dismissed O-1B Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 16957459 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAY 25, 2021 
Form 1-129, Petition for Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, a music group, seeks to classify the Beneficiary, a musician, 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. 
§ l 10l(a)(15)(O)(i). 
The Director of the California Service Center denied the Petitioner's Form 1-129, Petition for 
Nonimmigrant Worker. We dismissed its appeal I and subsequently dismissed its motion to reconsider 
and motion to reopen. 2 
The matter is now before us on a motion to reconsider. In these proceedings, it is the Petitioner's 
burden to establish eligibility for the requested benefit. See Section 291 of the Act, 8 U.S.C. § 1361. 
Upon review, we will dismiss the motion. 
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 alternative initial evidentiary criteria for establishing a beneficiary's 
sustained acclaim and the recognition of achievements. A petitioner may submit evidence either of 
1 See ID# 7701074 (AAO Feb. 28, 2020). 
2 See ID# 11063779 (AAO Nov. 30, 2020). 
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. 8 C.F.R. § 214.2(o)(3)(iv)(A)-(B). If the petitioner demonstrates that the criteria in paragraph 
(o)(3)(iv) ofthis section do not readily apply to the beneficiary's occupation, it may submit comparable 
evidence in order to establish the individual's 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 
10l(a)(l5)(o)(i) of the Act and 8 C.F.R. § 214 .2(o)(3)(ii), (iv).3 
Further, a motion to reconsider must establish that our decision was based on an incorrect application 
of law or policy and that the decision was incorrect based on the evidence in the record of proceedings 
at the time of the decision. 8 C.F.R. § 103.5(a)(3). We do not consider new facts or evidence in a 
motion to reconsider. We may grant a motion that satisfies these requirements and demonstrates 
eligibility for the requested immigration benefit. 
II. PROCEDURAL HISTORY 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish that the Beneficiary satisfied the initial evidentiary criteria applicable to individuals of 
extraordinary ability in the arts: nomination for or receipt of a significant national or international or 
award, or at least three of the six possible forms of documentation. 8 C.F.R. § 214.2(o)(3)(iv)(A)-(B) . 
Specifically, the Director determined that the Petitioner did not indicate or establish that the 
Beneficiary satisfied the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(A) , and the Beneficiary did not meet 
any of the six alternative initial evidentiary criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B) . The Director also 
determined that the Petitioner provided insufficient information regarding the Beneficiary's proposed 
duties in the United States. 8 C.F.R. § 214.2( o )(2)(ii) . We dismissed the Petitioner's subsequent appeal 
from that decision. Although in our appellate decision we withdrew the previous findin g pertaining 
to the Beneficiary's proposed duties in the United States, we concluded that the documentation submitted 
did not satisfy any of the evidentiary criteria at 8 C.F.R. § 214.2(o)(3)(iv)(B) . Subsequently, we 
dismissed the Petitioner's motion to reconsider and motion to reopen , determining that it did not 
demonstrate that we erred as a matter of law or policy and its new evidence did not show the 
Beneficiary's eligibility for classification as an individual of extraordinary ability. 
In the current motion to reconsider , the Petitioner maintains that the Beneficiary fulfills three criteria. 4 
3 See also Matter of Chawathe, 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." 
4 The Petitioner contends that the Beneficiary meets the following three criteria: lead or starring participant in distinguished 
productions or events at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l) , lead, starring, or critical role for distinguished organizations or 
establishments at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3) , and significant recognition for achievements at 8 C.F.R. 
§ 214.2( o )(3)(iv)(B)(5) . 
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III. ANALYSIS 
As stated previously, a motion to reconsider must establish that our decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). In the current motion, the Petitioner 
argues the Beneficiary's eligibility relating to three criteria without demonstrating how we erroneously 
applied law or policy in our prior decision. 
Regarding the criterion relating to lead or starring role in distinguished productions or events at 
8 C.F.R. § 214.2(o)(3)(iv)(B)(l), in our prior decision on motion we determined that while the 
submitted promotional posters and photographs indicate that the Beneficiary has been al I 
for several bands and the music arranger and/or performer on several CDs, the documentation did not 
establish that the Beneficiary performed services in a lead or starring role in those productions or events, 
or their distinguished reputation. In addition, our prior motion decision determined that the Petitioner 
had not submitted, as required, critical reviews, advertisements, publicity releases, publications or 
other evidence that would distinguish the Beneficiary's proposed role, developing several albums and 
performing at various venues in Texas, as leading or starring within its upcoming productions, or their 
distinguished reputations. 
In the current motion, the Petitioner states that under 8 C.F.R. § 214.2(o)(iv)(C) it "may submit 
comparable evidence if the other criteria do not readily apply to the [Beneficiary's] occupation." It 
urges us "to consider the evidence presented in its totality, including the evidence that does not 
necessarily neatly fall under the description of critical reviews, advertisements, publicity releases or 
publications," that would "indicate that thel I role filled by the Beneficiary would more 
likely be recognized in other ways, such as the testimony of fellow musicians ... documented in the 
supporting evidence in his case." The Petitioner does not specifically address our conclusions 
regarding this criterion and does not direct to a particular law, regulation, or policy that specifically 
shows that we erred in our determinations. Disagreeing with our conclusions without establishing that 
we erred as a matter of law or policy or pointing to precedent decisions that contradict our analysis of 
the evidence is not a ground to reconsider our decision. See Matter of O-S-G-, 24 I&N Dec. 56, 58 
(BIA 2006) ( finding that a motion to reconsider is not a process by which the party may submit, in 
essence, the same brief and seek reconsideration by generally alleging error in the prior decision). 
Although the Petitioner newly claims comparable evidence relating to this criterion, it does not 
establish that our prior decision on motion was based on an incorrect application of the law, regulation, 
or policy, nor does the current motion demonstrate that our latest decision was erroneous based on the 
evidence before us at the time of the decision. 5 
In reference to the lead, starring, or critical role for distinguished organizations and establishments 
criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3), in the current motion, the Petitioner paraphrases guidance 
provided in a policy memorandum for a similar criterion in the regulations pertaining to immigrants of 
extraordinary ability at 8 C.F.R. § 204.5(h)(3)(viii), stating that "letters from individuals with personal 
knowledge of the significance of [the Beneficiary's] leading or critical role can be particularly helpful 
5 Because the Petitioner did not previously assert to the Beneficiary satistying the criterion at 8 C.F.R. 
§ 214.2( o )(3)(iv)(B)(l) through comparable evidence, we did not err by failing to consider such claim. 
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in making the determination as long as the letters contain detailed and probative information ." 6 We 
do not disagree with the Petitioner's statement; our prior motion decision, however, determined that the 
letters submitted did not detail sufficiently the Beneficiary's past and proposed lead, starring, or 
critical role for distinguished organizations or establishments. For instance, we noted that the 
Petitioner claimed that the Beneficia satisfies this criterion based upon his past role with 
.__ ___________ __, -,'---_..-- __ W_e~c-n=c-lu-d....,ed that, although the Petitioner provided 
a letter from that organization's founder,.__ ______ _. confirming that the Beneficiary was a 
teacher and "head of thel I chair" for 10 years, and praising his "talent, professionalism and 
responsibility with his students," the letter did not detail sufficiently the Beneficiary's starring or 
leadership position, or the critical nature of his role with the organization . Our previous decision also 
concluded that the documentation submitted did not establish that the Beneficiary's proposed work as 
a musician for the petitioning band will be in a lead, starring, or critical role for the organization; the 
letters submitted from the Petitioner's president, asserting that the Beneficiary's "extensive" 
experience as al 1 0 I "is of vital importance to the shows offered by our 
group," do not describe how the Beneficiary will contribute to the petitioning organization as a whole, 
how his position fits within the overall hierarchy of the group, or how the Beneficiary will be 
responsible for the Petitioner's success or standing to a degree consistent with the meaning of a 
"critical role." The Petitioner disputes our conclusions without directing to a particular law, 
regulation, or policy that specifically shows that we erred in our detenninations . The Petitioner has 
not shown that our determination for this criterion was incorrect. 
Finally, with respect to the Petitioner's most recent motion to reopen, in our prior decision on motion 
we acknowledged that the Petitioner submitted new evidence that it claimed satisfied the regulatory 
criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(5), relating to significant reco nition for achievements; 
specifically, a certificate of excellence the Beneficiary received fro at 
I I for his participation as a featured musician in its.__ ____ __. workshop and master 
class, and an award certificate for outstanding service the Beneficiary received from thel I I I University jazz department for his participation as a featured artist in it~ ljazz master 
class. We determined that the Petitioner could not rely on the certificates, conferred on the Beneficiary 
in 2020, to establish his eligibility at the time of filing this petition in November 2018. Eligibility must 
be established at the time of filing. 8 C.F .R. § 103 .2(b )(1 ); see also Matter of Katigbak, 14 I&N Dec . 
45, 49 (Comm'r 1971). We also determined that, even if we could consider evidence that post-dates 
the filing of the petition, the Petitioner had not offered supporting evidence indicating that the 
Beneficiary's receipt of those certificates constitutes significant recognition for achievements from 
organizations , critics, government agencies, or other recognized experts in the field. Therefore, we 
determined that the Petitioner had not presented new facts sufficient to overcome our prior 
determination that he did not meet this criterion. In the current motion, the Petitioner asserts that 
"[a]lthough we would agree that the certificates were created after the 0-1 filing date, we would note 
that the commendations refer to the overall status as a performer of extraordinary ability as of the 
filing date, though the recognition themselves came later." The Petitioner does not identify any 
specific error of law or policy in our motion decision relating to this criterion. 
6 See USCIS Policy Memorandum PM 602-0005.1 , Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator 's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14 10 (Dec. 22, 2010) , 
https :/ /www . uscis . gov /po licymanual/HTML/Po !icy Manual.html. 
4 
As we previously and thoroughly addressed the same motion arguments in our prior decision and the 
Petitioner presents no new arguments showing that we erroneously applied law or policy, the Petitioner 
did not establish that the motion meets the regulatory requirements. Therefore, we will deny the 
motion to reconsider. 
IV. CONCLUSION 
The Petitioner has not shown that our previous decision dismissing the motion was incorrect based on 
the record before us. 
ORDER: The motion to reconsider is dismissed. 
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