remanded EB-1A Case: Audio Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 17678947 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL. 26, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an audio engineer, seeks classification as an individual of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S .C. § 1153(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 Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner meets at least three of the ten initial evidentiary criteria for 
this classification. The matter is now before us on appeal. 
The petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Section 291 of the Act; Matter of Chawathe, 25 I&N Dec . 369, 375 (AAO 2010) . Upon de nova 
review, we will withdraw the Director's decision and remand the matter to the Director for the entry 
of a new decision . 
I. LAW 
Section 203 (b )( 1) of the Act makes visas available to immigrants 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 their achievements in the field through a one-time achievement (that is, a 
major, internationally recognized award). If the petitioner does not submit this evidence, then they 
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 if they are able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not readily 
apply to their 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 Petitioner was employed as North American Technical Sales Lead/Technical Director with 
I lat the time of filing and previously had ten years of progressive work experience with 
I I in Israel, where he was engaged in the development of professional audio products. 
He is also the co-founder o~ I where he serves as the product designer and owner of 
~ product. Previously, he was employed as a product manager forl I 
L_____fand as a freelance sound engineer and audio technology consultant. 
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 Director acknowledged that the Petitioner claimed to meet as many as six of these ten criteria, but 
determined that he satisfied only one criterion, related to his leading or critical roles for organizations 
that have a distinguished reputation, at 8 C.F.R. § 204.5(h)(3)(viii). The record supports the Director's 
determination that the Petitioner has held critical roles withl I and I I and 
establishes that thd I organization has a distinguished reputation in the audio technology 
industry. 
On appeal, the Petitioner maintains that he has made original contributions of major significance in 
his field and that he has displayed his work in artistic exhibitions or showcases, and therefore meets 
at least two additional criteria. See 8 C.F.R. § 204.5(h)(3)(v) and (vii). He also maintains that he has 
a "record of significant commercial/critical success in his field," although he does not directly address 
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the Director's determination regarding the criterion at 8 C.F.R. § 204.5(h)(3)(x), which relates to 
commercial success in the performing arts. The Petitioner further emphasizes that the Director should 
have considered "comparable evidence" of his achievements pursuant to 8 C.F.R. § 204.5(h)(4). 1 
Here, for the reasons discussed below, we conclude that the Director's decision did not adequately 
address all the claimed evidentiary criteria and therefore did not adequately explain the reasons for 
denial of the petition. An officer must fully explain the reasons for denying a visa petition to allow the 
Petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful 
appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) 
(finding that a decision must fully explain the reasons for denying a motion to allow the respondent a 
meaningful opportunity to challenge the determination on appeal). 
A review of the Director's decision reflects that he did not acknowledge the Petitioner's claim that he 
can satisfy the criterion at 8 C.F.R. § 204.5(h)(vii) and did not evaluate evidence submitted in support 
of this criterion. 2 As the Director did not make an initial determination as to whether the Petitioner 
has provided evidence of the display of his work in his field at artistic exhibitions or showcases, we 
will withdraw the decision and remand the matter to the Director for review and entry of a new decision 
that addresses this criterion. 
With regard to the criterion at 8 C.F.R. § 204.5(h)(3)(v), the Petitioner asserts on appeal that the 
Director's decision "summarily dismisses" most of the evidence he submitted, only cursorily 
acknowledges one of several widely used products he has developed, and incorrectly states that all 
letters submitted in support of the petition are from "users" of a service developed by the Petitioner 
"who are not peers in the field." In support of his claim that he has made original contributions of 
major significance in his field, the Petitioner provided evidence related to various commercially and 
critically successful products he developed for three different companies and submitted letters from 
industry experts, product reviews and other media articles, and other evidence related to these products 
and their widespread use in the live music and recording industry. We agree with the Petitioner's 
assertion that the Director either mis characterized or failed to consider much of the evidence submitted 
in support of this criterion. As the Director only briefly referenced letters from "users" in his analysis 
of this criterion, he should re-examine the Petitioner's claims and all evidence submitted in support of 
those claims when evaluating this criterion in a new decision on remand. 
B. Final Merits Determination 
The Director found that the Petitioner did not meet the initial evidence requirements for this 
classification, and thus did not conduct a final merits determination. For the reasons discussed above, 
the Director shall issue a new decision that evaluates the evidence submitted in support of the criteria 
1 The Petitioner does not contest the Director's dete1mination that he did not satisfy the criteria at 8 C.F.R. § 204.5(h)(3)(i), 
(ii), and (iii), which relate to nationally or internationally recognized awards or prizes, memberships in associations that 
require outstanding achievements, and published materials about him in professional or major trade publications or other 
major media. 
2 The Petitioner explicitly claimed that he could satisfy the criterion at 8 C.F.R. § 204.5(h)(3)(vii) in a cover letter submitted 
in response to the Director's request for evidence. On appeal, the Petitioner asserts that the Director erroneously dete1mined 
that he does not meet this criterion, but the Director did not address the display criterion at all in his October 16, 2020 
decision denying the petition. 
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at 8 C.F.R. § 204.5(h)(3)(v) and (vii). The Director should also consider the Petitioner's claims that 
comparable evidence should be considered in this matter, pursuant to 8 C.F.R. § 204.5(h)( 4). If after 
review the Director determines that the Petitioner satisfies at least three criteria, his decision should 
include an analysis of the totality of the record evaluating whether he has demonstrated, by a 
preponderance of the evidence, his sustained national or international acclaim and whether the record 
demonstrates that he is one of the small percentage at the very top of the field of endeavor, and that 
his achievements have been recognized in the field through extensive documentation. See section 
203(b)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2),(3); see also Kazarian, 596 F.3d at 1119-20. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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