dismissed O-1B Case: Fine Arts

U.S. Citizenship 
and Immigration 
Services 
In Re : 18743372 
Appeal of Vermont Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 14, 2022 
Form 1-129, Petition for Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, an artist agent , seeks to represent the Beneficiary during her temporary employment in 
the United States as a fine artist. 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 had not 
indicated or established that the Beneficiary had been nominated for or received a significant national 
or international award or prize at 8 C.F.R. § 214.2(o)(3)(iv)(A) or satisfied any of the evidentiary 
categories described at 8 C.F.R. § 214 .2(o)(3)(iv)(B)-(C) . 
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 nova 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.") In Matter of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010), we held that, "truth is to be determined not by the quantity of evidence alone 
but by its quality." That decision explains that, pursuant to the preponderance of the evidence 
standard, we "must examine each piece of evidence for relevance, probative value, and credibility, 
both individually and within the context of the totality of the evidence, to determine whether the fact 
to be proven is probably true." Id. Accordingly, where a petitioner provides qualifying evidence 
satisfying the initial evidentiary criteria, we will determine whether the totality of the record shows 
eligibility under section 10l(a)(l5)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(l)(ii). 
II. ANALYSIS 
A. Introduction 
The petitioning agent, a graduate professor of studio arts at .__ ______ __.University ~I--~ .__ _______ __.I and the Beneficiary's mentor, seeks to represent the Beneficiary during her 
employment in the United States as a fine artist for a period of three years. According to her resume, 
the Beneficiary received hers Bachelor of Fine Arts in painting froml I University inl I 
South Korea in 2015 and her Master of Fine Arts in studio art from I I in 2019. 
As a preliminary matter, on appeal the Petitioner contends that the Director applied the wrong standard 
of proof As stated, in this proceeding, the correct standard of proof is a preponderance of the evidence, 
meaning that the Petitioner must show that her claims are "more likely than not" or "probably" true. 
Chawathe, 25 I& N Dec. at 375-76. He contends that the Director improperly imposed the higher 
standard of clear and convincing evidence. However, 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 
Additionally, we note that on appeal the Petitioner cites to both the regulations for individuals with 
extraordinary achievement within the motion picture and television field under the requirements of 
8 C.F.R. § 214.2(o)(3)(v) and those for individuals of extraordinary ability in the arts pursuant to 
8 C.F.R. § 214.2(o)(3)(iv). However, the Petitioner filed the petition asserting the Beneficiary has 
extraordinary ability in the field of arts, providing a labor consultation from a peer group in that field. 
Accordingly, we will examine the Beneficiary's eligibility under that requested classification. 1 
1 We also note, upon review, that the record does not demonstrate the Beneficiary meets three of the required criteria as an 
individual with extraordina1y achievement in the motion picture or television industry, which mirror the criteria for 
extraordinary ability in the arts. Nor does the record include sufficient evidence or information showing that the 
Beneficiary has achieved "a very high level of accomplishment in the motion picture or television industry evidenced by 
2 
B. The Beneficiary's Eligibility under the Evidentiary Criteria for Extraordinary Ability in the Arts 
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, he must satisfy at least three of the 
alternate regulatory criteria at 8 C.F.R. § 214 .2(o)(3)(iv)(B)(J)-(6). In denying the petition, the 
Director determined that the Petitioner provided evidence relating to four criteria, but the Beneficiary 
did not meet any of them. 2 
On appeal, the Petitioner maintains that the Beneficiary meets four criteria, relating to lead or starring 
participant in 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 organizations under 8 C.F.R. § 214.2(o)(3)(iv)(B)(3), and, significant 
recognition for achievements under 8 C.F.R. § 214 .2(o)(3)(iv)(B)(5) .3 After reviewing all the 
evidence in the record, we find that the Petitioner has not established that the Beneficiary satisfies at 
least three of the six listed categories of documents at 8 C.F.R § 214.2(o)(3)(iv)(B), as discussed 
below . 
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). 
The Petitioner asserts that the Beneficiary satisfies this criterion based upon her past solo and group fine 
art exhibitions between 2016 and 2020 and future fine art showcases, artist residencies, and artist talks in 
which she will participate. 
The Petitioner 's initial letter and the Beneficiary's resume indicate her past participation in the following : 
• Solo exhibition at...._ _______________ ___.Content Culture Center I.,_ _ __. 
• 
• 
2020 
Artsy Online Exclusive Show (solo exhibition) at .... l _____ __.!(2020) 
1-----.-(g-r-ou_.p exhibition) a~ I Gallery I I 2020) 
a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized 
as outstanding , notable , or leading in the motion picture or television field." 8 C.F.R. § 214.2(o)(3)(ii). 
2 The Director indicated that the Petitioner did not claim the Beneficiary 's eligibility for the major commercial or critically 
acclaimed successes criterion under 8 C.F.R. § 214.2(o)(3)(iv)(B)(4) and high salary criterion under 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(6) , and the record supports that determination . 
3 We note that the Director determin ed that the Petition er did not establish that the submitted letters of recommendation 
written by the Beneficiary's present or former colleagues and recognized experts may be used as comparable evidence 
under the criteria relating to lead or starring participant in productions or events at 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) , and lead, starring , or critical role for organizations under 8 C.F.R. § 214.2(o)(3)(iv)(B)(3). The 
Petitioner does not contest this issue on appeal or offer additional arguments. Therefore , we consider this issue to be 
abandoned. See Sepulveda 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 plaintiffs claims to be abandoned 
as he failed to raise them on appeal to the AAO) . 
3 
• ._I ----~kgroup exhibition) at~I --~I Gallery ~._ ___ _.12016) 
The Petitioner provided documentation pertaining to those exhibitions, including testimonial letters, 
exhibition photographs, screenshots of materials from venue websites, and screenshots of materials from 
other promotional websites such as artsy.net. As explained below, we agree with the Director that the 
evidence submitted does not satisfy this criterion. 
Some of the submitted testimonial letters contain information that is relevant to this criterion. For 
example,! I deputy senior manager at I l states that she "directly observed the 
B
f selecting [the Beneficiary's] art pieces forl I as well as her solo exhibition at 
'which was held "to celebrate and appreciate the selection of the Beneficiary's artworks for 
s permanent collection." She explains that the organization, which supports artists-in­
residence in the fields of TV shows, films, games, animation, fashion, and comics, recently decided to 
purchase a permanent art collection and chose several of the Beneficiary's artworks at the 
recommendation of two art professors. She indicates the Beneficiary's solo exhibition was "held in a 
public place with considerable traffic froml I visitors and its artists-in-residence." I I 
the Beneficiary's art professor atl !University, confirms that her artwork was selected by two 
colleagues at the university, drawing professors I landl I to be part of the permanent 
collection ofl I He also indicates, regarding the Beneficiary's artwork in I I 
exhibition, that he reviewed the work and felt that her creative interpretation of colors and spaces 
distinguished her from other participating artists. 
The Petitioner's recommendation letter provides that the Beneficiary completed her solo online 
exhibition! I and the group exhibitio~ I in which her pieces were "exhibite
1
d along I 
with others by internationally and domestically recognized artists such as I I and 
I I' I I, the director of contemporary art at thel pallery, provides 
that she invited the Beneficiary to be inl I after seeing her work in an "MF A grad show." She 
states that the Beneficiar was "the onl artist new to our program and her paintings were an important 
addition to the show." ----,---r-----,..---t he Beneficiary's art professor at I I confirms 
that the Beneficiary part1c1pate m t e "group exhibition of young contem~orary artists." 
an art rofessor at ~-~University, states that the Beneficiary's workl ~ was 
exhibited i ~-----~and is "strong evidence of her skill." 
~-----~lthe Beneficiary's professor at I !provides that although the 
Beneficiary's past solo and group exhibitions were not large art events, the works she presented at 
those events were "very significant," for example, "contributing her two-dimensional modem abstract 
drawings" while other artists used different techniques such as sculpture. I I the 
Beneficiary's professor atl !states that the Beneficiary's works inl I "stood out" 
among the abstract works from artists of the "new generation" through her "great skill, the beauty of 
her work, [ and] the evocative color." 
While the above letters suggest that the Beneficiary was a solo artist for some shows, consistent with 
a lead or starring level of participation, they do not clarify how the Beneficiary, as a participant in the 
aforementioned solo or group exhibitions, has performed in a lead or starring capacity for an event 
with a distinguished reputation. In addition, the regulation requires critical reviews, advertisements, 
publicity releases, publications, contracts, or endorsements. Among the advertisements submitted 
4 
under this criterion are two articles date02016 from koreatimes.com and koreadaily.com about 
.__ ______ =a.c.....,t the I I Gallery, and a press release dated 2020 from artsy.net about 
the Gallery. The first article aboutl I titled'.__ _________ ___. 
.__ __ _. includes a copy of the artwork of several of the six Korean artists in the exhibition, including 
that of the Beneficiary, and their brief biographies. It indicates the exhibition will soon be closing, and 
that those exhibiting are "young artists who have actively worked in Korea the United States, and Japan." 
The Beneficia 's bio ra h rovides that she is a raduate of Universit and contains her 
statement that ' 
" The 
second article about~-----~ titled~--~--~-------------,,---...,,.... 
mentions that the Benefilciary is jmong the artists whose work was being displayed. 
The press release about the group exhibition states that the exhibition is "a presentation of recent 
work by gallery artists both new and familiar," and provides the Beneficiary's name and pictures of her 
artwork along with those of the other seven exhibited artists. 
The above articles do not single out the Beneficiary as having performed as a lead or starring participant 
and do not corroborate the distinguished reputation of the Beneficiary's group exhibitions. Rather, like 
the aforementioned exhibition photographs, screenshots of materials from venue websites, and 
screenshots of materials from other promotional websites, they reflect that those exhibitions have 
recently occurred or recently opened. In addition, as discussed below under the criterion at 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(2), the Petitioner did not document sufficiently the reach of the aforementioned 
media such that a promotion on their websites is indicative of the distinguished reputation of the event. 
Further, the Petitioner provided published materials aboutl I Gallery from its website, news 
articles aboutl !Gallery ~ublished on freep.com and metrotimes.com, a brochure about 
I I, published materials about I I from its website, and news articles about I I 
published on en.yna.co, koreatimes.co.kr, and koreajoongangdaily.joins.com. However, those 
published materials do not mention the Beneficiary's artwork and her past exhibitions. Therefore, 
they do not establish her lead or starring participation in specific productions or events which have a 
distinguished reputation. Moreover, we agree with the Director's determination that even though it 
appears that the above organizations enjoy a distinguished reputation, it does not automatically follow 
that their exhibitions are a production or event with a distinguished reputation. The record does not 
contain the required critical reviews, advertisements, publicity releases, publications, or other evidence 
showing that the exhibitions that featured the Beneficiary have a distinguished reputation in the field. 
In order to meet this criterion, the Petitioner must also establish that the Beneficiary "will perform" 
services as a lead or starring participant in productions or events with a distinguished reputation. The 
Petitioner has not offered evidence sufficient to distinguish the Beneficiary's proposed role as leading 
or starring within the upcoming productions or their distinguished reputations. The Petitioner's three­
year itinerar indicates that the Beneficiary will submit artworks to thel IArt Fair, give artist 
talks a"L..r------.---' apply to artist residencies at thel !School of Painting and Scul ture 
and the ~--~ Studio Center, and participate in group exhibitions, including at th....._ ____ ~...., 
Gallery and in the 2020-2021 I !exhibition at thel I Gallery guest-curated b 
I I ·~ 
5 
In her above-referenced letter, I I provides that thel~--~~ exhibition will "exhibit a range 
of diverse, two-dimensional works by emerging and underrepresented artists" and approximately 50 
artists, including the Beneficiary, have been selected to represent different art genres and techniques 
and diverse educational and cultural backgrounds. The Petitioner also supplied a copy of the 
Beneficiary's tendered contract from I I Gallery for that exhibition. However,D 
I ts letter and the tendered contract do not establish either that the Beneficiary's role in that 
project will be lead or starring or that the project is an event which has a distinguished reputation. 
Regarding the proposed exhibition at thel !Gallery, an additional letter froml~----~ 
addressed to the Beneficiary invites her to provide the gallery with several recent paintings for a group 
exhibition focusing on contemporary abstraction. The letter indicates the six-week exhibition may be 
inl I 2021 and advises how the price of the artworks will be determined and any sales 
proceeds divided, but it does not distinguish the Beneficiary's proposed role as leading or starring 
within the upcoming production or demonstrate its distinguished reputation. 
Further, the Petitioner referred to published materials in the record, including the aforementioned 
articles about thel I Gallery, a press release advertisin the rior, inaugural 2019-202~ 
c=::kxhibition atl !Gallery curated b,........... _____ ____J screenshots about the~ 
~ Gallery from its website, news articles about.__ ___ ____.Gallery from hudsonvalley360.com, 
dailygazette.com, and timesunion.com, and news articles about thel I Art Fair, thel I 
Studio Center, and the I I School of Painting and Sculpture. However, those published 
materials do not mention the Beneficiary's artwork and the upcoming events. Therefore, they do not 
establish her upcoming lead or starring participation in specific productions or events which have a 
distinguished reputation. 
In sum, the Petitioner has neither identified nor documented, through submission of the evidence 
prescribed by regulation, the Beneficiary's previous or forthcoming lead or starring role in events with 
a distinguished reputation. 
Finally, we acknowledge that with respect to this and other criteria, the Petitioner refers to several 
non-precedent decisions concerning other petitioners who have appealed the denial of their 
extraordinary ability petitions. The referenced decisions were not published as a precedent and 
therefore do not bind USCIS officers in future adjudications. See 8 C.F.R. § 103.3(c). Non-precedent 
decisions apply existing law and policy to the specific facts of the individual case and may be 
distinguishable based on the evidence in the record of proceedings, the issues considered, and 
applicable law and policy. 
In light of the above, the Petitioner has not established that the Beneficiary satisfies the requirements 
of this evidentiary 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). 
6 
In order to meet the plain language of the criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(2), the Petitioner must 
submit not only evidence of the Beneficiary's achievements, but evidence that the Beneficiary has 
received national or international recognition as a result of her achievements. Such recognition must be 
evidenced by published materials by or about the Beneficiary in major newspapers, trade journals, 
magazines and other publications. The Petitioner has submitted the aforementioned articles and press 
release from koreatimes.com, koreadaily.com, and artsy.net about the Beneficiary's group exhibitions 
I ~an~ I 
In denying the petition, the Director determined that the Petitioner's evidence was insufficient to satisfy 
this evidentiary criterion. The Director found that the Petitioner did not submit adequate documentation 
in the form of published material from major newspapers, trade journals, magazines or other publications 
to show that the Beneficiary has received national or international recognition for any achievements she 
may have. The Director noted that the articles from koreatimes.com and koreadaily.com "advertise the 
exhibition" and indicate the Beneficiary is "an up-and-coming individual in the art community." On 
appeal, the Petitioner maintains that "articles that profile the exhibition listing the Beneficiary as a 
featured participant" published in "internationally distributed" online publications satisfy the 
requirements of this criterion. 
We agree with the Director's determination that the Petitioner has not satisfied the evidentiary 
requirements of this criterion. First, although the articles from the websites koreatimes.com, 
koreadaily.com, and arty.net confirm that the Beneficiary participated in the exhibitions~ 
I I andl the articles are not specifically about the Beneficiary, nor are they critical 
reviews or other journalistic coverage recognizing her achievements in the field of art. 
In addition, as it relates to the koreatimes.com, the Petitioner offered screenshots from similarweb.com 
dated April 2020 reflecting that the website had a global rank of 21,629, a country rank of 3,958, and 
"total visits" in the preceding six months of 2.39 million. Similarly, as it relates to the koreadaily.com, 
screenshots from similarweb.com dated April 2020 indicate the website had a global rank of 9,323, a 
country rank of 1,890, and "total visits" in the preceding six months of 5.63 million. Further, as it 
relates to the artsy.net, screenshots from similarweb.com dated April 2020 indicate the website had a 
global rank of 19,289, a country rank of 7,566 and "total visits" in the preceding six months of 2.97 
million. The Petitioner did not demonstrate, however, that such Internet viewing statistics reflect 
status as a major medium. 
The Petitioner has not submitted evidence that satisfies the plain language of the regulatory criteria at 
8 C.F.R. § 214.2(o)(3)(iv)(B)(2). As noted above and as emphasized by the Director, the Petitioner is 
required to establish that the Beneficiary has received national or international recognition for her 
achievements as evidenced by critical reviews or other published materials by or about the individual in 
major newspapers, trade journals, magazines or other publications. Although the Petitioner continues to 
claim that the Beneficiary meets this criterion, the record does not contain published materials by or about 
the Beneficiary. The evidence is insufficient to establish that the Beneficiary's achievements as a fine 
artist have earned her national or international recognition that resulted in major publicity, which is the 
basis for this criterion. 
Based on the above, the Petitioner has not established that the Beneficiary satisfies the eligibility 
requirements of this regulatory criterion. 
7 
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 the criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l) and (2). 
Although the Petitioner claims the Beneficiary 's eligibility for two additional criteria on appeal, 
relating to lead, starring, or critical role for organizations under 8 C.F.R. § 214.2(o)(3)(iv)(B)(3) and 
significant recognition for achievements under 8 C.F.R. § 214.2(o)(3)(iv)(B)(5), we need not reach 
these additional grounds. As the Petitioner cannot fulfill the initial evidentiary requirement of three 
criteria under 8 C.F.R. § 214.2(o)(3)(iv)(B), we reserve these issues.4 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 INS v. Bagamasbad , 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach) ; see also Matter of L-A-C- , 26 I&N Dec. 516, n.7 
(declining to reach alternative issues on appeal where an applicant is otherwise ineligible) . 
8