dismissed O-1A Case: Education

U.S. Citizenship 
and Immigration 
Services 
In Re: 23925002 
Appeal of Vermont Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 04, 2023 
Form 1-129, Petition for a Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, an education counseling business, seeks to classify the Beneficiary, a school and career 
counselor, as a person of extraordinary ability. To do so, the Petitioner seeks 0-1 nonimmigrant 
classification, available to individuals who can demonstrate their extraordinary ability through 
sustained national or international acclaim and whose achievements have been recognized in the field 
through extensive documentation. See Immigration and Nationality Act (the Act) 
section 101(a)(15)(O)(i), 8 U.S.C. § 1101(a)(15)(O)(i). 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did not 
demonstrate that the Beneficiary satisfied the initial evidentiary criteria applicable to individuals of 
extraordinary ability in education: either receipt of a major, internationally recognized award or at 
least three of eight possible forms of documentation . 8 C.F .R. § 214.2( o )(3)(iii)(A)-(B). The Director 
also determined that the Petitioner did not satisfy the advisory opinion requirement at 8 C.F.R. 
§ 214.2(o)(5)(ii)(A). On appeal, the Petitioner submits additional documentation. It asserts that it 
satisfies the advisory opinion requirement, that the Beneficiary satisfies at least three of the eight 
regulatory categories of evidence at 8 C.F .R. § 214 .2(o)(3)(iii)(B) , and requests that we consider 
comparable evidence under 8 C.F.R. § 214.2(o)(3)(iii)(C). 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter a/Christa's, Inc., 26 I&N Dec . 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
As relevant here, section 10l(a)(15)(O)(i) of the Act establishes 0-1 classification for an individual who 
has extraordinary ability in the sciences, arts, education, business, or athletics that has been demonstrated 
by sustained national or international acclaim, whose achievements have been recognized in the field 
through extensive documentation, and who seeks to enter the United States to continue work in the area 
of extraordinary ability. Department of Homeland Security (DHS) regulations define "extraordinary 
ability in the field of science, education, business , or athletics" as "a level of expertise indicating that the 
person is one of the small percentage who have arisen to the very top of the field of endeavor." 8 C.F.R. 
§ 214.2(o)(3)(ii). 
Next, DHS regulations set forth alternative evidentiary criteria for establishing a beneficiary's 
sustained acclaim and the recognition of achievements. A petitioner may submit evidence either 
of "a major, internationally recognized award, such as a Nobel Prize," or of at least three of eight listed 
categories of documents. 8 C.F .R. § 214.2( o )(3)(iii)(A)-(B). If the petitioner demonstrates that the 
listed criteria do not readily apply to the beneficiary's occupation, it may submit comparable evidence 
to establish eligibility. 8 C.F.R. § 214.2(o)(3)(iii)(C). 
The submission of documents satisfying the initial evidentiary criteria does not, in and of itself, 
establish eligibility for 0-1 classification. See 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994) ("The 
evidence submitted by the petitioner is not the standard for the classification, but merely the 
mechanism to establish whether the standard has been met.") Accordingly, where a petitioner 
provides qualifying evidence satisfying the initial evidentiary criteria, we will determine whether the 
totality of the record and the quality of the evidence shows sustained national or international acclaim 
such that the individual is among the small percentage at the very top of the field of endeavor. See 
section 101(a)(15)(O)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iii). 1 
II. ANALYSIS 
A. Evidentiary Criteria 
Because the Petitioner has not indicated or established that the Beneficiary has received a major, 
internationally recognized award, it must satisfy at least three of the alternate regulatory criteria at 
8 C.F.R. § 214.2(o)(3)(iii)(B)(l)-(8). The Petitioner asserted that the Beneficiary fulfilled seven 
criteria, but the Director determined that the Beneficiary did not meet any of them. The Petitioner 
contends on appeal that the Beneficiary satisfies the criteria at 8 C.F.R. § 214.2(o)(3)(iii)(B)(5), (6), 
and ( 8), and requests that we consider comparable evidence . 2 After reviewing all the submitted 
evidence, the record does not reflect that the Beneficiary meets the requirements of at least three 
criteria. 
Evidence of the alien's original scientific, scholarly, or business-related contributions 
of major significance in the field. 8 C.F.R. § 214.2(o)(3)(iii)(B)(5). 
In order to meet this criterion, the Petitioner must demonstrate that the Beneficiary has not only made 
original scientific, scholarly, or business-related contributions but those contributions have been of 
major significance. 3 For example, a petitioner may show that the beneficiary's contributions have 
been widely implemented throughout the field, have remarkably impacted or influenced the field, or 
1 See also Chawathe, 25 I&N Dec. at 376, in which we held that, "truth is to be determined not by the quantity of evidence 
alone but by its quality." 
2 While the Petitioner previously claimed the Beneficiary's eligibility for nationally or internally recognized awards, 
membership in associations , published material , and employment in a critical or essential capacity under 8 C.F.R 
§ 214.2(o)(3)(iii)(B)(l) , (2), (3), and (7), it does not continue to do so on appeal , nor does the record support a finding that 
she meets them. Accordingly , we will not further address these criteria in our decision. 
3 See also 2 USCIS Policy Manual, M.4(C)(2) , https: //www.uscis.gov /policymanual. 
2 
have otherwise risen to a level of major significance in the field. The Petitioner contends on appeal 
that previously submitted testimonial letters froml ______ and D 
L_Jdemonstrate the Beneficiary's business-related contributions of major significance in the field. 4 
The Director's decision concluded that the Petitioner did not submit any evidence under this criterion 
and did not discuss those letters. 
In an undated letter,I I the director of the Youth Career Connect (YCC) Program at the 
__ Department of Education's Office of Postsecondary Readiness, states that she worked with 
the Beneficiary to plan and co-host many "Kl2" student events, including a talk at the Teen STEAM 
Youth Conference, and describes her as "one of the best multi-cultural cross-discipline educators" 
who possesses "insight of modem technology and media platform[ s]." Although! I praises 
the Beneficiary's contributions to the YCC Program her letter does not show how the Beneficiary's 
knowledge and expertise have significantly influenced the overall field in a major way. 
la business professor at College of Business at University of I I 
asserts that the Beneficiary's "outstanding experience and significant contributions and 
achievements in the field of school and career counseling have established [her as] one of the top 
educator[s] with international acclaim." He cites to her having "mentored hundreds of students to 
apply for the world's top MBA programs and fortune 500 company jobs after MBA," having been "a 
keynotes eaker at for MBA tour in 2018," and having published her 
researc at the 72nd 
___ Communication Association Conference. The record does not contain, however, 
documentation from the Petitioner corroborating those claimed contributions. Nonetheless, the letters 
do not discuss, for instance, the significance of the Beneficiary's published work or conference 
presentations, if the field views them as authoritative, whether they have been extensively referenced 
or cited by others, or other evidence that they were of "major significance." 5 
__ vice chairman of rovides that the Beneficiary was 
a mentor in helping students to prepare for a journalism career at He further 
asserts that her research articles provide "an important hypothesis" for media reform and are 
"perceptive and original." As stated, in order to meet this criterion, the Petitioner must demonstrate 
that the Beneficiary has not only made original scientific, scholarly, or business-related contributions 
but those contributions have been of major significance. Moreover, the above letters do not establish 
that the impact of the Beneficiary's student mentoring is consistent with contributions of major 
significance in the field. For the reasons discussed above, the Petitioner did not establish that the 
Beneficiary satisfies this criterion. 
Evidence that the alien has either commanded a high sala,y or will command a high 
sala,y or other remuneration for services, evidenced by contracts or other reliable 
evidence. 8 C.F.R. § 214.2(o)(3)(iii)(B)(8). 
4 Although we discuss only the letters the Petitioner refers to on appeal, we have reviewed and considered each one. 
5 See 2 USCIS Policy Manual, supra, at M.4(C)(2) (providing that submitted letters should specifically describe the 
beneficiary's contribution and its significance to the field). 
3 
If the petitioner is claiming to meet this criterion, then the burden is on the petitioner to provide 
appropriate evidence establishing that the beneficiary's compensation is high relative to others 
working in similar occupations in the field. 6 At initial filing, the Petitioner indicated in a summary of 
the terms its oral agreement with the Beneficiary and on Form I-129, Part 5 that it would pay her an 
annual salary of $60,000. The Petitioner also submitted annual wage data for "School and Career 
Counselors" showing they earned a median wage of $56,310 in May 2018. Within its response to the 
Director's request for evidence (RFE), the Petitioner provided a letter stating that "after working for 
our company for six months she will be interviewed for a promotion" and "she may be subjected to a 
promotion." The Director concluded that based on the evidence provided by the Petitioner, the 
Beneficiary will earn the average salary compared to other school and career counselors, and the 
evidence regarding "additional compensation appears to be conditional and speculative." 
On appeal, the Petitioner does not contest the Director's specific findings for this criterion. Instead, 
the Petitioner offers a letter that states that the Beneficiary "was qualified and approved for a raise of 
annual salary to $72,000, effective as of January 1, 2020." However, the Petitioner must establish that 
all eligibility requirements for the immigration benefit have been satisfied from the time of filing and 
continuing through adjudication. See 8 C.F.R. § 103.2(b)(l). Moreover, we will not consider new 
eligibility claims or evidence in our adjudication of this appeal. See Matter of Soriano, 19 I&N Dec. 
764, 766 (BIA 1988) (providing that if "the petitioner was put on notice of the required evidence and 
given a reasonable opportunity to provide it for the record before the denial, we will not consider 
evidence submitted on appeal of any purpose" and that "we will adjudicate the appeal based on the 
record of proceedings" before the Chief); see also Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988). 
Accordingly, the Petitioner did not show that the Beneficiary meets this criterion. 
B. Comparable Evidence 
On appeal, the Petitioner requests for the first time that we consider the Beneficiary's two patent 
applications, pertaining to a "multi-media educational/training APP" and filed with the Chinese 
Intellectual Property Bureau, as comparable evidence of"the Beneficiary's extraordinary ability in the 
field of education, specifically in the field of education and career counseling .... " As stated, the 
regulation at 8 C.F.R. § 214.2( o )(3)(iii)(C) provides that "[i]f the criteria in paragraph ( o )(3)(iii) of 
this section do not readily apply to the beneficiary's occupation, the petitioner may submit comparable 
evidence in order to establish the beneficiary's eligibility." 7 For comparable evidence to be 
considered, the petitioner must explain why a particular evidentiary criterion listed in the regulations 
is not readily applicable to the beneficiary's occupation as well as why the submitted evidence is 
"comparable" to that criterion. 8 Here, the Petitioner did not assert or demonstrate that a particular 
regulatory criterion does not readily apply to the Beneficiary's occupation as a school and career 
counselor. Therefore, the Petitioner did not demonstrate that the two patent applications should be 
considered as comparable evidence "of the Beneficiary's extraordinary ability in the field of 
education" as claimed. Regardless, the patent applications were filed in September 2019, after the 
6 See 2 USCIS Policy Manual, supra, at M.4(C)(2). 
7 Petitioners should submit evidence outlined in the evidentiary criteria if the criteria readily apply to the beneficiary's 
occupation. However, if the petitioner establishes that a particular criterion is not readily applicable to the beneficiary's 
occupation, the petitioner may then use the comparable evidence provision to submit additional evidence that is not 
specifically described in that criterion but is comparable to that criterion. See 2 USCJS Policy Manual, supra, at M.4(C)(3). 
8 Id. 
4 
filing of the petition. As stated, eligibility must be established at the initial filing of the petition. See 
8 C.F.R. § 103.2(b)(l), and we will not consider new claims and new evidence for the first time on 
appeal. See Soriano, 19 I&N Dec. at 766; see also Obaigbena, 19 I&N Dec. at 533. 
C. Consultation 
The regulation at 8 C.F.R. § 214.2(o)(5)(ii)(A) requires documentation of consultation "with a peer 
group in the area of the alien's ability (which may include a labor organization), or a person or persons 
with expertise in the area of the alien's ability." Within its RFE response, the Petitioner presented a 
letter from membership director of I raising no 
objection to the requested visa classification. She explains that her organization was founded "to 
recognize and promote creative excellence in advertising" and "is the premier association and an 
established peer group of advertising creatives and students of the industry." The record does not 
reflect thatl is a peer group in the area of education, the Beneficiary's 
occupation. Accordingly, the letter is not a proper consultation from a qualifying peer group. 
III. CONCLUSION 
The Petitioner did not establish that the Beneficiary meets the criteria at 8 C.F.R. 
§ 214.2(o)(3)(iii)(B)(5) and (8) and the Petitioner has not submitted the required consultation. 
Although the Petitioner claims the Beneficiary's eligibility for one additional criterion on appeal, 
relating to her authorship of scholarly articles in the field at 8 C.F.R. § 214.2(o)(3)(iii)(B)( 6), we need 
not reach this ground because the Petitioner cannot fulfill the initial evidentiary requirement of three 
criteria under 8 C.F.R. § 214.2(o)(3)(iii)(B). We also need not provide a totality determination to 
establish whether the Beneficiary has sustained national or international acclaim and is one of the 
small percentage who has arisen to the very top of the field. See section 101(a)(15)(O)(i) of the Act 
and 8 C.F.R. § 214.2(o)(3)(ii) and (iii).9 Accordingly, we reserve these issues. 1° Consequently, the 
Petitioner has not demonstrated the Beneficiary's eligibility for the 0-1 visa classification as an 
individual of extraordinary ability. The appeal will be dismissed for the above stated reasons, with 
each considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
9 See also 2 USCIS Policy Manual, supra, at M.4(B). 
10 See INS v. Bagamashad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the 
decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
5