remanded EB-1A Case: Music

'dentgfiag data deleted to 
prevent clearly unwarranted 
invrasion of wrsolael privacy 
pmLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
Services 
+: FILE: Office: VERMONT SERVICE CENTER 
EAC03 135 51885 
Date: APR 0 7 ZOO6 
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. 5 1 153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Z/Robep P. Wiemann, Director 
Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant 
visa petition, which is now before the Administrative Appeals Office on appeal. The decision of the 
director will be withdrawn and the petition will be remanded for further action and consideration. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 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. 
On appeal, the petitioner questions whether the initial documentation was considered and resubmits 
much of that documentation. For the reasons discussed below, we find that the director's request for 
additional evidence erroneously implied that the petitioner had to meet specific criteria and the final 
decision contains errors of law and ignores nearly all of the evidence submitted. 
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 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 to the United States will substantially benefit 
prospectively the United States. 
As used in this section, the term "extraordinary ability" means a level of expertise indicating that the 
individual is one of that small percentage who have risen to the very top of the field of endeavor. 
8 C.F.R. 5 204.5(h)(2). The specific requirements for supporting documents to establish that an alien 
has sustained national or international acclaim and recognition in his or her field of expertise are set. 
forth in the regulation at 8 C.F.R. 5 204.5(h)(3). The relevant criteria are listed below. It should be 
reiterated, however, that the petitioner must show that he has sustained national or international acclaim 
at the very top level. 
This petition seeks to classify the petitioner as an alien with extraordinary ability as a musician. The 
regulation at 8 C.F.R. 5 204.5(h)(3) indicates that an alien can establish sustained national or 
Page 3 
international acclaim through evidence of a one-time achievement (that is, a major, international 
recognized award). Barring the alien's receipt of such an award, the regulation outlines ten criteria, at 
least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify 
as an alien of extraordinary ability. The criteria follow. 
(i) Documentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor; 
(ii) 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; 
(iii) 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; 
(iv) 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 specialization for which classification 
is sought; 
(v) Evidence of the alien's original scientific, scholarly, artistic, athletic, or business- 
related contributions of major significance in the field; 
(vi) Evidence of the alien's authorship of scholarly articles in the field, in professional 
or major trade publications or other major media; 
(vii) Evidence of the display of the alien's work in the field at artistic exhibitions or 
showcases; 
(viii) Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation; 
(ix) Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field; or 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
Initially, prior counsel chronicled the petitioner's recording history and asserted that he had "a record of 
critically acclaimed success." Counsel did not address the ten regulatory criteria. The petitioner 
Page 4 
submitted considerable published material about his work, compact discs and recording contracts. The 
petitioner also submitted two reference letters. 
On January 19, 2005, the director issued a request for additional evidence. Specifically, the director 
requested evidence of the petitioner's awards, memberships, published material about the petitioner and 
his remuneration. The director provides no explanation for singling out these four criteria. Nothing in 
the regulation implies that an alien must meet any specific criterion as long as the alien meets at least 
three of the ten criteria. The director also requested expert letters although most of the criteria require 
objective evidence of accomplishments as opposed to the subjective opinions of experts, however 
credible such opinions may be. 
In response, the petitioner submitted additional reference letters and more published materials about the 
petitioner and his work. 
The director lists all ten of the regulatory criteria, but only discusses awards, memberships and 
remuneration. This discussion is especially curious in light of the considerable published materials 
submitted. The director asserted that the petitioner based his eligibility claim on his awards and 
musical career. The petitioner, however, makes no claim to have won any awards. Moreover, the 
director's analysis of this criterion is flawed as he asserts that the petitioner had not demonstrated 
,whether the awards were individual or "as a member." Nothing in the regulation at 8 C.F.R. 
5 204.5(h)(3)(i) precludes team awards. As such, the director's focus on that issue was in error. 
The director also stated that the petitioner had not submitted "objective evidence, such as affidavits 
from well-known U.S. organizations or individuals, to support your claims of prestige and ability." 
Later in the decision, the director asserts that the petitioner submitted mostly letters from friends or 
mentors. While affidavits can serve as valid evidence, they are far more subjective than objective. 
Evidence that addresses the regulatory criteria, such as awards and independent journalistic coverage of 
the alien, is far more persuasive that the subjective opinions of experts in the field. Thus, the 
implication that expert letters are required to establish eligibility is in error. 
The director then discusses the membership criterion at length, concluding that the petitioner had not 
established that he met the criterion set forth at 8 C.F.R. 5 204.5(h)(3)(ii). After that conclusion, the 
director noted that the petitioner's personal statements are not objective. While we concur with these 
statements, the petitioner never claimed to meet this criterion. Finally, as stated above, the director 
noted the lack of evidence regarding significantly high remuneration, another criterion the petitioner 
never claimed to meet, and failed to consider the published materials submitted. 
In light of the above, this matter is remanded to the director in order to issue a new request for 
additional evidence that lists all ten of the regulatory criteria' and makes clear that the petitioner need 
1 A request for additional evidence relating to this classification need not always address all ten criteria. For 
example, if a petitioner has claimed three or more criteria, the request might seek clarification on those 
claimed criteria. As stated above, however, by inquiring into only four criteria, and not the criteria claimed, 
only meet three of the criteria and that there is no requirement that the petitioner meet a specific 
criterion as long as he meets three. .The director should also request an explanation from counsel or the 
petitioner as to which criteria the petitioner claims to meet. 
The director should also request that the petitioner address the following discrepancy. the 
former ~roduction manager for Taiwan Rock Records' Beiiing. Office. asserts that the ~etitioner's U d w 
album, China Fire 11, sold 200,000 copies. a German musician, however, asserts that 
China Fire I1 sold approximately 1,000,000 copies. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile 
such inconsistencies will not suffice unless the petitioner submits competent objective evidence 
pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Moreover, the 
regulation at 8 C.F.R. 5 204.5(h)(3)(x) requires box office receipts or record, cassette, compact disk, or 
video sales as evidence of commercial success. Mere affidavits, as opposed to official documentation 
of sales numbers, are insufficient. 
Finally, the director has never asserted that there are any deficiencies in the considerable published 
materials submitted. The director also appears to have failed to consider whether the petitioner, as the 
songwriter for his own bands, has played a leading or critical role for those band and, if so, whether 
those bands have enjoyed a distinguished reputation nationally or internationally. If the director 
believes the published materials cannot serve to meet the regulatory criterion at 8 C.F.R. 
tj 204.5(h)(3)(iii) or the petitioner's role with his bands cannot serve to meet the regulatory criterion at 
8 C.F.R. 5 204.5(h)(3)(viii), the director should explain his reasoning to the petitioner and afford an 
opportunity to respond. 
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. 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.C. tj 1361. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for 
further action in accordance with the foregoing and entry of a new decision which, if 
adverse to the petitioner, is to be certified to the Administrative Appeals Office for 
review. 
the director created the erroneous impression that those four criteria were more relevant than the other six 
criteria.