USCIS Policy
How the Matter of Kazarian Two-Step Framework Applies to O-1B Petitions for Performing Artists
The Kazarian two-step framework governs how USCIS evaluates every O-1B petition. Passing step one is necessary but not sufficient — many petitions that clear the initial threshold fail at the final merits determination. Here is how both steps work and what evidence succeeds.
The Kazarian framework and how it changed O-1B adjudications
The Ninth Circuit's decision in Kazarian v. USCIS established the two-part analytical framework that USCIS now applies to all extraordinary ability and extraordinary achievement petitions. The framework was formalized in the USCIS Policy Manual and applies to both O-1A and O-1B petitions. For performing artists seeking O-1B classification, understanding the Kazarian framework is not merely academic — it directly determines how evidence is weighed and where petitions are denied. USCIS adjudicators are instructed to evaluate petitions in two discrete steps, and a petition that succeeds at step one can still be denied at step two.
Before Kazarian, adjudicators often conflated two questions: whether the petitioner had submitted the required types of evidence, and whether that evidence demonstrated the required level of extraordinary ability or achievement. The Kazarian framework separated these questions. Step one asks only whether the petitioner has produced evidence that facially satisfies at least three of the enumerated regulatory criteria. Step two asks whether the totality of the submitted evidence demonstrates that the petitioner actually meets the statutory standard. The Ninth Circuit held that conflating these questions — effectively adjudicating the final merits question within step one — was impermissible under the regulatory framework.
For O-1B performing artists, the practical consequence is that a petitioner who submits credible evidence touching on three or more criteria has cleared the first evidentiary threshold. Clearing that threshold is necessary but not sufficient. The adjudicator then evaluates whether the full record, considered together, demonstrates that the petitioner is among the small percentage of individuals in the performing arts who are extraordinarily talented. Both questions must be addressed — one by organizing and presenting the right types of evidence, the other by ensuring the record as a whole makes a compelling case for distinction.
Step one — meeting the initial evidentiary threshold
Step one of the Kazarian framework is a counting exercise, but not a mechanical one. The petitioner must produce evidence that facially qualifies under at least three of the regulatory criteria for O-1B. For performing artists, those criteria include leading or critical role in distinguished productions or events, press or published materials about the individual, recognition from experts, commercial success, and comparable evidence. At step one, the adjudicator evaluates whether each piece of evidence qualifies as the type of evidence the criterion requires — not whether that evidence is impressive enough to establish extraordinary ability.
USCIS has made clear that step one is not a trivial threshold. Submitting three token exhibits is not sufficient if those exhibits do not actually qualify as the type of evidence the criteria contemplate. A press article that does not mention the petitioner's name does not satisfy the press criterion at step one. An expert declaration from someone with no apparent expertise in the petitioner's field does not satisfy the recognition from experts criterion. The step one analysis requires that each exhibit correspond to a criterion with genuine fit — an exhibit that is tangentially related to a criterion but does not actually address it will be found insufficient at step one, and the petition may be denied without reaching the final merits determination.
The most defensible step one record for an O-1B performing artist includes direct evidence of at least three criteria, with multiple exhibits supporting each criterion where possible. For a stage performer, this might mean: press reviews addressing the petitioner's performances specifically (published materials criterion), letters from directors and choreographers outside the direct employment relationship attesting to the petitioner's exceptional skill and standing (expert recognition criterion), and documentation of engagements with recognized companies or venues that can be characterized as critical roles (critical role criterion). Three well-supported criteria is a more durable foundation than five weakly documented ones.
Step two — the final merits determination
Once the adjudicator is satisfied that the petitioner has produced facially qualifying evidence under at least three criteria, step two requires an evaluation of the full record to determine whether the petitioner actually meets the statutory standard. For O-1B, the question is whether the evidence demonstrates that the petitioner has extraordinary ability in the arts or extraordinary achievement in motion picture or television. This is a qualitative determination that considers how compelling the criterion-satisfying evidence is in context, what it reveals about the petitioner's standing in the field, and whether the record as a whole makes a convincing case for distinction.
Step two is where many petitions that clear step one are still denied. The failure typically occurs when the criterion-satisfying evidence is technically qualifying but reflects only modest distinction. A press article in a local publication about a regional theater production satisfies the press criterion at step one, but a record built primarily on local and regional recognition may not satisfy step two — the evidence does not establish that the petitioner is among the outstanding, notable, or leading professionals in their field when evaluated against the full national or international competitive population. Adjudicators assess the evidence not only for what type it is but for what level of distinction it reflects.
Petitioners should prepare for step two by ensuring the record addresses the implicit comparative question: distinguished compared to whom? The statutory standard is relative, and a petition that establishes only that the petitioner is a skilled professional — without establishing how their skills and recognition compare to the broader population of working professionals in the field — leaves the step two question unresolved. Expert declarations and press materials should be drafted with this comparative question in mind. A declaration that describes how the petitioner's skill and reputation compare to other working professionals in the same specialty, and identifies why the petitioner stands apart from the general population, is most directly responsive to the step two inquiry.
Evidence that performs well at both steps
Expert declarations from recognized professionals with independent standing satisfy the step one expert recognition criterion and contribute strongly to step two when drafted to address the petitioner's comparative standing. The optimal declaration is written by a professional whose own credentials are documentable — someone whose work appears in a professional biography that can be submitted as part of the exhibit — and who can speak to the petitioner's specific contributions and how they compare to other professionals in the same specialty. Declarations from professionals in related but distinct fields, or from people who know the petitioner personally without a clear professional basis for assessment, are weaker at step one and contribute less to step two.
Press that appears in nationally or internationally recognized publications satisfies step one more easily and contributes more to step two than local or regional coverage. For O-1B performing artists, relevant outlets include major newspapers' arts sections, national theater and arts trade publications, international press where the coverage reaches a significant professional audience, and respected industry publications for the petitioner's specific performing arts specialty. The content of the coverage matters as well as the venue: an in-depth profile addressing the petitioner's work and career is more useful than a brief mention in a roundup. Coverage that describes the petitioner's reputation within their field, or quotes peers who have observed their work, is particularly strong at step two.
Documentation of engagements with recognized companies or at recognized venues satisfies the critical role criterion at step one when the petitioner's role can be characterized as leading or critical. At step two, the strength of this evidence depends on how distinguished the companies or venues are. Engagements with major ballet companies, with nationally touring theatrical productions, with recognized opera companies, or with television productions on major networks are distinguished in a way that regional or local engagements are not. The petition should address why the petitioner's specific roles — not merely the productions themselves — were critical, which requires production-specific evidence rather than a general list of engagements.
Where petitions commonly fail at each step
At step one, the most common failure is submitting evidence that does not actually correspond to the criterion it purports to satisfy. A cover letter from a theater company praising the petitioner generally is not expert recognition evidence if the letter is from the petitioner's current employer and does not come from someone whose professional standing in the field is documented. A list of productions without documentation of the productions' distinction or the petitioner's specific role does not satisfy the critical role criterion. Commercial success evidence that describes a production's financial performance without establishing the petitioner's connection to that success does not satisfy the commercial success criterion.
At step two, the most common failure is a record that establishes competent professional participation without establishing distinction. A long list of professional credits, a set of employer letters, and some local press coverage establishes that the petitioner has been working steadily in the industry. It does not establish that the petitioner is outstanding, notable, or leading in their field. Petitions fail at step two when the evidence addresses the existence of a professional record without addressing the quality and significance of that record in comparative terms. The failure is often not a failure of documentation but a failure of framing: the record exists but was not organized and written to make the comparative case.
Petitions that rely heavily on the petitioner's own characterization of their career are consistently weak at step two. The petitioner's self-assessment, even when accurate, cannot substitute for independent assessment from recognized professionals who can evaluate the petitioner against a broader competitive field. A petition whose only substantive evaluation comes from the petitioner's own supporting brief — without corroboration from professionals who can speak independently about the petitioner's standing — has not addressed step two's core requirement. Independent expert assessment is the central form of evidence for the final merits determination.
Building an O-1B strategy within the Kazarian framework
Planning an O-1B petition within the Kazarian framework means designing the evidence package to succeed at both steps simultaneously, not sequentially. Every exhibit should be evaluated against two questions: does it satisfy one of the regulatory criteria (step one), and does it contribute to a picture of the petitioner as outstanding, notable, or leading in the field (step two)? An exhibit that satisfies step one but is weak evidence of distinction — a local newspaper review of a community theater performance — should be weighed against stronger alternatives that serve the same step one function while contributing more to step two. Where possible, use the strongest available evidence for each criterion.
Expert declarations should be commissioned early in the petition preparation process, with sufficient time for revisions that address specific step two concerns. A declaration that addresses only the petitioner's competence and professionalism does not serve the step two inquiry adequately. Writers should be briefed on the comparative nature of the final merits determination and should understand that the declaration needs to address not merely that the petitioner is skilled, but why they stand apart from the broader professional population in their field. This requires expert writers who understand both the petitioner's specific work and the competitive landscape of their specialty.
The Kazarian framework creates a risk in evidence-heavy petitions: more evidence is not always better if the additional evidence is weak and invites questions about whether the record actually rises to the statutory standard. A petition that submits twenty moderately positive reviews from regional outlets is not stronger than one that submits five substantive reviews from national publications. A focused, well-curated evidence file that demonstrates a clear pattern of recognition at a significant level is more effective at step two than a voluminous file that includes everything available without regard to how each piece contributes to the overall case.
What we typically gather for this kind of case
| Document | Where to source | Why it matters |
|---|---|---|
| Critical reviews | Variety, Hollywood Reporter, Pitchfork, Billboard | Distinguishes coverage from listings or paid press |
| Cast lists / programme credits | Festival, label, or venue publications | Documents lead or starring role |
| Box office / streaming data | Box Office Mojo, Luminate, Spotify for Artists | Quantifies commercial success criterion |
| Distinguished-organization letters | Artistic director or producer | Explains why the organization is recognized |
What we see go wrong, again and again
- 01Confusing the O-1B "distinction" standard with O-1A "extraordinary ability" — they are different bars, evaluated against different evidence.
- 02Submitting performance credits without contextualizing the venue or production's standing in the field.
- 03Including reviews and listings indiscriminately instead of separating substantive critical coverage from passing mentions.