dismissed O-1B Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 13476130 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 30, 2021 
Form 1-129, Petition for Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, a television network, seeks to classify the Beneficiary, a music and special events 
director, as a foreign national of extraordinary ability in the arts. To do so, the Petitioner seeks 0-1 
nonimrnigrant 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. § 110l(a)(l5)(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 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 (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)(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 wi11 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 Petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, and supporting 
documentation, seeking to employ the Beneficiary for a period of three years. In its initial letter the 
Petitioner explained that it seeks to have the Beneficiary perform services as a music and special events 
director for its Spanish-language television stationl 12 It asserts that the Beneficiary has 
performed extraordinary work as a disc jockey (DJ). According to the documentation submitted, the 
Beneficiary, also known as has been em lo ed as a DJ at venues inD Florida since 
2019 through he.__ ___ __, company The Beneficiary's resume 
also indicates past employment as a television presenter, including for.__ ___ __. s 'I I I I between 2017 and 2018. The Petitioner provided its employment agreement with the 
Beneficiary and a proposed itinerary of events, indicating she will be responsible! for pro
1
uction and 
music composition for eight of its recurring cultural and community events in and music 
composition for is historical docuseries I I The Petitioner indicates that it 
films these events and airs them "during our news broadcasts and entertainment programming." 
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). In denying the petition, the 
Director determined that the Petitioner met two of the alternative regulatory criteria, lead or starring 
participant in distinguished productions or events under 8 C.F.R. § 214.2(o)(3)(iv)(B)(l) and lead, 
starring, or critical role for distinguished organizations under 8 C.F.R. § 214.2(o)(3)(iv)(B)(3). 
Although we agree with the Director's finding regarding the Beneficiary's performance as a lead or 
starring participant in distinguished productions or events, we do not concur with the Director's 
finding relating to performing in a lead, starring, or critical role for distinguished organizations, 
discussed later. 
1 See also Matter ofChawathe , 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 The record reflects that the president and CEO ofl !I I is the Beneficiary's father. 
2 
On appeal, the Petitioner maintains that the Beneficiary meets four additional criteria, relating to 
national or international recognition for achievements evidenced by published materials under 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(2); major commercial or critically acclaimed success under 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(4); significant recogmt10n for achievements under 8 C.F.R . 
§ 214.2(o)(3)(iv)(B)(5); and, evidence of a high salary or other substantial remuneration under 
8 C.F.R. § 214.2(o)(3)(iv)(B)(6). As discussed below , after reviewing all the evidence in the record we 
find that the Petitioner has not established that the Beneficiary satisfies the requirements of at least 
three criteria . 
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 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 . 
On appeal, the Petitioner asserts that the Beneficiary has been interviewed by and featured in 
"pu blications with a wide readership: national and international." It submits two articles datedn 
2020 about the Beneficiary'~2020 online fundraising project! ~nd a related_l ___ =3 __ 
campaign benefitting the uiirted Way. However, because the Petitioner must establish the 
Beneficiary's eligibility at the time of filing (February 2020) in accordance with 8 C.F.R. § 103.2(b)(l), 
we will evaluate evidence that pre-dates the filing of the petition. 
The record contains an article dated I I 2019 from the website www.artburst.com that 
announces the forthcoming even ~ l organized by the Beneficiary and I I 
§ 
Art Week. The event is described as one of several month! I I events called 
rated by An additional article fro dated 
020 advertises a forthcomin _..__~...,event at the in and quotes the 
Beneficiary and other artists descriptions o t eir involvement in ....._ _ ___,events. However , a 
screenshot from www.artburst.com and a media kit froml ldo not include the comparative 
online circulation data necessary to establish that those websites qualify as major media. 
The Petitioner also submitted a screenshot of a video from I I !• al I screenshot from and a YouTube 
screenshot of a video posted by ....._ ______ ___,' from .__ _____ _.' all datedl I 
2020 . The Petitioner claimed that the videos reflected interviews of the Beneficiary . However, the 
Petitioner did not provide a transcription of the videos demonstrating published material about the 
Beneficiary . Moreover, the Petitioner did not establish that the shows I I I I' or ' represents a major medium. Although the 
Petitioner provided a media kit fo indicating it is the "third ranked Hispanic station," 
and articles from the parent companies o .__ __ __.and I I generally discussing 
their reach , the issue is whether the aforementioned television shows are a major medium. 
3 
The Petitioner provided an article from the news a 'fl.?-....1,ll,!.l..!..l.u....J..a..u. Beneficiary's work as a 
television presenter for.__ ______ ___. on s A letter froml I I tcarteles indicates it serves the counties of'"-----~-------' and has an average 
monthly distribution of 65,000." Additional articles about the Beneficiary from the newspapers El 
Nuevo Herald I 12019) and Diario las Americas I I 2019) indicate the Ben¢ici..anz, 
released "her first own mix entitled I I" performed as a DJ at the club L.....,.._J 
i==:J I L andl I and appeared as a reporter onr------'---,-, s_,'I ===.I 
L___f A letter from Diario las Americas indicates, '---~~------------~----' 
I t To qualify under this criterion, the publication should have significant national or 
international distribution. A beneficiary would not earn recognition for achievements at the national or 
international level from a local publication. The letters from Carteles and Diario las Americas do not 
include the comparative circulation data necessary to establish that the publications qualify as major 
media in the United States. In addition, although the Petitioner submitted information from the website 
Statistica regarding the weekly circulation of The Miami Herald, none of the articles submitted are 
from that publication. Further, the Petitioner did not provide circulation statistics for El Nuevo 
Herald. 3 
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 
rolefor 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) 
As discussed earlier, the Director found that the Petitioner satisfied this criterion. For the reasons 
outlined below, the record does not reflect that the Petitioner submitted documentary evidence 
sufficient to demonstrate that the Beneficiary meets this criterion, and the Director's determination on 
this issue will be withdrawn. 
The documentation su"'~'.,..,.""' s that the Beneficia worked as a television presenter for the 
Petitioner, including for s In addition she erformed as a DJ at venues 
in I I Florida includin,...._ ____ ____.__.__~ _ ___. and~-------~ and at I I events 
organized by her through~ ______ ...,........ 
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. Here, the materials 
3 An additional article from the website www.owwnews.com is not accompanied by a ce1iified translation as required under 
8 C.F.R. § 103.2(b)(3). Any document in a foreign language must be accompanied by a full English language translation. 
The translator must certify that the English language translation is complete and accurate, and that the translator is 
competent to translate from the foreign language into English. Id. Because the Petitioner did not submit a properly certified 
English language translation of the document, we cannot meaningfully determine whether the article supports the 
Petitioner's claims. 
4 
submitted do not satisfy this criterion. Specifically, the documentation submitted establishes that the 
Petitioner andl I have a distinguished reputation but did not establish that the Beneficiary 
performed in a lead, starring, or critical role for those organizations. Although press releases from 
I land other documentation in the record confirm the Beneficiary's past work as a television 
presenter, they do not establish that her role has been in a lead, starring, or critical role for those 
companies. For example , the documentation submitted does not distinguish the Beneficiary's position 
from those of the companies' other news presenters , to establish how her position fit within the overall 
hierarchy of the organizations, or detail the manner in which her work has resulted in a measurable 
level of success for either the Petitioner orl I 
In addition, the evidence does uat estarish that the Beneficiary's past role as a DJ with I I I landl was in a lead, starring, or critical role. The Petitioner provided 
a venue rental agreement and the Beneficiary's contracts for individual events withl I I I and I I Those companies, however , have not offered information that 
would elucidate where her position fell in the overall hierarchy of their organizations or her impact on 
the organizations . Their agreements with the Beneficiary do not establish how she served in a lead, 
starring, or critical role that set her apart from other DJs the companies employed. The Petitioner also 
did not submit evidence establishing that those organizations have a distinguished reputation. Fu
1
her, I 
although the Beneficiary appears to have performed in a lead, staling, or I critical role for 
I I and I las an organizer of events, the Petitioner 
did not submit evidence establishing that those organizations have a distinguished reputation. 
Finally , the evidence does not establish that the Beneficiary's proposed role with the Petitioner would 
satisfy the requirement that she will be performing in a lead, starring, or critical role. The Petitioner's 
employment agreement with the Beneficiary indicates that as a music and special events director she 
"will be responsible for all aspects of special events forl lnetwork , including 
annual events, community events, corporate sales events, program launch parties, television series 
premieres and special live performances ." The Petitioner , however , has not offered information that 
would elucidate where the Beneficiary's proposed position falls in the overall hierarchy of its 
organization or her proposed impact on the organization. The Petitioner's agreement with the 
Beneficiary does not establish how she will serve in a lead, starring, or critical role that would set her 
apart from other music and special events directors the company employs. 
For the reasons discussed above, the Petitioner did not establish that the Beneficiary satisfies this 
evidentiary criterion. Accordingly , we withdraw the decision of the Director for this 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) . 
On appeal, the Petitioner asserts that the Beneficiary 's record of major commercial or critically acclaimed 
successes is evidenced by "total event views and revenue" generated by the events at which she performed 
5 
as a DJ. 4 The documentation submitted, such a~ I contracts, screenshots 
of payments processed by the ticketing websitelr----,l_a_n_d_s_c-re_e_n_s_h_o-ts_fr...Joml I 
included the following: 
• ~ ent to in the amount of $1,280 for .... l __ ____, 
(July 2~01_9~)-------~ 
• p ment tol I in the amount of for $1,180 and 0 
screenshots showing 676 event views and $80 in ticket sales forl O I 
• 
r----,.-----' 
August 2019) 
:========_s_cr_e_e_n_s_h_o_ts_sh_o_w_in......._----'-_ ___._____.._ev_ie_w_s_an_d_1_8~0 tickets sold for .... l _______ __. 
Se tember 2019) '--------~-----------~-~- ......... ~---, 
• Contract betwee an , "20% of the bar" payment 
....fi_ro_m----=======-----th_e_a_m_o__,unt of,...' =$2=.::...9.:::...52="-'-___ ...,.. payment in the amount of $2,169 to 
and screenshots showing 603 event views 
and $180 in ticket~s_a_le_s_f_o_..._ _________ -.--------.--~(October 2019) 
• Contract betwee and its a ment in the amount 
• 
of $1,304, payment in the amount of $734 to 
I 
l screenshots showing 127 event views._a_n_d_$_2_0-in-t-ic_k_e_t_s-al_e_s_f_or ..... 
_ I (~ovember 201 9) .__ ___ _, 
.... V-en_u_e-re_n_t_a_l -ag_r_e_e_m_e_n_t_b_e-tw__,eenl I and I 
I I payment tol I in the amount of~. $-4-,4-6-4-, a-n---,~----
1 ° [ screenshots showing 2,284 event views and $590 in ticket sales for the two-day event 
I I (December 2019) 
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 Petitioner has not shown that the number of page or 
event views, or revenue from liquor or ticket sales related to the Beneficiary's work on the above 
productions is evidence of a record of commercial or critical success. Assuming that correlation had 
been established, the record does not include evidence that such critical or commercial success in the 
field 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. 
4 The Petitioner further asserts that the Beneficiary "has also been using her extraordinary talent to raise funds through 
United Way to help those in need during the COVTD Pandemic." The previously mentioned articles submitted on appeal 
indicate that the Beneficiary's fundraising online project "Locked," and a related GoFundMe campaign benefitting the 
United Way, took place in April 2020. However, because the Petitioner must establish the Beneficiary's eligibility at the 
time of filing (February 2020) in accordance with 8 C.F.R. § 103.2(b )(1 ), we will evaluate evidence that pre-dates the filing 
of the petition. 
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 Petitioner submitted numerous testimonial letters in support of the petition . We determine that 
the submitted testimonials and the other documentary evidence do not satisfy this criterion . Upon 
reviewing the evidence from experts in the field, we note that all but one of the letters submitted are 
from the Beneficiary's own current and former employers and colleagues, and therefore do not 
demonstrate significant recognition outside of that circle. In addition, the letters primarily discuss the 
Beneficiary's innate talent and artistry rather than her achievements as a DJ. Those letters that did address 
specific achievements of the Beneficiary, such as her organization and participation in the 
aforementioned! levents, do not explain how the Beneficiary's achievements to date have 
received significant recognition from organizations, critics, government agencies or other recognized 
experts in the field . 
U.S. Citizenship and hnmigration Services (USCIS) may, in its discretion, use as advisory opinions 
statements submitted as expert testimony. See Matter of 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 . 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. Overall, while the Beneficiary has earned 
the respect of her colleagues, the material is insufficient to establish that she has received significant 
recognition for achievements in the field. The Petitioner has, therefore, not established that the 
Beneficiary satisfies this evidentiary criterion. 
On appeal the Petitioner asserts that the "no objection" letter froml I of the I I I ~' which was contacted by the Petitioner for a consultation, is "vital" in 
determining the Beneficiary's eligibility but "was not considered by the reviewing officer in deciding 
eligibility for the 0-lB visa for [the Beneficiary]." As the Petitioner acknowledges, the letter from the 
I batisfies the Petitioner's burden to submit a written advisory opinion from an appropriate 
consulting entity. 8 C.F.R. § 214.2( o )(2)(ii)(D). Consultations are advisory in nature, however, and are 
not binding on USCIS. 8 C.F.R. § 214.2(o)(5)(i)(D). Regardless,! ts letter, the sole 
independent opinion the Petitioner provided, concludes that upon review of the Beneficiary's 
documentation, "[she] appears to meet the standard of distinction set forth at [8 C.F.R. § 214.2(0)]." It 
is unclear on whatl l based this conclusion, and she does not offer an explanation as to how 
the Beneficiary's achievements as a DJ are recognized in the field. 
Based on the above, the Petitioner has not established that the Beneficiary satisfies this evidentiary 
criterion . 
7 
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 Petitioner did not initially claim that the Beneficiary satisfies this criterion. Within the Petitioner's 
RFE resJonse it submitted evidence that the Beneficiary earned $14,083 in 2019 as a DJ at several 
events i I The aforementioned documentation submitted, such asl I 
~ contracts, and screenshots of payments processed by the ticketing website I I included 
the following: 
• in the amount of $1,280 for .... l --~ .__ __________ __, 
(July 2.-'-0---'19_,_) _______ __, 
• ,...._ ___ .........,ayment to~I ----------~I in the amount of for $1,180 for~I __ _. 
.__ ___ __, (Au ust 2019 
• Contract betwee "20% of the bar" payment 
1--------" 
in the amount of $2,952, payment in the amount of $2,169 to 
,------1... ____ _,__ _ _,' LLC for._l _______________ _.I (October 
from 
2019) 
Contract betw,....ee=d-____________ _.l and 
of $1,304 andl I a ment in the am ' 
• I its oavroeut iu tbe :mouutl 
fo L_ _________ ---r----....U...u.J...!.lU...l.llU.lo...L..."-l.L.JL..i..1.--, I d 
• Venue rental af reement betwee and 
andl _ payment to.__ ________ ~ _ ___.in the amount of $4,464 fo 
I I (December 2019) 
,....u ......... """""' ......... ..........,""--"-........ """"'........,'--'-'-'""""-".......,......_......, ........ ..>.LU......_,......,_......,.==2....U...>.LU..1,L_ __ __, 1 pertaining to the evenO 
L_ ______________ __,-----,__ __ ____J(September 2019), the record 
does demonstrate sufficiently that the payee,.__ ____ __, is related either to the Beneficiary or her 
company. The Petitioner has not submitted any additional evidence or arguments on appeal. 
The Petitioner did not provide appropriate salary and wage data for comparison purposes. The plain 
language of this regulatory criterion requires evidence of "a high salary or other substantial 
remuneration for services in relation to others in the.field." [Emphasis added.] The Petitioner offers no 
basis for comparison showing that the Beneficiary's earnings are high compared to other DJs. The record 
does not contain objective earnings data showing that the Beneficiary has earned a "high salary" or 
"other substantial remuneration" in comparison with those performing similar work during the same 
time period. Cf Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm'r. 1994) ( considering 
professional golfer's earnings versus other PGA Tour golfers); Crimson v. INS, 934 F. Supp. 965, 968 
(N.D. Ill. 1996) (considering NHL enforcer's salary versus other NHL enforcers); Muni v. INS, 891 F. 
Supp. 440, 444-45 (N. D. Ill. 1995) ( comparing salary of NHL defensive player to salary of other NHL 
defensemen). Here, the Petitioner offers no basis for comparison showing that the Beneficiary's earnings 
are high compared to other DJs during the same time period. 
For the foregoing reasons, the documentation submitted does not establish that the Beneficiary meets 
this criterion. 
8 
III. 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