dismissed O-1A Case: Business

U.S. Departntent of ffonleland Security 
20 Mass. Ave. N.W., Rm. 3000 
Washington, DC 20529 
identifying data deleted to 
prevent clearly unwarranted 
invasion of privacj 
U. S. Citizenship 
and Immigration 
FILE: LIN 06 103 50190 Office: NEBRASKA SERVICE CENTER Date: 
PETITION: 
 Petition for a Nonimmigrant Worker under Section 101 (a)(15)(0)(i) of the Immigration and 
Nationality Act, 8 U.S.C. $ 1 101(a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. %iim"a&, Chief 
Administrative Appeals Office 
LIN 06 103 50190 
Page 2 
DISCUSSION: The nonimrnigrant visa petition was denied by the Director, Nebraska Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner, is a wellness center. The petitioner seeks 0-1 nonimmigrant classification 
of the beneficiary, as an alien with extraordinary ability under section 101 (a)(15)(0)(i) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. 5 1101(a)(15)(0)(i), in order to employ her in the United States as the director 
of the petitioner's institute for a period of six years' at an annual salary of $60,000. 
The director denied the petition, finding that the petitioner failed to establish that the beneficiary has received 
sustained national or international acclaim and is one of a small percentage who has risen to the very top of her 
field of endeavor. 
On appeal, the petitioner submits a brief and additional evidence. On appeal, counsel argues that the director 
improperly applied the criteria related to an alien with extraordinary ability in the sciences and that the petitioner 
should have been considered under the criterion related to an alien with extraordinary ability in the arts as the 
petition "repeatedly emphasizes the spiritual and intangible nature of the teaching of as 
opposed to the categorization of those teachings as a 'science."' We are not persuaded by counsel's argument. 
The regulation at 8 C.F.R. 214.2(0)(3)(i)(ii) defines the term "art" as: 
[Alny field of creative activity or endeavor such as, but not limited to, fine arts, visual arts, 
culinary arts, and performing arts. Aliens engaged in the field of arts include not only the 
principal creators and performers but other essential persons such as, but not limited to, 
directors, set designers, choreographers, choreologists, conductors, orchestrators, coaches, 
arrangers, musical supervisors, costume designers, makeup artists, flight masters, stage 
technicians, and animal trainers. 
As indicated by the petitioner, the position in which the petitioner seeks to employ the beneficiary is the director 
or "startup coordinator" of a wellness institute. Contrary to the types of positions listed above which are related 
to the arts, the position description provided by the petitioner indicates that the beneficiary will "establish and 
operate" a wellness center and that her duties include the following: 
1) Site location and selection 
2) Establish client base 
3) Create business framework for the institute 
6) Prepare promotional materials 
7) Establish a teaching and tutorial program for spiritual and professional growth 
8) Establish and teach courses in the tradition of. . . 
The regulation at 8 C.F.R. 5 214.2(0)(6)(1)(iii)(A) indicates that a petition will be valid for a period, not to exceed 3 
years. 
LIN 06 103 50190 
Page 3 
9) Instruct employees in the tradition of m 
10) Identify mountain locations for outreach programs, seminars, and retreats 
1 1) Provide energetic feng shui consultation 
12) Identify other locations in Colorado to establish satellite wellness center 
13) Using . . . knowledge of German, to keep up with the writings of - and all 
publications published by his institute in Europe, virtually all of which are published only 
in the German language 
14) Performing tasks associated with and/or necessary to implement the above job duties. 
As described by the petitioner, both the job title and the duties of the beneficiary's position do not contain any 
indication that the beneficiary's position as a director involve fine arts, visual arts, culinary arts, or performing 
arts. While the services offered by the petitioning center may involve "spiritual" teachings, the beneficiary's 
position and duties are business related. Accordingly, the director properly considered the beneficiary under the 
criterion related to an alien of extraordinary ability in business. 
Counsel's second argument, that the criterion do not readily apply to the beneficiary's occupation and that other 
comparable evidence should have been considered, is equally unpersuasive. The regulation at 8 C.F.R. 8 
214.2(0)(3)(iii)(C) allows for the submission of comparable evidence, but only if the eight criteria "do not 
readily apply to the beneficiary's occupation." Therefore, the petitioner must demonstrate that the regulatory 
criteria are not applicable to the beneficiary's position as a director. Where an alien is simply unable to meet 
three of the regulatory criteria, the plain language of the regulation at 8 C.F.R. § 204.5(h)(4) does not allow 
for the submission of comparable evidence. Counsel has failed to present any argument or evidence which 
demonstrates that the regulatory criteria are not applicable to the beneficiary's position as the director of a 
wellness center. 
Section 10 1 (a)(15)(0)(i) of the Act provides classification to a qualified alien 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. 
The regulation at 8 C.F.R. 8 214.2(0)(3)(ii) defines, in pertinent part: 
Extraordinary ability in the field of science, education, business, or athletics means a level of 
experhse indicating that the person is one of the small percentage who have arisen to the very top 
of the field of endeavor. 
The regulation at 8 C.F.R. 3 2 14.2(0)(3)(iii) states, in pertinent part: 
Evidentiary criteria for an 0-1 alien of extraordinary ability in the fields of science, education, 
business, or athletics. An alien of extraordinary ability in the fields of science, education, 
business, or athletics must demonstrate sustained national or international acclaim and 
recognition for achievements in the field of expertise by providing evidence of: 
LIN06 103 50190 
Page 4 
(A) Receipt of a major, internationally recognized award, such as the Nobel hze; or 
(B) At least three of the following forms of documentation: 
(I) Documentation of the alien's receipt of nationally or internationally recognized prizes 
or awards for excellence in the field of endeavor; 
(2) Documentation of the alien's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, as 
judged by recognized national or international experts in their disciplines or fields; 
(3) Published material in professional or major trade publications or major media about 
the alien, relating to the alien's work in the field for which classification is sought, which 
shall include the title, date, and author of such published material, and any necessary 
translation; 
(4) Evidence of the alien's participation on a panel, or individually, as a judge of the work 
of others in the same or in an allied field of specialization to that for which classification 
is sought; 
(5) Evidence of the alien's orignal scientific, scholarly, or business-related contributions 
of major significance in the field; 
(6) Evidence of the alien's authorship of scholarly articles in the field, in professional 
journals, or other major media; 
(7) Evidence that the alien has been employed in a critical or essential capacity for 
organizations and establishments that have a distinguished reputation; 
(8) Evidence that the alien has either commanded a high salary or will command a high 
salary or other remuneration for services, evidenced by contracts or other reliable 
evidence. 
(C) If the criteria in paragraph (0)(3)(iii) 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. 
In addition, the regulation at 8 C.F.R. $I 214.2(0)(5)(i)(A) states, in pertinent part: 
Consultation with an appropriate U.S. peer group (which could include a person or persons with 
expertise in the field), labor and/or management organization regarding the nature of the work to 
be done and the alien's qualifications is mandatory before a petition for 0-1 or 0-2 classification 
can be approved. 
LIN06 103 50190 
Page 5 
As will be discussed under the relevant criteria, the petitioner has failed to establish that the beneficiary meets 
any of the evidentiary criteria for 0-1 classification. There is no evidence that the beneficiary has received an 
award equivalent to that listed at 8 C.F.R. 5 214.2(0)(3)(iii)(A) or that the beneficiary meets at least three of the 
criteria at 8 C.F.R. 4 2 14.2(0)(3)(iii)(B). 
Major, internationally recognized award. 
Counsel claims that the petitioner's award of "spiritual teacher" is an "award of excellence" and should be 
considered as comparable evidence of an award equivalent to the Nobel Pnze. As previously discussed, however, 
counsel has failed to establish that the regulatory criteria are not applicable to business related fields, such that 
comparable evidence should be considered. Regardless, the beneficiary's certijication as a teacher is not 
evidence of receiving an award. The fact that the beneficiary was certified or awarded a degree means only that 
she completed predetermined requirements, not that she was chosen for an award because of her contributions or 
accomplishments in her field of endeavor. Accordingly, the petitioner has failed to establish that the beneficiary 
has received a major, internationally recognized award. 
Documentation of the alien's receipt of nationally or internationally recognizedprizes or awards for excellence 
in thejield of endeavor. 
As discussed above, the beneficiary's certification as a "spiritual teacher" is not considered to be a prize or an 
award. The petitioner has not submitted any further evidence of the beneficiary's receipt of a nationally or 
internationally recognized award for excellence in her field of endeavor. Accordingly, the petitioner has failed to 
establish that the beneficiary meets ths criterion. 
Documentation of the alien's membership in associations in the jield for which classification is sought, which 
require outstanding achievements of their members, as judged by recognized national or international experts in 
their disciplines orJields. 
Counsel states that the association to which the beneficiary belongs is that "small circle of people upon whom the 
award of 'spiritual teacher' has been conferred" and that "continued membership" requires participation in annual 
seminars, the presentation of oral lectures, and authorship of publications. We do not agree that the petitioner has 
demonstrated the beneficiary's membership in an association. The record contains no evidence of the 
membership bylaws for the claimed association. More importantly, the petitioner has failed to establish that 
admission to membership in this claimed association requires outstanding achievement and that the 
beneficiary was evaluated by national or international experts in consideration of her admission to 
membership. While the group does share a common certification as "spiritual teachers," there does not appear to 
be any formal structure or standardized eligbility requirements to become a "member" of the association beyond 
the completion of basic educational and training requirements. Accordingly, the petitioner has failed to establish 
that the beneficiary meets this criterion. 
Published material in professional or rnajor trade publications or rnajor media about the alien, relating to the 
alien's work in the field for which classification is sought, which shall include the title, date, and author of such 
published material, and any necessary translation. 
LIN 06 103 501 90 
Page 6 
As evidence to establish that the beneficiary meets ths criterion, counsel references the publication of an article 
written by the beneficiary in the October 2006 issue of Amritabha Magazine, the "official magazine of- 
institute at Chateau Amritabha [that] is only published twice a year." The plain language of this 
criterion, however, requires published material about the alien. The petitioner's authorship of this article is 
more relevant to the published materials criterion at 8 C.F.R. $ 214.2(0)(3)(iii)(B)(6) and will, therefore, be 
discussed in relation to that criterion. The record contains no evidence of published material in professional 
or major publications or media about the beneficiary relating to her field of endeavor. Accordingly, the 
petitioner has failed to establish that the beneficiary meets this criterion. 
Evidence of the alien's participation on a panel, or individually, as a judge of the work of others in the same or in 
an alliedJield of specialization to that for which classiJication is sought. 
Counsel contends that although the beneficiary did not judge the work of others in her field of endeavor, she did 
judge the work of others, "in an allied field, physical therapy." In support of this claim, the petitioner submitted a 
letter from Headmaster of a physical therapy school in Switzerland. In his letter, . 
indicates that in the beneficiary's position as "student supervisor" the beneficiary supervised five 
students per tenn, conducted personal observation, weekly training and examination of the students, and issue 
final reports at the end of the term. We do not find ths evidence sufficient to establish that the beneficiary meets 
ths criterion. First, we do not find that physical therapy is considered an "allied field of specialization" to the 
beneficiary's field of endeavor in business as a director of a wellness center. More importantly, however, the 
beneficiary's evaluation of a student's academic progress is not indicative of sustained national or 
international acclaim. In an occupation such as teaching where "judgng" the work of others is an inherent duty 
of the occupation, simply performing one's job related duties demonstrates competency, and is not evidence of 
national or international acclaim. The record contains no evidence that the beneficiary has participated on a 
panel, or individually as a judge of the work of others in a business-related field. Accordingly, the petitioner has 
failed to establish that the beneficiary meets this criterion. 
Evidence of the alien 's original scientijk, scholarly, or business-related contributions of major signijcance in the 
Jield. 
The petitioner submitted letters regarding the beneficiary's certifications, training, and work with individuals. 
However, the letters do not establish how the beneficiary's work is considered orignal and how her work is 
considered a contribution of major significance in the field. For instance, although- 
states that the beneficiary's article and her course on "[tlhe creative power of the 5 elements" is the "unique 
knowledge" of the beneficiary and that she is the only one who can teach this seminar, he does not explain the 
significance of the material in the article or the seminar, the impact the beneficiary's teaching the seminar, or 
any other information which demonstrates that the beneficiary's teachings or article are original contributions 
that have had a maior sirmificance. Further. it does not amear that the beneficiarv had even taught this 
" L 1 
seminar at the timeJ of filing. Rather, the letters in the record from ad 
indicate that the beneficiary's lectures took place on August 3, 2006 and August 23, 2006, respectively, six 
months after the filing of the petition. As previously noted, the petitioner must establish the beneficiary's 
eligibility at the time of filing. Eligibility cannot be established based upon occurrences which take place 
LIN 06 103 50190 
Page 7 
after the filing of a petition. Id. While the petitioner also submitted several letters from individuals who have 
been treated by the petitioner, we find no evidence that the beneficiary's treatment of these individuals was 
involved new processes or techniques or and that the treatments are considered a contribution of major 
significance. Accordingly, the petitioner has failed to establish that the beneficiary meets this criterion. 
Evidence of the alien's authorship of scholarly articles in the $fiela', in professio~ial journak, or other major 
media. 
To establish that the beneficiary meets this criterion, counsel refers to an article purportedly written by the 
beneficiary for publication in the Alnritabha Magazine. In addition to noting that the article's publication was 
to take place after the filing of the petition, the director found that the petitioner failed to establish that this 
magazine is considered to be a "professional journal" or "other major media." On appeal, the petitioner 
submits a letter from J.R. Bornhorst, chief editor and publisher of Amritabha, who states that the magazine is 
a "professional and major trade publication in the field of holistic magazines." This evidence is not sufficient 
to establish that the beneficiary meets this criterion. First, the sole evidence of the nature of the journal is 
from the editor and publisher of the journal itself The record does not contain independent evidence that the 
Amritabha Magazine is considered major media or a professional journal "in the field of holistic magazines." 
More importantly, we again note that the beneficiary's position is the director of a wellness center and that 
her field of endeavor is business. As such, the publication of an article unrelated to her position as a director 
is not evidence of her authorship of a scholarly article in her field. Regardless, the record contains no 
evidence of the actual publication of this article much less that it had been published at the time of filing. The 
record includes no contemporaneous evidence showing that, as of the filing date of this petition, the petitioner 
had published any material in professional or major trade publications relating to the beneficiary's field of 
endeavor. The petitioner must establish eligibility at the time of filing the nonimmigrant visa petition. A visa 
petition may not be approved at a future date after the petitioner or beneficiary becomes eligible under a new 
set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. Comm. 1978). Subsequent developments 
in the petitioner's career cannot retroactively establish that she was eligible for the classification sought as of 
the filing date. Accordingly, the petitioner has failed to establish that the beneficiary meets this criterion. 
Evidence that the alien has been employed in a critical or essential capacity for organizatioris and establishments 
that have a distinguished reputation. 
In order to establish that the beneficiary performed a leading or critical role for an organization or 
establishment with a distinguished reputation, the petitioner must establish the nature of the beneficiary's 
employment as well as the reputation of the organization. 
With the initial filing, the petitioner submitted a copy of the beneficiary's employment contract as "evidence that 
alien will perform as lead director for meditation and education." While we do not dispute that the director of the 
petitioning center is considered to be a critical or essential employee, the petitioner has failed to establish its 
distinguished reputation. While not meant to disparage the petitioning center, given that the business is just being 
developed, it does not appear to have any established reputation. 
As it relates to the petitioner's prior e 
 rice related to the beneficiary's 
employment at "The Orange House" in 
 f "The Orange House," indicates 
LIN 06 103 50190 
Page 8 
that the petitioner helped her find the "ideal place and building," that she "accompanied [her] when loolung for 
furniture and installing it," and worked on the website. 
f 
indicates that the beneficiary "was 
employed in a physiotherapy centre until she started her own practice or Physiotherapy and Acupuncture in The 
Orange House," does not specify the beneficiary's actual position or provide any other information to 
establish that her employment with the Orange House was critical or essential. We do not find that the 
- - - 
beneficiary's assistance in performing duties such as furniture shopping or worlung on a website ualifies as 
critical or essential. While counsel also refers to work done by the beneficiary at the in 
Steinebrunn, Switzerland, neither the brochure nor the attached translations referred to by counsel contains any 
mention of the beneficiary's name. In addition to failing to establish that the beneficiary's employment at these 
two centers was considered as critical or essential, the petitioner also failed to establish that the centers have 
distinguished reputations. 
On appeal, while the petitioner submitted letters fiom individuals who state that the centers are "well established 
and "known for their excellent work," neither letter establishes the distinguished reputation of either of these 
establishments. Moreover, no mher evidence was submitted to establish the nature of the beneficiary's 
employment so as to make a determination that the employment can be considered critical or essential. 
Accordingly, the petitioner has failed to establish that the beneficiary meets ths criterion. 
Evidence that the alien has either commanded a high salary or will command a high salary or other 
remuneration for services, evidenced by contracts or other reliable evidence. 
On the Form 1-129, the petitioner indicated that the beneficiary would earn $60,000 per year and submitted a copy 
of the beneficiary's employment contract. In response to the director's request for evidence (RFE), counsel 
claimed that the beneficiary commanded a high salary in Europe. To support the claim regarding the 
beneficiary's high salary in Europe, the petitioner submitted a typewritten document from the beneficiary 
describing her work in a clinic and as a spiritual teacher and a statement regarding the beneficiary's earnings. The 
petitioner, however, failed to submit any documentary evidence to establish the beneficiary's claimed earnings. 
Moreover, the petitioner has failed to establish that these claimed earnings were high in comparison to others in 
positions similar to that of the beneficiary. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Sof$ci, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). 
On appeal, as evidence to support the assertion that the beneficiary's proffered salary of $60,000 at the 
vetitioner's wellness center would command a high salary in comvarison to other such directors, the petitioner 
- 
bubmits a letter fiom 
 headmaster of the 
 We do not find this single 
letter sufficient to establish the beneficiary's high salary. 
 First, although the letter establishes that the 
is greater than the entire annual income for the the basis for comparing the 
and the petitioning center is unclear. There is no evidence that the 
 offers 
similar services or caters to the same number of people as the petitioning center. Regardless, the fact that the 
beneficiary may earn more money than a single center that conducts business outside of the United States is not 
sufficient to establish that the beneficiary's salary is considered high. We find it significant to note that despite 
petitioner has failed to establish that the beneficiary meets this criterion. 
LTN 06 103 50190 
Page 9 
The record does not establish that the beneficiary has extraordinary ability in business, which has been 
demonstrated by sustained national or international acclaim and whose achievements have been recognized in the 
field through extensive documentation, as required by section 101(a)(15)(0) of the Act. The petitioner failed to 
establish that the beneficiary has received a major, internationally recognized award or that she satisfies any of the 
eight other evidentiary criteria specified in the regulation at 8 C.F.R. 9 214,2(0)(3)(iii)(B). Consequently, the 
beneficiary is not eligble for nonimmigrant classification under section 10l(a)(15)(0) of the Act and the petition 
must be denied. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 9 1361. 
Here, the petitioner has not met that burden. 
ORDER: The appeal is dismissed.