dismissed O-1B Case: Tattoo Art

U.S. Citizenship 
and Immigration 
Services 
In Re: 8959965 
Appeal of California Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 16, 2020 
Form 1-129, Petition for Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, an agent, seeks to classify the Beneficiary, a I I tattoo artist, 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)(O)(i), 8 U.S.C. § 1101(a)(15)(O)(i). 
The Director of the California Service Center denied Form 1-129, Petition for a NonimmigrantWorker, 
concluding that the Petitioner did not establish that the Beneficiary satisfied the initial evidentiary 
criteria applicable to individuals of extraordinary ability in the arts: nomination for or receipt of a 
significant national or international or award, or at least three of six possible forms of documentation. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova 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 (OHS) 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." 8 C.F.R. § 214.2(o)(3)(ii). 
Next, OHS 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. 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). 
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).1 
II. ANALYSIS 
Absent evidence the Beneficiary has been nominated for, or received, a significant national or 
international award or prize, the Petitioner seeks to demonstrate the Beneficiary's sustained acclaim 
and recognition of achievements through evidence corresponding to at least three of the six initial 
evidentiary criteria at 8 C.F.R § 214.2(o)(3)(iv)(B). The Director determined that the Petitioner 
provided evidence relating to four criteria, but the Beneficiary did not satisfy any of them. The 
Petitioner maintains on appeal that the Beneficiary fulfil Is those four criteria. For the reasons discussed 
below, we find that the Beneficiary does not meet at least three of the evidentiary categories. 
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). 
The Petitioner argues eligibility for this criterion based on that "[the Beneficiary] was hired to perform 
a tattoo on world-renowned I I" and it "is only required to show that 
evidence regarding! Is notoriety probably indicates that tattooing someone so 
famous is considered a distinguished event." In addition, the Petitioner asserts that "[g]iven I I I ts stature, a letter from her is not readily available," and I I requested absolute 
confidentiality from [the Beneficiar ." To support these claims, the Petitioner submitted "a photo of 
[the Beneficiary] withL.._ ____ ,-..___,........., ......... ..,..._.,[the Beneficiary's] professional lnstagram pale 
showing the before and aft r h " " n article discussing! s 
tattoos," and "a letter from~ ____________ s former au pair who has first-hand 
knowledge of the event confirming the facts." 
The regulation at 8 C.F.R. § 214.2(o)(3)(iv)(B)(l) requires the Petitioner to demonstrate that the 
Beneficiary "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." Here, the Petitioner has not established 
that the documentation reflects "critical reviews, advertisements, publicity releases, publications 
contracts, or endorsements" as required by the regulation. In fact, the Petitioner contends that "given 
1 See also Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010), in which we held that, "truth is to be determined not 
by the quantity of evidence alone but by its quality." 
2 
the particular facts surrounding the event, advertisements, publicity releases, publications, magazine 
articles, written reviews from critics, contracts, endorsements, [and] materials from trade journals do 
not readily apply." In addition, the Petitioner argues that "the best evidence, comparable evidence, 
which confirm [the Beneficiary's] lead role in the distinguished event should be considered credible 
and probative evidence." 
The regulation at 8 C.F.R. § 214.2(o)(3)(iv)(C) provides that "[i]f the criteria in paragraph (o)(3)(iv) 
of this section do not readily apply to the beneficiary's occupation, the petitioner may submit 
comparable evidence in order to establish the beneficiary's eligibility." 2 However, the Petitioner did 
not demonstrate that this regulatory criterion does not readily apply to the Beneficiary's occupation as 
a tattoo artist. Instead, the Petitioner argues that it cannot produce required regulatory evidence to 
support its own claim, which is not a basis to consider comparable evidence. If the petitioner 
establishes that a particular criterion is not readily applicable to the beneficiary's occupation, the 
petitioner may then use the comparable evidence provision to submit additional evidence that is not 
specifically described in that criterion but is comparable to that criterion. 3 For comparable evidence 
to be considered, the petitioner must explain why a particular evidentiary criterion listed in the 
regulations is not readily applicable to the beneficiary's occupation as well as why the submitted 
evidence is "comparable" to that criterion. 4 Here, the Petitioner did not show that the regulation at 8 
C.F.R. § 214.2(o)(3)(iv)(B)(1) does not readily apply to the Beneficiary's occupation. In fact, as 
discussed further below, the Petitioner makes additional arguments of eligibility based on the 
Beneficiary's previous and future roles in productions or events, indicating that the criterion does 
apply to the Beneficiary's occupation. Thus, the Petitioner's failure to present regulatory evidence to 
support its own claim does not necessarily mean the inapplicability of the criterion to the Beneficiary's 
occupation. 5 
As the Petitioner did not establish that the photos, lnstagram post, and former au pair letter satisfy the 
regulatory evidence of critical reviews, advertisements, publicity release, publications contracts, or 
endorsements, the Petitioner did not demonstrate that the claim of tattooing I I meets this 
criterion, including through the submission of comparable evidence. 
The Petitioner also contends that the Beneficiary "performed as the onlyl ~tattoo artist in flash 
~for two of the most prestigious tattoo studios in Brazil, I and I I 
L_J· The Petitioner references an article from marketplace.org reflecting that "[t]attoo flash days 
are not only a way to draw in more traffic, but a way for customers to get a chance to collect tattoos 
from prominent tattoo artists, who can be booked for months or even years." In support of the flash 
day event a~ I the Petitioner submitted screenshots from facebook.com/events entitled, 
I I advertising the event and listing the Beneficiary as 1 of 11 tattoo artists 
attending the event. Similarly, regarding,___ ______ ___. the Petitioner provided an 
advertisement document for I I I isting the Beneficiary as 1 of 10 tattoo artists scheduled 
to appear at the occasion. In addition, the Petitioner presented screenshots from 
2 See also 2 USCIS Policy Manual M.4(D), https://www.uscis.gov/policymanual. 
3 Id. 
4 Id. 
5 Id (instructing that officers do not consider comparable evidence if the petitioner submits evidence in lieu of a particular 
criterion that is readily applicable to the beneficiary's occupation simply because the beneficiary cannot satisfy that 
criterion). 
3 
estudioteix.blogspot.com entitled.___ ______ ___.' in which the Beneficiary is listed as 1 of 
10 tattoo artists expected at the affair. 
The documentation, however, does not show that the Beneficiary performed as a lead or starring 
participant. For instance, the evidence does not distinguish the Beneficiary from the other tattoo artists 
at either event. Moreover, the exhibits do not feature the Beneficiary as a leading or starring 
participant, such as receiving top billing or advertising her as the highlight of the events. Here, the 
Petitioner did not demonstrate that simply being listed as 1 of 10 or 11 tattoo artists scheduled to 
appear at a flash day event in advertising material reflects evidence of the Beneficiary's leading or 
starring participation. Furthermore, the Petitioner did not establish that the evidence represents the 
distinguished reputations of I I' and l I' While the above­
mentioned screenshots advertise the respective flash day events, the Petitioner did not explain, nor do 
they show, how they illustrate their distinguished reputations. 
The Petitioner also indicates the submission of recommendation letters "from 
c=l owner ofl l;I I owner of~~~~=~~~::::_:-an-d-.=I ==II 
L__J co-founder of tha I and "[a]II of the letters confirmed [the Beneficiary's] critical 
role as the onlyl I artist in the flash-day events." However, the Petitioner did not demonstrate 
how recommendation letters qualify as "critical reviews, advertisements, publicity releases, 
publications contracts, or endorsements" consistent with this regulatory criterion. In addition, this 
regulatory criterion requires the Beneficiary's participation in a leading or starring capacity rather than 
in a critical role, as argued by the Petitioner. 
Finally, this regulatory criterion requires that the Beneficiary will prospectively perform for 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. The Petitioner argues that "the record contains publications that confirm thatl I I ~ has celebrity clientele and the deal memo signed by the studio confirming that [the 
Beneficiary] will perform tattoos as al I Tattoo Artist" and "[t]his credible and probative 
evidence proves that it is more likely than not that [the Beneficiary] will be tattooing! I 
I ~ A-list clientele in the future." The record reflects that in response to the Director's request 
for evidence, the Petitioner submitted a "Deal Memo," signed by I I studio manager for 
~----~ on July 22, 2019, signed by the Petitioner on July 24, 2019, and signed by the 
Beneficiary on July 28, 2019. However, the Petitioner filed the petition on June 6, 2019. The 
Petitioner must establish that all eligibility requirements for the immigration have been satisfied from 
the time of the filing and continuing through adjudication. See 8 C.F.R. 103.2(b)(1). Here, the 
Petitioner did not demonstrate that at the time of filing of the petition the Beneficiary would be 
performing services atl I 
Nonetheless, the Deal Memo does not show that the Beneficiary will be performing services as a lead 
or starring participant in productions or events that have a distinguished reputation. Although the 
document indicates that the Beneficiary "will work atl lasl !Tattoo Artist" and 
"will work at our studio during various one-week periods," the Petitioner did not establish how the 
evidence reflects the Beneficiary's prospective leading or starring participation in a production or 
event with a distinguished reputation. The Deal Memo does not indicate how the Beneficiary's 
position as al I tattoo artist represents a leading or starring role, nor does it demonstrate that 
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"various one-week periods" portrays productions or events with distinguished reputations. In addition, 
the Deal Memo does not support the Petitioner's assertion on appeal that the Beneficiary "will be 
tattooing I Is A-list clientele in the future." 
For the reasons discussed above, the Petitioner did not establish that the Beneficiary satisfies this 
criterion. 
Evidence 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. 
8 C.F.R. § 214.2(o)(3)(iv)(B)(2). 
The Petitioner contends that it provided "[a]n article which discusses a list of about 100 women tattoo 
artists that everyone should know about lists [the Beneficiary] as one of these artists" and "an article 
in which [the Beneficiary] explains her one-of-a-kind technique." The record contains two articles 
posted on blog.tattoo2me.com. The first blog article entitled, ,__ ____________ __, 
I I lists the Beneficiary's name along with other numerous tattoo artists in Brazil. The 
article does not discuss any of the Beneficiary's achievements evidencing national or international 
recognition. In fact, the article provides no discussion of the Beneficiary besides listing her name 
among others. The second blog article entitled, '1 I I I' discusses the Beneficia , includin her on various o inions and to ics. 
Althou h the article rovides 
it does not reflect that her technique resulted in national or 
international recognition. The article, for instance, does not indicate that the Beneficiary garnered 
national or international recognition or became nationally or internationally known for her "one-of-a­
kind technique." 
Further, while the Petitioner asserts that "[c]irculation figures provided ... demonstrate that tattoo2me 
is a leading publication in the field," the Petitioner did not demonstrate that blog.tattoo2me.com 
represents a major newspaper, trade journal, magazine, or other publication. Although the Petitioner 
submitted a screenshot from tattoo2me.com claiming that the blog has "over 110,00 monthly readers," 
the Petitioner did not submit independent, objective evidence establishing the blog figures. In 
addition, the Petitioner offered screenshots from blog.feedspot.com regarding "[t]he Best Tattoo biogs 
from thousands of top Tattoo biogs in our index using search and social metrics." Notwithstanding 
that blog.tattoo2me.com is not listed among them, the screenshots list numbers of "Facebook fans" 
for the biogs. While the majority of the indexed biogs maintain hundreds of thousands to millions of 
fans, tattoo2me.com claims "over 30,000 followers," which the Petitioner has not shown constitutes 
major status. 
The Petitioner also argues that "[i]n an article by Diariodonordeste, a leading publication, about the 
tattoo industry, [the Beneficiary] is quoted as an expert, providing her own experience in the field." 
The record contains screenshots of an article from diariodonordeste.verdesmares.com.br entitled, 
'----~-------' in which the Beneficiary is quoted regarding relationship and identity tattooing, 
but the article makes no references to her achievements or to her national or international recognition. 
Here, the Petitioner did not establish that the article shows the Beneficiary's national or international 
recognition for her achievements. Moreover, while the Petitioner provided the website's statistics 
5 
relating to "views per month," "home page views per month," "sessions per month," and "users per 
day/average" from Google Analytics, the Petitioner did not demonstrate the significance of the figures, 
indicating diariodonordeste.verdesmares.com.br's major standing. 
Finally, the Petitioner asserts that it "provided credible and probative evidence that one of the 
beneficiary·sl I tattoo designs was accepted to the only tattoo museum in Brazil." The record 
reflects that the Petitioner submitted a letter froml I 
who stated that Beneficiary's "work is showcased in our museum's collection"; a "Confirmation of 
Donation to Collection" signed b~ I a photograph of the Beneficiary with a handwritten 
caption indicating that her work is showcased in the museum; and screenshots from 
vejasp.abril.com.br, sisemsp.org.br, atlasobscura.com, and naosoogato.com.br about the museum. On 
appeal, the Petitioner offers the same photograph with the handwritten caption, screenshots from the 
Beneficiary's lnstagram page posting the tattoo, and screenshots from artworkarchive.com regarding 
the donation of art collections. 
The Petitioner did not demonstrate that the evidence reflects critical reviews or other published materials 
by or about the Beneficiary in major newspapers, trade journals, magazines, or other publications. 
Furthermore, none of the screenshots mention the Beneficiary or her work, let alone indicate her national 
or international recognition for achievements. In fact, as mentioned above, the screenshots relate to 
coverage of the museum and to donating art collections. Moreover, the Petitioner did not supplement the 
record with documentation showing that any of the websites qualify as major newspapers, trade journals, 
magazines, or other publications. 
Accordingly, the Petitioner did not demonstrate that the Beneficiary meets this criterion. 
111. CONCLUSION 
The Petitioner did not establish that the Beneficiary meets the criteria relating to services as a lead or 
starring participant in production or events at 8 C.F.R. § 214.2(o)(3)(iv)(B)(1) and national or 
international recognition for achievements at 8 C.F.R. § 214.2(o)(3)(iv)(B)(2). Although the 
Petitioner claims the Beneficiary's eligibility for two additional criteria on appeal, relating to lead, 
starring, or critical role for organizations and establishments at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3) and 
significant recognition for achievements at 8 C.F.R. § 214.2(o)(3)(iv)(B)(5), we need not reach these 
additional grounds. As the Petitioner cannot fulfill the initial evidentiary requirement of three criteria 
under 8 C.F.R. § 214.2(o)(3)(iv)(B), we reserve these issues.6 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. 
6 See INS v. Bagamasbad, 429 U.S. 24, 25-26 (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 of L-A-C-, 26 l&N Dec. 516, n.7 
(declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
6