dismissed O-1B Case: Music

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 18, 2023 In Re: 28694430 
Appeal of California Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (Extraordinary Ability - 0) 
The Petitioner, an entertainment group, 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. § 1101(a)(15)(O)(i). 
The Director of the California Service Center denied the petition, determining the improper filing of 
0-2 Beneficiaries with the 0-1 Beneficiary. In addition, the Director concluded that the Petitioner did 
not establish the 0-1 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 Christo '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 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." 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)(15)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iv). 
II. ANALYSIS 
A. 0-2 Beneficiaries 
The regulation at 8 C.F.R. § 214.2(0)(2) provides that "0-2 aliens must be filed for on a separate 
petition from the 0-1 alien." 1 However, at initial filing, the Petitioner filed for the 0-1 Beneficiary 
and five accompanying 0-2 Beneficiaries on the same petition. In response to the Director's request 
for evidence (RFE), the Petitioner submitted a copy of Form 1-129 for the five accompanying 
individuals and stated: 
... If we must file another petition on the group's behalf: it will be extremely costly, 
cause significant delays, and ultimately destroy the event. We would have chosen a P3 
visa if we had known in advance that we would need to submit two petitions, each of 
which is costly. USCIS makes no note of this requirement on its website and does not 
have a separate form for the 0-2 petitioners. 
We would be pleased if they are all considered for the P3 instead in order to avoid loss 
to the petitioner. Time is of the essence for this matter so we will also be filing a second 
petition as USCIS has requested. We are happy with any outcome if they are accepted 
for the P3 or 02 it is perfectly okay as long as they perform. 
The Director determined the presented copy did not show the Petitioner actually filed a separate 
petition for the five accompanying individuals. 2 Furthermore, the Director denied the Petitioner's 
request to consider the accompanying individuals for P-3 classification due to a material change of the 
original benefit request. 3 
1 See also generanv 2 USCIS Policy Manual, M.5(A), https://www.uscis.gov.policymanual (stating that although multiple 
beneficiaries may be included on a single 0-2 Petition for a Nonimmigrant Worker (Form T-129), they cannot be included 
on the 0-1 beneficiary's petition); Instructions for Form T-129, https://www.uscis.gov/i- l 29. 
2 USCTS electronic records do not reflect that the Petitioner filed a separate petition for the accompanying individuals. 
including the payment of the required fee, nor did the Petitioner present a receipt for Form T-129, evidencing proper filing 
of the petition for the 0-2 Beneficiaries. 
3 The Director also indicated that the Petitioner did not submit any of the required evidence to establish the individuals' 
eligibility for P-3 nonimmigrant classification. 
2 
On appeal, the Petitioner contends: 
In our case, the band was to be performing at the same period of time and at the events 
on stage with [the Beneficiary]. The service is the same, and they have received the 
same training. They have done this before and have been approved more than once. 
USCIS could have offered the group a P3 visa instead and they would have accepted 
that. Evidence for a P3 visa is not much different from evidence for an O-lB. USCIS 
had more then [sic] enough evidence to award the beneficiaries a P3 visa. 
We adopt and affirm the Director's decision for this issue. See Matter ofBurbano, 20 I&N Dec. 872, 
874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Dir. 1997) (noting that the practice 
of adopting and affirming the decision below has been "universally accepted by every other circuit 
that has squarely confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1 st Cir. 1996) (joining eight circuit 
courts in holding that appellate adjudicators may adopt and affirm the decision below as along as they 
give "individualized consideration" to the case). Here, 0-2 beneficiaries must be filed on a separate 
petition from the 0-1 beneficiary. See 8 C.F.R. § 214.2( o )(2). Moreover, the Petitioner's request to 
adjudicate nonimmigrant classifications from O-2s to P-3s results in a material change to the petition. 
A petitioner may not make material changes to a petition that has already been filed in an effort to 
make a deficient petition conform to USCIS requirements. See Matter of Izzumi, 22 I&N Dec. 169, 
175 (Assoc. Comm'r 1998). Notwithstanding, the record does not show that the Petitioner properly 
filed a petition, with fee, for the accompanying Beneficiaries. The burden remains on the Petitioner 
to establish eligibility for the benefit. 8 C.F.R. § 103.2(b )(l); Chawathe, 25 I&N at 375-76. Further, 
P-3 classification requires "a support relationship with a P-3 entertainer or P-3 entertainment group." 
8 C.F.R. § 214.2(p)(6)(iii)(A). In this case, the Petitioner seeks to classify the Beneficiary as an O-lB 
rather than as a P-3. Thus, the accompanying Beneficiaries cannot be considered for P-3 classification. 
B. O-lB Extraordinary Ability 
1. Nomination or Receipt of Significant National or International Award or Prize 
The Director determined the Petitioner did not establish 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). 
Specifically, the Director acknowledged the Petitioner's initial submission of "numerous volunteer 
and recognition awards" and stated: 
In response to the USCIS 's RFE, you submitted a statement in which you say the._l_ __. 
A ward is an internationally recognized award easily compared to a Grammy or an 
Oscar. You cite farther evidence in Exhibit A. Exhibit A contains a Wikipedia Printout 
about._________ _.Company. It makes no mention ofthec::=]Award and 
provides no evidence that the award is comparable to a Grammy or Oscar A ward. 
Further, USCIS does not consider documents from Wikipedia to be reliable evidence 
because individuals may contribute content to the site, without demonstrating their 
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expertise or qualification. Consequently, USCIS will be unable to determine the 
relevance of Wikipedia printouts as they relate to the 0-1 B criteria. 
On appeal, the Petitioner lists the Beneficiary's awards and briefly claims that "[m]ore than half of 
these are internationally recognized" and "[l]ike the LJBest Song Award, it was the most 
prestigious award in the Middle East at the time." The Petitioner does not elaborate on the "[more 
than half'' of the awards, nor does the Petitioner articulate which award, if any, it compares tro'-'t=h=e....,__ _. 
Best Song A ward. Moreover, the Petitioner does not point to evidence or explain how th ~-~ est 
Song A ward qualifies as "the most prestigious award in the Middle East" or how any of the other 
awards are "internationally recognized" or are tantamount to significant national or international 
awards, such as the Academy Award, consistent with the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(A). 
2. At Least Three Forms of Documentation 
The Director also concluded the Petitioner did not demonstrate the Beneficiary's eligibility for any of 
the categories of evidence under 8 C.F.R. § 214.2(o)(3)(iv)(B)(])-(6). 4 On appeal, the Petitioner 
claims: 
... The National News wrote an article on [the Beneficiary] which we included in the 
original petition. The National News is a member of the Independent Press Standards 
Organization (which regulates the UK's magazine and newspaper industry). They 
abide by the Editors' Code of Practice and are committed to upholding the highest 
standards of· ournalism. We included 10 of his Album covers, and pictures of his music 
video " which has reached 15 million views. We have also included the 
music video clip~-~ which has reached 30 million views on YouTube. We have 
proved that [the Beneficiary] had sustained his success by showing he has monthly 
listeners on Spotify of 159.9K. [The Beneficiary's] most recent event was last month 
in Canada and was a successful event, which shows he is maintaining his wide fame 
and success. 
The Petitioner does not specifically identify the contested criteria, if any, from the Director's decision. 5 
Instead, it appears the Petitioner's arguments about The National News and views and listeners relate 
to two categories, 8 C.F.R. § 214.2(o)(3)(iv)(B)(2) and (4), respectively. 6 If the Petitioner intended to 
4 The Director determined the Petitioner submitted evidence relating to four criteria: 8 C.F.R. § 214.2( o )(3)(iv)(B)(I), (2), 
(4), and (5). 
5 The Petitioner offers additional documentation on appeal. Again, the Petitioner does not explain how the evidence relates 
to a particular criterion, if any. Regardless, because the Petitioner was put on notice and given a reasonable opportunity 
to provide this evidence we will not consider it for the first time on appeal. See 8 C.F.R. § 103.2(b)(ll) (requiring all 
requested evidence be submitted together at one time); Matter ofSoriano, 19 l&N Dec. 764, 766 (BIA 1988) (declining to 
consider new evidence submitted on appeal because "the petitioner was put on notice of the required evidence and given 
a reasonable opportunity to provide it for the record before the denial"). 
6 The regulation at 8 C.F.R. § 214.2( o )(3)(iv)(B)(2) requires"[ e ]vidence 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." In addition, the regulation at 8 C.F.R. 
§ 214.2( o )(3)(iv)(B)( 4) requires "[ e]vidence 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 pictures or 
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contest other criteria from the Director's decision, it did not identify the criteria and explain how the 
Director erred. Further, if the affected party does not address issues raised by the director, and those 
issues are dispositive of the case, the appeal will be dismissed based on those waived issues. See, e.g., 
Matter(?fM-A-S-, 24 I&NDec. 762, 767 n.2 (BIA 2009). The regulation at 8 C.F.R. § 214.2(o)(3)(iv)(B) 
requires at least three forms of documentation. Because the Petitioner does not identify or claim the 
Beneficiary's eligibility for at least three categories of evidence on appeal, we need not make a 
determination on the apparent arguments relating to 8 C.F.R. § 214.2( o )(3)(iv)(B)(2) and ( 4). See INS 
v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely 
advisory findings" on issues that are unnecessary to the ultimate decision); see also Matter ofL-A-C, 
26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternate issues on appeal where applicants 
do not otherwise meet their burden of proof). 
III. CONCLUSION 
The Petitioner did not properly file for the accompanying 0-2 Beneficiaries. In addition, because the 
Petitioner did not establish the 0-1 Beneficiary's satisfaction of a nomination for or receipt of a 
significant national or international award or at least three of six possible forms of documentation, we 
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)(15)(O)(i) of the 
Act and 8 C.F.R. § 214.2(o)(3)(ii) and (iv). 7 Accordingly, we reserve this issue. 8 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. 
television ratings, and other occupational achievements reported in trade journals, major newspapers, or other 
publications." 
7 See generally 2 USC1S Policy Manual, supra, at M.4(D). 
8 See Bagamasbad, 429 U.S. at 25-26; see also L-A-C-, 26 I&N Dec. at 526 n.7. 
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