dismissed O-1B Case: Fashion Modeling

U.S. Citizenship 
and Immigration 
Services 
In Re : 17409118 
Appeal of Vermont Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL. 16, 2021 
Form 1-129, Petition for Nonimmigrant Worker (Extraordinary Ability - 0) 
The Petitioner , a business engaged in model management and fashion , seeks to represent the 
Beneficiary during her temporary employment in the United States as a model. To do so, the Petitioner 
seeks to classify her as an 0-1 nonimmigrant , a visa classification available to foreign nationals 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 
satisfy , as required , the evidentiary criteria applicable to individuals of extraordinary ability in the arts, 
either a significant national or international award or at least three of six possible forms of 
documentation . 8 C.F.R. § 214 .2(o)(3)(iv)(A)-(B) . 
On appeal , the Petitioner asserts that the evidence provided satisfies the regulatory requirements. We 
note that on the Form I-290B , Notice of Appeal or Motion , and in an accompanying "summary brief and 
Statement of Basis for Appeal ," counsel indicated she would submit a brief and/or additional evidence to 
us within 30 days. The appeal was filed in December 2020. As of this date, no brief or additional evidence 
has been incorporated into the record of proceeding , and the record will be considered complete . 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act , 8 U.S.C. § 1361. Upon de novo review , we will dismiss 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 sciences , 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." 8 C.F .R. § 214.2( o )(3)(ii). 
Next, DHS regulations set forth the evidentiary criteria for establishing a beneficiary's sustained 
acclaim and the recognition of achievements. A petitioner must submit evidence either of "significant 
national or international awards or prizes" such as "an Academy Award, an Emmy, a Grammy, or a 
Director 's Guild Award," or of at least three of six listed categories of documents . 8 C.F.R. 
§ 214 .2(o)(3)(iv)(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)(iv)(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 extraordinary ability in the arts. See section 
10l(a)(l5)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iv). 1 
II. ANALYSIS 
The evidence indicates that since at least 2015, the Beneficiary has appeared and been featured in 
fashion magazines, online advertising campaigns, and in fashion show presentations for several 
fashion brands, and has been represented by model management companies including her "mother 
agency"I I in! I The Petitioner describes her as a distinguished 
international supennodel who is "highly sought-after" and "recognized around the world" who has 
achieved recognition "beyond that ordinarily encountered in the industry." The record contains a 
summary of the terms of the agreement under which the Petitioner will employ the Beneficiary, deal 
memos from fashion designer! I and an itinerary for the period 
from August 1, 2020 to Jul] 31, 2023, showing that her modeling services will include representing 
the Petitioner an~-----for fashion show presentations. 2 
A. The Beneficiary's Eligibility under the Evidentiary Criteria 
Because the Petitioner has not indicated or established that the Beneficiary has been nominated for or 
received a significant national or international award or prize, it must satisfy at least three of the alternate 
1 See also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010), in which we held that, "truth is to be determined not by 
the quantity of evidence alone but by its quality." 
2 We note that the documentation submitted contains inconsistent information regarding the dates of the Beneficiary's 
intended employment with the Petitioner. The itinerary and the Petitioner 's letters dated June 2020 and Jul 2020 indicate 
that the Beneficiary would walk the runway for the Petitioner'~ l;:;.;at:..:t'""'he::..:.20::.:2:.:2c--______ -1 
Fashion Week with the! ,I while an undated letter fro.,..__--1r------,___---1 
confirms "the opportunity for [the Petitioner] to showcase your runway collections during our ______ Fashion 
Week productions, in the 2021-2023! ~ seasons shows." 
2 
regulatory criteria at 8 C.F.R. § 214 .2(o)(3)(iv)(B)(l)-(6) . In denying the pet1t10n, the 
Director determined that the Petitioner did not meet any of those alternative regulatory criteria . On 
appeal, the Petitioner maintains that the Beneficiary meets five criteria, relating to lead or starring 
participant in distinguished productions or events under 8 C.F.R. § 214 .2(o)(3)(iv)(B)(l); national or 
international recognition for achievements evidenced by published materials under 8 C.F.R. 
§ 214 .2( o )(3 )(iv )(B )( 2); lead, starring, or critical role for distinguished organizations or establishments 
under 8 C.F.R. § 214 .2(o)(3)(iv)(B)(3); major commercial or critically acclaimed success under 
8 C.F.R. § 214 .2(o)(3)(iv)(B)(4); and, significant recognition for achievements under 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(5). 3 As discussed below, we conclude that the record does not satisfy at least 
three of the six listed categories of documents at 8 C.F.R § 214 .2(o)(3)(iv)(B). 
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). 
To satisfy this criterion, the Petitioner has submitted evidence pertaining to the Beneficiary's past and 
proposed work as a fashion model. It maintains on appeal that she played a lead or starring role as a 
featured model in print, online, and runway advertising campaigns for fashion brands . 
The evidence submitted includes testimonial letters, some of which contain information that is relevant 
to this criterion. For instance! I president oft I who indicates her organization has 
been representing the Beneficiary since 2016 , provides that "[i]nl I specifically, [the Beneficiary] 
has starred in multiple fashion and lifestyle publications" for clients including "as a starring model in 
editorials " in Vogue Arabia, Drew Editorial, Dust, and Lucy 's. I I editor in chief o~ I .__ __ __,I states that the Beneficiary appeared in the magazine in 2018 as a lead model in a fashion 
editorial. While those letters suggest that the Beneficiary was a featured model for some productions, 
consistent with a lead or starring level of participation, the regulation requires evidence in the form of 
critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. We will 
consider the testimonial letters below in our discussion of the criteria at 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(3) and (5). 
In addition , the Petitioner provided tear sheets and advertisements that show that the Beneficia has 
~ in rint and online advertisin cam ai ns for brands includin 
~.._----------~------ .._ ____ and.__ _____ __. and in 
magazines such as Drew Editorial, Dust, Lucy 's, Must Be Kismet, and the digital edition of Vogue 
Arabia . The record also indicates she walked the runway for thel I fashion brand~ I 
I 11 I and I at the 2017 I !Fashion Week. The Director 
concluded that these materials establish that the Beneficiary has performed services as a lead or 
3 We note that the Director detennined that the Petitioner claimed, but did not establish , that the Beneficiary meets the 
criterion related to high salary or other substantial remuneration. See 8 C.F.R. § 214.2(o)(3)(iv)(B)(6). On appeal, the 
Petitioner does not contest the Director 's finding that the Beneficiary does not meet this criterion or offer additional 
arguments . Therefore , we consider this issue to be abandoned . See Sepulv eda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 
(11th Cir. 2005); Hristov v. Roark , No. 09-CV-27312011 , 2011 WL 4711885 at *1 , *9 (E.D.N.Y. Sept. 30, 2011) (the 
court found the plaintiff's claims to be abandoned as he failed to raise them on appeal to the AAO). 
3 
starring participant in distinguished productions or events, and we will not disturb the Director's 
conclusion on that issue. 
Further, in order to meet this criterion, the Petitioner must establish that the Beneficiary will perform 
services as a lead or starring participant in productions or events that have a distinguished reputation 
upon approval of the petition. The Petitioner maintains that it satisfies this criterion based upon the 
Beneficiary's proposed model placements representing its ow~ I and thel I 
collections o~ I in fashion show presentations and events, including! !Fashion Week. 
The documentation submitted indicates that the Beneficiary will be a featured model for those 
productions, consistent with a lead or starring level of participation. In addition, the record includes 
information from several websites, including Essence.com, Vogue.co.uk, and Fashion.bazaar.com.en, 
establishing that the Beneficiary's upcoming productions and events forl I enjoy a 
distinguished reputation in the field. Based on the above, the documentation submitted satisfies the 
regulatory requirements of this criterion. Because the Petitioner established that the Beneficiary 
satisfies this criterion, we withdraw the decision of the Director for this criterion. 
Evidence that the alien has achieved national or international recognition for 
achievements evidenced by critical reviews or other published materials by or about the 
individual in major newspapers, trade journals, magazines, or other publications. 
8 C.F.R. § 214.2(o)(3)(iv)(B)(2). 
The Petitioner maintains that the Beneficiary satisfies this criterion based on published materials 
pertaining to her fashion modeling. The Director determined that the published materials do not meet 
this criterion, because they do not address how the Beneficiary's work "propelled the Beneficiary to 
achieve national or international recognition in accordance with a fashion model with extraordinary 
ability." On appeal, the Petitioner asserts that the Director applied an incorrect standard in determining 
whether the Beneficiary satisfied this criterion. We agree. If the Petitioner submits evidence that the 
Beneficiary has received national or international recognition for her achievements as evidenced by 
critical reviews or other published materials by or about her in major newspapers, trade journals, 
magazines or other publications, we will conclude that the evidence satisfies the plain language of this 
criterion. 4 
Here, however, the Petitioner did not demonstrate critical reviews or other published materials by or 
about the Beneficiary in major newspapers, trade journals, magazines, or other publications. The 
Petitioner maintains that it has submitted evidence of the Beneficiary's national and international 
recognition in the form of the above-mentioned tear sheets evidencing her having appeared and been 
featured in print and online advertising campaigns for several fashion brands. However, this evidence 
of the Beneficiary's fashion modeling does not mention her by name or identify her as the author of the 
material. For this reason, we cannot conclude that any of these articles are "by or about" the 
Beneficiary as required by the plain language of the regulation. 
4 The level of the Beneficiary's achievement would be more relevant to an examination of the totality of the evidence. As 
discussed above, 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 prominent in the field of endeavor. 8 C.F.R. § 214.2( o )(3)(ii), (iv). 
4 
In addition, the Petitioner chooses to rely on testimonial evidence in order to satisfy this criterion. The 
testimonial evidence in the record can and will be considered under the appropriate criteria but cannot be 
used to satisfy the regulatory requirement at 8 C.F.R. § 214.2(o)(3)(iv)(B)(2). 
Based on the above, the Petitioner has not established that the Beneficiary satisfies the eligibility 
requirements of this regulatory criterion. 
Evidence that the alien has performed, and will perform, in a lead, starring, or critical 
role/or organizations and establishments that have a distinguished reputation evidenced 
by articles in newspapers, trade journals, publications, or testimonials. 8 C.F.R. 
§ 214.2( o )(3)(iv)(B)(3). 
To meet this criterion, the Petitioner cites to evidence pertaining to the Beneficiary's past and proposed 
work as a fashion model. Regarding her past work as a fashion model, the Petitioner references the above­
referenced tear sheets, that show that she has been featured in print and online advertising campaigns 
for fashion brands, as well as evidence that she has been represented b~ I A lead or starring role 
should be apparent by its position in the overall organizational hierarchy and through the role's matching 
duties. A critical role should be apparent from the beneficiary's impact on the organization or the 
establishment's activities. The beneficiary's performance in this role should establish whether the role 
was critical for the organization or establishment as a whole. The Director concluded, and we agree, that 
those materials do not satisfy this criterion. 
In the aforementioned letter.I I president ofj lstates that the Beneficiary "plays and 
will continue to play a critical role for our agency because as her mother agent we receive commission 
for each job she books for each agency in which we place her." Based on this statement, presumably all 
of the agency's models are considered to be critical to its success. She indicates that in 2018 the 
Beneficiary earned the equivalent of$6,012 for three days of work with! I and in 2016 she earned 
the equivalent of $1,696 for two days of work with I I andl I respectively. We 
note that the record does not contain documentation that corroborates! ~ statement of the 
Beneficiary's earnings. Regardless, the documentation submitted does not establish the Beneficiary's 
past and proposed critical roles forl l For example, I l's letter does not distinguish 
the Beneficiary's position from other models the agency represents or demonstrate that she was 
responsible for its success or standing to a degree consistent with the meaning of a "critical role." 
Although the letter speaks highly of the Beneficiary's performance for the company and describes her 
as having achieved results that met or exceeded the company's expectations, it does not establish that 
she was responsible for the company's success or standing to a degree consistent with the meaning of 
having performed in a "critical" role for them. In addition, the fact that she may have played a lead 
or starring role in several advertising campaigns is not sufficient to satisfy this criterion's 
requirements. 
Further, the documentation submitted does establish how the Beneficiary will perform in a lead, 
starring or critical role for I I or the Petitioner. The Petitioner provided the 
aforementioned two letters froml I In his first letter dated March 2020,I I indicates 
that the Beneficiary "will be the 'face' of my upcoming collections inl I playing a critical 
role for my company." He states that the Beneficiary "will serve as a leading model, a highlight of 
our upcoming events and fashion week presentations, including collections on the prestigious runways 
5 
o~ I Fashion Week." In his second letter dated September 20201 I states that the 
Beneficiary "will play "a critical role for ... the major events we do during that time." Regarding the 
Petitioner, its initial letter dated June 2020 indicates that the Beneficiary "will be walking as a lead for 
ou~ I which is slated to show during I I fashion week inl I 
1 ~n 2022." 
Here, the record does not demonstrate sufficiently how the Beneficiary's prospective role as a fashion 
model rises to the level of a lead, starring or critical role either for the petitioning company orl I 
I !The letters of the Petitioner andl I do not distinguish her proposed position from 
those of the companies' other models, or demonstrate that she will be responsible for their success or 
standing to a degree consistent with the meaning of a "critical role." The fact that the Beneficiary may 
play a lead or starring role in several fashion presentations is not sufficient to satisfy this criterion's 
requirements. Finally, the record does not establish that the petitioning organization enjoys a 
distinguished reputation in the field. 
For the reasons discussed above, the Petitioner did not establish that the Beneficiary has performed, 
and will perform, in a lead, starring, or critical role for organizations and establishments that have a 
distinguished reputation consistent with this regulatory criterion. 
Evidence that the alien has a record of major commercial or critically acclaimed 
successes as evidenced by such indicators as title, rating, standing in the field, box 
office receipts, motion picture or television ratings, and other occupational 
achievements reported in trade journals, major newspapers, or other publications. 
8 C.F.R. § 214.2(o)(3)(iv)(B)(4). 
This criterion specifically requires documentation of commercially or critically acclaimed successes as 
reported in publications. Within its RFE response and on appeal, the Petitioner asserts that "[the 
Beneficiary's testimonials and tear sheets combine to establish this element in her industry; as "box 
office" titles or "chart ratings" simply do not apply to this industry." The Director determined that such 
evidence does not satisfy this criterion, and we agree. The plain language of this criterion specifically 
requires documentation of commercially or critically acclaimed successes as reported in published format. 
The documentation submitted indicates that the Beneficiary has appeared in print and online fashion 
editorials in magazines including Drew Editorial, Dust, Lucy's, Must Be Kismet, and the di ital edition 
of the Vogue Arabia, and in retail campaigns for brands includinpl 11 I and 
I I Regarding the testimonial letters[ I a I I and,___ __ _. 
c=]of Jez magazine, claims that the fact that the Beneficiary was selected to star in such advertisements 
"demonstrates that she has a marketability and selling power that connects with a broad range of 
consumers." The Petitioner has not shown, however, that the Beneficiary's appearance in those 
productions is comparable evidence of a record of "major commercial or critically acclaimed success" 
in the field. Assuming the 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. 
Based on the above, the Petitioner has not established that the Beneficiary satisfies this evidentiary 
criterion. 
6 
Evidence that the alien has received significant recognition for achievements from 
organizations, critics, government agencies, or other recognized experts in the field in 
which the alien is engaged. Such testimonials must be in a form which clearly indicates 
the author's authority, expertise, and knowledge of the alien's achievements. 8 C.F.R . 
§ 214.2( o )(3)(iv)(B)(5). 
The Director determined that the testimonial evidence in the record does not satisfy this criterion, and 
we agree . In support ofthis criterion the Petitioner submitted several testimonial letters, including from 
model managers and a fashion photographer, praising the Beneficiary's skills in the field of fashion 
modeling. 5 Here , the letters do not explain sufficiently how the Beneficiary has received significant 
recognition in the field for her work , nor has the Petitioner shown that the letters themselves constitute 
such recognition. 
For instance, I I o ...._ ____________ ____. indicates her organization 
previously filed a petition for 0-1 nonimmigrant status on the Beneficiary's behalf. 6 The record contains 
a copy of the Beneficiary's contract with! I dated July 2019, submitted in support of its previous 
petition, and I I asserts that this contract "is proof of significant recognition because of 
the intense judgement that goes into selecting our top models." However, the letter does not provide 
specific information as to the exact criteria utilized to ~e Beneficiary as a model forl I 
Merely stating that "intense judgement" is involved inl___Js selection process does not indicate 
that this contract was entered based upon the Beneficiary's achievements . 
FurtherJ I provides that "[a]ppearing in Vogue, serving as an opener for a designer's 
Fashion Week presentation, and appearing in numerous household name brand campaigns as the 
"face" or as a highlighted model, as [the Beneficiary] has, are all achievements for which she is 
recognized ." In addition, in her above-mentioned letter,I I asserts that the fact that the 
Beneficiary has worked with prestigious publications is evidence that she has an extraordinary level of 
talent for which she has received significant recognition in the field. In his aforementioned letterD 
I I also asserts that the Beneficiary "has starred on the covers and in editorials of a number of 
other top fashion publications" and "as a result of her achievements, [the Beneficiary] has earned 
significant recognition in the field." 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. See 
Caron International, 19 I&N Dec. 791, 795 (Comm'r. 1988) . However, USCIS is ultimately 
responsible for making the final determination regarding a foreign national's eligibility for the benefit 
sought. In addition, such letters from experts supporting the petition are not presumptive evidence of 
eligibility; USCIS may evaluate the content of those letters as to whether they support the foreign 
national's eligibility. Moreover, merely repeating the language of the statute or regulations does not 
satisfy the petitioner's burden of proof. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 
(E.D.N .Y. 1989), aff'd, 905 F. 2d 41 (2d. Cir. 1990). It remains the Petitioner's burden to show the 
Beneficiary's significant recognition for achievements in the field. As discussed, the testimonial evidence 
submitted does not meet this burden. The Petitioner does not submit evidence explaining sufficiently 
5 While we discuss a sampling of these letters, we have reviewed and considered each one. 
6 The records ofUSCIS indicate that the petition filed by _________ in December 2019 was withdrawn in 
April 2020, shortly before the instant petition was filed in July 2020. 
7 
how being a featured model in print, online, and runway advertising campaigns for fashion brands is 
recognized in the industry as significant. Nor do the testimonials establish that the Beneficiary's 
representation by I I or her contract with I I rises to the level of a "significant 
recognition." Further, we note that the regulation at 8 C.F.R. § 214.2( o )(2)(iii)(B) requires that affidavits 
written by recognized experts "shall specifically describe the alien's recognition and ability or 
achievement in factual terms and set forth the expertise of the affiant and the manner in which the affiant 
acquired such information." Although I I provides that his opinion is "based on my 
knowledge of [the Beneficiary's] work and ability" he does not explain the manner in which he acquired 
information about her. Overall, while the Beneficiary has earned the respect of her colleagues, the 
documentation submitted is insufficient to establish that she has received significant recognition for 
achievements in the field. 
Moreover, we acknowledge that within the Petitioner's initial submission it provided a "no objection" 
labor consultation letter dated June 2020 fronj I ofi l who states that the 
organization has "reviewed the Draft I-129 Petition and supporting documentation" and that "[t]he 
Fashion Model meets the standards of distinction in the arts and/or creative professions to qualify for [ an 
0-1] visa." The letter fro~ ldoes not satisfy this evidentiary requirement. While the letter 
satisfies the Petitioner's burden to supply a written consultation from a labor organization pursuant to 
8 C.F.R. § 214.2(o)(2)(ii)(D), consultations are advisory and are not binding on U.S. Citizenship and 
Immigration Services CJTSr'IS). See 8 C.F.R. § 214.2(o)(5)(i)(D). Regardless,! I does not 
explain how I ] reached its conclusion based on the evidence submitted with the petition. 
In light of the above, the Petitioner has not established that the Beneficiary satisfies the requirements 
of this evidentiary criterion. 
III. CONCLUSION 
The Petitioner has not submitted qualifying material under 8 C.F.R. § 214.2(o)(3)(iv)(A) and the record 
does not establish that the Beneficiary meets at least three of six evidentiary criteria at 8 C.F.R. 
§ 214.2(o)(3)(iv)(B), nor does it meet the requirements of the comparable evidence provision at 8 C.F.R. 
§ 214.2( o )(iv)(C). Consequently, the Petitioner has not established that the Beneficiary is eligible for the 
0-1 visa classification as an individual of extraordinary ability. 
ORDER: The appeal is dismissed. 
8