award, the regulation outlines the 
following ten criteria, at least three of which must be satisfied for an alien to establish the sustained 
acclaim necessary to qualify as an alien of extraordinary ability. 
(i) Documentation of the alien's receipt of lesser nationally or internationally 
recognized prizes or awards for excellence in the field of endeavor; 
(ii) 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; 
(iii) 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; 
(iv) 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 specialization for which 
classification is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business- 
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in 
professional or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for 
organizations or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
Page 4 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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, 2010 WL 725317 (9th Cir. March 4, 
2010). Although the court upheld the AAO's decision to deny the petition, the court took issue with 
the AAO's procedure for evaluating evidence submitted to meet a given evidentiary criterion.' 
With respect to the criteria at 8 C.F.R. 5 204.5(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. 
The court stated that the AAO's approach 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 *6 
(citing to 8 C.F.R. 5 204.5(h)(3)). The court also explained the "final merits determination" as the 
corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both 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," 
8 C.F.R. fj 204.5(h)(2), and "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. fj 204.5(h)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.C. fj 1 153(b)(l)(A)(i). 
Id. at *3. 
Thus, Kazarian sets forth a two-part approach where the evidence is first counted and then, if 
qualifying under three criteria, considered in the context of a final merits determination. In 
reviewing Service Center decisions, the AAO will apply the test set forth in Kazarian. As the AAO 
maintains de novo review, the AAO will conduct a new analysis if the director reached his or her 
conclusion by using a one-step analysis rather than the two-step analysis dictated by the Kazarian 
court. See Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviews appeals 
on a de novo basis). 
I 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. 5 204.5(h)(3)(iv) and 8 C.F.R. 4 204.5(h)(3)(vi). 
11. Analysis 
A. Evidentiary Criteria 
On motion, counsel provided the following additional evidence: 
International Piano Competition in 1998. Her letter confirmed that the petitioner was a 
"first prize winner at the collegiate level" and that "being a first place winner is a high 
accomplishment." Additionally, letter verified that, a 
famous pianist, was a finalist judge at the 1998 competition. 
2. A letter from 
dated March 27, 2009, who confirmed that the petitioner won the state competition of the 
"Collegiate Artist Competition," which was sponsored by the Florida State Music 
Teachers Association (FSMTA), an affiliate of the Music Teachers National Association 
(MTNA). According to - the petitioner's win at the state level 
qualified him to compete at the MTNA Southern Division Competition, in which he 
received "Honorable Mention." The letter was accompanied by a certificate from the 
MTNA Southern Division Competition indicating the petitioner won "Honorable 
Mention," which was previously submitted in response to the Request for Evidence 
(RFE). 
3. An article from wuu..cntrt.pcneur.con~, entitled "Steinway Sponsors MTNA Collegiate 
Artist Competition," dated August 1999, that quotes the Executive Director of the 
competition as saying, regarding the Collegiate Artist Piano Competition, that "the 
Competition at Florida State University, dated March 27, 2009, which confirmed the 
petitioner won the Byrd Piano Ensemble Competition in 1999 and explains that the 
contestants are from "all over the state, and often include international students." The 
letter was accompanied by a web page from www.lnttia.org which provided information 
regarding the purpose of the organization. 
5. A certificate that appears to present the petitioner with a two-year award, 2002-2004 for 
the Pre-emptive University Recruitment Fellowship at the University of Texas. 
6. An internet page from Florida A4usic Director S website, a "leading state music journal," 
that indicates the journal is distributed to "more than 5,000 music teachers, school 
principals, school district superintendents and musiclart department supervisors, public 
and university libraries, college music education students, and subscribers." 
7. An article from the Daily Siftings Herald, dated April 29,2002, entitled "Bianchi in guest 
artist recital at Ouachita." 
The petitioner's brief in support of his motion to reopen also indicates that it has provided a letter 
from, but we did not receive this letter. Allegedly, this letter confirms 
that the petitioner judged the Virginia Queen Piano Competition on April 28,2002. 
A motion to reopen must state the new facts to be provided and be supported by affidavits or 
other documentary evidence. 8 C.F.R. § 103.5(a)(2). Based on the plain meaning of "new," a new 
fact is found to be evidence that was not available and could not have been discovered or presented 
in the previous proceeding.2 A review of the evidence that the petitioner submits on motion reveals 
no fact that could be considered "new" under 8 C.F.R. 5 103.5(a)(2). All evidence submitted was 
previously available and could have been discovered or presented in the previous proceeding. The 
petitioner's motion is not an opportunity for counsel to bolster his previous claims. It is noted that 
the petitioner has submitted evidence with this motion that was originally requested by the director 
in a request for additional evidence dated August 22, 2006. Matter of Soriano 19 I&N Dec. 764 
(BIA 1988), held that a petitioner may be put on notice of evidentiary requirements by regulations, 
written notice such as a request for additional documentation or a notice of intent to deny, or an oral 
request at an interview. As the petitioner was previously put on notice and provided with a 
reasonable opportunity to provide the required evidence, the evidence submitted on motion will not 
be considered "new" and will not be considered a proper basis for a motion to reopen. 
Nonetheless, even if we were to consider all the additional information including a proffer of the 
statements included in letter, the petitioner still failed to provide enough 
information to satisfy this criterion. 
First, the petitioner in his RFE claimed that his receipt of a first prize award in the Bartok- 
Kabalevsky International Piano Competition in 1998 qualifies as a major, internationally 
recognized award. 
Congress' example of a one-time achievement is a Nobel Prize. H.R. Rep. No. 101-723, 59 
(Sept. 19, 1990). The regulation is consistent with this legislative history, stating that a one-time 
achievement must be a major, internationally recognized award. 8 C.F.R. 8 204.5(h)(3). 
Significantly, even a lesser internationally recognized award could serve to meet only one of the 
ten regulatory criteria, of which an alien must meet at least three. 8 C.F.R. § 204.5(h)(3)(i). The 
selection of Nobel Laureates, the example provided by Congress, is reported in the top media 
internationally regardless of the nationality of the awardees, is a familiar name to the public at 
large and includes a large cash prize. While an internationally recognized award could 
conceivably constitute a one-time achievement without meeting all of those elements, it is clear 
from the example provided by Congress that the award must be global in scope and 
internationally recognized in the alien's field as one of the top awards in that field. 
In his motion to reopen, the petitioner submitted a letter from (item 1) which 
confirms his receipt of the award, indicating that he was the "first prize winner at the collegiate 
level" and that "being a first place winner is a high accomplishment.'' However, this letter, as 
2 The word "new" is detined as "1. having existed or been made for only a short time . . . 3. Just discovered, found, or 
learned <new evidence> . . . ." WEBSTER'S 11 NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (1984)(emphasis in 
original). 
Page 7 
well as the record as a whole, lacks evidence such as an explanation of the selection process for 
the award, the specific criterion that were judged and the candidates that the petitioner was 
competing against. 
In light of the above, the petitioner has not demonstrated that his award for first prize at the 
Bartok-Kabalevsky International Piano Competition was an award recognized internationally 
amongst pianists to which the most renowned pianists worldwide aspire to win. 
The petitioner has also failed to demonstrate that he has received any lesser nationally or 
internationally recognized prizes or awards for excellence in his field pursuant to 
8 C.F.R. § 204.5(h)(3)(i). As aforementioned, the letter from Caryl Conger (item 1) indicated 
that winning the Bartok-Kabalevsky International Piano Competition was a "high 
accomplishment" but no evidence was provided to demonstrate that the award receives national 
or international recognition. Similarly, the FSMTA Competition, MTNA Southern Division 
Competition and the Byrd Piano Ensemble Competition all appear to be regional contests as 
noted in AAO's decision, and therefore they cannot be considered nationally or internationally 
recognized. Although the article from www.entrepeneur.com (item 3), states that "the students 
who compete at this level are the very best in the nation," it is not clear whether the competition 
is open to students from all over the nation as it appears to be a regional contest in Florida. The 
petitioner also provided a certificate that appears to verify his Pre-emptive University 
Recruitment Fellowship at the University of Texas (item 5). Again, however, the petitioner 
failed to establish that a fellowship provided by a university is a nationally or internationally 
recognized prize or award. 
The petitioner provided additional information (items 6 and 7) to demonstrate that material about 
the petitioner was published in a professional or major trade publication or other major media 
pursuant to 8 C.F.R. 5 204.5(h)(3)(iii). However, the AAO already evaluated the article 
submitted from the Florida Music Director regarding the petitioner and found that it had "a 
limited state distribution and appears to be directed primarily to educators and students, and 
therefore does not establish it as a major trade publication in the music industry." The evidence 
submitted in the motion to reopen (item 6) reaffirms our position as the internet page provided 
indicates the journal is distributed to "more than 5,000 music teachers, school principals, school 
district superintendents and musiclart department supervisors, public and university libraries, 
college music education students, and subscribers." Similarly, although the petitioner now has 
provided the article from the Daily Siftings Herald, dated April 29, 2002 (item 7), he still has 
failed to establish that the publication is a form of major media. As such, considering all of the 
evidence de novo, the petitioner still fails to satisfy any of the criteria. 
B. Final Merits Determination 
In accordance with the Kazarian opinion, we must next conduct 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 
Page 8 
the very top of the[ir] field of endeavor," 8 C.F.R. fj 204.5(h)(2); 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. fj 204.5(h)(3). See Kazarian, 2010 WL 7253 17 at "3. 
In this case, the specific deficiencies in the documentation submitted by the petitioner have 
already been addressed in our preceding discussion, as well as in the prior decisions, of the 
regulatory criteria at 8 C.F.R. fj 204.5(h)(3). The submitted evidence provided by the petitioner 
is not indicative of his national or international acclaim and there is no indication that his individual 
achievements have been recognized in the field. In fact, it appears that many of the awards won 
by the petitioner were earned at the collegiate level, including his fellowship award, the FSMTA 
Competition, MTNA Southern Division Competition and the Byrd Piano Ensemble Competition. 
As the awards appear to have been awarded only to college students, the petitioner was not 
competing against all of those in the field, including professional pianists. Additionally, the 
awards were geographically limited to Florida, and have not been proven to be nationally or 
internationally recognized awards. Accordingly, the petitioner has failed to demonstrate that he 
is at the very top of his field. Further. sustained acclaim required under 203(b)(l)(A)(i) of the 
Act, 8 U.S.C. fj 1 153(b)(l)(A)(i), and 8 C.F.R. 5 204.5(h)(3) by this highly restrictive 
classification cannot be demonstrated where the most recent award (again, a local award for a 
student competition) was received three years prior to filing this application. 
Finally, motions for the reopening of immigration proceedings are disfavored for the same reasons 
as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. 
INS v. Doherty, 502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party 
seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the 
current motion, the petitioner has not met that burden. The motion to reopen will be dismissed. 
111. Conclusion 
Review of the record does not establish that the petitioner has distinguished himself to such an 
extent that he may be said to have achieved sustained national or international acclaim and to be 
within the small percentage at the very top of his field. The evidence is not persuasive that the 
petitioner's achievements set him significantly above almost all others in his field at a national or 
international level. Therefore, the petitioner has not established his eligibility pursuant to section 
203(b)(l)(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. 5 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion to reopen is dismissed, the decision of the AAO dated March 3, 2009, is 
affirmed, and the petition remains denied.