dismissed EB-1A Case: Music Production

U.S. Citizenship 
and Immigration 
Services 
In Re: 19 819190 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 23, 2023 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a recording engineer and producer , seeks classification as an individual of 
extraordinary ability . See Immigration and Nationality Act (the Act) section 203(b )(1 )(A), 8 U.S.C. 
§ 1153(b )(1 )(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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria, as required. 
The matter is now before us on appeal. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
MatterofChawathe , 25 I&N Dec. 369 , 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christo 's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
Section 203(b)(l)(A) of the Act makes immigrant visas available to individuals with 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. These individuals must seek to enter the United States to continue work in 
the area of extraordinary ability, and their entry into the United States will substantially benefit the 
United States. 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 an individual's achievements in the field through a one­
time achievement in the form of a major , internationally recognized award. Or the petitioner can 
submit evidence that 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 scholarly articles . If those 
standards do not readily apply to the individual's occupation, then the regulation at 8 C.F.R. 
§ 204 .5(h)(4) allows the submission of comparable evidence. 
Once a petitioner has met the initial evidence requirements, the next step is a final merits 
determination, in which we 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 detennination); see also Visinscaia v. Beers, 4 F. Supp. 3d 
126, 131-32 (D.D.C. 2013); Rijalv. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner began working in Brazil as a producer, musician, and engineer in the early 1990s. He 
stated that his "extensive work portfolio includes production and recording credits of hit albums for some 
of the most important artists in a variety of genres." The Petitioner has been in the United States since 
2016 in 0-1 nonimmigrant status. 1 
Because the Petitioner has not indicated or shown that he received a major, internationally recognized 
award, he must satisfy at least three of the alternate regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)­
(x). Prior to the denial of the petition, the Petitioner claimed to have satisfied seven of these criteria, 
summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iii), Published material about the individual in professional or major media; 
• (v), Original contributions of major significance; 
• (vii), Display at artistic exhibitions or showcases; 
• (viii), Leading or critical role for distinguished organizations or establishments; and 
• (x), Commercial success in the perfonning arts. 
The Director concluded that the Petitioner had met only one criterion, pertaining to prizes or awards. 
On appeal, the Petitioner asserts that he also meets the criteria relating to membership in associations; 
published material; artistic display; and leading or critical roles. The Petitioner does not address or 
dispute the Director's conclusions regarding commercial success and original contributions, and 
therefore we consider those claims to be abandoned. 2 
We conclude that submitted articles from O Globo and Audio Musica & Tecnologia appear to meet 
the requirements of 8 C.F.R. § 204.5(h)(3)(iii) regarding published material about the individual in 
1 0-1 non immigrant status relates to extraordinary ability. Futihermore, in June 2021, while the present appeal was 
pending, the Petitioner filed a secondimmigrantpetitionon his own behalf, with receipt number I again 
seeking classification as an individual of extraordinary ability. The Director approved that petition in November 2022. 
Nevertheless, the records ofproceedingfortheapproved petitions are not before us, and therefore we cannot compare the 
records to determine whether the approved petitions involved different facts, or were approved in error. 
2 See Matter of R-A-M-, 25 T&N Dec. 657, 658 n.2 (BIA 2012)(stating that when a filing party fails to appeal an issue 
addressed in an adverse decision, that issue is waived). See also 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); Hristov v. Roark, No. 09-­
CV-2 7312011, 2011WL4711885 at* 1, *9 (E.D.N.Y. Sept. 30, 2011) (holding that a plaintiff's claims were abandoned 
as he failed to raise them on appeal to the Administrative Appeals Office). 
2 
professional or major trade publications or other major media. We will discuss the other claimed 
criteria below. 
Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
The Petitioner claimed that he "has either obtained or been nominated for at least two ... Latin Grammys." 
The Director concluded that the Petitioner had satisfied the requirements of this criterion, but the record 
does not support this conclusion. 
A petitioner must establish that the individual personally received the prize or award. See generally 
6 USCIS Policy Manual F.2 appendix, https://www.uscis.gov/policy-manual. 
Translated certificates from the Latin Academy of Recording Arts and Sciences (Latin Recording 
Academy) do not indicate that the Petitioner personally received or was nominated for a Latin Grammy. 
Rather, he received the certificates "in recognition of [his] participation as Mastering Engineer" on an 
album that won the Latin Grammy for Best Album, and on another album nominated for 
the same award. The Petitioner's involvement in award-winning or nominated projects might be a factor 
to consider in a final merits determination, but the submitted certificates are not prizes or awards in their 
own right, and they are not evidence that the Petitioner won a Latin Grammy as claimed. 
The Petitioner has not documented his receipt of any nationally or internationally recognized prizes or 
awards. 
Documentation of the alien's membership in associations in the field for which 
classffication is sought, which require outstanding achievements of their members, as 
judged by recognized national or international expe11s in their disciplines or fields. 
8 C.F.R. § 204.5(h)(3)(ii). 
The Petitioner is a voting member of the Latin Recording Academy and the Recording Academy, which 
awards the Grammys. The record shows that voting membership in both Academies requires a specified 
minimum number ofrecent commercial releases, either physical or digital. 
The Director concluded that the Academies require members to be active participants in the recording 
industry, but do not require outstanding achievements of their members. 
The Petitioner asserts, on appeal, that a productive recording career is inherently an outstanding 
achievement, but the Petitioner cites no evidence or source for this assertion. 
Also, the Petitioner has not shown that recognized national or international experts are responsible for 
judging applications for membership in either Academy. The record shows that eligibility is a matter of 
releasing a certain number of recordings within a specified period of time, without regard to the 
commercial performance or artistic merit of those recordings. The record does not show that recognized 
national or international experts are responsible for counting each applicant's recordings to determine 
eligibility. 
3 
The Petitioner has not established that his Academy memberships require outstanding achievements, as 
judged by recognized national or international experts. 
Evidence of the display of the alien's work in thefield at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
The Petitioner did not initially claim to have satisfies this criterion, but in response to a request for 
evidence, the Petitioner stated that his "work has been displayed at the 16th Annual Latin Grammys, an 
artistic exhibition or showcase." 
As discussed above, the Petitionerwas credited as a mastering engineer on two albums that received Latin 
Grammy awards or nominations. The Petitioner has not established that an awards ceremony is an artistic 
exhibition or showcase that displays, rather than recognizes, the nominated works. Even then, the 
Petitioner has not submitted any evidence to show that his work as a maste1ing engineer was displayed at 
the award ceremony. In this regard, it bears repeating that the Petitioner has not shown that he personally 
won or was nominated for a Latin Grammy. 
The Petitioner has not shown that his work was displayed at artistic exhibitions or showcases. 
In light of the above conclusions, the Petitioner does not meet the initial evidentiary requirement of 
three criteria under 8 C.F.R. § 204.5(h)(3). Detailed discussion of the remaining claimed criterion at 
8 C.F.R. § 204.5(h)(3)(viii), relating to a leading or critical role for organizations with a distinguished 
reputation, cannot change the outcome of this appeal. Therefore, we reserve this issue. See INS v. 
Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally 
required to make findings and decisions unnecessary to the results they reach); see also Matter of 
L-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where 
an individual is otherwise ineligible). 
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 lesser 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 conclusion 
that the Petitioner has established the acclaim and recognition required for the classification sought. 
The Petitioner seeks a highly restrictive visa classification, intended for individuals already at the top 
of their respective fields, rather than for individuals progressing toward the top. U.S. Citizenship and 
Immigration Services has long held that even athletes performing at the major league level do not 
automatically meet the "extraordinary ability" standard. Matter of Price, 20 I&N Dec. 953, 954 
(Assoc. Comm'r 1994 ). Here, the Petitioner has not shown a level of recognition of his work that 
indicates sustained national or international acclaim or demonstrates 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 )(1 )(A) of the Act. Moreover, the record does not otherwise demonstrate that the Petitioner is 
one of the small percentage who has risen to the very top of the field of endeavor. See section 
203(b )(1 )(A) of the Act and 8 C.F.R. § 204.5(h)(2). The Petitioner has had a successful career working 
4 
with a number of well-known artists on major record labels, but the record before us does not show 
that his work with these figures has earned him sustained national or international acclaim in his own 
right. The Petitioner has submitted letters from current or fonner executives of major recording 
companies, attesting to the Petitioner's involvement in successful projects, but the record provides 
little objective basis for comparing the Petitioner's achievements and recognition with those of other 
engineers and producers. 
The Petitioner has not demonstrated eligibility as an individual of extraordinary ability. We will 
therefore dismiss the appeal. 
ORDER: The appeal is dismissed. 
5