dismissed O-1B Case: Photography

U.S. Citizenship 
and Immigration 
Services 
MATTER OF T-S-C- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 29, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a restaurant chain and food development business, seeks to temporarily employ the 
Beneficiary as a photographer. To do so, it seeks to classifY him as an 0-1 nonimmigrant, a visa 
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)(0)(i), 8 U.S.C. § 1101(a)(15)(0)(i). 
The Director initially approved the Form I-129, Petition for a Nonimmigrant Worker, granting the 
Beneficiary 0-1 classification. The Director subsequently issued a notice of intent to revoke (NOIR) 
the approval of the petition. After reviewing the response to the NOIR, the Director issued a notice of 
revocation (NOR), finding that the Petitioner no longer employed the Beneficiary in the capacity 
specified in the petition, the statement of facts contained in the petition was not true and correct, and the 
approval ofthe petition involved gross error. 8 C.F.R. § 214.2(o)(8)(iii)(A)(l), (2). and (5). 
On appeal, the Petitioner explains that it fully intended to pay the Beneficiary an annual salary of 
$70,000 at the time of filing the petition, but became unable to do so because of '·numerous financial 
shortcomings." It contends that revocation of the petition approval constituted an abuse of discretion 
and was contrary to the previous determination and a prior approved petition tiled on the 
Beneficiary's behalf for 0-1 classification. It maintains that the evidence satisfies the regulatory 
requirements and thus the Beneficiary is eligible for 0-1 classification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
As relevant here, section 101(a)(15)(0)(i) ofthe 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 
Matter ofT-S-C-lnc. 
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 the evidentiary criteria for establishing a beneficiary's sustained 
acclaim and the recognition of achievements. A petitioner must submit evidence either of 
"significant national or international awards or prizes" such as "an Academy Award. an Emmy. a 
Grammy, or a Director's Guild Award," or of 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 listed criteria do not readily 
apply to the beneficiary's occupation, it may submit comparable evidence to establish eligibility. 
8 C.F.R. § 214.2(o)(iv)(C). When a petitioner provides the requisite evidence, we then determine 
whether the record, viewed in its totality, shows sustained national or international acclaim such that 
the individual is prominent in the field of endeavor. 
In addition, the regulations contain additional evidentiary requirements for 0 foreign nationals, 
including documentation relating to the terms of the proposed employment and the nature of the 
activities and events in which the beneficiary will participate. 8 C.F.R. § 214.2(o)(2)(ii). The 
regulations further state that if "material changes" are made in the terms and conditions of 
employment or the beneficiary's eligibility as specified in the original approved petition. an 
amended petition on Form 1-129 must be filed. 8 CFR §214.2(o)(2)(iv)(D). 
Finally, the regulation at 8 C.F.R. § 214.2(o)(8)(i)(B) provides that the Director may revoke a petition 
approval at any time, even after the validity of the petition has expired. The regulation at 8 C .F .R. 
§ 214.2( o )(8)(iii) sets forth the grounds for revocation on notice: 
(A) Grounds for revocation. The Director shall send to the petitioner a notice of intent 
to revoke the petition in relevant part if it is determined that: 
(I) The beneficiary is no longer employed by the petitioner in the capacity 
specified in the petition; 
(2) The statement of facts contained in the petition was not true and correct: 
(3) The petitioner violated the terms or conditions of the approved petition; 
(4) The petitioner violated the requirements of section 101(a)(l5)(0) ofthe Act 
or paragraph ( o) of this section; or 
( 5) The approval of the petition violated paragraph ( o) of this section or 
involved gross error. 
(B) Notice and decision. The notice of intent to revoke shall contain a detailed 
statement of the grounds for revocation and the time period allowed for the 
petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 
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Matter ofT-S-C-lnc. 
days of the date of the notice. The Director shall consider all relevant evidence 
presented in deciding whether to revoke the petition. 
II. ANALYSIS 
A. Introduction 
The Petitioner filed the Form I-129, indicating on the petition that it seeks to employ the Beneficiary 
as a photographer at its California restaurant, at an annual salary of ''$70,000+" for a 
three-year period. On the 0 and P Classification Supplement to Form I-129, the Petitioner described 
his proposed duties as follows: "[The Beneficiary] will be responsible for all company photography 
for use in advertising, brand and name recognition, image development and communication of 
corporate image and branding." 
In its initial letter, the Petitioner explained that it operates six restaurants in California, identified in 
its accompanying submission as located in 
and The Petitioner attached its 
2013 employment agreement with the Beneficiary, pursuant to which he would work at its 
location 1 at an annual salary of $70,000 plus "annual discretionary bonuses." The 
Director 
approved the petition for the validity period September 24, 2013 to September 15, 2016. 
For the reasons discussed below, we find the Petitioner has not demonstrated that it employed the 
Beneficiary in the capacity specified in the visa petition, and that its evidence satisfied any of the 
evidentiary criteria applicable to individuals of extraordinary ability in the arts. Accordingly, we find 
that the Director properly revoked the approval of the petition. 
B. Whether the Petitioner Employed the Beneficiary as Specified m the Petition. 8 C.F.R. 
§ 214.2( o )(8)(iii)(A)( 1). 
The Director revoked the approval of the petition on the basis that the Petitioner had not demonstrated 
that it continued to employ the Beneficiary in the capacity specified in the instant petition for the 
duration of the validity period. We agree with the Director's determination. 
After the petition's approval, the Director sent a NOIR to the Petitioner, advising it that U.S. 
Citizenship and Immigration Services (USCIS) had obtained new information regarding the 
Beneficiary's employment. Specifically, the NOIR advised the Petitioner of the following 
information. In January 2016, when the Beneficiary was interviewed in reference to a Form I-485, 
1 It is unclear at which of the Petitioner's restaurants the Beneficiary will work, as the petition and the employment 
agreement list different work locations. The regulation at 8 C.F.R § 214.2(o)(2)(iv)(A) requires an itinerary with the 
dates and locations of work where the Beneficiary will work at more than one location, revealing that the location where 
he will work is relevant. The Petitioner must resolve any discrepancies 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). The Petitioner's 
evidence does not resolve this discrepancy. 
3 
Matter ofT-S-C- Inc. 
Application to Register Permanent Residence or Adjust Status, it was determined that the Petitioner 
no longer employed him as specified in the instant petition. At the conclusion of the adjustment 
interview, USCIS issued a request for evidence verifying the Beneficiary's employment, including 
his three most recent pay stubs. The Beneficiary's response included a statement that paystubs were 
not available, and an IRS Form W-2, Wage and Tax Statement for 2015 showing that the Petitioner 
paid him $9,183 in wages that tax year. 2 
In response to the NOIR, the Petitioner submitted a letter from its CEO, acknowledging that "[in] 
2014-20 15" it did not continue to employ the Beneficiary at the wage stated in the petition, but ··was 
forced to change the terms of [his] employment" due to "financial hardships" and compensated him 
"on a project-by-project basis upon estimates accepted and agreed to by [the Petitioner]." While 
counsel maintained that the Beneficiary continued to perform the duties listed in the petition for the 
duration of the validity period, assertions of counsel do not constitute evidence. Matter q{ Ohaighena. 
19 I&N Dec. 533, 534 n.2 (BIA 1988) (citing Matter q{ Ramirez-Sanchez, 17 I&N Dec. 503, 506 
(BIA 1980)). Counsel's statements must be substantiated in the record with independent evidence, 
which may include affidavits and declarations. Here, the Petitioner has not provided sufficient 
corroborating evidence. As the Director noted, the record does not demonstrate, for example, that in 
2016 the Beneficiary performed any photography services for the Petitioner and that it paid him for 
such work. 
In addition, we conclude that amending the terms of the Beneficiary's employment constituted a 
material change, therefore requiring the Petitioner to submit an amended 0-1 petition with USCIS. 
As noted above, if "material changes" in the terms and conditions of employment or the 
beneficiary's eligibility are made, an amended petition must be filed with the service center of 
original jurisdiction to reflect those changes. 8 C.F.R. §214.2(o)(2)(iv)(D). On appeal, the 
Petitioner emphasizes that at the time of filing the petition it fully intended to pay the Beneficiary the 
stated annual salary of $70,000 but became unable to do so because of "numerous financial 
shortcomings.'' Regardless of original intent, however, if a material term and condition of 
employment or the beneficiary's eligibility changes, an amended or new petition must be filed. 
C. Whether the Approval of the Petition Involved Gross Error. 8 C.F.R. § 214.2(6)(8)(iii)(A)(5). 
The Director revoked the approval of the petition on the additional basis that it involved gross error 
because the Petitioner's evidence did not satisfy the evidentiary criteria set forth at 8 C.F.R. 
214.2(o)(3)(iv)(A) or (B). Absent evidence of a significant national or international award or prize 
like the Academy Award, the Petitioner sought to demonstrate the Beneficiary's sustained acclaim 
and recognition of achievements through evidence corresponding to the six regulatory criteria at 
8 C.F.R § 214.2(o)(3)(iv)(B). The Director determined that the Petitioner did not satisfy any of the 
evidentiary criteria. On appeal, it maintains that the evidence meets the criteria at 8 C.F.R 
§ 214.2(o)(3)(iv)(B)(l), (2), (3), and (5). As discussed below. \ve concur with the Director's 
2The Beneficiary's response also provided a letter from the Petitioner's president contending that it continued to employ 
him, and his written contract with the Petitioner dated March 22, 2016, indicating it will pay him an hourly rate of $65 
upon approval ofthe Form 1-485. 
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Matter ofT-S-C- Inc. 
determination that the evidence does not satisfy any of the relevant criteria at 8 C.F.R 
§ 214.2(o)(3)(iv)(B). Accordingly, we conclude that the Director properly revoked the approval of the 
petition on this additional basis. 
1. Evidentiary Criteria 3 
Evidence that the alien has performed, and will pe1:(orm, 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). 
We conclude that the Petitioner's evidence does not establish that the Beneficiary has performed 
services as a lead or starring participant in productions or events which have a distinguished 
reputation. The Petitioner maintains that the Beneficiary satisfies this criterion based upon his past 
work on its annual marketing campaign, providing photography for its promotional calendar, as well 
as those of its "partners," and It provided copies of its 2013 calendar and 
those of for the years 2009, 2010, and 2013, containing one-sentence captions 
crediting the Beneficiary with having taken the accompanying photographs. On appeal, it contends 
that since it is "a critically acclaimed brand and loved by consumers throughout Southern California,'' 
and its partners are all "distinguished," the annual marketing campaigns are also distinguished 
productions and events. The plain language of this criterion requires the submission of critical 
reviews, advertisements, publicity releases, publications, contracts, or endorsements establishing the 
distinguished reputation of the productions or events in which the Beneficiary participated in a lead 
or starring capacity. The Petitioner did not submit the required evidence that would demonstrate that 
the Beneficiary's role in its annual marketing campaign as leading or starring and establish the 
distinguished reputation of those events. Even if the Petitioner had submitted evidence establishing 
its own reputation, evidence of the distinguished reputation of a marketing campaign's subject, 
alone, does not equate to evidence of the distinguished reputation of the marketing campaign itself. 
In addition, the record does not demonstrate that the Beneficiary will prospectively serve as such a 
participant. At the time of filing, the Petitioner attached its 2013 employment agreement with the 
Beneficiary, pursuant to which he would work as a photographer at its location. 
According to the petition, his duties will include being responsible for all company photography for 
use in advertising, brand and name recognition, image development and communication of corporate 
image and branding. On appeal, the Petitioner contends that the Beneficiary will "head up all 
photography for [its] annual calendar." It did not, however, offer evidence that would denote his 
3 We have reviewed all of the evidence and will address those criteria the Petitioner avers that the Beneficiary meets or 
for which the record includes relevant and probative evidence. 
4 The evidence indicates that the Beneficiary may have worked for these companies without first obtaining the required 
authorization from USCIS. The regulation at 8 C.F.R. 214.2(o)(2)(iv)(B) states that if a beneficiary will work for more 
than one employer within the same time period, each employer must file a separate petition, unless an agent files the 
petition pursuant to 8 C.F.R. § 214.2(o)(2)(iv)(E). The Petitioner in this matter filed as an employer, not as an agent. 
5 
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Matter of T-S-C- Inc. 
role as leading or starring within those upcommg events, and demonstrate their distinguished 
reputation. 
Evidence that the alien has achieved national or international recognztwn fhr 
achievements evidenced by critical reviews or other published materials by or about the 
individual in major new5papers, trade journals. magazines. or other publications. 
8 C.F.R. § 214.2(o)(3)(iv)(B)(2). 
To meet this criterion, the Petitioner provided copies of the Beneficiary's photography work and 
articles pertaining to him, published in Brazilian surfing magazines. We conclude that it has not 
established that the evidence meets the plain language of this criterion. The Petitioner submitted two 
articles from magazine -- one written by the Beneficiary in the edition ' 
and one written about his photography career in the edition ' It also submitted 
pages from and magazines containing one-sentence captions crediting the Beneficiary 
with having taken the accompanying photographs. First, the record does not contain probative 
evidence showing that the publications and qualify as a "major" newspaper, trade journal, 
or other publication. 5 The circulation statistics submitted indicate that they do not have significant 
national or international distribution. In addition, the Petitioner has not established that publication of 
the Beneficiary's photographs, article, and biography in a surfing magazine is evidence of national 
recognition for his achievements in the field of photography. The Petitioner has not established that the 
above-noted publications enjoy any readership outside of the surfing community. 6 
Evidence that the alien has per.fhrmed, 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 has not submitted evidence that the Beneficiary has held a lead or critical role with 
respect to an organization or establishment that has a distinguished reputation. It has not offered 
information that would elucidate where his past position fell in the Petitioner's overall hierarchy, or 
demonstrate how his position impacted the organization. In addition, the record does not establish 
that the Petitioner enjoys a distinguished reputation. Although individual customers highly praise its 
restaurants, these reviews do not establish the Petitioner's reputation in the field. The Beneficiary's 
resume also lists his past work for organizations in Brazil, including the magazines and 
The record lacks employment verification letters from representatives of and 
establishing that the Beneficiary has held a lead or critical role with respect to those establishments. 
5 
To qualify as major media, the publication should have significant national or international distribution. Some 
newspapers, such as the New York Times, nominally serve a particular locality but would qualify as major media because 
of significant national distribution, unlike small local community papers. 
6 While the record also includes cover images from the magazines and that the 
Petitioner contends were taken by the Beneficiary, it has not provided information from those publications crediting him 
as the photographer, and the record lacks circulation or distribution information relating to and 
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Matter of T-S-C- Inc. 
While the evidence does indicate that the Beneficiary held a leading role with respect to 
magazine, 7 the submitted materials do not establish that and described in the 
record as surfer publications, enjoy a distinguished reputation in his area of expertise. 
Further, the evidence does not establish that the Beneficiary's prospective role with the Petitioner 
would satisfy the requirement that he will be performing in a lead, starring, or critical role for the 
organization. It has not offered information that would elucidate where his proposed position falls in 
the overall hierarchy of its organization or his proposed impact on the company. 
Evidence that the alien has received sign(ficant recognition fcJr achievements fi·om 
organizations. critics, government agencies. or other recognized experts in the field 
in which the alien is engaged. Such testimonials must he 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). 
Under this criterion, the Petitioner provided evidence submitted in support of prior petitions, 
including several testimonial letters and evidence of the Beneficiary's receipt of two awards. We 
determine that the submitted materials do not satisfy this criterion. 
The record contains a letter from CEO of a California company, discussing 
preparations for the a documentary film event. He identities the 
Beneficiary, then working for as the project coordinator. Other promotional 
materials describe the five-month project as "the first human 'but do not indicate that 
this project was completed. The Petitioner provided a letter from president of 
a California marketing company, stating that he has known the Beneficiary for 15 years 
and describing him as "an extraordinary graphic artist and photographer.'' 8 The Petitioner also 
submitted a letter from president of the eyewear company indicating 
that he worked with the Beneficiary for several years and that he is one of the top professionals in 
the fields of graphic design, photo editing and action photography. The evidence further includes a 
letter from president of explaining that he has 
utilized the Beneficiary's services through the company and praising his talents as a 
designer. 
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. The record lacks documentary evidence showing that the Beneficiary has received such 
recognition.
9 
The authors of the above-referenced letters mention the Beneficiary's talent as a 
7 
A letter from publisher, states that the Beneficiary is the magazine's photo 
editor and is on its board of directors. In addition, other evidence indicates that he is responsible for its advertising in 
and is on the board of directors of its publisher, 
letterhead indicates that is a division of a company that filed a previous Form 1-129 
petition on the Beneficiary's behalf. 
9 
We also note that all of the letters submitted are from the Beneficiary's own current and former colleagues and 
employers, and therefore do not demonstrate significant recognition outside of that circle. 
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Matter of T-S-C- Inc. 
photographer but do not explain in factual terms his "achievements" in the field. Without fwther 
information and evidence, those letters are not sutlicient to demonstrate that the Beneficiary's 
achievements have received significant recognition. USCIS may, in its discretion, use as advisory 
opinions statements submitted as expert testimony. See Matter (~{Caron International, 19 J&N Dec. 
791, 795 (Comm 'r. 1988). However, USClS is ultimately responsible for making the final 
determination regarding a foreign national's eligibility for the benefit sought. Further, regarding the 
submitted letters from and the Petitioner has not shown that those 
authors, as administrative staff of an eyewear and a snowboard company are recognized experts in 
the field of photography. 8 C.F.R. § 214.2(o)(2)(iii)(B). Although they praise the Beneficiary's 
artistry, they do not 
establish their credentials as recognized experts in the field. 
Finally, the Petitioner maintains that the Beneficiary's receipt of two awards satisfies this criterion. The 
Beneficiary won the magazine award for in 2001. In 
addition, it submitted evidence that a second-place award at the 
show in was attributed to the Beneficiary , although not awarded to 
him individually, for an automotive product's package design. Upon review, the Petitioner has not 
established the significance of these awards in the Beneficiary's field of expertise. 10 
The record contains a letter from the publisher of magazine , 
discussing the Beneficiary ' s magazine award.'' He described as having been Brazil's 
"leading magazine in the surf industry" until its closure in 2003. He explained that the award was 
voted by the magazine 's publishing group, readers, and subscribers. Although the magazine's 
publisher and its readership recognized the Beneficiary's skills and abilities, the Petitioner has not 
established that receipt of the award constitutes significant recognition in the field of photography. The 
Petitioner also provided a letter from CEO of stating that the 
packaging created by the Beneficiary helped his automotive product win runner-up for the 
award at 2012 show in According to the evidence submitted, 
the awards are open only to and members. While the show 
appears to be a high-profile national automotive event, the Petitioner has not established that receipt of 
the award constitutes "significant recognition for achievements from organizations ... in the tield," 
pursuant to the plain language of the criterion. 
2. Summary 
In sum, based on the above , the Petitioner 's evidence did not satisfy, as required, the evidentiary 
criteria applicable to individuals of extraordinary ability in the arts: a significant national or 
international award, at least three of six possible forms of documentation , or comparable evidence. 
8 C.F.R. § 214.2(o)(3)(iv)(A)-(C). 
10
While the Petitioner also refers to the Beneficiary's receipt in 1996 of two additional photography awards. the evidence 
of record does not establish either his actual receipt of those awards or the significance of the awards in the field of 
expertise. 
II 
indicate s that when ended , '' part of the group became the current , 
Matter ofT-S-C- Inc. 
We note that the Petitioner contends revocation of the petition approval constituted an abuse of 
discretion, because USCIS previously approved a petition for 0-1 classification tiled on the 
Beneficiary's behalf.
12 
We are not required, however, to approve applications or petitions where 
eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See Matter of Church Scientology Int'l, 19 I&N Dec. 593, 597 (Comm'r 1988); see also 
Sussex Eng'g, Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987). Further, we are not bound 
to follow a contradictory decision of a service center. La. Philharmonic Orchestra v. INS, No. 98-
2855, 2000 WL 282785, at *2 (E.D. La. 2000). For the reasons previously discussed, we do not find 
that the Director's revocation of the petition approval constituted an abuse of discretion. 
D. Whether the Statement of Facts Was True and Correct. 8 C.F.R. § 214.2(o)(8)(iii)(A)(2). 
As an additional ground for revocation, the Director concluded that, based upon the description of his 
duties listed on the 0 and P Classification Supplement to Form I-129, the Beneficiary was not 
continuing to work in the area of extraordinary ability, as indicated in the petition. See Section 
10l(a)(l5)(0); 8 C.F.R. § 214.2(o)(l)(ii)(A)(l). Specifically, the Director found that the duties of 
"corporate image and branding" were outside of the photography field. However. as the Petitioner 
has not established the Beneficiary's extraordinary ability, we need not reach the issue of whether he 
was continuing to work in the area of extraordinary ability. 
III. CONCLUSION 
For the reasons discussed above, the record supports the Director's determination that the Petitioner did 
not employ the Beneficiary according to the terms and conditions of the petition, and that the record 
does not establish his eligibility for the 0-1 visa classification as a foreign national with extraordinary 
ability in the arts. Accordingly, the Director properly revoked the approval of the petition. 
ORDER: The appeal is dismissed. 
Cite as Matter ofT-S-C- Inc., ID# 463084 (AAO Sept. 29. 2017) 
11 
As previously noted, USCIS records reflect that a previous petition for 0-1 status filed by different petitioner was 
approved. 
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