dismissed EB-1A Case: Percussionist

U.S. Citizenship 
and Immigration 
Services 
In Re: 12331969 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 28, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a percussionist , seeks classification as an alien of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A) , 8 U.S .C. § l 153(b)(l)(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. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S .C. § 1361. Upon de nova review, we will dismiss the appeal. 
I. LAW 
Section 203(b )(1 )(A) of the Act makes immigrant visas available to aliens with extraordinary ability 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. 
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 his or her achievements in the field through a one-time achievement (that 
is, a major, internationally recognized award). If that petitioner does not submit this evidence, then 
he or she must provide sufficient qualifying documentation 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). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit 
comparable material ifhe or she is able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)­
(x) do not readily apply to the individual's occupation. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and 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 determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
II. ANALYSIS 
The record indicates that the Petitioner has accompanied Venezuelan artists such a~ 11 
an~ I in the recording studio and in live performances, some of them televise~d_---~ 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that he has 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). The Petitioner claims to have met five criteria, and to have submitted 
comparable evidence relating to a sixth, summarized below: 
• (i), Lesser nationally or internationally recognized prizes or awards; 
• (ii), Membership in associations that require outstanding achievements; 
• (iii), Published material about the alien in professional or major media; 
• (iv), Participation as a judge of the work of others; 
• (vii), Display at artistic exhibitions or showcases; and 
• (x), Commercial success in the performing arts. 
The Director concluded that the Petitioner met the first evidentiary criterion, relating to prizes or 
awards. On appeal, the Petitioner asserts that he also meets the other claimed criteria. 
We have reviewed all of the evidence in the record, and conclude, for the reasons discussed below, 
that it does not show that the Petitioner satisfies the requirements of at least three criteria. 
2 
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 record contains evidence regarding various awards and nominations. The Director granted this 
criterion without specifying which award or awards were found to meet the requirements. Upon review 
of the record, we disagree with the Director's conclusion that the Petitioner has satisfied this criterion. 
The Petitioner performed on three albums ( one b~ I two byl h that were nominated for 
Latin Grammy Awards in various "best album" categories. (The Petitioner does not claim that the 
nominated albums won the awards.) Translated certificates from the Latin Academy of Recording Arts 
and Sciences (LARAS) show the Petitioner's name "in recognition of his participation" on the recordings, 
but do not indicate that the Petitioner himself was actually nominated for the awards. Album credits and 
letters in the record indicate that the Petitioner was a guest musician who played on one song on each of 
the nominated albums. Acknowledgment of participation as a guest on a nominated album is not a prize 
or award. 
The Petitioner is the named winner of an award from the Mara de Oro de Venezuela Foundation. The 
president of that organization states that award winners are chosen "according to the results of surveys 
conducted" among "the people o±i lin Venezuela. A printout from the foundation's website 
indicates that the award was created "in order to highlight the best of the best of the city I I 
These statements indicate a local-level award. 
The Petitioner submits information about the "Mara International Prize," which does not appear to be the 
same as the Mara de Oro prize. Information about the Mara International Prize identifies its founder as 
Maria Laya. The founder of the Mara de Oro de Venezuela Foundation was Guillermo Sanchez Garcia. 
Furthermore, the record provides different years for the founding of the two organizations. The submitted 
evidence, therefore, appears to relate to two different organizations and two different prizes. 
The Petitioner has not established that the award from the Mara de Oro Foundation is nationally or 
internationally recognized. 
The Petitioner submits information about thel !orchid Festival, and a photograph of the 
Petitioner holding a photograph of a trophy. An anonymous, handwritten annotation on the photograph 
indicates that the Petitioner "won the highest prize of the event," but the accompanying documentation 
does not corroborate this claim. The submitted photograph is not sufficient evidence that the Petitioner 
won the award. 
The musical dutj I presented the Petitioner with an "award of recognition ... for 5 years 
of outstanding work as a part of this great musical family." The record indicates thatl lare 
a successful musical act, but it does not follow that awards which they present to their supporting 
musicians are nationally or internationally recognized. 
Documentation of the alien 's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, as 
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judged by recognized national or international experts in their disciplines or fields. 
8 C.F.R. § 204.5(h)(3)(ii) 
The Petitioner has signed endorsement deals with manufacturers of musical instruments and related 
supplies. The Petitioner contends that these arrangements amount to "endorsement associations where 
top musicians are selected for membership." The Petitioner, however, has not shown that the participants 
constitute "associations in the field," or that recognized national or international experts are responsible 
for selecting endorsers. The endorsement is, instead, a business transaction in which a musician agrees 
to use and promote a company's products in exchange for consideration from that company. An official 
of one of the manufacturers refers to the arrangement not as an association, but as a "sponsorship 
program." The record also refers to the endorsement deals as "commercial contracts." 
We agree with the Director that an endorsement contract is not membership in an association. 
Regarding his voting membership in LARAS, the Petitioner states that applicants must "meet stringent 
requirements," but the LARAS bylaws, in the record, state only that "Each Voting Member ... must be 
an active participant in the Latin recording industry." Active participation in the industry is not 
intrinsically an outstanding achievement, and the bylaws do not indicate that recognized national or 
international experts judge the achievements of applicants for membership. 
The Petitioner has not established that voting membership in LARAS requires outstanding achievements 
as judged by recognized national or international experts. 
Evidence of the display of the alien's work in the.field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii) 
Citing the "comparable evidence" provision at 8 C.F.R. § 204.5(h)(4), the Petitioner documents several 
concert and television performances byl I and asserts that his "headlining of world tours 
in front of millions of audience members is comparable to a traditional artist's display of their work at a 
gallery or museum." It can be debated whether the chief purpose of these performances was for 
entertainment rather than artistic, but that discussion is unnecessary because of a more fundamental issue. 
Notwithstanding his use of the term "headlining," the Petitioner was not the featured performer; he was 
one of several musicians providing instrumental support fo~ I Audiences would have seen 
and heard his performances, along with the other musicians, but they would have also seen the work of 
the costume designers, lighting designers, carpenters, and the manufacturers of the instruments, 
microphones, and loudspeakers. But all of these contributions, both musical and non-musical, were in 
service and support of the performances by the artists named on the tickets and promotional materials. 
The Petitioner's presence onstage as a supporting musician during performances byl land 
other headlining artists does not amount to display of the Petitioner's work, or comparable evidence 
thereof 
4 
Evidence of commercial successes in the peiforming arts, as shown by box office receipts 
or record, cassette, compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x) 
The Petitioner is credited as a session musician on recordings by several Venezuelan recording artists. 
The Petitioner submits chart data showing that these recordings sold well, but the recordings were not 
sold under his name. The submitted credits show that many other musicians likewise participated in the 
recording sessions, sometimes ten or more on a given track. We note that chart data forl I 
includes a recording credited to j I The Petitioner's name is not 
highlighted or featured in this way. 
The Petitioner has performed, as a guest musician, on commercially successful recordings, but he has not 
established that he has achieved commercial success as a result. The Petitioner contends that his 
performances contributed to the success of the recordings and concerts, stating, for instance, that his 
"performance od I ultimately led the song to sell over 120,000 records" and reach the top 
of a Venezuelan record chart. The burden is on the Petitioner to show that he has achieved commercial 
success as a performing artist, which is not the same as performing on other artists' commercially 
successful recordings. In letters in the record, the recording artists themselves contend that the 
Petitioner's performances are responsible for the records' success, but the record does not support these 
statements. The record does not show, for instance, that the artists' recordings with the Petitioner 
consistently outsold their other recordings. 
The Petitioner claims to have met six of the regulatory criteria at 8 C.F.R. § 204.5(h)(3). Because he 
did not meet the above four, detailed discussion of the two remaining criteria cannot change the 
outcome of this appeal. Therefore, we reserve the remaining issues relating to published material 
under 8 C.F.R. § 204.5(h)(3)(iii) and participation as a judge under 8 C.F.R. § 204.5(h)(3)(iv). 1 
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 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 or who have worked 
with individuals at the top. Here, while the Petitioner has worked with acclaimed artists, he has not 
shown that he himself has earned the required sustained national or international acclaim or established 
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 
1 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 l&N Dec. 516, 526 
n. 7 (BIA 2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
5 
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)(l)(A) of the Act and 8 C.F.R. § 204.5(h)(2). 
For the reasons discussed above, the Petitioner has not demonstrated his eligibility as an individual of 
extraordinary ability. The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
G