dismissed EB-1A Case: Violinist

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DATE: APR_ 1 9 2013 Office: TEXAS SERVICE CENTER 
. INRE: Petitioner: 
Beneficiary: 
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 in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concernitig your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information 
that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion; with a fee of $630. The 
specific requirements for filing such a motion 
1
Can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware t4at 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg . 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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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 the arts, sp~cifically as a 
. violinist, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(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. 
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.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 categories of specific objective evidence. 8 C.F.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 along with additional evidence. Counsel asserts that ·the petitioner 
met at least three of the ten regulatory criteria and established that she has risen to the very top of her 
field. Counsel maintains that the petitioner met the criterion relating to published materials and the 
criterion for leading or critical role for organizations with a distinguished reputation, in addition to the 
two regulatory criteria that the director found she met in the denial decision. A review of all the 
evidence of record indicates that the petitioner did not establish her eligibility for the benefit 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 al}en 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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I 
(iii) the alien) entry into- the Unite<l 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. 723 101 st 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 a¢hievement (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)-(J!:). 
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 Jvi), the court concluded that while USCIS_ may have raised legitimate concerns 
about the significance of the evidence submitted to meet those two criteria, thoseconcerns should have 
been raised in a subsequent "final merits determination." jd. at 1121-22. 
The court stated that the A.AO'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. 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 
regulatory requiremen~ of three types of evidence. /d. 
1 Speciflcally, 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). 
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II. ANALYSIS 
A. Evidentiary Criteria2 
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. 8 C.F.R. § 204.5(h)(3)(ii). 
. . . 
The petitioner initially submitted evidence relating to this criterion. The director, after reviewing the 
evidence,. concluded that the petitioner failed· to satisfy the regulatory requirements and the petitioner 
does not· identify any factual or legal error in this conclusion on appeal. Consequently, the AA.o 
concludes that the petitioner abandoned this claim. See 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-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). 
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. 8 C.F.R. 
§ 204.5(h)(3)(iii). 
This criterion contains three evidentiary requirements the petitioner must satisfy. First, the published 
material must primarily be about the petitioner and the contents must relate to the petitioner's work in 
the field under which she seeks classification as an .immigrant. The published material must also appear 
in professional or major trade publications or other major media (in the plural). Professional or major 
trade publications are intended for experts in the field or in the industry. To qualify as major media, the 
publication should have significant national or ·.international distribution and be published in a 
predominant national language. . The final requirement is that the petitioner provide each published 
item's title, date, and author and if the published item is in a foreign language, the petitioner must 
provide a translation that complies with the requirements found at 8 C.F.R. § 103.2(b)(3). The 
petitioner must submit evidence satisfying all of these elements to meet the plain language requirements 
of this criterion. 
Th(! petitioner irutially submitted multiple articles along with certified translations from the following 
publications: , 
====--' 
and The petitioner submitted 
multiple articles published in', and 
respectively. The director determined 
that the petitioner failed to satisfy the 
requirements under this criterion because she did not submit evidence to indicate that the submitted 
articles were published in professional or trade publications or other major media. 
2 The petitioner does not claim to meet or submit evidence relating to the regulatory categories of eviden<(e 
not discussed in this decision.· l 
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On appeal the petitioner provided previously submitted articles, along with new articles, including one 
from Critically, the petitioner also submits on appeal letters from the Presidents of 
. . _ and , _ and a letter from the Chief Editor of 
These letters provide circulation numbers for the above mention~ publications and other 
information indicating that the publications are professional or major trade publications. The articles 
the petitioner submitted under this evidentiary criterion feature tile petitioner and her work as a violinist. 
Consequently, the AAO withdraws the director's determination with regard to this criterion and 
conClude~ that the petitioner satisfied the plain language requirements of8 C.F.R. § 204.5(h)(3)(iii). 
. . 
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. 8 C.F .R. 
§ 294.5(h)(3)(iv). 
The director determined that the petitioner satisfied the regulatory requirements for· this criterion and the 
AAO affirms the director's decision in this regard. 
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). 
Although the director determined that the petitioner met this criterion, the interpretation that 8 C~F.R. 
.§ 204.S(h)(3)(vii) is limited to the visual ~s is longstanding and has been upheld by a federal district_ 
court. See Negro-Plumpe, 2:07-CV-820-ECR-RJJ at *7 (upholding an interpretation that performances 
· by a pelforming artist do not fall under 8 C.F.R. § 204.5(h)(3)(vii)). As the petitioner is not a visual 
artist and has not created tangible pieces of art that were on display at exhibitions or showcases, and is 
instead a performing artist, specifically a violinist, 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). · 
Accordingly, the AAO withdraws the director's determination in this regard and instead concludes 
that the petitioner has failed to satisfy the requirements of this criterion. 
Evidence that the alien has performed in a leading or · critical role for organizations or 
e~tablishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
This criterion anticipates that a leading role should be apparent by its position in the overall 
organizational hierarchy and that it be accompanied by the role's matching duties. A critical role 
should be apparent from the petitioner's impact on the organization or the establishment's activities. 
· The petitioner's performance in this role should establish whether the role was critical for 
organizations or establishments as a whole. The petitioner must demonstrate that the organizations 
or establishment~ (in the plural) have a distinguished reputation. While neither the regulation nor 
precedent speak to what constitutes a distinguished reputation, Merriam-Webster's online dictionary 
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defines distinguished as, "marked by eminence, distinction, or excellence." 3 Dictionaries are not of 
themselves evidence, but they may be referred to as aids to the memory and understanding of the 
court. Nix v. Hedden, 149 U.S. 304, 306 (1893).-. Therefore, it is the petitiorter's burden to 
demonstrate· that ·the organizations or establishments claimed under this criterion are marked by 
eminence, distinction,. excellence, or a similar reputation. The petitioner must submit evidence 
satisfying all of these elements to meet the plain language requirements of this criterion. 
r . ' 
The p~titioner initially submitted ,articles about _ ) a string quartet she founded, in support 
of this criterion. The petitioner also claimed that she met this criterion by playing solo performances 
in numerous philharmonics, orchestras, and symphonies and submitted evidence of solo 
performances with various orchestras. The director found that the petitioner failed to satisfy this 
criterion. . The director noted that the petitioner failed to demonstrate that the petitioner's 
membership in _ was leading or critical to the group's success or receipt of awards. On 
appeal, counsel claims that the petitioner met this criterion based on her role in _ solo 
concerts at and soloist performance with various symphony orchestras and 
philharmonics. 
The record establishes that the petitioner is the founder of and plays the role of the lead 
violinist within the group~ As founder and lead violinist of the quartet, the petitioner serves in a 
leading or critical role for the group. The record also indicates that _ is one of the leading 
string quartets in and that the group has won numerous 'awards and received national 
recognition. Consequently, the petitioner has demonstrated that she has served in a leading or 
critical role for an organization with a distinguished reputation. · 
Nonetheless, the petitioner in this instance fails· to satisfY all the elements of the plain language 
requirements. The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(viii) requires evidence of 
"organizations" and "establishments" in the plural, which is consistent with the statutory requirement 
for extensive evidence. Section 203(b )(1 )(A)(i) of the Act. Significantly, not all of the criteria at 8 
C.F.R. § 204.5(h)(3) are worded in the plural. Specifically, the regulations at 8 C.F.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.F.R. § 204.5(k)(3)(ii)(B) that evidence of experience must be in the form of "letter(s)." 
Thus, the AAO can infer 
that the plural in the remaining regulatory criteria has meaning. in a different 
context, federal courts have upheld USC IS' ability to interpret significance from whether the singular or 
plural is used in a regulation.4 
Counsel maintains on appeal that the solo concerts at demonstrate her leading or 
3 See http://www.merriam-webster.com/dictionary/distinguished, accessed on February 4, 2013. 
4 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.F.R. § 204.5(1)(2) 
requires a single degree rather than a combination of acadeniic credentials). 
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critical .role. However, there is no evidence to support the finding that her solo performances were 
critical to the success of the The evidence shows that the petitioner performed as a 
soloist at that venue on multiple occasions, but there is nothing in the record to suggest that the 
. petitioner's performances, either individually or collectively, impacted the succ~ss of the 
as a performance venue. ·similarly, while the petitioner's participation as a soloist with various 
symphony orchestras and philharmonics likely made an impact on individual concerts or performances, 
the evidence does not indicate that the petitioner's individual performances impacted the success of the 
symphonies or philharmonics at the organizational level. Furthermore, the petitioner did not submit 
evidence establishing that either the or the various· orchestras or symphonies are 
organizations or establishments that' enjoy distinguished reputations. Therefore, the petitioner has 
established that she served in a leading or critical role for only one organization with a distinguished 
reputation. · · 
Accordingly, the petitioner has failed to satisfy this criterion. 
Evidence of commercial successes in the performing 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 initially submitted evidence of recordings along with the Form 1-140 petition but failed to 
make any claims or submitted documentation regarding the commercial successes of the recordings. 
The petitioner did not raise any legal or factual challenges regarding this criterion on appeal and the 
AAO concludes that to whatever extent that the petitioner ever raised a claim· relating to this criterion, it 
has been abandoned. See Sepulveda, 401 F.3d at 1228 n. 2; Hristov, 2011 WL 4711885 at *9 . 
. B. Summary 
The petitioner has. failed to submit sufficient relevant, probative evidence to satisfy the regulatory 
requirement of three types of evidence. 
III. 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 
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the field or sustained national or international acclaim, the AAO need not explain that conclusion in a 
final' merits determinat1on.5 .Rather, the proper conclusion is that the petitioner has failed to satisfy the 
regiliatory requirement of three types of evidence. ld: 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 burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. Acoordingly, the appeal will 
be dismissed. · 
' 
ORDER: The appeal is dismissed. 
~ The AAO ma~tains de novo review of all questions of fact and law. See Soltane v. DOJ, 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. § 1.03.1(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).