remanded EB-1A Case: Singer

U.S. Citizenship Non-Precedent Decision of the
and Immigration Administrative Appeals Office 
Services 
In Re: 23034491 Date : MAY 22, 2023 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a singer, seeks classification under the first-preference, immigrant visa category as a 
noncitizen 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 category requires a noncitizen to demonstrate sustained 
national or international acclaim and to provide extensive documentation of their recognized 
achievements in the claimed field of extraordinary ability . Id. 
After initially granting the Petitioner's filing, the Director of the Texas Service Center revoked the 
petition's approval. The Director concluded that, contrary to the Act, the Petitioner did not 
demonstrate that he: seeks to continue working in the United States as a singer; and has extraordinary 
ability in the field. On appeal, the Petitioner contends that the Director: lacked "good and sufficient 
cause" to revoke the petition's approval; impermissibly relied on evidence of events that occurred after 
the petition's approval; and "arbitrarily and capriciously" sought revocation about four years after the 
petition's approval. 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter ofHo, 19 l&N Dec. 582, 589 (BIA 1988) (citation omitted). 
Exercising de novo appellate review , see Matter of Christo 's, Inc., 26 I&N Dec . 537, 537 n.2 (AAO 
2015), we conclude that the Director erred in finding insufficient evidence of the Petitioner's intent to 
continue his U.S. singing career and did not adequately explain his finding regarding the Petitioner's 
claimed extraordinary ability. We will therefore withdraw the Director's decision and remand the 
matter for entry of a new decision consistent with the following analysis. 
I. LAW 
To qualify for the requested immigrant visa category , a petitioner must demonstrate that: 
• They have "extraordinary ability in the sciences , arts, education, business , or athletics;" 
• They seek to continue work in their field of extraordinary ability in the United States; and 
• Their work would substantially benefit the country . 
Section 203(b)(l)(A)(i)-(iii) of the Act. 
The term "extraordinary ability" means a level of expertise commensurate with "one of that small 
percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). Evidence 
of extraordinary ability must demonstrate a noncitizen's receipt of either "a major, international 
recognized award" or satisfaction of at least three of ten lesser evidentiary standards. 8 C.F.R. 
§ 204.5(h)(3). If a petitioner meets either of these requirements, U.S. Citizenship and Immigration 
Services (USCIS) determines whether the record establishes sustained national or international 
acclaim and achievements demonstrating a noncitizen's ranking among the small percentage at the 
very top of their field. See Kazarian v. USCIS, 596F.3d1115, 1119-20 (9th Cir. 2010) (requiring a 
two-part analysis of extraordinary ability). 
II. ANALYSIS 
The record shows that the Petitioner, a native and citizen of Uzbekistan, began to receive acclaim as a 
singer in 2004 when, at age 13, he won a Ukrainian singing competition. He won another singing 
contest in Russia in 2005 and released his first album in 2007 and his first music video in 2011. The 
following year, he finished as a finalist in a televised European songwriting competition and, in 2015, 
won a talent show on Russian TV. The Petitioner boasts a 3.5-octave vocal range and describes his 
singing style as "pop opera." 
The Petitioner stated that a U.S. entertainment agent contacted him, telling him that he could make 
him a star in this country. With the agent's support, the Petitioner came to the United States in 2016 
on a nonimmigrant work visa as a noncitizen of extraordinary ability. See section 101(a)(l5)(O) of 
the Act, 8 U.S.C. § 1101(a)(15)(O). He filed this immigrant visa petition in October 2017, and, by the 
end of that month, users approved it. But, in October 2021, after a users officer interviewed the 
Petitioner regarding his application for adjustment of status, the Director mailed the Petitioner a notice 
of intent to revoke (NOIR) the filing's grant. 
A. TheNOIR 
"[A ]t any time" before a petitioner obtains lawful permanent residence, USCIS may revoke a petition's 
approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. If supported by a 
record, a petition's erroneous approval justifies its revocation. Matter ofHo, 19 I&N Dec. at 590. 
Unless circumstances automatically revoke a petition's approval under 8 C.F.R. § 205.l(a)(3)(iii), 
users must notify a petitioner of intended revocation grounds and afford them a reasonable 
opportunity to respond with rebuttal evidence or argument. 8 C.F.R. § 205.2(b). USCIS properly 
issues a NOIR if the unrebutted and unexplained record at the time of the NOIR's issuance would have 
warranted the petition's denial. Matter ofEs time, 19 I&N Dec. 450, 451 (BIA 1987). The Agency 
may revoke a petition's approval if a petitioner's NOIR response does not overcome the stated 
revocation grounds. Id. at 451-52 
The Director based the Petitioner's NOIR on the following "issues:" 
• In December 2019, the Petitioner's agent told users that the Petitioner terminated their 
business agreement in early 2018, shortly after the Petitioner "failed" an audition for a singing 
competition on U.S. television. 
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• A successful U.S . music producer who invited the Petitioner to his studio told USCIS that he 
decided not to record or produce the Petitioner. He purportedly stated that he did not believe 
the Petitioner's "sound" matched the type of music he produces and that the Petitioner "might 
not be right for the U.S. market. " 
• The Petitioner auditioned for the U.S. TV singing competition in 2018 , and all three judges 
voted "No." 
• At the Petitioner's adjustment interview in September 2020 , he told the USCIS officer that: 
his agreement with his agent ended in November 2017; he had not yet hired another agent; he 
last performed at a private function about nine months earlier; and he had worked as a food 
deliverer. 
In the NOIR , the Director found that the Petitioner meets at least three of the 10 preliminary , regulatory 
requirements for extraordinary ability . See 8 C.F .R. § 204 .5(h)(3) . But the NOIR asserts that the 
evidentiary issues discussed above do not demonstrate his intent to continue working in the United 
States as a singer or his claimed extraordinary ability in the field. 
B. The Timing of the Revocation 
The Petitioner contends that USCIS' revocation of his petition more than four years after its approval 
is "arbitrary and capricious ." He cites the following legal authority: 
[E]very tribunal , judicial or administrative, has some power to correct its own errors or 
otherwise to modify its judgment, decree , or error. In the administrative context , this 
right is generally limited to "a short period after the making of the decision and before 
an appeal has been taken or other rights vested." 
Gorbach v. Reno, 219 F.3d 1087, 1102 (9th Cir. 2000) (en bane) (Thomas , J., concurring) (citations 
omitted) . " What is a short and reasonable period will vary with each case , but , absent unusual 
circumstances , the time period would be measured in weeks , not years ." Caba Distrib . Co. v. Brady, 
821 F. Supp. 601 , 613 , (N.D. Cal. 1992) (citation omitted). 
The Petitioner also notes that a U.S. district court applied this reasoning , in part , in a case involving a 
petition like his : an immigrant visa petition for a noncitizen of extraordinary ability. Doe I v. US. 
Dep 't ofHomeland Sec. , No . 20-cv-07517-BLF , 2021 WL 3402311 (N.D. Cal. Aug. 4, 2021). In Doe 
I , USCIS revoked the petition's approval more than three years after its grant. Id. , 2021 WL 3402311 
at *1. The court ordered the Department of Homeland Security to complete the proceeding's 
administrative record, finding that "it is reasonable, and non-speculative , for Plaintiffs to believe that 
there are documents in the record that shed light on why Defendants reversed their three-year-old 
decision on Doe 1's 1-140 Petition." Id. at *3. 
As the record indicates the Petitioner 's residence in New York , the Ninth Circuit cases that he cites do 
not bind us in this matter. Also, in another case, the Ninth Circuit suggested that section 205 of the 
Act does not limit the time within which USCIS may revoke a petition's approval. "The statute permits 
revocation 'at any time,' so there plainly was no time constraint on when the agency could revoke the 
approval." Herrera v. USCIS, 571 F.3d 881 , 886 (9th Cir. 2009) (affirming revocation of an immigrant 
visa petition more than two years after its approval) . 
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Like the Ninth Circuit, the U.S. Circuit Court of Appeals for the Second Circuit, which has jurisdiction 
over New York, has ruled that a federal agency generally can reconsider a decision "only if it does so 
within a reasonable time period." Dun & Bradstreet Corp. Found. v. US. Postal Serv., 946 F.2d 189, 
193 (2d Cir. 1991) ( citation omitted) ( considering a dispute over a request for a postage refund). But 
we found no cases of revocations under section 205 of the Act, like the Petitioner's case, where the 
Second Circuit followed that reasoning. See Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015) 
(reviewing the revocation of an immigrant visa petition that occurred about six years after the filing's 
grant). 
Thus, in the absence of controlling case law, we interpret the plain language of section 205 of the Act 
to allow USCIS to revoke an immigrant visa petition's approval "at any time" before a beneficiary 
obtains lawful permanent residence. The Petitioner's contrary argument is unavailing. 
C. Intent to Continue Working in the United States 
The evidentiary issues cited in the Director's NOIR do not support the finding that the Petitioner no 
longer intends to continue his U.S. singing career. 
In determining what is "good and sufficient cause" for the issuance of a notice of 
intention to revoke, we ask whether the evidence of record at the time the notice was 
issued, if unexplained and unrebutted, would have warranted a denial based on the 
petitioner's failure to meet his or her burden of proof 
Matter ofEstime, 19 I&N Dec. at 451. 
As the Petitioner argues, the Director did not consider the Petitioner's work as a food deliverer in the 
proper context. The Petitioner's statement at the 2020 adjustment interview suggests that he worked 
as food deliverer that year, the first year of the COVID-19 pandemic when few live-music 
performances occurred in the United States. See, e.g., August Brown, "The year the music died," Los 
Angeles Times, Dec. 11, 2020, www.latimes.com/entertainment-arts/music/story/2020-12-l l/music­
covid-pandemic-nightclubs-2020 ( estimating that the COVID pandemic cost the U.S. music industry 
$9 billion in 2020). Thus, under the unusual circumstances of a pandemic, the Petitioner's nine-month 
period without a performance and employment as a food deliverer in 2020 does not sufficiently 
indicate a lack of intent to continue his U.S. singing career after pandemic restrictions. Moreover, a 
beneficiary need not begin working pursuant to their approved immigrant visa petition until they 
obtain lawful permanent residence. Matter ofRajah, 25 I&N Dec. 127, 132-33 (BIA 2009) (citations 
omitted). 
Also, evidence of a noncitizen's intent to work in the United States in their field of extraordinary 
ability may include "a statement from the beneficiary detailing plans on how he or she intends to 
continue his or her work in the United States." 8 C.F.R. § 204.5(h)(5). Although disregarded by the 
Director, the Petitioner provided a November 2020 letter detailing his intent to continue working as a 
singer in the United States. The letter states that he terminated his former agent because the agent 
tried to make him sign what the Petitioner believes was an unfair contract that would have required 
him to work with the agent for nine years. He said his termination of their representation agreement 
angered the agent, who reportedly yelled at him: "Without me, you are nobody, and you will be nobody 
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here!" The Petitioner said the break with his agent shook his confidence. But he said he eventually 
recovered and "still believes there is great opportunity for [him] in the music business." 
The Director also disregarded other evidence of the Petitioner's intent to continue his U.S singing 
career. The Petitioner submitted a 2022 letter from his former agent, in which the agent conceded that 
he primarily booked the Petitioner for performances in Florida, which was "too small a market for 
him." The agent also stated that the music producer offered the Petitioner a recording deal but that 
the Petitioner - not the producer - declined the deal because he did not like the producer's focus on 
"pop" music. The agent also said that he told a users officer that "musicians like [the Petitioner] are 
only born once in a generation and he can bring an instrumental change to the music industry 
worldwide." He described the Petitioner as "a musician of global standard, he makes people happy, 
and he makes people smile by taking their breath away with his talents." 
Further, the Director did not address: an October 2020 letter from a Russian singer, stating her 
intention to collaborate with the Petitioner on a musical featuring the works of the classical composer 
Rachmaninoff; a November 2020 letter from another U.S. music producer, stating his plans to work 
with the Petitioner on an English-language album for the U.S. market; and an October 2020 contract 
for the Petitioner's performances at a restaurant three days a week over a 12-month 
period. Thus, the Director disregarded evidence that the Petitioner continued seeking to work as a 
singer in the United States. 
For the foregoing reasons, the record does not support the revocation of the petition's approval based 
on insufficient evidence of the Petitioner's intent to continue his U.S. singing career. We will therefore 
withdraw the Director's contrary finding. 
D. Extraordinary Ability 
An NOIR "must include a specific statement not only of the facts underlying the proposed action, but 
also of the supporting evidence." Matter ofEstime, 19 I&N Dec. at 452. users must also provide a 
petitioner with a written decision "that explains the specific reasons for the revocation." 8 e.F.R. 
§ 205 .2( c ). A conclusory statement supports neither a NOIR' s issuance nor revocation of a petition's 
approval. Matter ofArias, 19 I&N Dec. 568, 570 (BIA 1988). 
The Director found that the Petitioner "is not one of that small percentage who have risen to the top 
of the field of endeavor." But the decision does not explain how the evidentiary issues cited in the 
NOIR support that determination. The decision also does not explain why the petition's supporting 
evidence did not demonstrate the Petitioner's extraordinary ability as a singer. 
As the record does not sufficiently explain the Director's finding regarding the Petitioner's claimed 
extraordinary ability, we will remand the matter. On remand, the Director should reconsider the 
Petitioner's qualifications for the requested immigrant visa category. If the Director believes that the 
Petitioner has not established his claimed extraordinary ability, the Director should issue a new NOIR 
explaining the evidentiary deficiency and allowing the Petitioner an opportunity to respond. 
If supported by the record, a new NOIR may include any additional potential revocation grounds. The 
Director, however, must afford the Petitioner a reasonable opportunity to respond to all issues raised 
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on remand. Upon receipt of a timely response, the Director should review the entire record and issue 
a new decision. 
III. CONCLUSION 
The record includes sufficient evidence of the Petitioner's intent to continue his U.S. singing career. 
If the Director believes the Petitioner has not demonstrated extraordinary ability as a singer, the 
Director must notify him, explain why, and afford him an opportunity to respond. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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