dismissed O-1B Case: Photography

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 12, 2024 In Re: 30154384 
Appeal of Vermont Service Center Decision 
Form 1-129, Petition for a Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner , a talent agency, seeks to classify the Beneficiary as a photographer 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 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 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 I&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)(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 
101(a)(15)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iv). 
II. ANALYSIS 
The Petitioner's initial letter described the Beneficiary as "one of the most talented photographers in 
Argentina currently" with "extensive photographic knowledge despite his young age." The 
Beneficiary indicates in his resume that he is a professional photographer with more than 10 years of 
work experience pertaining to artists, music videos, album covers, magazines, social networks, 
clothing campaigns, television programs, and gastronomy. According to the Form 1-129, the Petitioner 
seeks to employ the Beneficiary as a photographer "responsible for creating the visual image of the 
company (photography, video, graphic design) for its clients at events, concerts, recording studio, 
etc.," for a one-year period at a weekly wage of $500. 1 
A. Extraordinary Ability in the Arts 
Because the Petitioner has not indicated or established that the Beneficiary satisfies the evidentiary 
criterion at 8 C.F.R. § 214.2(o)(3)(iv)(A), it must show that the Beneficiary satisfies at least three of 
the six categories listed at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l)-(6). In denying the petition, the Director 
determined that the Petitioner submitted evidence related to the criteria at 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(l), (2), (4), (5), and (6), but did not meet any of those alternative regulatory 
criteria. On appeal, the Petitioner maintains that the Beneficiary meets those five criteria.2 As 
discussed below, we find that the Petitioner has not established that the Beneficiary meets three of the 
claimed criteria. 
1 We note that there are inconsistencies regarding the Beneficiary's proposed salary in the record. Specifically, according 
to the Fonn 1-129, the Petitioner will pay the Beneficiary a weekly wage of $500 per year, which equates to a monthly 
salary of $2,167. However, according to the Petitioner 's proposed employment contract, the Beneficiary will be paid a 
monthly salary of$4,000. It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent 
objective evidence; any attempt to explain or reconcile such inconsistencies will not suffice unless the petitioner submits 
competent objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
2 The Petitioner did not claim the Beneficiary's eligibility under 8 C.F.R. § 214.2( o )(3)(iv)(B)(3) before the Director or on 
appeal. As the Petitioner provides no evidence or arguments addressing this criterion on appeal, we consider this issue to 
be abandoned. See Matter ofR-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). 
2 
Evidence that the alien has achieved national or international recognition for 
achievements evidenced by critical reviews or other published materials by or about 
the beneficiary in major newspapers, trade journals, magazines, or other publications. 
8 C.F.R. § 214.2(o)(3)(iv)(B)(2). 
To meet this criterion, the petitioner must provide evidence that demonstrates the beneficiary is 
recognized for achievements nationally or internationally, in the form of critical reviews or other 
published materials in major newspapers, trade journals, magazines, or other publications, which may 
include online publications or transcripts of radio or video coverage. 3 The record does not establish 
the Beneficiary qualifies for this criterion, as discussed below. 
The Petitioner provided material posted on vocescriticas.com, radiostucuman.com, clarin.com, 
notinor.com.ar, semanarioargentino.miami, and estatodobientuc.com. 4 In determining whether the 
submitted evidence demonstrates that the beneficiary has achieved national or international 
recognition for achievements, officers consider both the content of the published material and the level 
of recognition enjoyed by the publication in which it appears. 5 For example, favorable coverage or 
publication of the beneficiary's work in major media, as demonstrated by high relative circulation, 
readership, or viewership figures, could establish national or international recognition of the 
beneficiary's achievements. 6 
Here, the postings on vocescnt1cas.com, radiostucuman.com, clarin.com, notinor.com.ar, 
semanarioargentino.miami, and estatodobientuc.com contain information reflecting the Beneficiary 
and his work and discussing his achievements. However, the record does not reflect the Petitioner 
offered evidence establishing that these websites represent "major newspapers, trade journals, 
magazines, or other publications." The Petitioner, for instance, did not submit circulation, readership, 
or viewership figures demonstrating the standings of the websites as major online publications. 7 As a 
result, the Petitioner did not show the level of recognition of vocescriticas.com, radiostucuman.com, 
clarin.com, notinor.com.ar, semanarioargentino.miami, and estadobientuc.com. Further, we note that 
all the above articles appear to be English translations, but are not accompanied by the required 
certification from the translator. 8 Accordingly, the Petitioner did not establish the Beneficiary satisfies 
this criterion. 
3 See generally 2 USCIS Policy Manual M.4(D)(2)(appendix), https://www.uscis.gov/policy-manual). 
4 The Petitioner also submitted, within its response to the Director's request for evidence, an additional article from 
semanarioargentino.miami and articles from fusiomadio.mx, latinosengeorgia.com, circuitonnoticias.com, and 
alpuntonoticias.com, all published on those websites in 2023, after the petition was filed in July 2022. Eligibility must be 
established at the time of filing. 8 C.F.R. §§ 103.2(b )( 1 ), (12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971 ). A petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. Matter 
of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision, citing Matter ofBardouille, 18 I&N Dec. 114 (BIA 
1981 ), further provides that USC IS cannot "consider facts that come into being only subsequent to the filing of a petition." 
Id. at 176. We will therefore not consider these a1iicles in our analysis. 
5 See generally 2 USCIS Policy Manual, supra, at M.4(D)(2)(appendix). 
6 Id. 
7 Id. 
8 Any document in a foreign language must be accompanied by a full English language translation. 8 C.F .R. § 103 .2(b )(3). 
The translator must certify that the English language translation is complete and accurate, and that the translator is 
competent to translate from the foreign language into English. Id. 
3 
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 ofthe alien's achievements. 8 C.F.R. 
§ 214.2(o)(3)(iv)(B)(5). 
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. As evidence under this criterion, the Petitioner provided several letters from colleagues with 
whom the Beneficiary worked on various projects. 9 The Director considered the letters and concluded 
that, although they discussed the Beneficiary's skills and knowledge, they were insufficient to 
establish that his work has received significant recognition for achievements in the field. We agree 
with the Director's determination. Here, we find that the record includes insufficient documentary 
evidence that the Beneficiary has received such recognition. 
On appeal, the Petitioner maintains that the submitted letters satisfy the requirements of this criterion. 
For example, G-M-, a photographer, praises the Beneficiary's "excellent way of communicating the 
simplicity and naturalness of capturing an image with little equipment." He asserts that the Beneficiary 
"has really shown that at his young age and with great knowledge you can capture fantastic images 
portraying people in a spontaneous and fresh way." He opines that he "is one of the most talented 
photographers of recent times in our country." M-S-, a photographer, indicates he worked with the 
Beneficiary on a music video for the songI I by the music duo I I and that he "has a 
way of capturing moments spontaneously and naturally." While the aforementioned references 
discuss the Beneficiary's talent and experience, they do not detail any specific achievements of the 
Beneficiary in the field of photography. In addition, G-M- does not explain the basis of his knowledge 
of the Beneficiary's work the field. 
Further, the Petitioner submitted recommendation letters from singers A-B- and M-E- of _ 
fashion model V-F-; actor S-M-; actor R-G-D-; and fashion retailers K-K- and M-K- of the clothing 
brand I I However, these letters do not satisfy the regulatory standard, which states that 
affidavits from experts "shall specifically describe the alien's recognition and ability or achievement 
in factual terms and set forth the expertise of the affiant and the manner in which the affiant acquired 
such information." 8 C.F .R. § 214.2( o )(2)(iii)(B). The Petitioner has not shown that these individuals, 
as singers, actors, fashion retailers, and a fashion model, are recognized experts in the field of 
photography. Although they praise the Beneficiary's artistry, these individuals do not establish their 
credentials as recognized experts in the field. Nonetheless, these authors do not specifically describe 
in factual terms the Beneficiary's achievements beyond their own companies and organizations. 
Finally, as noted by the Director, most of the aforementioned letters contain almost identical 
statements regarding the Beneficiary, specifically, that "[h ]is acclaim and popularity in Latin America 
will be a great asset to any entertainment production." These almost identical statements suggest that 
their language was not written independently. While it is acknowledged that the authors have provided 
their support for this petition, it is unclear whether the letters reflect their independent observations 
and thus an informed and unbiased opinion of the Beneficiary's work. In evaluating the evidence, the 
9 While we do not discuss each letter individually, we have reviewed and considered each one. 
4 
truth is to be determined not by the quantity of evidence alone but by its quality. See Matter of 
Chawathe, 25 I&N Dec. at 376. In light of all the above, the Petitioner has not established that the 
Beneficiary satisfies this criterion. 
Evidence that the alien has either commanded a high sala,y or will command a high 
sala,y 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). 
The Director determined that the Petitioner had not demonstrated the Beneficiary's high salary in relation 
to others in the field. To demonstrate eligibility for this criterion, the petitioner should provide appropriate 
evidence establishing that the beneficiary's past or future compensation is or will be high relative to others 
working in the field. 10 
At initial filing, as evidence of the Beneficiary's past compensation the Petitioner submitted an unsigned 
statement from the Beneficiary dated July 14, 2022, indicating that between January 1, 2018, and 
June 30, 2020, he received professional fees averaging Arg$2.322.0000 annually and totaling 
Arg$5.805.000,00. The Petitioner also submitted a letter from accountant A-M-C- who states that, at 
the Beneficiary's request, she compared the income reported in his statement with "a publicity contract 
with I I and an agency agreement with I I and the incomes declared by [the 
Beneficiary] ... agree with the records checked .... " 11 The record shows that the submitted contracts 
with I I and I I were for the positions, respectively, of photographer and digital 
content creator in Argentina. 
However, the Petitioner did not demonstrate that the Beneficiary earned a high salary compared to other 
photographers in Argentina. The Petitioner does not offer salary statistics or other documentation as bases 
for comparison showing that the Beneficiary commanded a high salary relative to other photographers. 
Without evidence such as statistical documentation reflecting the salaries of photographers, the Petitioner 
did not demonstrate that the Beneficiary has commanded a high salary. In addition, the Petitioner does 
not explain how the Beneficiary's salary in the different occupation of digital content creator shows that 
the Beneficiary commanded a high salary as a photographer. Thus, the Petitioner did not establish the 
Beneficiary has commanded a high salary in relation to others in the field. For the reasons discussed 
above, the Petitioner did not demonstrate the Beneficiary fulfills this criterion. 
B. Consultation 
Finally, although not discussed by the Director, the record does not contain the required consultation 
from an appropriate peer group or labor consultation. Pursuant to sections 214(c)(3)(A) and (6)(A)(i) 
of the Act, an 0-1 petition for extraordinary ability in the field of arts requires a petitioner to provide 
an advisory opinion from a "peer group" ( or other person or persons of its choosing, which may include 
a labor organization) with expertise in the specific field involved. The implementing regulation 
clarifies that the consultation should describe the beneficiary's ability and achievements in the field of 
endeavor, describe the nature of the duties to be performed, and state whether the position requires the 
10 See generally 2 USCIS Policy Manual. supra, at M.4(D)(2)(appendix). 
11 We note that the letter from the accountant appears to be an English translation, but is not accompanied by the required 
ce1iification from the translator. 8 C.F.R. § I 03.2(b )(3). 
5 
services of a person of extraordinary ability, or may state "no objection." 8 C.F.R. 
§ 214.2(o)(5)(ii)(A). If the petitioner establishes that no appropriate peer group exists, including a 
labor organization, USCIS renders a decision on the evidence of record. Id. 12 
The Petitioner indicated that at Section 1 of the O classification supplement, under 8 and 9, that an 
appropriate labor organization for the petition exists, the required consultation or written advisory 
opinion was not being submitted, and a copy of the request was attached. However, the Petitioner's 
initial submission did not contain a copy of such request, and the record does not contain the required 
written advisory opinion. As such, the Petitioner has not submitted a consultation from an appropriate 
peer group or labor consultation as required under 8 C.F.R. § 214.2(0)(5). The appeal will be 
dismissed on this additional basis. 
III. CONCLUSION 
The Petitioner did not establish 
the Beneficiary meets any of the criteria discussed above. Although 
the Petitioner also claims the Beneficiary's eligibility under 8 C.F.R. § 214.2(o)(3)(iv)(B)(J) and 
8 C.F.R. § 214.2( o )(3)(iv)(B)( 4) 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, renowned, leading, or well-known 
in the field of arts. See section 10l(a)(l5)(O)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii) and (iv). 13 
Accordingly, we reserve these issues. 14 Further, the Petitioner has not submitted a consultation from 
an appropriate peer group or labor consultation as required under 8 C.F.R. § 214.2(o)(5)(ii)(A). 
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. 
12 See generally 2 USCIS Policy Manual. M.7(B)(4), https://www.uscis.gov.policymanual. 
13 See generally 2 USCIS Policy Manual. supra, at M.4(D). 
14 See INS v. Bagamashad, 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 olL-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). 
6