dismissed O-1B Case: Media

U.S. Citizenship 
and Immigration 
Services 
In Re : 25767371 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 23, 2023 
Form 1-129, Petition for a Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, a heating oil company and service, seeks to classify the Beneficiary as a marketing 
general manager. To do so, the Petitioner pursues 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)(l5)(O)(i) , 8 U.S.C. § l 10l(a)(15)(O)(i) . 
The Director of the California 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 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)(l5)(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." See 8 C.F.R. § 214.2(o)(3)(ii). Next, DHS regulations 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)(l5)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iv). 
II. ANALYSIS 
At initial filing, the Petitioner indicated it sought to classify the Beneficiary as an individual of 
extraordinary ability in the sciences, education, business, or athletics (O-lA). 1 To do so, a petitioner 
may submit evidence of either "a major, internationally recognized award, such as a Nobel Prize," or 
at least three of eight listed categories of documents. 8 C.F.R. § 214.2(o)(3)(iii)(A)-(B). Although 
the Petitioner provided various documents, the Petitioner did not indicate which categories of 
evidence, if any, the evidence pertained. 
The Director issued a request for evidence (RFE) addressing numerous deficiencies in the filing. In 
response, the Petitioner stated that "[aa ]s it is of common knowledge, a Radio Announcer cannot be 
classified as a Science, Business, Athletics nor Educators," and "[ww ]e hereby request amend of Form 
I-129-O to request nonimmigrant classification of OlB (Arts) instead ofnonimmigrant classification 
of O lA." 2 To do so, a petitioner may submit evidence either of nomination 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. 8 C.F.R. 
§ 214.2(o)(3)(iv)(A)-(B). The Petitioner specifically indicated that the Beneficiary qualified for the 
following three criteria: national or international recognition under 8 C.F.R. § 214.2(o)(3)(iv)(B)(2), 
major commercial successes under 8 C.F.R. § 214.2( o)(3)(iv)(B)(4), and significant recognition under 
8 C.F.R. § 214.2(o)(3)(iv)(B)(5). 
Although the Director granted the request to amend the petition, the Director determined the Petitioner 
did not demonstrate the Beneficiary's eligibility for any of the three claimed categories of evidence. 
On appeal, the Petitioner contends the Beneficiary not only satisfies the three previously claimed 
criteria, but the Beneficiary also meets the leading or starring participant in productions or events 
criterion under 8 C.F.R. § 214.2(o)(3)(iv)(B)(l) and submits additional documentation. However, we 
will not consider new eligibility claims and evidence on appeal for the first time 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 
any purpose" and that "we will adjudicate the appeal based on the record of proceeding" before the 
1 See page 26 of Form 1-129, 0 and P Supplement, section 1, question 3. 
2 Although the RFE response letter mentioned the Beneficiary as being a radio announcer, the Petitioner resubmitted a 
copy of the initial job offer reflecting its intention to hire the Beneficiary as a marketing manager. 
2 
Director); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). Here, the Petitioner had the 
opportunity to make any additional eligibility claims and submit documentation in response to the 
Director's RFE. 
For the reasons discussed below, the Petitioner did not establish the Beneficiary meets the following 
regulatory 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 regulation at 8 C.F.R. § 214.2(o)(3)(iv)(B)(2) requires evidence of a beneficiary's national or 
international recognition for achievements evidenced by critical reviews or other published materials 
in major newspapers, trade journals, magazines, or other publications. In determining whether the 
submitted evidence demonstrates that the beneficiary has achieved national or international 
recognition for achievements, officers consider both the content of the published material and the level 
of recognition enjoyed by the publication in which it appears. 3 For example, favorable coverage or 
publication of the beneficiary's work in major media, as demonstrated by high relative circulation, 
readership, or viewership figures, could establish national or international recognition of the 
beneficiary's achievements. 4 
The Petitioner argues: 
[The Beneficiary] was featured in MAS, a newspaper, which is popular with potentially 
60% of the Salvadoran population, and which is owned by Grupo Altamirano- one of 
the media conglomerates that control 65% of Salvadoran print and digital media. MAS 
published several news articles in which its journals visited Beneficiary atl I 
The articles personally refers to Beneficiary as an important DJ at I 
specifying that he used to be on air from 6 AM to 9 AM, a very popular timeslot with 
his target audience. The report also highlights that Beneficiary is also on air with 
popular music during weekends, noon and lunch time during the week. In essence, the 
MAS newspaper articles publicized Beneficiary's work as a popular radio DJ in El 
Salvador. Because of the wide circulation in El Salvador, being featured in MAS 
newspaper constitutes recognition of Beneficiary's commercial success in a major 
newspaper. 
In response to the Director's RFE, the Petitioner submitted about two dozen items from MAS regarding 
I I The Petitioner, however, did not establish how the evidence qualifies as critical 
reviews or other published materials by or about the Beneficiary. In fact, the documentation relates 
to promotional material from the radio station rather than critical reviews or other published materials 
by or about the Beneficiary. 5 For example, the items announce: 
3 See 2 USCIS Policy Manual, M.4(C)(2)(appendix), https://www.uscis.gov/policymanual. 
4 Id. 
5 Some of the items never mention the Beneficiary. 
3 
• [The Beneficiary] is a broadcaster and part ofthel !family. He invites 
you to tune in to in this new month of 2016, because we come loaded with 
prizes and promotions for loyal radio listeners. Don't forget to listen to it on 
from Monday to Friday, starting at 6:00 AM. 
• Ready to start the weekend with you and make you dance with the best of cumbia, 
salsa and merengue. [The Beneficiary] invites you to listen to him this Saturday 
starting at noon. 
• Join [ the Beneficiary] in a program designed to make your body move to the rhythm 
of merengue, cumbia and salsa. Enjoy lunch by and only good music. We 
guarantee you a better weekend. 
Furthermore, the Petitioner did not show how the items reflect that the Beneficiary has achieved 
national or international recognition for achievements. Again, the items reflect promotional material 
from the radio station for various radio programs rather than critical reviews or other published 
material by or about the Beneficiary. Moreover, the Petitioner did not demonstrate how the 
promotional and advertising evidence indicates the Beneficiary's national or international recognition, 
nor do they identify or highlight the Beneficiary's achievements. The evidence, for instance, does not 
discuss the Petitioner's accomplishments or achievements, nor does it show that the Beneficiary 
received national or international recognition for them. 
Finally, the Petitioner did not establish that MAS qualifies as a major newspaper, trade journal, 
magazine, or other publication. Although the Petitioner asserts that MAS "is popular with potentially 
60% of the Salvadoran population," the Petitioner did not offer evidence either at initial filing or in 
response to the Director's RFE to support its claims. 
For the reasons discussed above, the Petitioner did not demonstrate that the Beneficiary satisfies this 
criterion. 
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)(2). Although the Petitioner claims the Beneficiary's eligibility under 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(4) and (5), we need not address these grounds 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 
10l(a)(15)(0)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii) and (iv).6 Accordingly, we reserve these 
issues. 7 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. 
6 See generally 2 USCIS Policy Manual, supra, at M.4(D). 
7 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). 
4 
ORDER: The appeal is dismissed. 
5