EB-1 Extraordinary Ability USCIS Appeal Review -Musician – SEP202022_01B2203

Date of Decision: September 20, 2022
Service Center: Nebraska Service Center
Form Type: Form I-140
Case Type: EB1 Extraordinary Ability

Petitioner Information

Profession: Musician
Field: Music (Singer, Conductor, Composer)
Nationality: [Nationality not specified in the document]

Summary of Decision

Initial Decision: Denied
Appeal Outcome: Remanded

Evidentiary Criteria Analysis

Criteria Met:

1. Published Materials in Major Media: The petitioner met the criterion related to published materials. The Director acknowledged that the petitioner had documented his achievements in professional or trade publications or major media.

Criteria Not Met:

1. Participation as a Judge of the Work of Others: The Director initially determined that the petitioner had not judged “peers” but rather “students, adult amateurs or early career professionals.” This assessment imposed qualitative requirements not present in the regulation.
2. Display of Work in Artistic Exhibitions or Showcases: The Director imposed inappropriate requirements, suggesting music festivals and theatres were not artistic exhibitions designed to showcase a single individual’s work.

Key Points from the Decision

Awards and Prizes Won:

• The petitioner submitted evidence related to twelve awards. However, the Director’s evaluation was limited, addressing only one award and insufficiently supporting the conclusion that none met the regulatory criteria for lesser nationally or internationally recognized awards.

Participation as a Judge:

• The petitioner documented his participation as a judge of the work of others, but the Director’s evaluation was found to be inappropriately restrictive.

Membership in Associations:

• Not discussed in detail in the decision.

Authorship of Scholarly Articles:

• Not discussed in detail in the decision.

Leading or Critical Role Performed:

• Not discussed in detail in the decision.

Artistic Exhibitions or Showcases:

• The petitioner provided evidence of his public performances as a vocalist and conductor. The Director’s evaluation was found to be overly restrictive and not aligned with the plain language of the regulation.

Supporting Documentation

• Awards Documentation: Evidence related to twelve awards, some individual and some for group recognition as a conductor or co-conductor.
• Judging Participation: Documentation of the petitioner’s role in judging the work of others in his field.
• Published Materials: Documentation of the petitioner’s achievements published in major media and trade publications.

Conclusion

Final Determination: The decision of the Director is withdrawn. The case is remanded for a new decision.

Reasoning:

• The Director’s decision did not adequately explain the reasons for denial and applied incorrect standards when evaluating certain criteria.
• The Director imposed qualitative requirements not present in the regulations for some criteria.
• The Director’s evaluation must be based on the evidence submitted rather than assumptions or irrelevant comparisons.

Next Steps:

• The Director is instructed to re-evaluate the evidence submitted in support of the petition to determine whether the petitioner satisfies the plain language of at least three criteria.
• A new decision will be issued based on this re-evaluation.

Download the Full Petition Review Here