dismissed O-2 Case: Athletics

U.S. Citizenship 
and Immigration 
Services 
In Re : 21549261 
Appeal of Vermont Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP.30, 2022 
Form I-129, Petition for Nonimmigrant Worker (Extraordinary Ability- 0) 
The Petitioner, an athlete management business, seeks to continue to representthe Beneficiaries during 
their temporary employment in the United States as content creators and media strategists. 1 To do so, 
the petitioner seeks to extend the Beneficiaries' 0-2 nonimmigrant visa classification as 
accompanying individuals to I l a professional I I player whose petition for 0-1 
classification was previously approved. 2 See Immigration and Nationality Act (the Act) section 
101(a)(15)(O)(ii), 8 U.S.C. § 1101(a)(15)(O)(ii). 
The Director of the Vermont Service Center denied the petition, concluding that the Petitioner did not 
establish that the Beneficiaries would be accompanying and assisting in the athletic performance of 
the 0-1 athlete in the United States. The Director concluded the record contained unresolved 
inconsistencies regarding the summary of oral agreement and itinerary of proposed events or activities 
and showed the Beneficiaries would be assisting the Petitioner's management business in generai 
rather than accompanying and assisting in the athletic performance of the 0-1 athlete . In addition, the 
Director determined that the Petitioner did not submit evidence sufficient to establish that the 
Beneficiaries have had a prior working relationship that is critical and essential to support the O-1 's 
athletic performance as a I player; that they perform services that are an integral part of the 
0-1 athlete's actual performance; and that the Beneficiaries possess critical skills and experience with 
the 0-1 athlete which are not of a general nature and which are not possessed by a U.S. worker. 3 
On appeal, the Petitioner provides copies of previously submitted documents and a brief and maintains 
that the Beneficiaries are eligible for 0-2 classification. In these proceedings, it is the Petitioner's 
1 U.S. Citizenship and Immigration Services (USCIS) records indicate that the Beneficiaries' previous 0-2 classification 
petition was approved on March 2, 2021 , with a validity period until June 1, 2023. 
2 USCIS records indicate that atthe time when the present petition was filed on August 16, 2021 the 0-] ath)etewas the 
Beneficiary of two approved Form I-129, 0-1 classification petitions filed by the Petitioner: approved 
on November8,2019 , with a validity period until October 15, 2022, and approved on June 24 , 2020, 
with a validity period until June 1, 2023. 
3 The Director also concluded that the Beneficiaries did not maintain their previous B-2 status. The issue of whether the 
Beneficiaries maintained their B-2 status lies outside our appellate jurisdiction . An application for extension of stay is 
concurrent with, but separate from , a request foran extension of petition validity. There is no a ppealfrom the denial of 
an application for extension of stay filed on Forml-129 , Petition fora NonimmigrantWorker. 8 C.F.R. § 214.1 (c)(5). 
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 
Section 101 ( a )(15)(O)(ii) of the Act provides classification to a qualified individual who: 
(I) seeks to enter the United States temporarily and solely for the purpose of accompanying 
and assisting in the artistic or athletic performance by an alien who is admitted under clause 
(i) for a specific event or events; 
(II) is an integral part of such actual performance, 
(III) (a) has critical skills and experience with such alien which are not of a general nature and 
which cannot be performed by other individuals .... 
(IV) has a foreign residence which the alien has no intention of abandoning. 
The regulations at 8 C.F.R. § 214.2(0 )(4) provide in pertinent part the following requirements for an 
0-2 accompanying individual: 
(i) General. An 0-2 accompanying alien provides essential support to an 0-1 artist or athlete. 
Such aliens may not accompany 0-1 aliens in the fields of science, business or education. 
Although the 0-2 alien must obtain his or her own classification, this classification does 
not entitle him or her to work separate and apart from the 0-1 alien to whom he or she 
provides support. An 0-2 alien must be petitioned for in conjunction with the services of 
the 0-1 alien. 
(ii) Evidentiary criteria for qualifying as an 0-2 accompanying individual-
(A) Alien accompanying an 0-1 artist or athlete of extraordinary ability. To qualify as an 
0-2 accompanying alien, the alien must be corning to the United States to assist in the 
performance of the 0-1 alien, be an integral part of the actual performance, and have 
critical skills and experience with the 0-1 alien which are not of a general nature and 
which are not possessed by a U.S. worker. 
* * * 
(C) The evidence shall establish the current essentiality, critical skills, and experience of the 
0-2 alien with the 0-1 alien and that the alien has substantial experience performing the 
critical skills and essential support services for the 0-1 alien. 
Additionally, the regulation at 8 C.F.R. § 214.2( o )(2)(ii), provides that all petitions for O classification 
must be accompanied by: 
(A) The evidence specified in the particular section for the classification; 
2 
(B) Copies of any written contracts between the petitioner and the alien beneficiary or, if 
there is no written contract, a summary of the terms of the oral agreement under which 
the alien will be employed; 
(C) An explanation of the nature of the events or activities, the beginning and ending dates 
for the events or activities, and a copy of any itinerary for the events or activities; and 
(D) A written advisory opinion(s) from the appropriate consulting entity or entities. 
II. ANALYSIS 
A. Eligibility Claims 
The Petitioner's initial letter asserted that the 0-1 athlete will be "participating in the I League4 
as a select contract player" and that the Beneficiaries are required in the United States to support him. 
Within its initial submission, the Petitioner provide an undated Itinerary, Acknowledgement and 
Consent to Oral Agreements, signed by the Petitioner, the 0-1 athlete, and the Beneficiaries , for the 
Beneficiaries to act as Content Creator and Media Specialist for the 0-1 athlete for a period of two 
years at a salary of$ 5,000 per month. The document indicates that their proposed positions and duties, 
to be performed at the Petitioner's office location in I Georgia, include the following: 
• Content Logistical Services - Counsel, confer, represent and advise media content services to 
the athlete and negotiate marketing, logistics and other day-to-day business marketing strategy. 
• Content Production - Beneficiaries shall create content from the training sessions of the [0-1 
athlete] and serve as staff in every competition and exhibition the athlete competes in during 
this agreement. 
In addition, the document indicated the 0-1 athlete's proposed schedule of activities which the 
Beneficiaries will support includes "Training-P3 Sports Performance inl l-4 /20- 12/20, 4/21-
10/21, 4/22- 10.22" and I League - select league competitions and activities." The Petitioner 
indicated that the 0-1 athlete's schedule of activities "will repeat in a similar manner over the next 
three years unless the [0-1 athlete] signs a contract with a professiona1 lleague such as the 
which the [P]etitioner is including as contemplated to be added to this petition." 
The Petitioner also provided a letter from the 0-1 athlete, who states that the Beneficiaries are his 
"lead for content creation and self-promotion activities." He provides thatthe Beneficiaries reviously 
marketed their fatherl la formerprofessionall Ip layer in the He 
asserts that "[a]s a team, we have successfully risen from unknown to one of the premier __ 
players on earth through competing at the highest level and marketing our accomplishments." He 
credits his success to the Beneficiaries' "[h ]hands on time and effort with me that promoted my skills 
and opportunities to compete at this level .. . . " He claims that the Beneficiaries cannot be replaced 
by American Workers because "I need instructions in my language, so I know what I am ... getting 
4 The record shows that the League is the official minor league 
organization, comprised ofapproximately 30teams . 
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into when it comes to ... my content development." He states that the Beneficiaries are essential 
because they "have proven success marketing my career," and they "work with my coaches, direct my 
content distribution, and have done this at the highest level and continue to do so." 
The Petitioner's initial submission provided letters from three individuals who indicate they are 
familiar with the Beneficiaries' credentials. 5 I I founder ofl Ian association of 
professional, collegiate, and amateur athletes, states that he is a client of the Beneficiaries , that they 
helped "to build the brand of I" and that "[i]n my background research before working with 
them, r got to know about the work [the Beneficiaries] did for [the 0-1 athlete]" to elevate his profile. 
I I COO of I praises the marketing 
content and media plan the Beneficiaries devised and implemented for her company. She also asserts 
that they have been "ensuring [the 0-1 athlete] received premium coverage in the media here ."O 
advisor to to the president of I I University inl I and a prior college 
r====Jcoach , states that the Beneficiaries, as content creator and media strategist "have proven 
themselves to be highly talented marketing experts with the way [the 0-1 athlete]' s profile has been 
built , through coverage in the premier media outlets in the I and all over the world." 
The record also includes screenshots from the website of a a company focused on 
software development, digital marketing, and personnel outsourcing, which indicate that Beneficiary 
I 
is the company's "resident a Ur/UXDesign Expert." With res ectto the 0-1 athlete, 
__ screenshots from thel !League and ESPN5 websites date 2020 and ___ 
2020, respectively, confirm that he was set to play for the I League team for the 2020-
2021 season. 
The Director issued a request for additional evidence (RFE), advising the Petitioner that users was 
not persuaded that the Beneficiaries would be accompanying and assisting in the athletic performance 
of the 0-1 athlete in the United States, and not assisting the Petitioner's management business in 
general. The Director noted that the 0-2 classification did not entitle the Beneficiaries to work 
separate and apart from the 0-1 athlete to whom they will provide support. See 8 C.F.R. 
§ 214.2( o )( 4 )(i). The Director advised that publicly available information contained in articles on 
severa l websites provided new material information that affects the Beneficiaries' eligibility for 0-2 
classification. Specifically, the articles provided that althou h the 0-1 athlete joined the I 
League tea.me==J.in approximate1Q2020, the Lea e and the 0-1 athlete mutually 
decided in 2021 he would not continue to play for Further in approximately 
2021, the 0-1 athlete signed a multi-year contract to play for the ____ and was playing for 
the team when the instant petition was filed in August 2021. 6 The Director noted that In users 
records indicate the 0-1 athlete has been outside the United States since May 30, 2021. 7 The Director 
5 We note thatnone of those letters in the initial submission included addresses orcontactin fonnationfortheauthors. 
6 Re resentative articles providing this information are: ____________________ _ 
ember 29 2022 · 
https://therookiewire.usatoday.com ........ 
(accessed September 29 2022 · and 
______ _,(accessedSeptember29,2022). 
7 We note that USCIS records indicate that since his May 2021 departure from the United States the 0-1 athlete has had 
one visit to the country from May 3, 2022, until his latest departure on August 8, 2022. 
4 
requested that the Petitioner address the discrepancies between the new material information provided 
in the RFE and the information contained in the submitted Itinerary, Acknowledgement and Consent 
to Oral Agreements. The Director also requested evidence to establish that the Beneficiaries are 
coming to the United States to assist in the performance of the 0-1 athlete as an integral part of the 
actual performance, and that they have critical skills and experience with the 0-1 athlete which are 
not of a general nature and which are not possessed by a U.S. worker. 
Within its response to the RFE dated November 2021, the Petitioner asserted that "[t]here is no 
material change in employment" as the 0-1 athlete "is doing a short stint in I and returning to 
I I and that he will be returning when "the season is over." However, as there were no 
statements or evidence to corroborate the Petitioner's assertions prior to the adjudication of the 
petition, and no supporting evidence has been submitted on appeal, the Petitioner has not established 
these facts with unsupp01ied testimonial evidence alone. The Petitioner fmiher provided that the 
Beneficiaries are "busy working on the marketing and content" for the 0-1 athlete's! I 
Sports Academy inl I Ohio which is "well underway," and that" [ t ]he social media for [ the 0-
1 athlete's] activities of playing! I and organizing I I camps is ongoing in the United 
States." 
The Petitioner also submitted a revised Itinerary, Acknowledgement and Consent to Oral Agreements 
in which any reference to the 0-1 athlete playing forthd I League during the requested validity 
period has been removed. 8 As noted by the Director, the Petitioner must establish eligibility at the 
time of filing the nonimmigrant visa petition. A visa petition may not be approved based on 
speculation of future eligibility or after the petitioner or beneficiary becomes eligible under a new set 
of facts. See Matter a/Michelin Tire Corp., l 7 I&N Dec. 248 (Reg. Comm. 1978); Matter o/Katigbak, 
14 I&N Dec. 45, 49 (Comm. 1971). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of lzummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm. 1998). Accordingly, we need not consider the revised Itinerary, 
Acknowledgement and Consent to Oral Agreements. Regardless, upon review, the revised document 
does not address the Director's concerns regarding whether the 0-1 athlete will be performing as an 
athlete in the United States during the requested validity period. 
The Petitioner provided an additional undated letter from the 0-1 athlete, in which he provides that 
the Beneficiaries duties include formulating ''the marketing strategy, camp material, publicity, and 
content for my academy and related seminars." Updated letters from I I I andl I are accompanied by contact information and screenshots from their 
organizations' websites. 
Finally, the Petitioner provided a screen shot of an 0-1 Candidate Evaluation form dated J anuary 16, 
2021, from the website www.oandpvisas.wufoo.com for Beneficiary In response 
to the form's request to "list all activities, projects, jobs, and activities you plan to do in the next 12 
month" she indicates "I will be in charge of managing the media content of [the Petitioner];" in 
8 We note that the revised Itinerary, Acknowledgement and Consent to Oral Agreements, while signed by the Petitioner 
and the 0-1 athlete, is not signed by the Beneficiaries, and the record does not otherwise indicate that they have agreed to 
the terms of the document. 
5 
response to a request to list "Former ImportantEmployers " she indicates a la social media 
news network. 
B. Deferenc e Policy 
On appeal, citing the deference policy, the Petitioner maintains that the Director erred in denying the 
instant petition, because she had previously approved the Beneficiaries ' petition for 0-2 classification 
as essential suppo11 individuals for the 0-1 athlete. We note that a previously favorable decision may 
not be relied on where there has been a material change in circumstances or eligibility requirements, 
there was a material error involved with previous approval, or there is new material information that 
adversely impacts the petitioner's or beneficiary's eligibility. See USCIS Policy Alert, PA-2021-05, 
Deference to Prior Determinations of Eligibility in Requests for Extensions of Petition Validity (Apr. 
27, 2021 ), https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210427-
Deference.pdf . See also 2 USCIS Policy Manual A.4(B)(l), https://www .uscis.gov/policymanual. 
As mentioned above, an officer should not defer to a prior approval where new material information 
is available. This may include publicly available information that affects eligibility for a benefit 
As previously discussed, 0-2 classification is grant to qualified individuals who seek to enter the 
United States temporarily and solely for the purpose of accompanying and assisting in the artistic or 
athletic performance by the 0-1 individual who is admitted for a specific event or events. In the 
present case, the facts relevant to the adjudication materially changed between the approval of the 
Beneficiaries' earlier petition and the instant adjudication, such that affording deference is not 
warranted. 9 The previous approval was based on on a different set of facts, including that the 0-1 athlete 
would be playingforth d team than those currently before us, and thus, we agree with 
the Director 's determination that the previous approval does not warrant deference. 
C. Substantial Experience Performing the Critical Skills Under 8 C.F.R . § 214 .2( o )( 4)(ii)(C) 
For the reasons discussed below, the record supports the Director's conclusion that the record does not 
demonstrate that the Beneficiaries have substantial experience performing critical skills for the 0-1 
athlete . In order to establish the Beneficiaries' eligibility , the Petitioner must , in part , establish that the 
Beneficiaries have substantial experience performing critical skills and essential support services for the 
0-1 principal. 8 C.F.R § 214.2(o)(4)(ii)(C). 
First, as has been stated , the Beneficiaries were previously granted 0-2 status as accompanying 
individuals to the 0-1 athlete on March 2, 2021, with a validity period until June 1, 2023 , and 
left the United States in May 2021 . While it appears that the Beneficiaries were in the United States at 
the time the present petition was filed on August 16, 2021, the 0-2 classification did not entitle them to 
work separate and apart from the 0-1 athlete,I to whom they provided support. See 8 C.F.R 
§ 214 .2(0 )(4 )(i). We do not find persuasive the Petitioner 's assertion on appeal that " [t]here is no material 
change in employment " as the 0-1 athlete "is doing a short stint inl I and returning to 
League. " As the Director notes, the Petitioner also states that the 0-1 athlete will not be returning until 
"the season is over" and the above publicly available evidence indicates that since May 2021 the 0-1 
9 A change in fact is material if the changed circum stances would have a natural ten dency to influence or are predictably 
cap able of affecting the decision. See Ku ngys v. United States , 4 85 U.S. 7 59 , 77 0-72 (1988). 
6 
athlete has been playing in for the  I pursuant to a multi-year contract 
This evidence suggests thatl I will not be performing as al I athlete in the United States 
during the requested validity period indicated in the submitted Itinerary, Acknowledgement and Consent 
to Oral Agreements. 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 of Ho, 
19 I&N Dec. 582, 591-92 (BIA 1988). The Director found that the Petitioner's conflicting assertions 
undermined its credibility. See Ho, 19 I&N Dec. at 5 91. We agree that the Petitioner's omission of 
this highly significant and relevant information casts doubt on the credibility of its own assertions 
regarding the Beneficiaries' past and proposed relationship with the 0-1 athlete. 
Next, we find that the arguments presented on appeal do not overcome the Director's finding that the 
record did not include sufficiently detailedinfomiation or adequate corroborating evidence to establish 
that the Beneficiaries are an integral part of I performance as al I athlete, or that 
they have critical skills and experience withl I that are not of a general nature, and which 
cannot be performed by a U.S. worker. The Beneficiaries' job description indicates that their Content 
Creator and Media Specialist positions provide the 0-1 athlete business marketing strategies including 
content logistical services and content production. Although in the initial letter dated February 1, 2021, 
counsel for the Petitioner asse1is that the Beneficiaries have suppmied the 0-1 athlete "for over 3 years," 
the assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(BIA 1988) (citing Matter of 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. 
Within the initial submission and the RFE response the 0-1 athleteJ I states that the Beneficiaries 
"work with my coaches, direct my content distribution, and have done this at the highest level and 
continue to do so." However, according to the above 0-1 Candidate Evaluation form completed by 
Beneficiary! I she would be supporting the petitioning organization and she did not list 
C=:=J as a "Former Important Employer." The Beneficiaries may have worked in support of 
in some capacity during their authorized periodofO-2 employment between March 2, 2021, and 
May 30, 2021. However, the Petitioner must establish that the Beneficiaries assist in the performance of 
the 0-1 athlete; are an integral part of his actual athletic performance as an athlete; and have critical skills 
and experience which are not of a general nature and which are not possessed by a U.S. worker. 8 C.F.R 
§ 214.2( o )(44 )(ii)(A). The Petitioner must also establish through evidence that the Beneficiaries have 
substantial experience performing critical skills and essential support services for I as required 
by 8 C.F.R. § 214.2(o)(4)(iiXC). We agree with the Director's conclusion that this burden has not been 
met. 
The Petitioner also initially described the Beneficiaries as having been "elite media content and strategist 
professional for many years." The Petitioneralso emphasized the Beneficiaries' knowledge "oftheupper 
echelons of marketing thel I sty lei I around the world." The Petitioner did not address 
these skills in relation to the Beneficiaries' support relationship with the 0-1 athlete, explain why there 
are no available U.S. workers who possess similar knowledge and skills, or describe how these skills are 
essential to I performance as al !athletic. I I emphasized the Beneficiaries' 
ability to speak to him in his language, but such attribute would reasonably be classified as general in 
nature, rather than a skill that is specific to and integral to the perfmmance of the 0-1 athlete. 
7 
In the submitted recommendation letters from three individuals with whom the Beneficiaries' have 
worked, the authors state their knowledge that the Beneficiaries have worked for but they do 
not detail the basis of their knowledge or describe the Beneficiaries' essentiality to and working 
relationship with I I The fact that the Beneficiaries' may have successfully worked for the 0-1 
athlete for several months during the Beneficiaries' authorized period of employment as support 
individuals does not establish the existence of the required essential support relationship between 1hose 
individuals, without evidence that the Beneficiaries possess critical skills that are integral to the 0-1 's 
actual athletic performance. 
III. CONCLUSION 
The record supports the Director's determination thatthe record did not establish thatthe Beneficiaries 
qualify as 0-2 accompanying individuals to an 0-1 athlete. 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. 
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