dismissed O-1B Case: Music

U.S. Citizenship 
and Immigration 
Services 
In Re : 25592192 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 22, 2023 
Form 1-129, Petition for a Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, an entertainment business, seeks to classify the Beneficiary as a singer of extraordinary 
ability . To do so, the Petitioner pursues 0-1 nonimmigrant classification, available to individuals 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)(15)(O)(i). 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not establish the Beneficiary's satisfaction of the initial evidentiary criteria applicable to individuals 
of extraordinary ability in the arts: nomination for or receipt of a significant national or international 
award, or at least three of six possible forms of documentation. The matter is now before us on appeal. 
8 C.F.R . § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe , 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christa 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015) . Upon de novo review, 
we will dismiss the appeal. 
I. 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." See 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. See 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 
10l(a)(l5)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iv). 
II. ANALYSIS 
The Director determined that the Petitioner did not demonstrate the Beneficiary's nomination for, or 
receipt of, significant national or international awards or prizes under 8 C.F.R. § 214.2(o)(3)(iv)(A). 1 
In addition, the Director concluded that the Petitioner established the Beneficiary's eligibility for only 
one criterion, high salary under 8 C.F.R. § 214.2(o)(3)(iv)(B)(6). On appeal, the Petitioner contends 
that the Beneficiary satisfies three additional criteria. For the reasons discussed below, the Petitioner 
did not establish that the Beneficiary meets at least three of the regulatory criteria. 
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). 
This regulatory criterion requires the beneficiary to have both previously performed and will perform 
services as a lead or starring participant in productions or events, which have a distinguished 
reputation. See 8 C.F.R. § 214.2(o)(3)(iv)(B)(l). As evidence, the Petitioner must submit 
documentation of critical reviews, advertisements, publicity releases, publications contracts, or 
endorsements. Id. 
As it relates to the Beneficiary's prior productions or events, the Petitioner claims the Beneficiary's 
eligibility based on a I I 2018 concert at concert hall of !Resort 
Casino Spa.2 In addition, the Petitioner asserts that is a well-known venue where 
many renowned musicians performed live concerts" and was organized by I I I The record contains screenshots advertising his 2 2018 show; photographs of the 
Beneficiary performin at , including standing next to his concert poster, with the Petitioner 
hi · · that had also performed at the venue; entertainment contracts between 
Casino Resort Spa; deals memos between I I and 
the Beneficia ry; and a photograph of the Beneficiary with the general producer ofl I 
While the totality of the evidence demonstrates that the Beneficiary performed as a starring participant, 
the Petitioner did not establish the distinguished reputation of his concert. Here, the Petitioner focuses 
on the venueJ concert hall, rather than the Beneficiary' sl 12018 event. Consistent with 
1 The Petitioner confirms on appeal that it "never claimed [t]he [B]eneficiary's eligibility under this requirement." 
2 The Petitioner indicates that the Beneficiary also performed on 2018 and 2019. at the same venue. 
2 
this regulatory criterion, the Petitioner must demonstrate that the Beneficiary performed services as a 
lead or starring participant "in productions or events" rather than performing at a venue with a 
distinguished reputation. Furthermore, while the Petitioner indicates that the Beneficiary's concert 
was sold- out, it does not establish how the production garnered a distinguished reputation; the 
Petitioner did not demonstrate how the evidence reflects the distinguished reputation of the 
Beneficiary's concert. For example, none of the submitted documentation discusses or covers the 
standing or stature of the event. Simply performing in concert, even at a sold-out event, does not 
automatically establish the distinguished nature of the engagement. Here, the record does not contain 
the required evidence of critical reviews, advertisements, publicity releases, publications contracts, or 
endorsements showing the distinguished reputation of the Beneficiary's 2018 event. 
The Petitioner also contends that the Beneficiary meets this criterion based on his role on the Armenian 
television series, I I Initially, the Petitioner provided a translation for a posting on 
aysor.am that appears to be from an interview of a screenwriter describing the show and a translation 
of a posting on bravo.am indicating the release of wedding photos for the show. In response to the 
Director's RFE, the Petitioner submitted two postings from lurer.com and bravo.am regarding an 
interview of the general producer of the show. The Petitioner did not demonstrate, however, how 
these article postings qualify as critical reviews, advertisements, publicity releases, publications 
contracts, or endorsements, as required by this regulatory criterion. Similarly, the Petitioner references 
a recommendation letter from _______ general manager of who 
indicated that the Beneficiary "was invited to perform in the TV series." Again, the Petitioner did not 
show how this reference letter is tantamount to a critical review, advertisement, publicity release, 
publications contract, or endorsement. 
Likewise, the Petitioner asserts that the Beneficiary's music, which was featured onl is 
posted on Y ouTube; the television series can be streamed on various portals, such as Y ouTube and 
merojax.me; and the show has been translated into Russian and posted on 1 plus 1 tv.ru. The availability 
of the Beneficiary's work, however, is not the issue for this criterion. Rather, the issue is whether the 
required regulatory documentation has been presented to the demonstrate a beneficiary's leading or 
starring services for productions or events with distinguished reputations. Here, the Petitioner did not 
establish how the availability of the series on Y ouTube, merojax.me, and 1 plus 1 tv.ru commensurate 
with a critical review, advertisement, publicity release, publications contract, or endorsement, as 
required by this regulatory criterion. 
In regard to the Beneficiary's future services, the Petitioner cites to its letter in response to the 
Director's request for evidence (RFE), indicating the Beneficiary will perform Armenian songs and 
music within the Armenian community in Southern California. Again, the Petitioner did not establish 
how its letter qualifies as a critical review, advertisement, publicity release, publications contract, or 
endorsement, as required by this regulatory criterion. Moreover, the Petitioner did not show that its 
productions or events have a distinguished reputation. 
In this case, the Petitioner did not demonstrate that the Beneficiary has performed, and will perform, 
services as a lead or starring participant in productions or events having a distinguished reputation 
through the required regulatory documentation. Accordingly, the Petitioner did not establish the 
Beneficiary's eligibility for this criterion. 
3 
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 order to meet this criterion, a petitioner must show that a beneficiary 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. See 8 C.F.R. § 212.2(o)(3)(iv)(B)(6). 
Although the Director determined that the Beneficiary satisfied this criterion, we will withdraw the 
Director's decision for this criterion, discussed below. 
At initial filing, the Petitioner did not claim the Beneficiary's eligibility for this criterion. In response to 
the Director's RFE, the Petitioner indicated that the Beneficiary "will command a high salary relative to 
that of others working in the field." The Petitioner referenced its initial submission of a "Deal Memo" 
reflecting that the Petitioner would pay the Beneficiary $15,000 per performance. In addition, the 
Petitioner offered screenshots from flcdatacenter.com and bis.gov showing hourly and yearly wages for 
musicians and singers in the I California area earning between $17 - $64 per hour or $36,000 
- $133,000 per year, depending on the level wage category. 
At the outset, the Petitioner did not show how the Deal Memo qualifies as a contract or other reliable 
evidence, as required by this regulatory criterion. The Petitioner did not offer evidence demonstrating its 
ability to pay the Beneficiary $15,000 per concert, including information supporting the terms, events, 
and venue contained in the document. Notwithstanding, according to the Deal Memo, the Petitioner will 
not be compensating the Beneficiary based on an hourly wage or yearly salary. Rather, the Beneficiary 
will compensate the Beneficiary based on performing services at concerts. Thus, in order to satisfy this 
criterion, the Petitioner must demonstrate that the Beneficiary will command substantial remuneration for 
services in relation to others in the field. However, the Petitioner's comparative salary information does 
not show figures for concert performances. Here, the Petitioner did not establish that the Beneficiary's 
payment of $15,000 per concert will be a substantial remuneration for services in relation to other singers 
who are similarly compensated per concert performance. 
Because the Petitioner did not establish that the Beneficiary has either commanded or will command a 
high salary or other substantial remuneration for services in relation to other singers, we withdraw the 
Director's favorable finding for this criterion. 
III. CONCLUSION 
The Petitioner did not establish that the Beneficiary meets the criteria relating to 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(]) and (6). Although the Petitioner claims the Beneficiary's eligibility under 8 
C.F.R. § 214.2(o)(3)(iv)(B)(2) and (5), we need not address these grounds because it cannot fulfill the 
initial evidentiary requirement of at least three criteria. We also need not provide a totality 
determination to establish whether the Beneficiary has sustained national or international acclaim, has 
received a high level of achievement, and has been recognized as being prominent in his field of 
endeavor. See section 10l(a)(15)(O)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii) and (iv). 3 
3 See generally 2 USC1S Policy Manual, M.4(D), https:www.uscis.gov/policymanual. 
4 
Accordingly, we reserve these issues. 4 Consequently, the Petitioner has not demonstrated the 
Beneficiary's eligibility for the 0-1 visa classification as an individual of extraordinary ability. 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. 
4 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (1976) ("courts and agencies are not required to make findings on issues the 
decision of which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n.7. (BIA 
2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
5