dismissed O-1B Case: Music

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 31, 2023 In Re: 27966506 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, an artist management and booking agency, seeks an extension of petition validity for 
the Beneficiary as a clarinetist 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 10l(a)(l5)(O)(i), 8 U .S.C. § l 10l(a)(l5)(O)(i). 
The Director of the Vermont 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 afChawathe, 25 I&N Dec . 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 l&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)(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." 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 
101(a)(15)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iv). 
II. ANALYSIS 
The Director declined to defer to the approval of the previous petition filed by the Petitioner on behalf 
of the Beneficiary, concluding that the Petitioner did not establish that the Beneficiary qualified as an 
individual of extraordinary ability in the field of arts. 1 Current USCIS policy provides that officers 
should not defer to prior approvals in cases where: there was a material error involved with previous 
approval(s); there has been a material change in circumstances or eligibility requirements; or there is 
new material information that adversely impacts the petitioner's or beneficiary's eligibility.2 As 
stated, we are not required to approve subsequent petitions where eligibility has not been demonstrated 
strictly because of a prior approval. 3 The circumstances presented here do not show any error on the 
part of the Director in applying that deference policy. 
In denying the petition, the Director determined that the Petitioner did not demonstrate that the 
Beneficiary has been nominated for, or has been the recipient of, significant national or international 
awards or prizes under 8 C.F.R. § 214.2(o)(3)(iv)(A). The Petitioner does not contest this 
determination on appeal, nor does the record support a finding of such awards or prizes. As the 
Petitioner provides no evidence or arguments addressing this criterion on appeal, we consider this 
issue to be abandoned. See Matter of R-A-M-, 25 l&N Dec. 657. 658 n.2 (BIA 2012) (stating that 
when a filing party fails to appeal an issue addressed in an adverse decision, that issue is waived). See 
also Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226. 1228 n. 2 (11th Cir. 2005). citing United States v. 
Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. Roark, No. 09-CV-27312011, 2011 
WL 4711885 at *1 , *9 (E.D.N.Y. Sept. 30, 2011) (finding plaintiffs claims abandoned as he failed to 
raise them on appeal to the AAO). Accordingly, we will not further address this criterion in our 
decision. 
1 Current policy guidance concerning deference to prior approvals is located at 2 USCIS Policy Manual A.4(B), 
https://www.uscis.gov/policyrnanual; see also USCIS Policy Alert, PA-2021-05 , Deference to Prior Determinations of 
Eligibility in Requests for Extensions of Petition Validity (Apr. 27, 2021), 
https://www.usc is.gov/sites/default/files/document/po licy-manual-updates/20210427-Deference .pdf. 
2 2 USCIS Policy Manual, supra, at A.4(B)(l ). 
3 Id. See also Matter of Church Scientology Int'! , 19 l&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng 'g, Ltd. v. 
Montgomery , 825 F.2d 1084, 1090 (6th Cir. 1987). Furthermore , we are not bound to follow a contradictory decision ofa 
service center. La. Philharmoni c Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *3 (E.D. La. 2000), ajf'd , 248 F.3d 
1139 (5th Cir. 2001). 
2 
In addition, the Director concluded that the Petitioner fulfilled only one of the alternate initial 
evidentiary criteria, significant recognition for achievements from organizations, critics, government 
agencies, or other recognized experts in the field under 8 C.F.R. § 214.2(o)(3)(iv)(B)(5). The 
Petitioner maintains on appeal that the Beneficiary fulfills two additional criteria: lead or starring 
participant in productions or events at 8 C.F.R. § 214.2(o)(3)(iv)(B)(I) and lead, starring, or critical 
role for organizations and establishments at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3). 4 For the reasons 
discussed below, the Petitioner did not establish the Beneficiary meets at least three of the regulatory 
criteria. 
Evidence that the alien has peiformed, and will peiform, 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)(v)(B)(I). 
This criterion requires evidence of the Beneficiary's past lead or starring participation in distinguished 
productions or events, and the Beneficiary's prospective lead or starring participation in distinguished 
productions or events. 5 The Director determined the Petitioner established the Beneficiary's past services 
in productions with distinguished reputations. Regarding the future component of this criterion, the 
Director concluded that the Petitioner did not show the Beneficiary would perform in a lead or starring 
role in productions or events and the distinguished reputations of those prospective productions or events. 
On appeal, the Petitioner maintains the Beneficiary will perform services as a lead or starring participant 
16as a clarinet instructor forl The record shows that I I is a nonprofit 
organization whose mission is to connect low-income youth with professional musicians for free music 
instruction in schools inl !Texas. As it relates to the Beneficiary's prospective services, the 
Petitioner's initial cover letter did not assert the Beneficiary would perform services as a lead or starring 
participant in productions or events with distinguished reputations. However, in response to the 
Director's RFE, the Petitioner claimed: 
~-----lean be considered a distinguished production because of its significant 
impact on providing high-quality music education to low income students ... . The fact 
that all of these services are provided to students, families, schools, and districts at no 
cost further emphasizes the exceptional nature ofl Iwork. 
4 On appeal, the Petitioner also does not dispute the Director ' s finding that it had not established the Beneficiary's eligibility 
under the published materials criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(2) . Additionally , the Petitioner did not claim 
eligibility under 8 C.F.R. § 214.2(o)(3)(iv)(B)(4) or (6) before the Director or on appeal. As the Petitioner provides no 
evidence or arguments addressing these three alternate initial evidentiary criteria on appeal, we consider these issues to be 
abandoned. See Matter ofR-A-M- , 25 l&N Dec. at 658 n.2; see also Sepulveda v. U.S. Atty. Gen., 401 F.3d at 1228 n. 2; 
Hristov v. Roark , No. 09-CV-27312011 , 2011 WL 4711885 at *9. 
5 See generally 2 USCJS Policy Manual , M.4(D)(2)(appendix) , https://www .uscis.gov /policymanual. 
6 The Petitioner does not pursue its previous claim that the Beneficiary~osed roles as an extra/substitute cla □· 
atl lsrmphony Orchestra and as a clarinet private instructor atL__JMiddle School,~High School, 
· 
Middle School, !Middle School, andl IHigh School satisfy the future component of this criterion. 
3 
However, this criterion differs from the third criterion, which is specific to organizations and 
establishments. 7 Further, the Petitioner has not demonstrated that every upcoming production from a 
distinguished organization automatically establishes the distinguished nature of those productions. 8 
Notwithstanding, 
I 
the Petitioner presented an itinerary at initial filing, indicating that Beneficiary's duties 
for Iwill include teaching clarinet for approximately 12 hours weekly and performing as a 
clarinetist at the organization's "End of Year Show (May 2023/2024)." In addition, the Petitioner 
submitted a letter from a representative of I I who indicates that the Beneficiary will 
continue to teach "weekly lessons to 8-10 students every year at $50 per hourly lesson." The letter 
explained that her responsibilities will include teaching private lessons, master classes, and 
I 
clinics to 
I 
clarinet students in the program; coaching them to perform the regular concerts with the IIand assisting them in the preparation of repertoire for competitions. 
Further, the Petitioner initially provided a program for the 2017 I lannual student-mentor 
showcase at I ~t which the Beneficiary performed with middle and high school student bands. 
The submitted performance program lists the Beneficiary as one of 12 guest artists. Upon review of the 
program, it appears that this annual performance serves as a showcase for I I student 
musicians, and it cannot be determined based on the program alone that the Beneficiary's provided 
services will be in a lead or starring role in this pre-professional production. 
Moreover, to meet this criterion, the Petitioner must submit evidence in the form of critical reviews, 
advertisements, publicity releases, publications, contracts, or endorsements. 9 Advertisements, 
publicity releases, and endorsements are promotional materials. 10 Endorsements are public facing and 
serve a marketing purpose. 1 1 This exhaustive list does not include unpublished testimonial or 
recommendation letters. 12 Nevertheless, the above letter does not explain how the Beneficiary will 
perform services as a lead or starring participant. 13 Nor does the letter specifically identify any 
proposed "productions or events which have a distinguished reputation." 14 Instead, the letter 
references the Beneficiary's skills and abilities as a clarinet instructor and mentor. 
Furthermore, although the Petitioner presented an itinerary at initial filing, similar to the foregoing 
discussion the Petitioner did not demonstrate how an itinerary meets any of the categories of evidence 
7 See also generally 2 USCIS Policy Manual, supra, at M.4(D)(2)(appendix). 
8 For instance, a recognized studio may release a movie garnering negative reviews with critics or "bombs" at the box 
office, which would not be indicative of a distinguished movie. 
9 See generally 2 USC1S Policy Manual, supra, at M.4(D)(2)(appendix). 
io Id. 
11 Id. 
12 Id. 
13 See generally 2 USCIS Policy Manual, supra, at M.4(D)(2)(appendix) (instructing that in evaluating whether the 
beneficiary's participation in a past or future event or production qualifies as lead or starring, officers may consider, for 
example, whether the beneficiary's role is highlighted or featured in advertisements, publicity releases, critical reviews, or 
other materials, and the contractual terms offered to the beneficiary may also be relevant to establishing the lead or starring 
nature of the beneficiary's panicipation, especially with regard to a prospective event or production). 
14 Id. (providing that with regard to demonstrating the distinguished reputation of a prospective event, a petitioner may 
submit documentation such as advance publicity, endorsements, or other evidence regarding the level of anticipation of 
the relevant event or production; however, as the available evidence relating to the reputation of a prospective production 
or event will often be limited, officers may also consider factors such as the reputation of similar past events or productions 
by the same individuals or entities). 
4 
under this regulatory criterion. Regardless, as it pertains her proposed role with I I the 
itinerary does not establish the Beneficiary will serve as a lead or starring participant in productions 
or events, or reflect productions or events with distinguished reputations. 
Because the Petitioner did not comply with the evidentiary requirements under the regulation at 
8 C.F.R. § 214.2(o)(3)(iv)(B)(J), the Petitioner did not show that the Beneficiary 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. Accordingly, the Petitioner did not show the Beneficiary meets this criterion. 
III. CONCLUSION 
We find that the Petitioner did not demonstrate that the Beneficiary meets the criterion relating to lead 
or starring participant in productions or events at 8 C .F.R . § 214.2(o)(3)(iv)(B)(J) . Although the 
Petitioner claims the Beneficiary's eligibility for an additional criterion on appeal, relating to lead, 
starring, or critical role for organizations or establishments at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3), we 
need not reach this additional ground, 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, renowned, leading, or well-known in the field of arts. See section 101 ( a)( l 5)(O)(i) 
of the Act and 8 C.F.R. § 214 .2(o)(3)(ii) and (iv) .15 Accordingly, we reserve these issues. 16 
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. 
15 See generally 2 USCIS Policy Manual , M.4(D), https://www.uscis.gov /policy-manual. 
16 See INS v. Bagamasbad, 429 U.S. 24, 25-6 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach); see also Matter ofL-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