This appeal was not successful at this stage
The AAO dismissed the appeal, affirming the Director's revocation of the approved O-1B petition. The petition was revoked because the employer was improperly changed mid-adjudication by amendment rather than through the filing of a new petition, which is required when an O-1 beneficiary changes employers.
3 more criteria would trigger a full merits review.
A ballroom dance academy filed an O-1B petition for a ballroom dance teacher in April 2023. During adjudication, the petitioning agent attempted to substitute a new employer by amending the petition in response to an RFE, rather than having the new employer file a separate petition as required by regulation. The Director initially approved the petition but then issued a Notice of Intent to Revoke upon recognizing the material employer change was improperly handled. The AAO affirmed the revocation, finding that the amendment was legally ineffective, that eligibility was not established from the time of filing, and that prior approval of an O-1A petition for the beneficiary did not entitle the instant petition to deference because the parties, classification, and facts differed. The appeal was dismissed.
What failed: The petitioner attempted to change the employer mid-adjudication by submitting amended petition forms and a new job offer letter rather than filing a new petition, which is the only permissible method under regulation. The petitioner's argument that the prior O-1A approval should be given deference failed because the new petition involved different parties, a different O-1 subcategory, and different facts. Letters offered to show the original agent's authority only demonstrated authority to negotiate contracts, not to file immigration petitions on behalf of the employers.
Takeaway: When an O-1 beneficiary changes employers during a pending petition, the new employer must file an entirely new I-129 petition; attempting to substitute a new employer by amending an existing petition is ineffective and will result in revocation. Petitioners and agents should ensure all employer relationships and authorizations are properly documented at the time of filing.
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
- The petitioner attempted to change the employer mid-adjudication by submitting amended petition forms and a new job offer letter rather than filing a new petition, which is the only permissible method under regulation
- The petitioner's argument that the prior O-1A approval should be given deference failed because the new petition involved different parties, a different O-1 subcategory, and different facts
- Letters offered to show the original agent's authority only demonstrated authority to negotiate contracts, not to file immigration petitions on behalf of the employers.
Letters from original employers purportedly authorizing the petitioning agent to file on their behalf — they only showed authorization to negotiate contracts, not to file the petition.
Amended Form I-129 sections attempting to substitute a new employer mid-adjudication — deemed ineffective as a change of employer requires a new petition.
Job offer letter and employment contract from new employer dated after the petition filing date — failed to satisfy the requirement that eligibility be established from the time of filing.
Argument based on deference to prior O-1A approval — inapplicable because the petition involved different parties, classification, and facts.
The petition was approved in error because the employer was materially changed mid-adjudication through amendment rather than through filing a new petition as required by 8 C.F.R. § 214.2(o)(2)(iv)(C).
The deference policy does not apply because the instant petition involved a new petitioner, new activities and events, and a different O-1 classification (O-1B vs. prior O-1A), and thus was not an extension of petition validity involving the same parties and facts.
Completed
I-129 filed
Ballroom dance teacher and competitor
Completed
Vermont Service Center — Revoked (after initial approval)
Initial decision: Revoked (after initial approval).
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2024-09-27
AAO decision — Dismissed
The AAO dismissed the appeal, affirming the Director's revocation of the approved O-1B petition. The petition was revoked because the employer was improperly changed mid-adjudication by amendment rather than through the filing of a new petition, which is required when an O-1 beneficiary changes employers.
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.
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