sustained EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 9732760 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 10, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a musician and music producer, 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 record did not 
establish that the Petitioner has received a major, internationally recognized award or that he meets at 
least three of the ten alternate evidentiary criteria for this classification . 
On appeal, the Petitioner contends that he meets four of the evidentiary criteria and otherwise qualifies 
for the benefit sought. 
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 sustain the appeal. 
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 sustained 
acclaim and the 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 
categories 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). This two-step analysis is consistent with our holding that the "truth is to be 
determined not by the quantity of evidence alone but by its quality," as well as the principle that we 
examine "each piece of evidence for relevance, probative value, and credibility, both individually and 
within the context of the totality of the evidence, to determine whether the fact to be proven is probably 
true." Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
II. ANALYSIS 
The Petitioner is a musician, music producer and former record company executive who intends to 
continue working as a producer, recording artist, and touring musician in the United States. 
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). In denying the petition, the Director found that the Petitioner claimed, 
but did not meet, the criteria for awards, published material, judging, display in artistic showcases or 
exhibitions, and leading or critical role under 8 C.F.R. § 204.5(h)(3)(i), (iii), (iv), (vii), and (viii), 
respectively. 1 
On appeal, the Petitioner asserts that he meets up to four criteria and that he qualifies as an individual 
of extraordinary ability. We have reviewed all the evidence in the record of proceedings, and we find 
that the Petitioner has sufficiently demonstrated that he meets at least three criteria. 
In determining that the Petitioner did not satisfy the published materials criterion at 8 C.F.R. § 
204.5(h)(3)(viii), the Director generally stated that the Petitioner submitted: "internet ads" and 
"material posted in web portals or other social media," and "a multitude of online articles," that are 
1 We note that the Petitioner did not claim to meet the criterion related to receipt of lesser nationally or internationally 
recognized awards or prizes at 8 C.F.R. § 204.5(h)(3)(i). 
2 
considered "posting not published material." Out of the dozens of media articles submitted, the 
Director specifically referenced only four of them, two of which were not submitted under this 
criterion. While not every submitted article meets this criterion, the record contains articles about the 
Petitioner and relating to his work which were published by major newspapers including The New 
York Times and Los Angeles Times and industry publications such as Billboard and Rolling Stone. 
With respect to the judging criterion at 8 C.F.R. § 204.5}h)(3)(iv), the Director acknowledged that the 
Petitioner submitted evidence related to thd.__ ___ __, short film competition, but found insufficient 
documentation to establish that he actually participated as a judge in the event, that he judged the work 
of others in his field, or that his judging activities were at a level "consistent with sustained national 
or international acclaim." However, the evidence submitted clearly establishes the Petitioner's 
~ipation on a three-person panel of jurors in the 1 I' category at the 2008 I I 
L_J festival. This evidence confirms that the jurors were responsible for selecting a category winner, 
and that short films submitted in the.__ ____ __,' category are music videos and therefore within 
the Petitioner's field of expertise. The Petitioner does not need to establish that his judging activities 
are a level "consistent with national or international acclaim" in order to satisfy the plain language of 
this criterion. 
The Director determined that the Petitioner did not meet the criterion relating to the display of his 
work at artistic exhibitions or showcases at 8 C.F.R. § 204.5(h)(3)(vi) based on a finding that the 
criterion is intended for visual artists, not performing artists. We disagree with the Director's 
interpretation that the plain language of the regulation renders this criterion applicable only to visual 
artists. The regulation requires only that the work displayed be a given petitioner's own work product 
and that the venues at which the individual's work was displayed be artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 2 As certain exhibitions or showcases featuring performing artists meet 
the plain language of this regulation, the Director should not have summarily disregarded the 
Petitioner's evidence. Here, for example, the Petitioner provided evidence that he and his bands have 
performed for audiences at many music festivals. Accordingly, we conclude that the submitted 
evidence satisfies the plain language of this criterion. 
As the Petitioner meets at least three of the ten criteria listed at 8 C.F.R. § 204.5(h)(3), he has satisfied 
the initial evidentiary requirements for this classification. We will evaluate the totality of the evidence, 
including the documentation relating to the other criterion he has claimed, in the context of the final 
merits determination below. 
B. Final Merits Determination 
In a final merits determination, we evaluate whether the Petitioner has demonstrated, by a 
preponderance of the evidence, that he has sustained national or international acclaim and that his 
achievements have been recognized in the field through extensive documentation, making him one of 
the small percentage who have risen to the very top of the field of endeavor. See section 
2 See also USCTS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Ce1iain Form T-140 
Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADI 1-14 13 (Dec. 22, 2010), 
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/i-140-evidence-pm-6002-005- l .pdf. (stating that 
officers should use the common dictionary definitions of ·'exhibition" and "showcase" in evaluating this criterion). 
3 
203(b)(l)(A)(i) of the Act; 8 C.F.R. § 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-20.3 
When considered in the aggregate with the evidence discussed below, the Petitioner has demonstrated 
that his achievements are reflective of a "career of acclaimed work in the field" as contemplated by 
Congress. H.R. Rep. No. 101-723, 59 (Sept. 19, 1990). 
The record reflects that the Petitioner began his career in the music industry as a teenager, when he 
worked as a radii disc jockey before joining! I as a radio promoter right after leaving 
high school. At he advanced to the positions of label manager, o:euera) manager and head of 
artists and repertoire (A&R) and later, from 2008 until 2011, served asl ~s chairman. A 
2006 profile of the Petitioner published by the Los Angeles Times noted that, "[the Petitioner] at 30, is 
the first of his generation in Mexico to assume control of a major record label" and "part of a small 
but growing group of people who are coming into power in Mexico with new ways to look at the 
market and the music." The article goes on to note that "[ d]uring his tenure, the label leaped from 
fifth to second place in the market" in large part due to the success of artists that the Petitioner signed 
and helped to develop. The Petitioner also provided evidence that Billboard magazine, a major trade 
publication in the music industry, consistently reported on his career atl I 
He achieved an early milestone in his career when he served as the musical coordinator forl.__ __ ~ 
I Is award-winning film The Petitioner's work on this ro·ect earned him 
a Grammy award nomination for 
at the~---~ Grammy Awards in 2002. '--------------
While he was still working as an executive atD the Petitioner also began recording and performing 
under the pseudonym .__ _________ _.in 2005. This Mexican music 
industry" is discussed in the above-referenced Los Angeles Times art;::;i.::.cl!..::e:.....!:::=========::z=.... 
and in a 2009 rofile ublished by The New York Times..,__ __________ __. 
'--------~------~--· The latter article, which previewed the Petitioner's 
~rmance at the Music & Arts Festival, notes that he remained the chairman of 
l_Jwhile carving out with "a "quirky but .-----'========================----____._---"----, 
infectious blend of.__ _______ ~-----------~-------------' 
sounds." The article identifies.__.,----,--..,.........as "one of America's premier music events, drawing around 
150,000 people," and mentions that it is known for "packing its lineups with a few historic reunions" 
and "buzzy bands I 1-" 
As.__ __________ the Petitioner has released five albums between 2006 and 2017, and 
the record reflects that he has consistently received significant media coverage and critical acclaim. 
In its review of the Petitioner's second album, I I the BBC noted that he was "already receiving 
acclaim on the other side of the Atlantic, with the New York Times and Rolling Stone Mexico both 
recognjzjlg the importance of this album I I' In addition to 
I ~ the Petitioner has toured extensively in Nr a:d Smub Ajerica performinfi at acclaimed 
festivals and venues such asl 11 I~--~~-----~ andl _Folk Festival, 
and has received similar critical acclaim for his live performances from the Los Angeles Times and 
3 See also USCIS Policy Memorandum PM 602-0005.1, supra at 4 (stating that USCIS officers should then evaluate the 
evidence together when considering the petition in its entirety to determine if the petitioner has established by a 
preponderance of the evidence the required high level of expertise of the immigrant classification). 
4 
other ma·or market media. He was also invited to create official remixes for artists such as B 
,----,.....-,.... ___ ......,...__,_,_.c..,anLJ had his songs featured in advertising campaigns for major brands 
.___----.-_...__......,_""'in~m=,any acclaimed television shows and films includin HBO's.--1 -===.I 
Showtime's,___--.----r---'ABC's I I and New Line Cinemas' and video 
games (EA Sports series and Rockstar Games .__ ______ ___. 
For I !which the record reflects is among the best-selling video games of all time, 
he was one of 15 artists invited to curate and host an in-game radio station. In 2013, Rolling Stone 
published an interview with the ame's soundtrack su ervisor, who ex lains that the ame sou ht to 
~the 
L__J He mentions that the Petitioner, based on his work a"L_ ______ ,-----,,-----1was chosen 
to curate the Latin station! l which includes the Petitioner's song ~-..... " Other station 
hosts included well known musicians, actors, and DJs. 
More recentll the Pritioner was hired byl ] to serve as the musical consultant for its 
201 7 release which has earned box office receipts of over $800 million. The Petitioner 
submitted articles from Rolling Stone Mexico and other sources which report on his addition to0' s 
musical staff for the film, noting that he was brought on "to capture the authentic flavor of Mexico's 
music." Several other articles mention the importance of music in the film and the Petitioner's 
involvement in achieving the desired authrtic reresentation of Mexican music. The record reflects 
that thel I song is on I I official soundtrack and an animated 
version of the Petitioner appears in the movie in the scene that features his song. 
In addition to his success and high-profile projects a...----,_ _____ __J the Petitioner has 
received international recognition for his 2016 albu a collaborative project with fellow 
Mexican musician and produce~ ~, and · , which he founded in 2015, 
collaborating withl I o~ I and.__ _____ _. The record reflects that the 
recording of I I which took place in seven cities with many prominent guest artists, was 
featured in Los Angeles Times, the Chicago Tribune, Rolling Stone, Billboard and many Mexican 
Ii ions and was the subject of al I documentary series. An article about 
L__,--___._-=f-=-ea=t=u""-re=-,d_ on the website of artist ri hts or anization BMI (bmi.com) refers to the Petitioner 
and as ' " notin that the 1 I 
.__ ________ _.' The Petitioner'..__ __ ___.tour played at th""L_ __ ...r- usic Festival and in 
international locations in 2015. 
In addition,! ~ album, I [ was featured as the number two album on Rolling 
Stone's "10 Best I I of 2016" and the record reflects that the Petitioner garnered 
international media recognition and critical praise for both the album and the band's tours of the United 
States, the United Kingdom and Australia. An exclusive premiere of a video for th~ !single 
ublished b U.K. news a er The Guardian (theguardian.com) refers to the 
band as L--,r-------,f-----1 1--------------'' and Billboard published an article 
..__ ___ __.;::.s-=2:....:0:....:1:....:5-====.' tour and featured an exclusive premiere of its album. Additional 
interviews and press for I • I's album and live performances appeared in the Los Angeles Times, 
Rolling Stone, NPR Music, The Sydney Morning Herald, The Economist, The Village Voice, the New 
Yorker, and Univision. 
5 
In 2019, the Petitioner roduced the album I I for Grammy-winning Mexican American artist 
I I and for Latin 
1
rammy
1
winning bandl I whose tracks 
include collaborations wit ~---~and Both albums were featured in articles by Rolling 
Stone and NPR which mention the Petitioner's production role and his other projects. The Petitioner 
has also detailed his upcoming plans to perform in a traveling music show based onl Ito curate 
and provide music for the Netflix serie~ I to record a new.__ _________ _.album 
and tour the United States, and to produce and remix music for other acclaimed artists. 
Based on the evidence of the Petitioner's achievements and earned recognition discussed above, the 
Petitioner has demonstrated his extraordinary ability as a musician and producer and established that 
he is regarded as having a "career of acclaimed work in the field." See H. Rep. No. 101-723, at 59 
(Sept. 19, 1990). The totality of the evidence establishes that he possesses a level of expertise that is 
consistent with a finding that he is one of a small percentage at the very top of the field of endeavor 
and that he has documented sustained acclaim. See section 203(b)(l)(A) of the Act; 8 C.F.R. 
§ 204.5(h)(2), (3); Kazarian, 596 F.3d at 1119-20. 
III. CONCLUSION 
The Petitioner has established that he meets at least three of the evidentiary criteria listed at 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). He has also demonstrated sustained national and international acclaim and that 
his achievements have been recognized through extensive documentation. Lastly, the Petitioner has 
shown that he intends to continue working in his area of expertise and that he will substantially benefit 
prospectively the United States. He therefore qualifies for classification as an individual of 
extraordinary ability. 
ORDER: The appeal is sustained. 
6