dismissed EB-1A Case: Music Management

identifying data deleted to 
Drevent clearly univxrmted 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
IN RE: 
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. fj 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
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. tj 103.5 for 
the specific requirements. 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 $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. fj 103.5(a)(l)(i). 
Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which 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 business, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1 153(b)(l)(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. 
On appeal, counsel sets forth several allegations of error and asserts that he will submit a brief and or 
additional evidence within 30 days. Counsel dates the appeal January 15, 2008. As of this date, more 
than 19 months later, this office has received nothing further. Thus, the appeal will be adjudicated 
based on the allegations of error set forth on the Form I-290B, Notice of Appeal to the Administrative 
Appeals Office (AAO). 
Counsel notes that the director considered the evidence under some criteria as if the petitioner were 
seeking classification in the arts rather than in business. While we concur with counsel that the director 
erred in sometimes characterizing the petitioner as a musician rather than a music manager, the director 
did state that the evidence did not demonstrate eligibility in the arts or in business. In addition, as 
explained below, the director's analysis regarding deficiencies in the evidence submitted is applicable 
regardless of the field under which the petitioner is considered. Moreover, for the reasons discussed 
below, the director's analysis resulted in the wrong conclusion for only one criterion, the leading or 
critical role criterion set forth at 8 C.F.R. 5 204.5(h)(3)(viii). As the petitioner must meet at least three 
of the ten regulatory criteria, the director's error did not prejudice the petitioner. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) ("On 
appeal from or review of the initial decision, the agency has all the powers which it would have in 
making the initial decision except as it may limit the issues on notice or by rule."); see also Janka v. 
US. Dept. of Transp., NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g., Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). As the AAO is competent to evaluate the evidence under the correct field on appeal, we 
find that the most expedient remedy is to consider the evidence under the correct field on appeal rather 
than remanding the matter to the director for a new decision. For the reasons discussed below, the 
petitioner has not submitted sufficient evidence to meet the regulatory requirements as a music 
manager. 
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. 
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, 60898-9 (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. 8 204.5(h)(2). The specific requirements for supporting documents to establish that 
an alien has sustained national or international acclaim and recognition in his or her field of expertise 
are set forth in the regulation at 8 C.F.R. § 204.5(h)(3). The relevant criteria will be addressed below. 
It should be reiterated, however, that the petitioner must show that he has sustained national or 
international acclaim at the very top level. 
This petition seeks to classifL the petitioner as an alien with extraordinary ability as a music manager. 
The regulation at 8 C.F.R. § 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 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. The petitioner has submitted evidence that, he claims, meets the 
following criteria.' 
Documentation of the alien S receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 
The petitioner submitted a 1997 newsletter for the band Farmer's Daughter indicating that the 
petitioner, the manager of this group, was awarded Manager of Year at the Canadian Country Music 
Awards (CCMA). An undated article in West Coast News also mentions this award but does not 
appear to be contemporaneous news coverage of the award. The petitioner did not submit a copy or 
photograph of the actual award. The petitioner did submit evidence that he was nominated for the same 
1 
 The petitioner does not claim to meet or submit evidence relating to the criteria not discussed in this 
decision. 
Page 4 
award in 2003.2005 and 2006. The petitioner also received a ulaaue in 2007 fiom Midas Records in 
recognition of'a number one single from the band he manage;, 
 The petitioner also 
submitted evidence of CCMA and Juno awards won by groups managed by the petitioner. 
The director acknowledged the 1997 award but concluded that it was not evidence of sustained acclaim 
ten years later in 2007 when the petition was filed. On appeal, counsel asserts that the petitioner and 
the bands he represents have won "several lesser nationally or internationally recognized awards." 
The regulation at 8 C.F.R. 5 204.5(h)(4) only allows the submission of comparable evidence where the 
criteria at 8 C.F.R. 5 204.5(h)(3) are not readily applicable. The record demonstrates that there are 
awards in the petitioner's occupation. Thus, we will not accept comparable evidence to meet this 
criterion. As such, according to the plain language of the regulation at 8 C.F.R. 5 204.5(h)(3)(i), the 
petitioner must demonstrate his receipt of qualifying awards or prizes; awards won by groups managed 
by the petitioner that he did not personally receive will not be considered. 
Recognition from a record label for managing a group whose song reached number one is not a 
nationally recognized award or prize. We will consider this recognition, however, in considering 
whether the petitioner has performed in a leading or critical role for an organization with a 
distinguished reputation, the criterion set forth at 8 C.F.R. 5 204.5(h)(3)(viii). 
A claim that the petitioner won the 1997 CCMA Manager of the Year award contained in a band's 
newsletter is not primary evidence of an award or prize. As stated above, the petitioner did not submit 
a copy or photograph of the 1997 award. Only where the petitioner demonstrates that primary evidence 
is nonexistent or unavailable may the petitioner submit secondary evidence. 8 C.F.R. 5 103.2(b)(2). 
The record contains no evidence that the petitioner's alleged 1997 CCMA Manager of the Year Award 
is unavailable. 
 Thus, we need not accept secondary evidence of that award. 
 Moreover, a 
contemporaneous listing in an official publication or other major media would carry more evidentiaq 
weight than a band newsletter. 
The remaining "awards" are nominations. The petitioner has not established that the industry awards 
issued by the CCMA are so prestigious that a mere nomination can be considered a nationally or 
internationally recognized award or prize. The regulatory criterion specifically requires the alien's 
receipt of nationally or internationally recognized prizes or awards. 
In light of the above, the petitioner has not established that he meets this criterion. 
Documentation of the alien S membership in associations in the field for which classlJication is 
sought, which require outstanding achievements of their members, as judged by recognized national 
or international experts in their disciplines or fields. 
The petitioner initially submitted evidence that "12 Gauge" is a corporate member of the Canadian 
Country Music Association. The petitioner did not submit evidence of his own personal membership at 
Page 5 
that time. The director noted the lack of evidence of the petitioner's membership in her request for 
additional evidence. In response, the petitioner submitted his personal membership card for his 
"sterling" membership in the association. The petitioner did not submit the requirements for sterling 
membership. Thus, the director concluded that the petitioner had not established that he meets this 
criterion. On appeal, counsel merely reiterates this membership. 
The plain language of the criterion at 8 C.F.R. 5 204.5(h)(3)(ii) requires membership in an association 
that requires outstanding achievements of its members. Thus, the membership requirements of the 
association are an element of this criterion for which the petitioner must submit evidence. Without 
evidence setting forth the sterling membership criteria, such as the official association bylaws, we 
cannot determine whether the association requires outstanding achievements of its sterling members. 
Thus, the petitioner has not submitted the initial required evidence to meet this criterion. 
Published materials about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classzfication is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 
The only published materials submitted that are "about" the petitioner are an article about him in West 
Coast News and an article in a band newsletter. The remaining published materials are about bands the 
petitioner manages. In the request for additional evidence, the director noted that most of the materials 
were about bands the petitioner manages and noted the lack of evidence regarding the circulation of the 
publications. In response, the petitioner failed to submit the requested circulation evidence or other 
evidence that might demonstrate that the publications covering the petitioner are professional or major 
trade publications or other major media. 
The director concluded that the published material submitted was not about the petitioner. On appeal, 
counsel asserts that the petitioner "has published material about his work promoting the bands under his 
tutelage."2 Counsel mischaracterizes the regulation at 8 C.F.R. 5 204.5(h)(3)(iii), which requires 
evidence about the alien relating to his work, and not simply about his work. The petitioner has not 
demonstrated that this criterion is not readily applicable to him. In fact, the record does contain two 
articles about the petitioner. Thus, we will not consider comparable evidence under 8 C.F.R. 
fj 204.5(h)(4). 
Despite the director's specific request, the petitioner has not documented the circulation of West Coast 
News or the band newsletter. The petitioner has also not provided other evidence suggesting that either 
publication constitutes a professional or major trade journal or other major media. The requirement 
that the published materials appear in such publications is explicitly stated in the regulation at 8 C.F.R. 
5 204.5(h)(3)(iii). Moreover, the regulation also provides that the petitioner must provide the date of 
any published material, but the material about the petitioner in the record is undated. Thus, the 
petitioner has not provided the required initial evidence to meet this criterion. 
Counsel's use of the word "tutelage" is not consistent with the role of a band manager, who, rather than 
providing music coaching or instruction, handles the business issues that arise with the band. 
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 alliedfield of speciJication for which classiJication is sought. 
Initially, counsel asserted that the petitioner meets this criterion because the petitioner is "fkequently 
asked for his expertise is [sic] judging talent as well as market trends." Counsel further asserted that the 
petitioner judges the talent of prospective clients. 
The director concluded that the petitioner had not established that the petitioner's activity as a judge 
had earned him any acclaim and that it was expected for a musician to judge the talent of less 
experienced musicians. On appeal, counsel notes that the petitioner is a business manager, not a 
musician. 
We concur with counsel that the director appears to have erred in considering this criterion as if the 
petitioner were a musician. Nevertheless, this error did not prejudice the petitioner. Considering the 
evidence properly, it does not reflect that the petitioner has judged others "in the same or an allied 
field." Rather, the petitioner, a business manager, judged the work of musicians and, according to 
counsel, "market trends," which do not represent the work of others. 
Even if we considered musicians to be in an allied field to business management, the inherent business 
management duties involved in informally reviewing musicians seeking the petitioner's representation 
are not indicative of or consistent with national or international acclaim. 
In light of the above, the petitioner has not established that he meets this criterion through selection to 
perform in an official judging capacity of others in the business management field or an allied field. 
Evidence of the alien% original scientiJic, scholarly, artistic, athletic, or business-related 
contributions of major signiJicance in the field. 
Initially counsel asserted that the petitioner "has served a unique role for the music industry through his 
efforts to develop a new generation of Country artists." Counsel credited the petitioner with country 
music's success in Canada. The petitioner submitted letters fkom members of the music industry 
praising the petitioner's skills and professionalism as a music manager, crediting him with helping the 
bands he represents succeed in a competitive industry. None of the letters identify specific original 
contributions or explain how the petitioner has influenced the field of music management. 
The director concluded that the petitioner had not demonstrated that he meets this criterion. On appeal, 
counsel asserts that the letters serve as "comparable evidence" under 8 C.F.R. tj 204.5(h)(4). The 
regulation at 8 C.F.R. tj 204.5(h)(4) permits the submission of comparable evidence where the 
regulatory criteria are not "readily applicable" to the petitioner's field. Counsel has not demonstrated 
that the regulatory criteria are not "readily applicable" to the petitioner's field. It remains that the 
record lacks evidence that the petitioner has made original business-related contributions of major 
significance to the music management field. 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished reputation. 
As noted by counsel on appeal, the director erred in considering the evidence under this criterion as if 
the petitioner were a musician rather than a music manager. The record reflects that the petitioner is a 
music manager for award-winning music groups and that his role had garnered hm nominations for 
Manager of the Year and mentions in the media. Thus, we are satisfied that the petitioner meets this 
criterion. The director's error, however, did not prejudice the petitioner as the petitioner has still not 
demonstrated that he meets at least three of the regulatory criteria. 
Evidence that the alien has commanded a high salary or other signijcantly high remuneration for 
services, in relation to others in the field. 
Initially, the petitioner submitted a letter from 
 the petitioner's certified public accountant, 
asserting that his company's gross earning were $227,046 in 2004 and $162,301 in 2005. In response 
to the director's request for additional evidence, the petitioner submitted the petitioner's 2006 Form I- 
140 attachment Schedule C reporting the income of his company, Big Ride Management, LLC. The 
Schedule C reflects gross income of $135,707. The gross income of the business, however, does not 
reflect the petitioner's personal remuneration. For example, Part 11, line 11 reflects $58,920 paid in 
contract labor. Thus, these funds constitute someone else's remuneration. 
As noted by counsel, the director erred in stating that the evidence submitted under this criterion was 
not evidence of the petitioner's significantly high remuneration as a musician. The director did state, 
however, that the evidence was also insufficient to demonstrate extraordinary ability as a music 
manager. 
Significantly, the record lacks evidence that the petitioner's actual remuneration is significantly high "in 
relation to others in the field" as required under 8 C.F.R. 5 204.5(h)(3)(ix). According to the plain 
language of this regulation, the petitioner must provide evidence of the high end remuneration in the 
occupation nationally for comparison purposes. The record contains no such evidence. Thus, the 
petitioner has not provided the initial required evidence to meet this criterion. 
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. 
Review of the record, however, does not establish that the petitioner has distinguished himself as a 
music manager to such an extent that he may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of his field. The evidence 
indicates that the petitioner shows talent as a music manager, but is not persuasive that the petitioner's 
achievements set him significantly above almost all others in his field. Therefore, the petitioner has not 
established 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. Accordingly, the appeal 
will be dismissed. 
ORDER: The appeal is dismissed.