dismissed O-1B Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re: 18440895 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : WL. 31, 2021 
Form 1-129, Petition for Nonimmigrant Worker (Extraordinary Ability - 0) 
The Petitioner , an entertainment 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)(l5)(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 
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. We dismissed the Petitioner 's 
subsequent appeal. 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 conclude that the Petitioner has not met 
that burden. Accordingly , we will dismiss the motion to reconsider. 
I. MOTION REQUIREMENTS 
A motion to reconsider must (1) state the reasons for reconsideration and establish that the decision 
was based on an incorrect application of law or U.S. Citizenship and Immigration Services (USCIS) 
policy, and (2) establish that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the initial decision . 8 C.F.R. § 103.5(a)(3) . 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause " for that action . Thus , to merit reconsideration, a 
petitioner must not only meet the formal filing requirements (such as submission of a properly 
completed Form I-290B , Notice of Appeal or Motion , with the correct fee), but also show proper cause 
for granting the motion . We cannot grant a motion that does not meet applicable requirements. See 
8 C.F.R . § 103.5(a)(4). 1 
II. LAW 
As relevant here, section 10l(a)(l5)(O)(i) of the Act establishes 0-1 classification for an individual who 
has extraordinary ability in the sciences, arts, education, business, or athletics which has been 
demonstrated by sustained national or international acclaim, whose achievements have been recognized 
in the field through extensive documentation, and who seeks to enter the United States to continue work 
in the area of extraordinary ability. Department of Homeland Security (DHS) regulations define 
"extraordinary ability in the field of arts" as "distinction," and "distinction" as "a high level of 
achievement in the field of arts evidenced by a degree of skill and recognition substantially above that 
ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well­
known in the field of arts." 8 C.F.R. § 214 .2(o)(3)(ii). 
Next, DHS regulations set forth alternative initial evidentiary criteria for establishing a beneficiary's 
sustained acclaim and the recognition of achievements . A petitioner may submit evidence either of 
nomination for or receipt of "significant national or international awards or prizes" such as "an Academy 
Award, an Emmy, a Grammy, or a Director's Guild Award," or at least three of six listed categories of 
documents . 8 C.F.R. § 214.2(o)(3)(iv)(A)-(B) . 
The submission of documents satisfying the initial evidentiary criteria does not, in and of itself, 
establish eligibility for 0-1 classification . See 59 Fed . Reg. 41818, 41820 (Aug. 15, 1994) ("The 
evidence submitted by the petitioner is not the standard for the classification, but merely the 
mechanism to establish whether the standard has been met."). Accordingly, where a petitioner 
provides qualifying evidence satisfying the initial evidentiary criteria, we will determine whether the 
totality of the record and the quality of the evidence shows extraordinary ability in the arts. See section 
101(a)(15)(o)(i) of the Act and 8 C.F.R. § 214 .2(o)(3)(ii) , (iv) .2 
III. ANALYSIS 
The issue before us is whether the Petitioner has established that our decision to dismiss his appeal was 
based on an incorrect application of law or USCIS policy. The Petitioner must specify the factual and 
legal issues raised on appeal that were decided in error or overlooked in our initial decision . 
A. AAO Decision 
In denying the petition, the Director determined that the Petitioner did not claim the Beneficiary met 
the evidentiary criterion at 8 C.F.R. § 214.2(o)(3)(iv)(A), and she further found that the Petitioner 
provided evidence relating to five criteria but did not satisfy any of the alternative regulatory criteria 
at 8 C.F.R . § 214.2( o )(3)(iv)(B)(l)-( 6). On appeal, the Petitioner maintained that the evidence satisfies 
1 The Petitioner did not include the required "statement about whether or not the validity of the unfavorable decision has 
been or is the subject of any judicial proceeding and, if so, the court, nature, date, and status or result of the proceeding." 
8 C.F.R. § 103.5(a)(l)(iii) . 
2 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 
those five criteria. In dismissing the appeal , we determined that the Petitioner did not demonstrate 
that the Beneficiary meets any of the claimed alternative regulatory criteria at 8 C.F .R. 
§ 214.2(o)(3)(iv)(B)(l)-(6). 
B. Motion to Reconsider 
On motion, the Petitioner asserts that we incorrectly determined that the previously submitted evidence 
was insufficient to satisfy the criteria relating to lead or starring participant in productions or events at 
8 C.F.R. § 214.2(o)(3)(iv)(B)(l) , published materials at 8 C.F.R. § 214.2(o)(3)(iv)(B)(2) , lead, 
starring , or critical role for organization s 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) , and high salary at 
8 C.F.R. § 214.2(o)(3)(iv)(B)(6). 
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, publicity releases, publications, 
contracts, or endorsements. 8 C.F.R. § 214.2(o)(3)(iv)(B)(l). 
In our appellate decision , we noted that the Petitioner provided posters , album covers, photographs, 
reviews , and letter s from colleagues regarding events at which the Beneficiary has performed in 
Russia , including the 2015 documentary film thel J, the 2018 D Festival , and concerts 
with the musician 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 
record shows the Beneficiary has been the composer and musician on several of his own productions, 
including his debut albuml 1(2018), thel 1(2019), and the sin les (2019) and 
I 1(2019). We noted that a 2019 review of on the website 
www.circlepit.com describes it as "a and the 
Beneficiary as "an exciting, new solo artist rising up through the ranks of th _______ _ 
world." 
Although we found that the evidence establishes that the Beneficiary has performed in a lead or 
starring role for productions or events , we determined that the Petitioner has not submitted critical 
reviews, advertisements, publicity releases, publications or other evidence establishing that the events 
themselves have a distinguished reputation, as required pursuant to the plain language of this criterion . 
We noted that, 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 . The Petitioner disputes our conclusions 
without directing to a particular law, regulation , or policy that specifically shows that we erred in our 
determinations. However , disagreeing with our conclusions without establishing that we erred as a 
matter of law or policy or pointing to precedent decision s 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) . The Petitioner 
has not shown how we erred in determining that the record does not establish that those productions 
have a distinguished reputation. 
3 
Further, we determined that although 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. We further noted that 
although on appeal the Petitioner submitted a screenshot showing that the Beneficiary's songs have 
received 2,706 "all time plays" on the online platform Bandcamp , the significance of this amount of 
plays is not explained. On motion, the Petitioner does not contest our determination on these issues. 
Moreover, our appellate decision explained that to meet this criterion the Petitioner must also establish 
that the Beneficiary will perform services as a lead or starring participant in productions or events 
which have a distinguished reputation upon approval of the petition. According to the record, the 
Petitioner intends that the Beneficiary, as a guitarist and composer, will perform at music clubs and 
participate in studio work at recording studios. On motion, the Petitioner does not address our 
conclusion that the Petitioner has not demonstrated, by critical reviews, advertisements, publicity 
releases, publications, contracts, or endorsements, that those productions and events have a 
distinguished reputation . 
For the reasons discussed, the Petitioner has not established that our prior determination with respect 
to this criterion was based on a misapplication of law or USCIS policy. 
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). 
Our appellate decision determined that the Petitioner did not demonstrate published material about the 
Beneficiary in major newspapers, trade journals, magazines, or other major media. 
First, we found that the record contained 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. 
However, we concluded that the Petitioner did not establish that 'I t represents a 
major medium . Although the Petitioner provided untranslated information pertaining to the audience 
statistics ofl !radio stations, we explained that the issue is whether the radio show is a 
major medium. On motion, the Petitioner claims, regarding the audience statistics ofl I 
radio stations, that "[t]he translated version of these figures was inadvertently omitted from the appeal 
brief' and requests that we that we "kindly accept them attached to this brief." 3 We emphasize that a 
petitioner filing a motion to reconsider must establish that our decision was incorrect based on the 
evidence in the record at the time of our initial decision. 8 C.F.R. § 103.5(a)(3). The Petitioner cannot 
meet this burden by requesting an opportunity to submit additional evidence. 
Next, we noted that the Petitioner submitted screenshots from the YouTube channel ofRussiad ___ -
._ _______ __. It asserted that the screenshots show that the Beneficiary was interviewed by 
3 The record before us on motion does not include this evidence. 
4 
.__ ____ ---. __ LI o::.:n::..:..tw;.;..;;;.o...;:o;..;:c~c.asions in 2018, in which it claims he discussed, respectively, different 
techniques o~ I and the --------=.--------- We noted that one screenshot 
contains a picture of the Beneficiary and an untranslated caption, while another screenshot contains a 
picture of a guitar and the partial caption I I' We found, however , that the 
Petitioner did not provide a transcription of the claimed interviews demonstrating published material 
about the Beneficiary relating to his work. The Petitioner does not address these specific deficiencies 
we addressed in our decision or explain how we misapplied the law or USCIS policy in evaluating the 
documentation referenced above. 
In addition, although we acknowledged that the Petitioner provided documentation from D 
.__ ___ ___,..__.l's YouTube channel showing it has over 20 million total views information from 
www.growthtraffic.com and www.tubics.com about how YouTube counts views, we found that the 
Petitioner did not demonstrate the significance of 20,000,000 total views on a Y ouTube channel. On 
motion, the Petitioner maintains that the Beneficiary's appearance onl ts Y ouTube 
channel shows that the Beneficiary has significant national recognition. 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 on this issue. 
Further, our appellate decision noted that under this criterion the Petitioner referenced letters from 
I I andl I companies for whom the Beneficiary has worked as an 
endorser, as evidence of the Beneficiary's "standing within the Russian music industry." We 
determined that the Petitioner did not establish how the letters reflected published material by or about 
the Beneficiary , as required under this criterion . 4 We found that, without evidence, in the form 
required, establishing that the Beneficiary has achieved national or international recognition for 
achievements, the Petitioner has not demonstrated that the Beneficiary meets this criterion. 
For the reasons discussed, the Petitioner has not demonstrated that we misapplied the law or USCIS 
policy in concluding that it did not meet this criterion or that our decision was incorrect based on the 
evidence in the record at the time of our decision. 
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 asserted that the Beneficiary meets this criterion by having been selected byl I I I and • l "to be the exclusive endorser of their products in the Russian market, 
through paid performances and advertisements ." Our appellate decision noted that the record contains 
screenshots of several video clips the Beneficiary posted on Y ouTube and the social media websites of 
I I and I I in 2018 that show him performing with and reviewing 
I ~ and thel I In addition, the Instagram account o~ I 
4 The Petitioner previously also claimed elif bility under this criterion based on a screenshot from the webpagd / 
that shows the Beneficiary accompanying_ I on guitar durin a recordin session, an article dated! , . 
2020 about the Benefic~ch was published on the website and a screenshot of an interview 
of the Beneficiary date'L_J' 2020 from the websit.,__ ______ _.. It has not pursued these claims on motion. 
5 
~dicates that the Beneficiary is a "newly adde~ .... -=--_ ..... l artist ... performing live on his D L_J as part of our new dealer presence in Russia .... " 
~ellate decision reviewed a letter submitted froml !president of I I 
L___J 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 noted, however, that 
~ondence submitted from the Beneficiary's email account indicates he first contacte~ I 
L__J in October 2018 to inquire about becoming an endorser of the company and found that the 
Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing 
to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 }BIA 1988). Our appellate decision 
also reviewed a letter froml lof thd....._ __ ___, an official partner and distributor of 
I ~ in Russia, who provided that since 2018 the Beneficiary "has been the endorser of 
I I 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 territory of the Russian Federation." 
We determined that the materials submitted do not satis this criterion. Specifically, the documentation 
submitted established tha~ I and .__ _____ __,have a distinguished reputation 
but did not establish that the Beneficiary performed in a lead, starring, or critical role for those 
~ations, Although the lerers speak favorably of the Beneficiary's endorsements forl I 
L__J and 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 example,! I andO 
I I do not distinguish the Beneficiary's position from those of the companies ' other 
endorsers, 5 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. The 
Petitioner does not identify any specific error of law or policy in our appellate decision relating to this 
criterion . 
Moreover, our appellate decision explained that to meet this criterion the Petitioner must also establish 
that the Beneficiary will perform in a lead, starring or critical role for organizations and establishments 
that have a distinguished reputation upon approval of the petition . We noted that according to the 
employment agreements and itinera contained in the record, the BeneficiaJ will perform as a 
guitarist and compose Music Bar,I ILounge, I Lounge 
Bar, I I..___ __ ___, ...._ ___ _. Studios, and I I Studio. On motion, the 
Petitioner does not address our concerns that the Petitioner has not demonstrated how the Beneficiary's 
role as a guitarist and composer rises to the level of a lead, starring or critical role for those 
establishments. We noted that although 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 . We further found that the Petitioner has not provided evidence, in the form required, 
sufficient to demonstrate that those establishments enjoy a distinguished reputation . On motion, the 
Petitioner does not address our concerns that the Petitioner has not demonstrated, by articles in 
5 We noted t~at the record i_~jcates that other musicians who have ~rovidedl endorsements fo~ _______ I include 
I 1, 1__ ---~- !,I I, and 
6 
newspapers, trade journals, publications, or testimonials, that the Beneficiary will perform, in a lead, 
starring, or critical role for those establishments or their distinguished reputation . 
For the foregoing reasons, the Petitioner has not established that our prior determination with respect 
to this criterion was based on a misapplication of law or USCIS policy. 
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). 
Our appellate decision acknowledged the Petitioner's contention that it provided testimonial letters to 
show that the Beneficiary has received significant recognition for his achievements. We found that, 
although the letters summarized the Beneficiary's musical work and highlighted his personal 
accomplishments, they do not demonstrate that he has "received significant reco nition." For 
instanceJ I confirms that in 2018 the Beneficiary played guitar on her in Russia, 
and praises his "technique, charisma, professionalism, [and] musicality .... " ____ ...,d.id not 
~however, that he received significant recognition for his erformances a . c::J 
L______J indicates the Beneficiary took part in the production...._ _____ ___. 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. Further,c::J 
~ and established the Beneficiary's role as an endorser fo~ I 
~ but do not provide that he garnered significant attention for his work. 
Moreover, musicians...._ ____ __. and I I note their participation on the Beneficiary 's CD 
I l without indicating whether he garnered significant attention from the CD. We further 
noted that, althdugh the letitioner emphasizes that the Beneficiary is "one of very few guitarists in Russia 
who plays on a guitar," 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. Our previous decision concluded that the record lacks 
documentary evidence showing that the Beneficiary has received such recognition . The Petitioner has 
not shown that our determination for this criterion was incorrect. 
On motion, the Petitioner maintains that a screenshot of an interview of the Beneficiary dated I . I 
2020 from the website I I "certainly qualifies as a significant recognition from a 
leading expert in the field." However, our appellate decision found that the Petitioner cannot rely on 
that item to establish the Beneficiary 's 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 
satisfied from the time of the filing and continuing through adjudication. 8 C.F .R. § 103 .2(b )(1 ); see 
also Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). 
For the reasons discussed, the Petitioner has not demonstrated that we misapplied the law or USCIS 
policy in concluding that it did not meet this 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). 
In our appellate decision, we noted that the Petitioner claimed that the Beneficiary satisfies this 
criterion based upon his previous salaries as a musician and composer, and included the following 
documentation : 
• Contract showing the Beneficiary was paid 500,000 RUB to compose a musical work between 
March and June 2016 
• Contract dated December 2018 indicating that the Beneficiary received 96,455 RUB for a 
I ~ as a guitarist foJ I 
• Contract dated June 2016 showing the Beneficiary was paid 170,000 RUB er month for 
---.,..----- between June 2015 and December 2017 at the Club 
• Contract indicating the Beneficiary received 200,000 RUB to perform at the 
I !' s I I on December 22, 2015. ....._ ____ ...., 
We noted that 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, and that the contracts do not 
identify an hourly rate of pay or indicate that the Beneficiary was paid by the hour. We concluded 
that 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. 
We also found that, although the Petitioner 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 
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. We concluded that without such 
evidence, we cannot properly evaluate the Beneficiary's previous earnings in Russia. We further noted 
that, although on appeal the Petitioner stated that it was submitting "a printout from a Russian Website 
Trod .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 did not contain this 
documentation . 
On motion, the Petitioner provides that the comparative wage information "that the [P]etitioner 
referred to from the website trod.com was also inadvertently omitted from the appeal package" and 
requests that we "kindly find it attached." 6 Again, we emphasize that a petitioner filing a motion to 
reconsider must establish that our decision was incorrect based on the evidence in the record at the 
time of our initial decision. 8 C.F.R. § 103.5(a)(3). The Petitioner cannot meet this burden by 
requesting an opportunity to submit additional evidence. 
6 The record before us on motion does not include this evidence. 
8 
For the reasons discussed, the Petitioner has not established that our determination with respect to this 
criterion was based on an incorrect application of law or USCIS policy, or that our decision was 
incorrect based on the evidence in the record at the time of our decision. 
IV. CONCLUSION 
The Petitioner has not established that our previous 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. Accordingly, the motion to reconsider will be dismissed. 
ORDER: The motion to reconsider is dismissed. 
9