dismissed O-1B Case: Audio Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 25937392 
Appeal of Vermont Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 15, 2023 
Form 1-129, Petition for a Nonimmigrant Worker (Extraordinary Ability - 0) 
The Petitioner , a recording and production services business , seeks to classify the Beneficiary as an 
audio , mixing , and recording engineer of extraordinary ability . To do so, the Petitioner pursues 0-1 
nonimmigrant classification , available to individual s who can demon strate 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 the Petitioner did not 
establish the Beneficiary 's satisfaction of the initial evidentiary criteria applicable to individuals of 
extraordinary ability in the arts: nomination for or receipt of a significant national or international 
award, or at least three of six possible forms of documentation . The matter is now before us on appeal. 
8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec . 369, 375-76 (AAO 2010) . We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismis s the appeal. 
I. LAW 
As relevant here , section 101(a)(15)(O)(i) of the Act establishes 0-1 classification for an individual who 
has extraordinary ability in the science s, arts, education , business, or athletics which 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 arts" as "distinction ," and "distinction " as "a high level of 
achievement in the field of arts evidenced by a degree of skill and recognition substantially above that 
ordinarily encountered to the extent that a person described as prominent is renowned , leading , or well­
known in the field of arts." See 8 C.F.R. § 214 .2(o)(3)(ii) . Next , DHS regulation s set forth alternative 
initial evidentiary criteria for establishing a beneficiary 's sustained acclaim and the recognition of 
achievements . A petitioner may submit evidence either of nomination for or receipt of "significant 
national or international awards or prizes" such as "an Academy Award, an Emmy, a Grammy, or a 
Director's Guild Award," or at least three of six listed categories of documents. See 8 C.F.R. 
§ 214.2(o)(3)(iv)(A)-(B). 
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 extraordinary ability in the arts. See section 
10l(a)(15)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iv). 
II. ANALYSIS 
The Director determined the Petitioner did not demonstrate the Beneficiary's nomination for, or 
receipt of, significant national or international awards or prizes under 8 C.F.R. § 214.2(o)(3)(iv)(A). 
In addition, the Director concluded the Petitioner established the Beneficiary's eligibility for only one 
criterion, significant recognition under 8 C.F.R. § 214.2(o)(3)(iv)(B)(5). On appeal, the Petitioner 
contends the Beneficiary satisfies two additional criteria. For the reasons discussed below, the 
Petitioner did not establish the Beneficiary meets at least three of the regulatory criteria. 
Evidence that the alien has performed, and will perform, services as a lead or starring 
participant in productions or events which have a distinguished reputation as 
evidenced by critical reviews, advertisements, publicity releases, publications 
contracts, or endorsements. 8 C.F.R. § 214.2(o)(3)(iv)(B)(l). 
This regulatory criterion requires a beneficiary to have both previously performed and will perform 
services as a lead or starring participant in productions or events, which have a distinguished 
reputation. See 8 C.F.R. § 214.2(o)(3)(iv)(B)(l). As evidence, a petitioner must submit 
documentation of critical reviews, advertisements, publicity releases, publications contracts, or 
endorsements. Id. 
The Petitioner indicates that "the Service acknowledges that [the Beneficiary] has performed as a lead 
or starring participant in productions or events. However, it incorrectly determined that the previously 
submitted evidence was insufficient to show that those productions were ones with distinguished 
reputations." Moreover, the Petitioner makes specific arguments relating to prior productions with 
I I and the Petitioner and future productions with the Petitioner. For the reasons discussed 
below, the Petitioner's evidence does not comply with the regulatory documentation establishing that 
the Beneficiary has performed, and will perform services, as a leading or starring participant in 
productions or events with distinguished reputations. 
At the outset, the Petitioner makes additional eligibility claims and provides documentation for the 
first time on appeal. However, we will not consider these claims and evidence as they were not 
presented before the Director. 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 for 
2 
any purpose" and that "we will adjudicate the appeal based on the record of proceeding" before the 
Director); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). 1 
As it relates tol I the Petitioner initially submitted a letter from I land copies of two 
compact disc covers. In response to the Director's RFE, the Petitioner presented a letter from the 
Beneficiary claiming his roles performed for I I an unidentified screenshot indicating 
I I intends to share schedules, photos, and videos· a screenshot of an article from 
jomalnopalco.com.br reporting I I in which is a member, erformed atl I I I and an unidentified screenshot of an article re will be recording a 
program commemorating the 80th anniversary of in which will be one of 
the performers. 
Here, the Petitioner did not demonstrate how the letters froml land the Beneficiary, copies of 
compact disc covers, and article screenshots qualify as "critical reviews, advertisements, publicity 
releases, publications contracts, or endorsements." To meet this criterion, the petitioner must submit 
evidence in the form of critical reviews, advertisements, publicity releases, contracts, or endorsements. 
See generally 2 USCIS Policy Manual, M.4(D)(2)(appendix), https:www.uscis.gov/policymanual. 
Advertisements, publicity releases, and endorsements are promotional materials. Id. Endorsements 
are public facing and serve a marketing purpose. Id. This exhaustive list does not include unpublished 
testimonial or recommendation letters. Id. Even if we considered the screenshots as eligible evidence, 
none of them mention the Beneficiary, relate to the Beneficiary's productions or events withl I 
and indicate distinguished reputations of I productions or events in which the Beneficiary 
collaborated. 
Similarly, regarding the Beneficiary's past services with the Petitioner, the Petitioner initially 
submitted a copy of the Beneficiary's master of fine arts degree froml I State 
University; a claimed list of performers and musicians with whom the Beneficiary has worked; copies 
of two album covers; and several photographs. In response to the Director's RFE, the Petitioner 
provided letters from artists, such as I I indicating their work 
on songs with the Beneficiary. Again, the Petitioner did not establish how the documentation qualifies 
as "critical reviews, advertisements, publicity releases, publications contracts, or endorsements" as 
required by this regulatory criterion. Moreover, while the Petitioner offered screenshots relating to 
the artists, the evidence does not mention the specific productions or events in which the Beneficiary 
performed services. 
Likewise, the petitioner references a letter froml who recounted the Beneficiary's 
work him for his latest album. Once again, the Petitioner did not show how the letter qualifies as one 
of the types of evidence enumerated under 8 C.F.R. § 214.2(o)(3)(iv)(B)(]). Furthermore, although 
the record contains copies of album covers, they do not indicate that the Petitioner performed services 
as a leading or starring participant, nor do they reflect the distinguished reputation of the productions 
or events. 
1 The Petitioner had the opportunity to make eligibility claims and submit documentation at both the initial filing of the 
petition and in response to the Director's request for evidence (RFE). 
3 
In regard to the Beneficiary's future services, the Petitioner initially submitted agreements with the 
Beneficiary indicating he would serve as its recording engineer, mixing engineer, live sound engineer, 
and audio engineering instructor for different com ames would serve as a recordin and mixin 
engineer to produce recordings for artists 
and would work during live music events for In addition, the accompanying itineraries 
indicated: scheduled musical ro · ects with various artists for the Petitioner; various wedding, charity, 
and other events for live performances atl lin 
I I Tennessee for Professional Services; and an audio adjunct instructor position for 
Institute. 
In response to the Director's RFE, the Petitioner provided an updated agreement with the Beneficiary 
reflecting he will work as a recording engineer, mixing engineer, and live sound engineer for different 
companies and submitted studio photographs. The Petitioner also offered a summary of the terms of 
an oral agreement with Professional Services reflecting the Beneficiary would be employed as a 
live sound engineer and would work during live performances at I I In 
addition, the Petitioner submitted an article from The Tennessee Tribune reporting on mayoral 
candidates discussing issues at thel I 
Again, this regulatory criterion requires evidence of the Beneficiary's leading or starring participation 
in productions or events rather than leading, starring, or critical role for organizations or 
establishments. Compare 8 C.F.R. § 214.2(o)(3)(iv)(B)(3). 2 In evaluating the totality of the 
contractual evidence indicated above, the Beneficiary would perform services in a lead for the 
recording and mixing sessions for the various artists, including the live music events and 
performances. However, the Petitioner did not show the distinguished reputations of the upcoming 
events. The Petitioner did not provide any of the required regulatory documentation establishing the 
distinguished nature of the productions or events. With regard to demonstrating the distinguished 
reputation of a prospective event, a petitioner may submit documentation such as advance publicity, 
endorsements, or other evidence regarding the level of anticipation of the relevant event or production. 
See generally 2 USCIS Policy Manual, supra, at M.4(D)(2)(appendix). 3 As it relates to thel I _______ event, the article mentioned above discusses the political event and indicates the 
venue rather than the actual music event, let alone showing the musical event's distinguished 
reputation. 
In this case, the Petitioner did not demonstrate that the Beneficiary has performed, and will perform, 
services as a lead or starring participant in productions or events having a distinguished reputation 
through the required regulatory documentation. Accordingly, the Petitioner did not establish the 
Beneficiary's eligibility for this criterion. 
2 See generally 2 USCIS Policy Manual, M.4(D)(2)(appendix) (providing that this criterion differs from the third criterion, 
which is specific to organizations and establishments). 
3 As the available evidence relating to the reputation of a prospective production or event will often be limited, officers 
may also consider factors such as the reputation of similar past events or productions by the same individuals or entities. 
Id. 
4 
III. CONCLUSION 
The Petitioner did not establish that the Beneficiary meets the criterion relating to 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(]). Although the Petitioner claims the Beneficiary's eligibility under 8 C.F.R. 
§ 214.2( o )(3)(iv)(B)(3), we need not address this ground because it cannot fulfill the initial evidentiary 
requirement of at least three criteria. We also need not provide a totality determination to establish 
whether the Beneficiary has sustained national or international acclaim, has received a high level of 
achievement, and has been recognized as being prominent in his field of endeavor. See section 
101(a)(l5)(O)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii) and (iv).4 Accordingly, we reserve these 
issues. 5 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. 
4 See generally 2 USCIS Policy Manual, supra, at M.4(D). 
5 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (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 of L-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