sustained EB-1A Case: Music

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US. Citizenship 
and Immigration 
Services 
DATE: 
MAY 1 2 2011 
Office: NEBRASKA SERVICE CENTER FILE: 
IN RE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)( I )(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1 )(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 concerning your case must be made to that office. 
Thank you, 
j 1(" ;Old "I In~;{' I,/I/{ ~ : ... :t"._-' 
( Perry Rhew 
',,\ Chief, Administrative Appeals Office 
www.uscis.go\, 
Page 2 
DISCUSSION: The employment-based immigrant visa petitIon was denied by the Director, 
Nebraska Service Center. The petitioner appealed the decision to the Administrative Appeals 
Office (AAO). The AAO dismissed the petitioner's appeal. The matter is now before the AAO on 
motion to reconsider. The motion will be granted, the previous decision of the AAO will be 
withdrawn, and the petition will be approved. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, pursuant to 
section 203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § I I 53(b)(l)(A). 
The director determined that the petitioner had not established the requisite extraordinary ability 
through extensive documentation and sustained national or international acclaim. 
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 alicn's achievements. See section 203(b)(I )(A)(i) of the 
Act and 8 C.F.R. § 204.S(h)(3). The implementing regulation at 8 C.F.R. § 204.S(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.S(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. 
For the reasons discussed below, the AAO finds that the petitioner meets the statutory and 
regulatory requirements for classification as an alien of extraordinary ability. 
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 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. 
-Page 3 
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 10 I 51 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. Jd and 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) requires that an alien demonstrate his or her sustained 
acclaim and the recognition of his or her achievements in the field. Such acclaim and achievements 
must be established either through evidence of a one-time achievement (that is, a major, 
international recognized award) or through meeting at least three of the following ten categories of 
evidence: 
(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 
Page 4 
(x) Evidence of commercial successes in the performing arts, as shown by box office 
receipts or record, cassette, compact disk, or video sales. 
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. l With respect to the criteria 
at 8 C.F.R. § 204.5(h)(3)(iv) and (vi), the court concluded that while uscrs may have raised 
legitimate concerns about the significance of the evidence submitted to meet those two criteria, 
those concerns should have been raised in a subsequent "final merits determination." ld. at 1121-
22. 
The court stated that the AAO'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 satisty the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. § 204.5(h)(3»). The court also explained the "final merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USClS determines whether the 
evidence demonstrates both 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," 
8 C.F.R. § 204.5(h)(2), and "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)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary 
ability" visa. 8 U.S.c. § I I53(b)(1 )(A)(i). 
Jd. at 1119-20. 
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. 
II. Analysis 
A. Evidentiary Criteria 
This petition, filed on March 16. 2007, seeks to classify the petItIOner as an alien with 
extraordinary ability as a musician. Upon review of the petitioner's supplemental brief, the 
evidence submitted on motion, and the other documentation of record, the AAO finds that the 
petitioner's evidence meets the categories of evidence at 8 C.F.R. §§ 204.5(h)(3)(i), (iii), (iv), and 
I Specifically, the court stated that the AAO had unilaterally imposed novel substantive or evidentiary requirements 
beyond those sct forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
-Page 5 
(vii). Accordingly, petitioner meets at least three of the ten categories of evidence that must be 
satisfied to establish the minimum eligibility requirements necessary to qualify as an alien of 
extraordinary ability. 8 C.F.R. § 204.5(h)(3). 
B. Final Merits Determination 
In accordance with the Kazarian opmlOn, the AAO must next conduct a final merits 
determination that considers all of the evidence in the context of whether or not the petitioner has 
demonstrated: (l) 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," 8 C.F.R. § 204.5(h)(2); 
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." See section 203(b)(I)(A)(i) of the 
Act. 8 U.S.C. § 1153(b)(I)(A)(i), and 8 C.F.R. § 204.5(h)(3). See also Kazarian, 596 F.3d at 
1119-20. 
In the present matter, the petitioner has submitted extensive documentation of his achievements 
as a musician. The submitted evidence is suflicient to demonstrate the petitioner's sustained 
national acclaim as a musician and that his achievements have been recognized in his field of 
expertise. Moreover, the submitted documentation shows that the petitioner is among that small 
percentage who have risen to the very top of the field of endeavor. 
Ill. Conclusion 
In review, while not all of the petitioner's evidence carries the weight imputed to it by counsel, 
the petitioner has submitted evidence qualifying under at least three of the ten categories of 
evidence and established 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 "sustained national or 
international acclaim." His achievements have been recognized in his field of expertise. The 
petitioner has established that he seeks to continue working in the same field in the United 
States. The petitioner has established that his entry into the United States will substantially 
benefit prospectively the United States. Therefore. the petitioner has established eligibility for 
the benefit sought under section 203 of the Act. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.c. § 1361. The petitioner has sustained that burden. 
ORDER: The motion is granted, the previous decision of the AAO is withdrawn, and the 
petition is approved.