This appeal was not successful at this stage
The AAO dismissed the appeal because the Petitioner failed to satisfy at least three of the six required evidentiary criteria for O-1B classification, meeting none of the four criteria claimed. The AAO adopted and affirmed the Director's denial with added comments.
3 more criteria would trigger a full merits review.
A music and entertainment agent filed an O-1B petition seeking extraordinary ability classification for a professional pianist. The California Service Center Director denied the petition for failure to satisfy at least three of the six required evidentiary criteria. On appeal, the AAO adopted and affirmed the Director's decision, finding that recommendation letters do not qualify as the type of evidence (critical reviews, advertisements, contracts, etc.) required under the lead/starring participant criterion, and that the petitioner failed to properly raise a comparable evidence argument before the Director. Because the petitioner could not satisfy the minimum threshold of three criteria, the AAO dismissed the appeal without reaching a totality-of-the-evidence analysis.
What failed: Recommendation and testimonial letters were submitted as the primary evidence but are explicitly excluded from the qualifying evidence types for the lead/starring participant criterion. The petitioner attempted to use a consultation letter and testimonials as comparable evidence for the published materials criterion but failed to articulate why the criterion does not apply to the beneficiary's occupation. The comparable evidence argument was also raised for the first time on appeal, making it procedurally barred from consideration.
Takeaway: Petitioners for O-1B must submit evidence that precisely matches the regulatory categories (e.g., critical reviews, contracts, advertisements) rather than testimonial letters, and any comparable evidence argument must be clearly articulated and submitted at the initial filing or in response to a request for evidence — not raised for the first time on appeal.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating O-1B criteria.
● Evidence that moved the needle
- See summary above for details.
● Evidence that wasn't enough alone
- Recommendation and testimonial letters were submitted as the primary evidence but are explicitly excluded from the qualifying evidence types for the lead/starring participant criterion
- The petitioner attempted to use a consultation letter and testimonials as comparable evidence for the published materials criterion but failed to articulate why the criterion does not apply to the beneficiary's occupation
- The comparable evidence argument was also raised for the first time on appeal, making it procedurally barred from consideration.
Completed
I-129 filed
Professional pianist performing in church services, rehearsals, concerts, solo recitals, and as an accompanist
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2023-12-13
AAO decision — Dismissed
The AAO dismissed the appeal because the Petitioner failed to satisfy at least three of the six required evidentiary criteria for O-1B classification, meeting none of the four criteria claimed. The AAO adopted and affirmed the Director's denial with added comments.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.