dismissed O-1B Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 12464811 
Appeal of Vermont Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 29, 2021 
Form 1-129, Petition for Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, an agent, seeks to classify the Beneficiary, a musician and composer, as a foreign national 
of extraordinary ability in the arts. To do so, the Petitioner seeks 0-1 nonimmigrant 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). 
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 (OHS) 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, OHS 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)(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 
101(a)(15)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iv).1 
II. ANALYSIS 
The documentation submitted indicates that the Beneficiary has been performing in Russia as a 
guitarist and composer since at least 2010. The Petitioner filed the Form 1-129, Petition for a 
Nonimmigrant Worker, and supporting documentation, seeking to have the Beneficiary perform as a 
guitarist and composer for a period of three years. It asserts that the Beneficiary is a guitarist and 
composer of exceptional ability. The Petitioner provided its agency agreement with the Beneficiary. 
The Petitioner also submitted the employment a:reements between the Beneficiary and I 
I II 11 I.I ti I and I ] I r setting forth the Beneficiary's proposed duties during the requested period and authorizing 
the Petitioner to act as the agent for those establishments for the purpose of filing this petition. The 
Beneficiary's proposed itinerary as of the date of filing also indicated that the Beneficiary will be 
recording music atl I 
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 
regulatory criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l)-(6). The Director determined that the Petitioner 
provided evidence relating to five criteria but did not satisfy any of them. On appeal, the Petitioner 
maintains that the evidence satisfies those five criteria. For the reasons discussed below, after 
reviewing all the evidence in the record we find that the exhibits do not satisfy at least three of the 
evidentiary criteria 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, pub I icity releases, pub I ications, 
contracts, or endorsements. 8 C.F.R. § 214.2(o)(3)(iv)(B)(l) 
The Petitioner has provided posters, album covers, photographs, reviews, and letters from colleagues 
regarding events at which the Beneficiary has performed in Russia, including the 2015 documentary 
1 See also Matter of Chawathe, 25 l&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 
film thel I the 20180 Festival, and concerts with the musicianl....._ _____ ..... 
I The posters specifically mention the Beneficiary by name, either as the solo artist 
or as one of many performers at the event. In addition, the Beneficiary has been the composer and 
musician on several of his ow
1 
pro
1
uctions, including his debut album I I (2018), the EP 
I t2019), and the singles (2019) and 1 1(2019). A 2019 review of I I I Ion the website www.circlepit.com describes it as "a considerable chunk of instrumental 
greatness," and the Beneficiary as "an exciting, new solo artist rising up through the ranks of the 
instrumental metal world." 
Upon review, although we find that the evidence establishes that the Beneficiary has performed in a 
lead or starring role for productions or events, the Petitioner has not submitted critical reviews, 
advertisements, publicity releases, publications or other evidence to establish that the events 
themselves have a distinguished reputation, as required pursuant to the plain language of this criterion. 
As described above, the review and posters regarding events at which the Beneficiary has performed 
do not establish that the productions have distinguished reputations among industry publications that 
cover the Beneficiary's genre of music. In addition, while the Petitioner submitted evidence that the 
Beneficiary's music is available on digital streaming services including Apple Music and Spotify, the 
Petitioner has not demonstrated how this evidence demonstrates that those productions have a 
distinguished reputation. The Petitioner has not established that publication on online streaming 
services is evidence of the distinguished reputation in the field of musical works posted on those sites. 
Further, although on appeal the Petitioner submits a screenshot showing that the Beneficiary's songs 
have received 2,706 "all time plays" on the on line platform Bandcamp, the significance of this amount 
of plays is not explained. 2 
Moreover, to meet this criterion the Petitioner must establish that the Beneficiary wi 11 perform services 
as a lead or starring participant in productions or events which have a distinguished reputation upon 
approval of the petition. The evidence of record indicates that if the requested classification is granted 
the Beneficiary, as a guitarist and composer, will perform at music clubs and participate in studio work 
at recording studios. The Petitioner has not submitted critical reviews, advertisements, publicity 
releases, publications, or other evidence to establish that the productions on the Beneficiary's proposed 
itinerary 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. 
Based on the above, the Petitioner has not established that the Beneficiary 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 
2 The Petitioner also provides evidence that the Beneficiary's single I I was streamed on Spotify 
more than 10,000 times as of April 2020 and received 2,357 views after its 2020 premiere on YouTube. As the Petitioner 
must establish eligibility at the time offiling (September 2019) in accordance with 8 C.F.R. §103.2(b)(1), we will evaluate 
evidence that pre-dates the filing of the petition. 
3 
individual in major newspapers, trade journals, magazines, or other publications. 
8 C.F.R. § 214.2(o)(3)(iv)(B)(2) 
The Director determined that the Petitioner did not satisfy this criterion. We agree. Specifically, the 
Petitioner did not demonstrate published material about the Beneficiary in major newspapers, trade 
journals, magazines, or other major media. The Petitioner submitted a screenshot from the webpage 
of the radio program I I containing a picture of the Beneficiary, and a transcript of a 
2010 interview of him from that program. The interview asks questions relating to the Beneficiary's 
musical career and education. The Petitioner asserts that the program was broadcast on thl regional! 
radio station I I in Russia. However, the Petitioner did not establish that 
I t represents a major medium .. Although the Petitioner provided untranslated information 
pertaining to the audience statistics ofl I radio stations, the issue is whether the radio show 
is a major medium. 
The Petitioner also submitted screenshots from the YouTube channel of Russian blogger D 
~ I The Petitioner asserts that the screenshots show that the Beneficiary was interviewed 
oYl ...... ______ ....,l.,on two occasions in 2018, in which it claims he discussed, respectively, 
different techniques of guitar strumming and the.__ ________ __. One screenshot contains 
a picture of the Beneficiary and an untranslated caption. The other screenshot contains a picture of a 
guitar and the partial caption I O - I· However, the Petitioner did not provide 
a transcription of the interviews demonstrating pub I ished material about the Beneficiary relating to his 
work. In addition, the Petitioner indicated thatl Is YouTube channel has over 20 
million total views. However, although the Petitioner provides information from 
www.growthtraffic.com and www.tubics.com about how YouTube counts views, the Petitioner did 
not demonstrate the significance of 20,000,000 total views on a YouTube channel. 
In addition, the Petitioner provided a screenshot from the webpage www.ltv.ru that shows the 
Beneficiary accompanying Ion guitar during a recording session. A letter from.D 
I I an actor and musician, indicates the Beneficiary took part in the documentary filrrLJ 
I I and that "[w]e recorded one of my songs together, that appeared in the program on 
the most important central television channel of Russia in 2015." The Petitioner claimed that "[t]he 
fact that [the Beneficiary] has appeared on Russia's most popular TV channel I I along 
as the main music player for Russia's famous actor I I also demonstrates that he has 
achieved the level of recognition required under the regulations .... " Further, the Petitioner references 
under this criterion letters from I and I I companies for whom the 
Beneficiary has worked as an endorser, as evidence of the Beneficiary's "standing within the Russian 
music industry." The Petitioner did not establish, however, how the screenshot and letters reflected 
published material by or about the Beneficiary. The letters will be considered under the appropriate 
criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3) and (5). 
Finally, the Petitioner submitted an article dated I I 2020 about the Beneficiary which was 
published on the website www.musiccrowns.org, and a screenshot of an interview of the Beneficiary 
datedl I 2020 from the website www.theericalper.com. Again, the Petitioner cannot rely on 
those materials to establish his eligibility at the time of filing this petition in September 2019. A 
petitioner must establish that all eligibility requirements for the immigration benefit have been 
4 
satisfied from the time of the filing and continuing through adjudication. 8 C.F.R. § 103.2(b)(l); see 
also Matter of Katigbak, 14 l&N Dec. 45, 49 (Comm'r 1971). 
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 for 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) 
The Petitioner maintains that the Beneficiary meets this criterion by having been selected byl I I I and I I "to be the exclusive endorser of their products in the Russian market, 
through paid performances and advertisements." The record shows thatl O I a Swedish 
company, specializes in the manufacture of 6, 7, and 8-string headless electric guitars, and thatl I I lis a U.S. company that manufactures musical instruments and sound equipment. The record 
contains screenshots of several video cli s the Beneficiary posted on YouTube and the social media 
websites of and in 2018. For instance, videoclips on YouTube 
and the lnstagram account show the Beneficiary performing with and reviewin 
I O I guitars and th-,__ _____ ~____,• In addition, the lnstagram account of -----4 
c==J.iodicates that the Beneficiary is a "newly added I I artist ... performing live on his._____. 
c====]as part of our new dealer presence in Russia .... " 
The Petitioner also submitted a letter froml I president of I I who states 
that "in 2017 [the Beneficiary] was chosen as the main endorser of our company in Russia. He is the 
only guitarist in Russia who represents our company." We note, however, that correspondence 
submitted from the Beneficiary's email account indicates he first contacted I I in 
October 2018 to inquire about becoming an endorser of the company. The Petitioner must resolve this 
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 . Further a letter froml lot the 
I I an official partner and distributor of in Russia, provides that since 2018 
the Beneficiary "has been the endorser o .___ ..... in the Russian Federation." He asserts that "[t]hanks to 
[the Beneficiary's] active performances and big following in Russia, we were able to significantly 
popularize our products, as well as sales of our brand in the territor of the Russian Federation." On 
appeal, the Petitioner provides additional documentation about L I and I I I I including an interview with I I from www.inc.com indicatin that the com an 
is a global brand with a reported $270 million in annual revenue. A review of the.__ ______ _ 
I !from www.musicradar.com states that the como,ny's "impressive user base include 
I 1~~ 1 ---
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 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 the materials submitted do not sesfy this crjterjon, Specifically, the documentation 
submitted establishes thatl I and I have a distinguished reputation 
5 
but did not establish that the Beneficiary performed in a lead, starring, or critical role for those 
organizations. Here, although the letters speak favorably of the Beneficiary's endorsements for 
I I and I I, they do not establish that his role as an endorser of their 
products has been a lead, starring, or critical role for those companies. For examplej I 
andl Ida not distinguish the Beneficiary's position from those of the companies' other 
endorsers,3 to establish how his position fit within the overall hierarchy of the organizations, or detail 
the manner in which his work has resulted in a measurable level of success for either company. 
In addition, the Petitioner must establish that the Beneficiary will provide services as a lead or starring 
participant for organizations or establishments that have a distinguished reputation. The employment 
agreements and itinerary establish that the Beneficiary-will perform as a guitarist and composer at 
events a1I I.I 11 11 I D I I I, andl I The plain language of the regulation requires 
"[e]vidence that the alien has performed, and will perform, in a lead, starring or critical role for 
organizations or establishments that have a distinguished reputation." (Emphasis added.) The 
evidence does not demonstrate how the Beneficiary's role as a guitarist and composer rises to the level 
of a lead, starring or critical role for those establishments. While the Petitioner has indicated the 
Beneficiary's job title on the upcoming performance and recording projects, the submitted evidence 
does not describe how the Beneficiary will contribute to those establishments as a whole or how his 
position fits within their overall hierarchy. The Petitioner also has not provided evidence, in the form 
required, sufficient to demonstrate that those establishments enjoy 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 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 Petitioner contends that it provided testimonial letters to show that the Beneficiary has received 
significant recognition for his achievements. While the letters summarized the Beneficiary's musical 
work and highlighted his personal accomplishments, they do not demonstrate that he has "received 
significant recognition."4 For instance, in her aforementioned letter.I I confirms that in 2018 
the Beneficiary played guitar on her concert tour in Russia, and praises his "technique, charisma, 
professionalism, [and] musicality .... " I I did not explain, however, that he received 
significant recognition for his performances at her concerts. I I states the Beneficiary took 
part in the production! I and states "[w]e recorded one of my songs together, that 
appeared in the program," but his letter does not show that the Beneficiary received si nificant 
recognition from his participation in the project. F...!:u!!.rt!;!.h!.!::e.!..ir ..L...---...---~ ................. ------,..-----1 
established the Beneficiary's role as an endorser for ______ -and....._ _____ __,but 
3 The record indicates that other musicians who have provided endorsements for._l ____ __,! includcl 
I I, I II I ance=J ....._ __ -
4 Although we dlscuss a sampling of letters, we have reviewed and considered each one. 
6 
do not provide that he garnered significant attention for his work. Moreover, musicians! I I I and I I note their participation on the Beneficiary's CD I I without 
indicating whether he garnered significant attention from the CD. 
Here, the letters do not sufficiently explain how the Beneficiary has received significant recognition 
in the field for his work, nor has the Petitioner shown that the letters themselves constitute such 
recognition. Although the Petitioner emphasizes that the Beneficiary is "one of very few guitarists in 
Russia who plays on anl I" the issue for this regulatory criterion is whether the Beneficiary 
has received significant recognition for achievements from organizations, critics, government 
agencies, or other recognized experts in the field. The record lacks documentary evidence showing 
that the Beneficiary has received such recognition. 
Further, we acknowledge that the Petitioner provided a "no objection" labor consultation letter from 
I I of the American Federation of Musicians (AFM), stating that "the Draft 1-129 
Petition and supporting documentation . . . . clearly establishes that [the Beneficiary] is a 
guitarist/composer of extraordinary ability, which has been demonstrated by sustained international 
acclaim" and "meets the recently revised standards of distinction in the arts to qualify for an 0-1 visa." 
While the letter satisfies the Petitioner's burden to submit a written advisory opinion from an 
appropriate 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 criteria 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 letter from an expert attesting to the Beneficiary's receipt of significant recognition for achievements, 
ad I does not explain how AFM reached its conclusions based on the evidence submitted with the 
petition. 
On appeal, the Petitioner asserts that the Beneficiary's membership in the_l _______ _ 
.__ ___________ _., is evidence that "organizations attribute high and significant 
recognition {or [the 
1
eneficiary's] .achievements." It submits two letters from 
president of who states the Beneficiary is a "full member" of the association. He does not 
indicate when the Beneficiary became a member ofl I. He provides that the Beneficiary's 
candidacy for membership in the association was introduced by the "famous Russian guitarist" and 
I board member I O I and was accepted "based on his creative achievements, 
professional skills, participation in national and international competitions and festivals, as well as the 
popularization of instrumental guitar music in Russia and abroad." The record contains no evidence 
(such as bylaws or rules of admission) showing thatl lrequires of its members the receipt of 
significant recognition for achievements, nor has the Petitioner shown that membership inl I 
constitutes such recognition. 
Without further information and evidence, the above-referenced letters are not sufficient to demonstrate 
that the Beneficiary's achievements have received significant recognition. USCIS may, in its discretion, 
use as advisory opinions statements submitted as expert testimony. See Matter of Caron International, 
19 l&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 is not presumptive evidence of eligibility; USCIS may 
evaluate the content of those letters as to whether they support the foreign national's eligibility. It 
remains the Petitioner's burden to show the Beneficiary's significant recognition for achievements in the 
7 
field. As discussed, the testimonial evidence submitted does not meet this burden. Overall, while the 
Beneficiary has earned the respect of his colleagues, the material is insufficient to establish that he has 
received significant recognition for achievements in the field. The Petitioner has, therefore, not 
established that the Beneficiary satisfies this evidentiary criterion. 
Evidence that the alien has either commanded a high salary 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 determined that the Petitioner did not satisfy this criterion. The Petitioner did not initially 
claim that the Beneficiary satisfies this criterion. Within the Petitioner's RFE response it asserted that 
the Beneficiary satisfies this criterion based upon his previous salaries as a musician and composer, 
and included the following documentation: 
I Contract showing the Beneficiary was paid 500,000 RUB to compose a musical work between 
March and June 2016 
I Contract dated December 2018 indicating that the Beneficiary received 96,455 RUB for a 
concert performance as a guitarist fo~ I 
I Contract dated June 2016 showing the Beneficiary was paid 170,000 RUB er month for 
concert performances between June 2015 and December 2017 at theL------r---~........, 
I Contract indicating the Beneficiary received 200,000 RUB to perform at the, 
I I on December 22, 2015. ----~ 
The Petitioner converted the Beneficiary's salary for each of the aforementioned contracts to an hourly 
wage, respectively, of 177 RUB, 342 RUB, 254 RUB, and 228 RUB, based upon its claim of how 
much the Beneficiary worked on each project. The contracts do not identify an hourly rate of pay or 
indicate that the Beneficiary was paid by the hour. Here, the record does not support a conclusion, 
based on the Petitioner's unsupported testimonial evidence alone, as to the amount of the Beneficiary's 
hourly wage, absent reliable evidence to support the Petitioner's assertions. 
The Petitioner also provided comparative wage data from the U.S. Bureau of Labor Statistics showing 
that "Musicians and Singers" earned a mean hourly wage of $37.51, with the top ten percent earning 
at least $73.34 per hour, nationally, in 2018. The Petitioner did not provide, however, independent 
evidence that would allow us to compare the Beneficiary's foreign salary to that of others working in 
his occupation and geographic area in Russia, such as wage statistics or comparable evidence in that 
country, rather than by simply converting the salary to U.S. dollars and then viewing whether that 
salary would be considered high in the United States. Without such evidence, we cannot properly 
evaluate the Beneficiary's previous earnings in Russia. Although on appeal, the Petitioner states that 
it is submitting "a printout from a Russian Website Trud.com, which demonstrates that the average 
monthly income for musicians in Russia was between $900 and $375 in the period between August 
2019 and March 2020," the record does not contain this documentation. Regardless, the Petitioner 
must compare the Beneficiary's income with income earned by those in his field during the same time 
period. The Petitioner offers no basis for comparison showing that the Beneficiary's earnings are high 
compared to other musicians or composers during the same time period. For the foregoing reasons, the 
Petitioner has not submitted sufficient evidence to establish that the Beneficiary meets this criterion. 
8 
111. CONCLUSION 
The record does not satisfy, as required, the evidentiary criteria applicable to individuals 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). Consequently, 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 
considered as an independent and alternate basis for the decision. 
ORDER: The appeal is dismissed. 
9