remanded EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 12336835 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 1, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a pianist and music educator , 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 Texas Service Center denied the petition, concluding that the record did not 
establish , as required , that the Petitioner meets the initial evidence requirements for this classification . 
The Director further found that the Petitioner did not establish that her entry will substantially benefit 
the United States. Finally , the Director entered a separate finding that the Petitioner had willfully 
misrepresented material facts in support of her petition . 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U .S.C. § 1361. Upon de nova review , we will withdraw the Director 's 
decision and remand the matter for further consideration and 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 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). 
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 is a pianist and music educator who is currently pursuing her doctorate degree in music 
atl !University. Because the Petitioner has not indicated or established that she has received a 
major, internationally recognized award, she must satisfy at least three of the ten alternate regulatory 
criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). The Petitioner claimed to meet seven of these criteria, relating 
to awards, membership in professional associations, published materials about her, judging the work 
of others, original contributions of major significance, authorship of scholarly articles, and leading or 
critical roles. See 8 C.F.R. § 204.5(h)(3)(i)-(vi) and (viii). The Director determined that she did not 
satisfy any of the regulatory criteria and farther entered a finding that she had willfully misrepresented 
material facts related to her achievements. 
For the reasons discussed below, we conclude that the Director did not give sufficient consideration 
to the Petitioner's response to his notice of intent to deny (NOID) and as a result did not adequately 
support his finding ofwillfol misrepresentation. An officer must folly explain the reasons for denying 
a visa petition in order 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 of M­
P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must folly explain the reasons for denying a 
motion to allow the respondent a meaningful opportunity to challenge the determination on appeal). 
Accordingly, we will withdraw the Director's decision and remand the matter for farther consideration 
and entry of a new decision. 
Prior to the denial, the Director issued a NOID in which he observed that "it appears that the petitioner 
misrepresented her accomplishments." First, he stated that "a [Google] search of the petitioner's 
claimed work, . .__ ___________ ___, reveals that it was written byl I" and 
determined that the Petitioner had "willfully made a false representation" by claiming that she 
developed and created this series of books. The Director farther observed that "the petitioner 
submitted numerous letters of recommendation to establish her eligibility," and, in reference to these 
2 
letters, noted that "it appears that the petitioner has provided evidence that has been fabricated which 
is also material to whether the petitioner is eligible for the requested benefit." The Director's 
determination that the letters appear to be fabricated was based on an observation that "the submitted 
letters appear to be identical in format and do not contain the date they were authored." The Director 
did not indicate that USCIS had attempted to verify the authenticity of any of the submitted letters by 
contacting the authors or had otherwise confirmed that they were fabricated. 
In response to the NOID, the Petitioner submitted a statement and additional evidence intended to 
rebut the Director's intent to enter a finding of willful misrepresentation of a material fact. 1 She 
specifically addresses the Director's assertion that the three-book series titled! I 
I I was authored byl land not by the Petitioner. She notes that~I ---~-
has a rhythm teaching method brand (including a website and a series of books and videos called 
I ~TM that has existed for years. Her response provides images o .__ ___ ___. 
book, which, as noted, has a similar, but not identical title. The Petitioner emphasizes that it is a 
different series of books that do not resemble her books, which she states were published in China in 
I I 20192 and have yet to be widely publicized. The Petitioner also explains in some detail 
how she developed the rhythm method described inl I 
The Director concluded that the Petitioner had not successfully rebutted his initial finding thatD 
was authored byl I The Director acknowledged that the ~-----------~ Petitioner provided a statement in response to the NOID. However, the Director stated that "the 
assertions of the petitioner do not constitute evidence," and appears to have given no consideration to 
her statement, relying on Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) and Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980), caselaw that addresses the evidentiary value of 
unsupported assertions from counsel, rather than petitioners. With respect to the Petitioner's 
statement, we note that the Board of Immigration Appeals (the Board) has held that testimony should 
not be disregarded simply because it is "self-serving." See Matter of S-A-, 22 I&N Dec. 1328, 1332 
(BIA 2000). However, the Board farther stated: "We not only encourage but require the introduction 
of corroborative testimonial and documentary evidence, where available." Id.; see also, Matter of Y­
B-, 21 I&N Dec. 1136 (BIA 1998) (noting that there is a greater need for corroborative evidence when 
the testimony lacks specificity, detail, or credibility). 
Here, the denial decision does not reflect that the Director weighed the Petitioner's statement for 
specificity or credibility, or considered it in the context of other evidence in the record, which includes 
copies of the front and back covers, table of contents, and several pages of the~-------~ 
I I books along with a letter from the publisher identified on the book covers and at least one 
published article that includes images of the book. Rather, the Director disregarded the Petitioner's 
statement and concluded that she had misrepresented a material fact by claiming she had writtenD 
1 With respect to her eligibility for the requested classification, the Petitioner stated the following in her letter in response 
to the NOTO: "I have received your notice based on the reason I am not extraordinary enough; I accept this result and I 
will keep study and do more contributions in both music education and piano pedagogy field." On appeal, the Petitioner 
requests review of the previously submitted documentation submitted in support of several of the evidentiary criteria at 8 
C.F.R. § 204.5{,___h.._..){ ....... 3)...._{i ..... )-{..._x..._). ______ ...., 
2 A letter from[ : I Publishing House indicates that the books were published onl~--~ 
q 2019, less than two weeks prior to the filing of the petition. 
3 
,....l ___ ..----------~I while repeating that it "appears" that this book was authored by D 
I 
The Petitioner's response to the NOID also addressed the Director's preliminary finding that the 
recommendation letters submitted in support of the petition appeared to be fabricated. In her response, 
the Petitioner explained that she sought to obtain new letters to confirm the authenticity of those 
previously provided. She attached ten new letters in which the authors confirmed that they had 
previously provided letters in support of her petition. The new letters are dated, signed, on letterhead, 
and include the phone numbers and/or e-mail addresses for the authors. The Director did not 
acknowledge receipt of these new letters and does not appear to have considered them. Rather, he 
repeated that the numerous letters of recommendation appear to be "evidence that has been fabricated." 
For the reasons discussed, we conclude that the Director's final decision did not adequately consider 
the Petitioner's response to the NOID, and as a result, did not sufficiently explain the reasons for denial 
as required by 8 C.F.R. § 103.3(a)(l)(i). The Director's decision is withdrawn and the matter will be 
remanded for farther consideration, which may include issuance of a new notice of intent to deny if 
the new decision will include a finding of willful misrepresentation of a material fact. 
We farther observe that the Director's decision was lacking a detailed analysis of the evidence 
submitted in support of certain evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). In evaluating the 
scholarly articles criterion at 8 C.F.R. § 204.5(h)(3)(vi), the Director determined that the Petitioner 
submitted "her published books," stated that "these works would not be considered scholarly or 
professional," and noted that "a search of the submitted book '~-----~ [sic] yielded no 
results." The Petitioner's evidence included two articles authored by her: one published in Journal of 
Hubei University for Nationalities 3 and one published in Tempo, the official magazine of the New 
Jersey Music Educators Association. While we agree with the Director that the submitted piano music 
book and music education books for children that the Petitioner submitted under this criterion are not 
"scholarly articles," the Director's decision does not reflect that he considered the submitted journal 
or magazine articles in evaluating this criterion. 
With respect to many of the remaining evidentiary criteria, the Director's analysis was based, in large 
part, on a blanket determination that the Petitioner submitted letters of recommendation that he 
believed to be fabricated or otherwise unreliable or inconsistent. However, as noted, the Director did 
not consider the supplemental letters submitted in response to the NOID. As the matter will be 
remanded, the Director should reevaluate the letters submitted in support of individual evidentiary 
criteria along with the Petitioner's NOID response. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
3 The International Standard Serial Number (ISSN) referenced by the Director in his deci,ion appears on the coyer of this 
journal. A search of the number at portal.issn.org reflects that the number corresponds to I 
the Chinese title printed on this journal's cover. 
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