dismissed O-1B Case: Acting

U.S. Citizenship 
and Immigration 
Services 
In Re: 9570850 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 10, 2020 
Form 1-129, Petition for Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, a talent management agency, seeks to classify the Beneficiary , an actress, as an individual 
with a demonstrated record of extraordinary achievement in the motion picture or television industry . 
To do so, the Petitioner seeks 0-1 nonimmigrant classification, available to foreign nationals whose 
achievements in this industry 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 California Service Center denied the petition , concluding that the Petitioner did 
not satisfy any of the six initial evidentiary criteria, of which it must meet at least three. We dismissed 
the Petitioner's appeal from that decision. The matter is now before us on a combined motion to 
reopen and reconsider. 
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 review, we will dismiss both motions. 
I. LAW 
A motion to reconsider is based on an incorrect application of law or policy, and a motion to reopen 
is based on documentary evidence of new facts. The requirements of a motion to reconsider are located 
at 8 C.F.R. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies 
these requirements and demonstrates eligibility for the requested immigration benefit. 1 
1 The Petitioner did not include the required "statement about whether or not the validity of the unfavorable decision has 
been or is the subject of any judicial proceeding and, if so, the court, nature , date, and status or result of the proceeding ." 
8 C.F.R. § 103.S(a)(l)(iii) . A motion that does not meet applicable requirements shall be dismissed . 
8 C.F.R. § 103.5(a)(4). 
II. ANALYSIS 
In dismissing the appeal, we determined that the Petitioner satisfied only one of the initial evidentiary 
criteria, relating to high salary or remuneration at 8 C.F.R § 214.2(o)(3)(v)(B)(6). In the Petitioner's 
motion to reconsider, it argues that it submitted evidence showing that it satisfied four additional 
criteria, relating to lead or stan-ing participant in productions or events at 8 C.F.R. 
§ 214.2( o )(3)(v)(B)(l), published material at 8 C.F.R. § 214.2( o )(3)(v)(B)(2), lead, stan-ing, or critical 
role for organizations and establishments at 8 C.F.R. § 214.2( o )(3)(v)(B)(3), and commercial or 
critically acclaimed successes at 8 C.F.R. § 214.2( o )(3)(v)(B)( 4). 2 In its motion to reopen, the 
Petitioner presents additional documentation. Although its motion brief does not indicate which 
criteria this evidence is intended to support, we will nevertheless consider this evidence as it pertains 
to the relevant criterion. For the reasons discussed below, the Petitioner's motion to reconsider does 
not establish that we erred in our prior decision. Further, the new evidence submitted in support of 
the motion to reopen does not demonstrate that the Petitioner satisfied at least three of the six 
categories listed at 8 C.F.R. § 214.2(o)(3)(v)(B)(l)-(6). 
A. Motion to Reconsider 
First, the Petitioner asserts that the Director did not apply the appropriate standard of proof, the 
"preponderance of the evidence" standard, an argument it previously advanced in its appeal. The 
Petitioner cites to Matter ofChawathe, 25 I&N Dec. 360 (AAO 2010), in which we explained that the 
proper standard of proof is the "preponderance of the evidence" standard, and to INS. v. Cardoza­
Fonseca, 480 U.S. 421 (1987), discussing "more likely than not" as a greater than 50 percent chance 
of an occurrence taking place. The Petitioner states: "the Petitioner does not have to establish the 
Beneficiary's eligibility beyond a reasonable doubt or even by clear and convincing evidence. 
However, the mentioned higher evidentiary standards appeared to be applied by the Director during 
[the] adjudication process in the instant case." Here, the Petitioner's contentions pertain to the 
Director's decision, and therefore do not show how our dismissal of its appeal was incmrect as a matter 
of law or policy. Regardless, the Petitioner does not discuss or point to any specific examples of how 
the Director applied a standard higher than the "preponderance of the evidence" standard, and a review 
of the decision does not reveal that the Director applied a higher standard of proof. 
The Petitioner also asserts on motion that we "appear to apply the higher standard than it is set at the 
cun-ent regulations, effectively requiring the [P]etitioner to prove that the [B]eneficiary is one at the 
top of her profession." Our appellate decision, however, did not mention or impose such a 
requirement. Regardless, we will address below the Petitioner's assertion that we may have gone 
beyond the regulatory requirements. The Petitioner contends that it meets four additional criteria. We 
will discuss the Petitioner's submission of new evidence under the motion to reopen section. 
Regarding the criterion relating to lead or stan-ing role in productions or events at 8 C.F.R. 
§ 214.2( o )(3)(v)(B)(l), in our appellate decision we dete1mined that although the record reflects that 
the Beneficiary has pe,jormed in a lead or starring role in the short films I land I I I I the Petitioner had not submitted, as required, critical reviews, advertisements, publicity 
2 On motion, the Petitioner does not claim to meet the previously claimed criterion related to significant recognition for 
achievements at 8 C.F.R. § 214.2(o)(3)(v)(B)(5). 
2 
releases, publications, contracts, or endorsements to establish that the productions themselves have a 
distinguished reputation. The Petitioner disputes our conclusions without directing to a particular law, 
regulation, or policy that specifically shows that we erred in our determinations. Instead, the Petitioner 
makes the general, unsupported assertion that "[i]t is hard to imagine that the productions mentioned 
in the record will not satisfy this [ distinguished reputation] requirement." However, disagreeing with 
our conclusions without establishing that we erred as a matter of law or policy or pointing to precedent 
decisions that contradict our analysis of the evidence is not a ground to reconsider our decision. See 
Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (finding that a motion to reconsider is not a process 
by which the party may submit, in essence, the same brief and seek reconsideration by generally 
allefing error in the prior decision). While we acknowledged that the record contains documentation 
that lwas screened at thel IFilm Festival! land thel I 
Movie Festival, we concluded that the scope and significance of being screened at those festivals had 
not been explained or documented. The Petitioner has not shown how we erred in determining that 
the record does not establish that those productions have a distinguished reputation. 
In addition, although o
1 
appellay decision concluded that the evidence reflects that Beneficiary will 
perform the lead role of in the feature filml I we determined that the record, when 
viewed in its totality, does not establish that the upcoming film is a production or event that enjoys a 
distinguished reputation, as evidenced by critical reviews, advertisements, publicity releases, 
publications, contracts, or endorsements. Our prior decision indicated that at the time the petition was 
filed it appeared that the project I I was in its nascent stages. The deal memo overview 
indicated the production had a budget of $250,000J lwill be its director, and it was 
anticipated that the film's distribution will be throng~ I andl I We also noted that 
it is not unusual for a distinguished motion picture or television production to generate press within 
the industty during pre-production, such as when it casts lead roles or hires a director. We determined 
that a]thrn}gh the record on appeal demonstrated thatl lwill direct and possibly distribute 
I it did not establish the distinguished reputation of the project itself Further, we could not 
conclude, based on the limited evidence submitted, that I I is of such renown that any project 
he considers placing into development can also be considered to have a distinguished reputation. On 
motion the Petitioner asserts that because! ts filF I " l"is available on 
[:::;]' this "indicates distinguished reputation for both ~ and his work product in the 
field." Without evidence, in the form required, establishing that the upcoming production! I 
has a distinguished reputation, the Petitioner has not demonstrated that it meets this criterion. 
In reference to the lead, starring, or critical role for organizations and establishments criterion at 
8 C.F.R. § 214.2(o)(3)(v)(B)(3), our appellate decision noted that the Petitioner claimed that the 
Beneficiary satisfies this criterion based upon her past roles in film and television productions. We 
agreed with the Director that the fact that the Beneficiary may have played a leading role in some of 
those productions is not sufficient to satisfy this criterion's requirements. We concluded that the 
Petitioner did not demonstrate how such productions qualify as organizations, or that the Beneficiary 
played a lead, starring or critical role for the production companies of any of those productions. In 
addition, we determined that the record does not provide background information or documentation 
regarding those production companies establishing the reputation of those organizations. The Petitioner 
3 Although the Petitioner's motion indicates that its submission includes documentation establishing that I 
Dis available on I ~ the record before us does not include this evidence. .__ ____ __. 
3 
provided screerhots from l,.pro.imdb.com for andl I the production 
companies for~-----~ and~----~ respectively, but it did not provide independent 
evidence to establish that they have a distinguished reputation, and the testimonial letters submitted 
do not address the reputation of those organizations. Our appellate decision further noted that the 
Petitioner must also establish that the Beneficiary will prospectively provide services in a lead, 
staning, or critical role for organizations or establishments that have a distinguished reputation. We 
concluded that, although the Petitioner has established the Beneficiaiy's job title onl I the 
submitted evidence does not describe how she will contribute to the film's production company as a 
whole, or how her position fits within the overall hierarchy of the company. In addition, as previously 
mentioned, our t1rior decision determined that the Petitioner did not provide sufficient evidence to 
demonstrate thatl lenjoys a distinguished reputation. The Petitioner does not identify any 
specific e1ror of law or policy in our appellate decision relating to this criterion. 
Regarding the published material criterion at 8 C.F.R. § 214.2(o)(3)(v)(B)(2), the Petitioner asserts 
that it previously provided "evidence including the newspaper circulation and traffic statistics." In 
our prior decision, we concluded that, although the Petitioner provided information about several 
publications from their websites, a screenshot from Similar Web pertaining to the rankings and viewing 
statistics ofRafu.com, and screenshots from SiteWorthTraffic pertaining to the rankings and viewing 
statistics of Rafu.com, glendalenewspress.com, and japanconnection.us, it did not show the 
significance of those publications' rankings and viewing statistics or explain how such infmmation 
reflects status as major media. We further determined that the provided articles and press release 
pertammg to the Beneficiary from the websites articles.glendalenewspress.com, 
onstagelosangeles.blogspot.com, japanconnection.us, and latimes.com are about productions in which 
the Beneficiary performed and are not about the Beneficiary. Rather, they only briefly mention the 
Beneficiary. In addition, while the authors of the published material may speak positively of her 
performances, the articles do not recognize the Beneficiary's individual achievements in the motion 
picture industry as an actress or the national/international recognition she received for such 
achievements. The article from japanconnection.us reflects that the actors in the I I acting 
company, of which the Beneficiary is a member, are "[a] group of young and ambitious actors" who 
"have taken their careers into their own hands and have created a workshop" and "produce and appear 
in a production of their own," indicating that the Beneficiary was an up-and-coming actress, rather 
than an actress who is already nationally recognized for her achievements in the field. The Petitioner 
has not shown that our dete1mination for this criterion was inconect. 
In reference to the commercial or critically acclaimed successes criterion at 8 C.F.R. 
§ 214.2(o)(3)(v)(B)(4), our appellate decision noted that this criterion specifically requires 
documentation of commercially or critically acclaimed successes as reported in publications, and that in 
the Beneficiary's field, evidence satisfying this criterion would reasonably include evidence of box 
office revenue, video sales, and similar evidence of tangible achievements in the motion picture 
industry. The Petitioner asserted that the Beneficia satisfies this criterion based upon her 
performances inL_ _____ __._.___,__---1____.... ___ ..,.._ ____ __J and I I We 
determined that while and.__ ___ ~ were the recipient of awards at film festivals, 
and ~-------~was screened at the Sundance 2014 .__ ______ __.sidebar, the plain 
language of this criterion specifically requires documentation of the Beneficiary's commercially or 
critically acclaimed success as reported in published format. We concluded that the Petitioner had not 
shown that the Beneficiary received those awards, or that those awards or the aforementioned film festival 
4 
screenings are an indicator of a record of commercial or critical success. Assuming that correlation had 
been established, the record does not include evidence that such critical or commercial success was 
memorialized in trade journals, major newspapers, or other publications such that her achievement was 
acknowledged in the industry at-large. On motion, the Petitioner argues that the Beneficiary satisfies 
this criterion because she has performed in the "commercially ... sellable" film I I which 
it claims is available for purchase at Best Buy. 4 Without evidence showing the Beneficiary's record 
of commercially or critically acclaimed successes as reported in publications, the Petitioner has not 
established that it meets this criterion. 
For the reasons discussed above, the motion does not establish that our latest decision was incorrect 
based on the evidence of record at the time of the decision. Therefore, the motion to reconsider is 
dismissed. 
B. Motion to Reopen 
In its motion to reopen, the Petitioner presents additional documentation. As mentioned previously, 
the Petitioner does not indicate which criteria this evidence is intended to support. The record shows 
that the film~ ____ --,, in which the Beneficiary performed, was a finalist for the Grand Prize at 
theC7 Film Festival and received nominations forl lat thel I Film Festival and 
th~ I International Film Expo. With the current motion, the Petitioner submits articles from 
the on line encyclopedia Wikipedia about the I IF ilm Festival, I I Film Festival, and the 
I I International Film Expo, however, those articles are insufficient to establish the 
distinguished reputation of that film. 5 While its selection for screening at film festivals is an indicator 
of some measure of success, the evidence submitted falls significantly short of establishing thatD 
I I has enjoyed a distinguished reputation as of the date of filing. 6 Therefore, the Petitioner 
has not overcome our finding that it does not meet the regulatory criterion at 8 C.F .R. 
§ 214.2( o )(3)(v)(B)(l). As the evidence does not demonstrate eligibility, the motion to reopen is 
dismissed. 
III. CONCLUSION 
The assertions made by the Petitioner on motion do not establish that our previous decision was 
grounded in an incorrect application of law or policy. In addition, the new evidence submitted on 
motion does not overcome the grounds underlying our previous decision or demonstrate eligibility for 
this classification. 
ORDER: The motion to reconsider is dismissed. 
FURTHER ORDER: The motion to reopen is dismissed. 
4 Although the Petitioner's motion indicates that its submission includes documentation establishing thatl lis 
available at Best Buy, the record before us does not include this evidence. 
5 We note that Wikipedia is an online, open source, collaborative encyclopedia that explicitly states it cannot guarantee the 
validity of its content. See General Disclaimer, Wikipedia (July 27, 2020) 
https://en.wikipedia.org/wiki/Wikipedia:General_disclaimer; Badasa v. Mukasey, 540 F.3d 909 (8th Cir. 2008). 
6 On motion, the Petitioner sug~ests that this evidence also establishes "the distinguished reputation in the field for 
I I the director of_ I' however, the record reflects that film was directed byl I 
5