dismissed O-1B Case: Music

U.S. Citizenship 
and Immigr ation 
Services 
In Re: 8792203 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Admin istrative Appeals Office 
Date: JULY 14, 2020 
Form I-129, Petition for Nonimmig rant Worker (Extrao rdinary Ability - 0 ) 
The Petitioner, an entertainment management business, seeks to classify the Beneficiary, a singer, as a 
foreign national of extraordinary ability in the arts. To do so, the Petitioner seeks 0-1 nonimmigrant 
classification, availab le to foreign nationa ls who can demonstrate their extraordinary ability through 
sustai ned national or international acclaim and whose achieveme nts have been recogn ized in the field 
through extensive documentation. See Immigrat ion and Nationa lity Act (the Act) 
section 10l(a)(l5)(O)(i), 8 U.S.C. § 1 I0I(a)(15)(O)( i). 
The Director of the California Service Center denied the petition , concluding that the Petitioner did 
not satisfy, as required, the evidentiary criteria applicable to individua ls 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 previously submitt ed evidence estab lishes that the Beneficiary 
meets at least three of the initial evidentiary criteria and is otherwise qualified for the benefit sought. 
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 appea l. 
I. LAW 
As relevant here, section 10l(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 fo1th the evident ia1y criteria for establishing a beneficiary 's sustained 
acclaim and the recognition of achiev ements. 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 
Directo r's Guild Award," or of at least three of six listed categori es of documents . 8 C.F.R. 
§ 214.2(o)(3)(iv )(A)-(B). 
The submi ssion of documents satisfying the initial evidentiaiy criter ia 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 petition er is not the standard for the classifica tion, but merel y the 
mechanism to establish whether the standard has been met.") Accordingly , where a petition er 
provides qualifying evidence satisfying the initial evidentiary cliteria, we will determine whether the 
totality of the record and the quality of the evidenc e shows extraordinary ability in the arts. See section 
101(a)(15)(o)(i) of the Act and 8 C.F.R. § 214 .2(o)(3)(ii) , (iv). 1 
II. ANALYSIS 
The record reflects that since at least 2016 the Beneficia1y has ww,ked a - a_$.llll!eunlt ~ . The record 
indicate s that the Beneficiary released two solo album s in 2016 ,[ J The Petition er 
reque sts that the Beneficiary_ be granted O~ 1 classification fop u1eriod .oL..amu:o.xiq~arelV. QA.eJI1,..QP.tb...SQ., 
that he may perfo1m as a smger at two bve concerts at the; _________ inl _J 
Michigan . The Petitioner provided a summary of the terms of its oral agreement with the Beneficiary , 
setting forth his proposed duties during the reque sted period , and its rental agreement with the -
Banquet Hall for the two events. The Petitioner asserts that the Beneficiary is "an internationa lly 
renowned singer." 
A. The Beneficiary 's Eligibility under the Evidentiary Criteria 
Becau se the Petitioner has not indicated or establi shed that the Beneficiary has been nominated for or 
received a significant national or internationa l award or prize, it must satisfy at least three of the alternate 
regulatory criteria at 8 C.F .R. § 214 .2(o)(3)(i v)(B)(l)-(6). The Directo r found that the Petitioner met 
only one of those evidentiary criteria , the criterion relating to high salary at 8 C.F.R. 
§ 214.2( o )(3)(iv)(B)( 6). On appeal , the Petitioner maintains that the evid ence satisfies five additional 
alternate criteria . After reviewing all the evidence in the record, we find that the exhibits do not satisfy 
at least three of the evidentia1y criteria at 8 C.F.R. § 214.2(o)(3)(i v)(B). 
Evidence that the alien has pe~formed, 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, publi cations, 
contracts , or endorse ments. 8 C.F.R. § 214.2(o)(3)(iv)(B)(J). 
The Directo r detennined that the record establishes that the Beneficiary has performed as a lead or 
starring part icipant in productions or events which have a distinguished reputa tion. In addition to his 
past positions, this criterion require s the Peti tioner to submit evidence that the Beneficiaiy "will 
1 See also Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010), in which we held that, "nuth is to be determined not 
by the quantity of evidence alone but by its quality." 
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pe,form" services as a lead or stan-ing participant in productions or events which have a distinguished 
reputation upon approval of the petition, as evidenced by clitical reviews, adve1tisements, publicity 
releases, publications, contracts, or endorsements. The Director concluded that the evidence submitted 
was insufficient to establish the Beneficiruy's upcoming lead or stan ing participation in distinguished 
productions. We agree. 
As mentioned previously, at the time of filing the Petitioner submitted a summary of the te1ms of its 
oral agreement with the Beneficiary, indicating that his proposed projects in the United States will 
include performing as a singer at two concerts at the - Banquet Hall. While it appears that the 
Beneficia1y would be a featured performer at the engagements that the Petitioner has ru-ranged for him, 
it has not provided evidence in the form of advertisements, publicity releases, publications, contracts, 
or endorsements establishing that the productions or events in which the Beneficiary will participate 
have a "distinguished reputation." On appeal, the Petitioner cites to three promotional flyers 
previously submitted regarding the Beneficiary's 2019 tour, and provides the Beneficiruy's 
contracts with Club in - and Company in Ge1many for, respectively, a 
2019 ____ party and a five-concert 2020 tour. While that documentation shows that 
the Beneficiary would be a featured performer at those productions it does not establish that such 
engagements could be considered events with a distinguished reputatio n. In addition, the Petitioner's 
claim that the Beneficiary is an internationally renowned singer is insufficient to meet the evidentiary 
requirements set fo1t h in this criterion. 
Based on the above, the Petitioner has not established that the Beneficiruy satisfies the requirements of 
this 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). 
To meet this criterion, the Petitioner cites an undated interview with the Beneficiary published in the print 
edition of Mashaher Al Iraq (Iraqi Celebrities) magazine in issue Additional evidence shows the 
Beneficiary appeared on the cover of that issue of the magazine. In the article, the Beneficiary indicates 
he has been working with the "music writer and singer l !and poet- " and that he 
"lean[ s] towru·d classic songs." The interviewer asserts that the Beneficiary has become "fan1ous" and 
"successful," and the Beneficiary credits his production company "■••••■ with contributing to 
his success. He describes his first album, - as "a good start.," and states he is working on a new 
album. 
In the request for evidence (RFE), the Director acknowledged the Petitioner's submission of the article, 
but noted that it did not establish that the interview was published in a major newspaper or magazine with 
a national or international circulation and was undated. Within its response, the Petitioner stated that 
"[i]nsofar as exact circulation figures, the [P]etitioner . . . ha[s] been unable to obtain such figures . . .. " 
The Petitioner provided a screenshot of the magazine' s Instagram and Facebook pages, showing its 
number of followers on those social platforms. The Director determined that the evidence submitted did 
not establish that the interview was published in a major medium. 
3 
On appeal, the Petitioner maintains that it ''is unable to obtain circulation figures because as of 2014 
Jlfashaher Al Iraq became a digital magazine that publishes its articles tlu-ough its Instagram and 
Facebook pages." However, the Petitioner's claim is not suppo1ted by other evidence in the record. The 
Petitioner submits a Wikipedia a1ticle2 indicating that Mashaher Al Iraq is "an Iraqi magazine 
published weekly from- .. . first published in 2008 as an ente1tainment and sports magazine." 
This documentation does not indicate, as asserted, that as of 2014 the magazine became a digital 
publication. In addition, the Petitioner's claim is inconsistent with a letter it submits on appeal from 
of the haqi Celebrities Agency, confuming that the date of 
publication of the Beneficiary's inte1view in the print version of lvfashaher Al Iraq was" 2017." 
The Petitioner must resolve any inconsistency in the record with independent, objective evidence 
pointing to where the truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). The Petitioner 
has not provided supporting evidence indicating that the print edition of Mashaher Al Iraq qualifi es 
as major media, such as evidence that the circulation of .Mashaher Al Iraq is high compared to other 
circulation statistics. 
In light of the above, the Petitioner has not established that the Beneficiary satisfies the requiremen ts 
of this regulatory criterion. 
Evidence that the alien has pe,jormed , and will pe,form , in a lead, starring, or critical 
role/or organizations and establishments that have a distinguished reputation evidenced 
by articles in newspapers, trade journals, publica tions, 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 work as a singer. 
A leading or starring role should be apparent by its position in the overall organizational hierarchy and 
through the role's matching duties. A c1itical role should be apparent from a beneficiary's impact on the 
organization or the establishment's activities. A 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. Specifica lly, the Director determined that 
the Beneficiary's performances were consistent with those of a singer but did not establish that he 
performed in a lead, starring, or critical role for a distinguished organization. 
In support of this criterion, the Petitioner provided an employment verification letter dated 2018 from 
the president of Foundation for Media and Alts, stating 
that the Beneficiary was a perfo1ming artist employed by the company as of the date of his letter. On 
appeal, the Petitioner provides an additional letter dated 2018 from - stating that the 
Beneficiary is an ' ___ _.channel star" whose "accomplishments for the channel are of creative 
value and he has many clips on all channels." 
While a company's staff may consider the Beneficiary's achievements to be of great benefit to the 
company, the focus of this criterion, based on the plain language of the regulation, is the Beneficiary's 
role itself. Although ______ letters speak highly of the Beneficiary's perfonnanc e for( I 
2 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 (accessed June 30, 2020) 
https://en.wikipedia.org/wiki/Wikipedia:General _disclaimer; Badasa v. Mukasey, 540 F.3d 909 (8th Cir. 2008) . 
4 
~ oundation for Media and Arts , they do not establish his "lead," "stan ing," or "critical" role. 
The letters show that his work was cons istent with that of a singer, and they describe him as having 
achieve d results that met or excee ded the company's expectations. The letters do not e~taluish that., 
his role as a singer has been a lead, stan ing, or critical role for the company. For exampl e,! I ------does not distin guish the Beneficimy's position from tho se of the company 's other singers or 
demonstrate that he was responsible for the company 's success or standing to a degree consistent with 
the meaning of a "critical role." In addition, the fact that the Beneficiary may have played a lead or 
stanin g role in severa l performa nces is not suffici ent to satisfy this criterion 's requirements . 
In addition, the Petitioner has not submi tted evidence to establish how the Beneficiaiy's propo sed work 
as a singer will be in a lead, staning or clitical role for the petitio ning organization. As stated 
previously, the submitt ed summa ry of the terms of the Petitioner's oral a reement with the Beneficiary 
indicates that he will be performing in two live conceits at the ________ This evidence 
does not establish how the Beneficiary's proposed work as a singer rises to the level of a lead, starring , 
or critical role for the petitio ning company , or that it has a distinguished reputation. 
In light of the above, the Petitioner has not established that the Beneficiary satisfies this evidentiary 
criterion. 
Evidence that the alien has a record of major commercial or critical~v 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 c1itically acclaimed successes as 
reported in publications. In the Beneficiary's field , evidence satisfying this criterion would reasonabl y 
include evidence of album or single sales, radio airplay rankings, evidence of conc eit revenue s and 
similar evidence of tangible achieveme nts in the music indu stry. Tue Director detennin ed the evidence 
subm itted does not satisfy this criterion, and the record supports that conclusion. 
The Petitioner asse rts that the Benefici ary satisfies the require ments of this criterion based upon his 
past CD sales. The Petitioner relies on a statement in one of s letters that the Beneficiar y's 
"sales exceed 100 Thousand CDs er month ." Howeve r, ____ _, claim is inconsistent with that 
of _____ ... f _____ ... fustitution , the Beneficia iy's distiibution company, whose letter 
indicates that the Beneficiary "has achieved a percentage of sales inside Iraq and outside in amounts 
nearing (50) thousand copies annually." As stated previously, the Petitioner must resolve 
inconsistencies in the record with independent , objefJ.u:.e~ ·deJ\ce /qjutin~ ~ where the truth lies. 
lvfatter of Ho, 19 I&N Dec. at 591-92. The claims of _____ Ian ____ are not supported by 
evidence such as reliable documentation of sales figures. Further, the Petitioner has not shown that 
attaining CD sales at either claimed level is an indicator of a record of commercial or critical success. 
Tue Petitioner further claims that the Beneficiaiy' s record of L iQLCmu.i;per.rj_aL~ ritically acclaimed 
success es is also evidenced by ''views" of videos of his songs f ___ .... and others, posted 
5 
by his employer on Y ouTube. 3 Again, the Petitioner did not demonstrate the significance of these 
figures or show how such data reflects the Beneficiary's record of major commercial or critically 
acclaimed successes, as required by the plain language of the regulation. Assuming the correlation had 
been established, the record does not include evidence that such critical or commercial success was 
memorialized in trade jomnal s, major newspapers, or other publications such that his achievement was 
acknowledged in the industry at-large. On appeal, counsel asserts that "[ d]ue to the current security 
and political conditions in Iraq, the Petitioner is unable to obtain documentation from trade journal s, 
major newspapers, or other publication s that repo1ted [the Beneficiary's] major commercial or 
critically acclaimed successes." However, assertions of counsel do not constitute evidence. lvf atter of 
Obaigbena, 19 I&N Dec. 533, 534 n.2 (BIA 1988) ( citing Matter of Ramirez-Sanchez, 17 l&N Dec. 
503, 506 (BIA 1980)). Counsel's statements must be substantiated in the record with independent 
evidence, which may include affidavits and declarations. 
Based on the above, the Petitioner has not established that the Beneficiary satisfies this evidentiary 
criterion . 
Evidence that the alien has received significant recognition fo r 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) . 
.Jo sunoo..c.LoLthe_reauif·ements of this c1ite1io the Petitioner submitted a testimonial letter from_ 
... L ________ _._ Chief of the Iraqi ______ _ stating that the Beneficiary is "one of the 
Iraqi singers who is predominate names in the art and 1r dia_sectou: d he' s well-know by the Iraqi 
I i' We detenn ine that the testimonial of ... _____ ..... Jioes not satisfy this crite1ion. 
We may, in our discretion, use as advisory opinions statements offered as expert testimony . 
See Matter of Caron Int 'l, 19 I&N Dec. 791, 795 ( Comm 'r 1988). However, we are ultimately 
responsible for making the final determination regarding a beneficiary's eligibility for the benefit 
sought. Id. The submission of letters of support from the Beneficiary's personal contacts is not 
presumptive evidence of eligibili ty; we may evaluate the content of those letters as to [w-het.her_tbey_, 
support the foreign national ' s eligibility. Id. at 795-796. Here, the reference letter from I ------does not address any specific achievements of the Beneficiary and explain how the Beneficiary's 
achievements to date have received significant recognition from organizations, critics, government 
agencies or other recogni zed experts in the field. 
Further we acknowledge that the Petitioner provided a "no objection" labor consultation letter from 
f the American Guild of Musical Al1ists (AGMA), stating that "the draft I-129 Petition -------and suppo11ing documentation regarding [the Beneficiary] .. . . appears to meet the standard of distinction 
set forth at 8 CFR [§] 214.2[(0)]." While the letter satisfies the Petitioner's burden to submit a written 
3 We note that the Beneficiary's video for- was published on YouTube subsequent to the fi ling of the petition in 
June 2019. The Petitioner must establish that all eligibility requirements for the immigration benefit have been satisfied 
from the time of the filing and continuing through adjudication . 8 C.F.R. § 103.2(b)(l) . 
6 
advisory opinion from an appropr iate consulting entity pursuant to 8 C.F.R. § 214.2(o)(2)(ii)(D) , it 
cannot be used for the dual purpose of satisfying the regulatory c1ite1ia at 8 C.F.R. § 214.2(o)(3)(iv)(B). 
Consultations are advisory and are not binding on USCIS. See 8 C.F.R. § 214.2(o)(5)( i)(D). Regardless, 
the letter does not constitute a letterJt®Ul11-ex ert attesting to the Beneficiary's receipt of signifi cant 
recog nition for achievements , as __________ does not explain how AGMA reached its conclusions 
based on the evidence submitted with the petition. 
For the above reasons, the Petitioner did not show that the Beneficiary satisfies this c1iterion. 
Evidence that the alien has either commanded a high sa!tuy or will command a high 
salary or other substantial remuneration for services in relation to others in the.field, 
as evidenced by contracts or other reliable evidence. 8 C.F.R. § 214.2(o)(3)(iv)(B)(6). 
The Director concluded that the Petition er satisfied the requiremen ts of this cliter ion based on its 
submission of evidence that the Beneficiary has been offered a salary of $10,000 per engagement for each 
ofhis two scheduled performances in the United States. We agree with the Director's dete1mination that 
this crite1ion has been met. 
III. CONCLUSION 
The record does not satisfy, as required, the evidentiary criteria applicable to individual s of 
extraordinary ability in the arts: 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). Consequen tly, the Petitioner has 
not established that the Beneficiary is eligible for the 0-1 visa classification as an individual of 
extraordinary ability in the arts. The appeal will be dismissed for the above stated reasons, with each 
conside red as an independent and alternate basis for the decision . 
ORDER: The appeal is dismissed. 
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