dismissed O-1A Case: Business

(b)(6)
DATE: 
IN RE: 
DEC 2 9 2014 
Petitioner: 
Beneficiary: 
Office: VERMONT SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washinrrton. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
;;�-Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Acting Director, Vermont Service Center, denied the nonimmigrant visa petition. 
The matter is now before the Administrative Appeals Office (AAO) on appeal. We will dismiss the 
appeal. 
The petitioner filed this petition seeking to classify the beneficiary as an 0-1 nonimmigrant pursuant 
to section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 110l(a)(15)(0)(i), as an alien of extraordinary ability in the field of business.1 The petitioner, a 
fashion design house, seeks to employ the beneficiary in the position of Creative Pattern Maker for a 
period of three years. In response to the director's initial December 5, 2013 request for evidence 
(RFE), which noted that arts and business fall within separate 0 classifications, the petitioner 
reiterated that it sought to classify the beneficiary as an alien of extraordinary ability in the field of 
business, not art. 
After issuing a subsequent January 15, 2014 RFE and then considering the evidence of record, the 
acting director denied the petition, finding that the petitioner did not establish that the beneficiary 
qualifies as an alien of extraordinary ability in business. The acting director determined that the 
petitioner did not establish that the beneficiary meets the evidentiary criterion at 8 C.F.R. 
§ 214.2(o)(3)(iii)(A), and that the submitted evidence did not meet any of the eight evidentiary criteria 
set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B), of which three must be met to establish eligibility. 
The petitioner subsequently filed an appeal. The acting director declined to treat the appeal as a motion 
and forwarded the appeal to us for review. On appeal, the petitioner asserts that it submitted sufficient 
evidence establishing that the beneficiary qualifies as an alien with extraordinary ability in the field of 
business. The petitioner notes that the acting director's decision did not mention the samples of the 
beneficiary's work which the petitioner initially submitted. As our review is conducted on a de novo 
basis, we will herein address the totality of the petitioner's evidence. See Soltane v. DOl, 381 F.3d 
143, 145 (3d Cir. 2004). For the reasons discussed below, the petitioner has not submitted probative 
evidence satisfying the plain language requirements of at least three criteria. See Matter of Chawathe, 
25 I&N Dec. 369, 376 (AAO 2010). 
I. The Law 
Section 101(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 
1Self-styled immigration consultants provided some of the submissions in the record. The record, however, 
contains no Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, executed 
by the petitioner recognizing either of those individuals as its representative and the consultants have 
emphasized that the petitioner is not represented by counsel. Further, the record contains no evidence that 
either of these individuals is an attorney, and neither individual's name appears on the roster of accredited 
representatives maintained by the Executive Office of Immigration Review (EOIR). For all these reasons, 
neither consultant is recognized as the petitioner's representative of record. All representations in the record 
will be considered, but the decision in this matter will only be provided to the petitioner. 
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Page 3 
extraordinary ability. The extraordinary ability provisions of this visa classification are intended to be 
highly restrictive. See 137 Cong. Rec. S18247 (daily ed., Nov. 16, 1991). The regulation at 8 C.F.R. 
§ 214.2(o)(3)(ii) defines, in pertinent part: "Extraordinary ability in the field of science, education, 
business, or athletics means a level of expertise 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. § 214.2(o)(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: 
(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or 
(B) At least three of the following forms of documentation: 
(1) 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 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 original 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; 
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NON-PRECEDENT DECISION 
(8) Evidence that 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 (o)(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. 
Additionally, the regulation at 8 C.P. R. § 214.2(o)(2)(iii) provides: 
The evidence submitted with an 0 petition shall conform to the following: 
(A) Affidavits, contracts, awards, and similar documentation must reflect the nature of 
the alien's achievement and be executed by an officer or responsible person 
employed by the institution, firm, establishment, or organization where the work 
was performed. 
(B) Affidavits written by present or former employers or recognized experts certifying 
to the recognition and extraordinary ability .. . shall specifically describe the 
alien's recognition and ability or achievement in factual terms and set forth the 
expertise of the affiant and the manner in which the affiant acquired such 
information. 
II. Discussion 
A. Extraordinary Ability in Business 
The petitioner filed the Form I-129, Petition for aNonimmigrant Worker, on November 19, 2013. The 
petitioner is in the business of fashion design. The initial cover letter, which immigration consultants 
prepared, described the beneficiary as "one of the world's foremost experts in the field of Creative 
Fashion Pattern Making" who has "unique and extraordinary abilities to both understand a sketch and 
delve into the vision of the designer ... . " The petitioner has not provided any further description of the 
job functions or duties required of the offered position. Specifically, the job offer does not list any job 
duties, only the job title. 
The evidence of record establishes that the beneficiary has done fashion pattern making for the 
petitioner and several other fashion designers and entertainers. The evidence submitted in support of 
the petition includes numerous testimonial letters and documentation of the beneficiary's pattern­
making work in the form of a portfolio. We will consider all of this evidence below in the context of 
the regulatory criteria. 
The record consists of: the Form I-129 petition and supporting evidence; the acting director's requests 
for evidence dated December 5, 2013 and January 15, 2014, and the petitioner's responses; and, the 
acting director's decision dated March 14, 2014. We have reviewed the evidence of record in its 
entirety in reaching our decision. 
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NON-PRECEDENT DECISION 
1. Consideration of the Evidentiary Criteria 
The submission of evidence relating to at least three criteria does not, in and of itself, establish 
eligibility for 0-1 classification. 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994). In addition, we have 
held that, "truth is to be determined not by the quantity of evidence alone but by its quality. Thus, in 
adjudicating the application pursuant to the preponderance of the evidence standard, the acting 
director must examine each piece of evidence for relevance, probative value, and credibility, both 
individually and within the context of the totality of the evidence, to determine whether the fact to be 
proven is probably true." Matter of Chawathe, 25 I&N Dec. at 376. 
The sole issue is whether the petitioner submitted evidence to establish that the beneficiary enjoys 
the requisite sustained national or international acclaim. If the petitioner establishes through the 
submission of documentary evidence that the beneficiary has received a major, internationally 
recognized award pursuant to 8 C.P.R. § 214.2( o )(3)(iii)(A), then it will have submitted the requisite 
initial evidence pertaining to the beneficiary's acclaim and recognition. The regulations cite to the 
Nobel Prize as an example of a major award. !d. The petitioner does not claim that the beneficiary 
can meet this criterion. Instead, the petitioner has submitted evidence relating to the criteria at 
8 C.P.R. § 214.2( o )(3)(iii)(B). 
At the time of filing, the petitioner claims that the beneficiary meets the criteria listed at 8 C.P.R. 
§ 214.2(o)(3)(iii)(B) subparagraphs (5), (7), and (8).3 In denying the petition, the acting director 
determined that the evidence submitted did not satisfy any of the eight evidentiary criteria. The 
petitioner has not submitted any evidence relating to the criteria at 8 C.P.R. § 214.2(o)(3)(iii)(B)(l), 
(2), (3), (4) and (6), and raises no objection to the acting director's determination that these criteria 
have not been met. We will discuss the three criteria the petitioner claims below. After careful 
review of the record and for the reasons discussed herein, the petitioner has not established eligibility 
under any of the evidentiary criteria under 8 C.P.R. § 214.2( o )(3)(iii)(B). 
Evidence of the alien's original scientific, scholar ly, or business-related contributions of 
major significance in the field. 
3 Although not addressed by the acting director, the petitioner asserted eligibility under a regulatory criterion not 
found at 8 C.P.R.§ 214.2(o)(3)(iv)(B). In the petitioner's initial letter in support of the petition, and again on 
appeal, the petitioner has characterized some of the submitted evidence under a regulatory criterion at 
8 C.P.R. § 204.5 (h)(3), relating to immigrant visa petitions filed on behalf of aliens of extraordinary ability. 
Specifically, the petitioner indicated it was submitting the beneficiary's portfolio as "evidence of the display of 
the alien's work in the field of [sic] artistic exhibitions or showcases" consistent with 8 C.P.R. § 204.5 
(h)(3)(vii). This criterion does not appear at 8 C.P.R § 214.2(o)(3)(iii)(B) and the petitioner has not asserted that 
the portfolio constitutes comparable evidence under 8 C.P.R § 214.2(o)(3)(iii)(C), which requires a showing that 
the criteria are not readily applicable to the beneficiary's occupation. Notably, we will consider the beneficiary's 
portfolio under the nonimmigrant criteria for which the petitioner also submitted it, specifically under the 
regulatory criteria at 8 C.P.R.§ 214.2(o)(3)(iii)(B)(5) and (7). 
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The fifth criterion requires the petitioner to submit evidence of the alien's original scientific, 
scholarly, or business-related contributions of major significance in the field. 8 C.P.R. 
§ 214.2( o )(3)(iii)(B)(5). In support of this criterion the petitioner has submitted evidence in the form 
of the beneficiary's professional portfolio. The portfolio is written in the first person, reflecting that 
the beneficiary prepared the portfolio. It contains photographs of garments that the petitioner claims 
the beneficiary helped create for several designers. The photographs show garments being worn by 
celebrities including 
at fashion events and professional events such as the and by fashion 
models in designers' promotional materials and at various runway shows in Europe. The photographs 
also show the garments being worn by pop music performers at various stage performances. Other than 
the beneficiary's own statements in the portfolio, none of the documents in the portfolio mention the 
beneficiary or otherwise establish it was primarily the beneficiary who created these garments or their 
patterns, as the petitioner claims. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N 
Dec. 158, 165 (Assoc. Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). As such, this evidence does not provide evidence of the beneficiary's original 
business-related contributions to the field of fashion design. 
The petitioner's initial evidence also included three testimonial letters, including a letter from 
Head of London, confirming the beneficiary's 
employment with that fashion house throughout 2011, "working on Gold Label runway collections 
and collections." She describes the beneficiary as "a creative pattern cutter with great talent 
and innovative skill in innovative pattern cutting for Womenswear" with "strong abilities" and an 
"expert at historical corset making." She states that the beneficiary "showed she had a deep 
understanding and knowledge of garment construction and in Made to Measure Bespoke garments 
for our Clients and Celebrities" and "achieved a level of prominence in garment 
construction." 
The petitioner also submitted a letter from the Pattern Room Manager at . 
London, stating that she has known the beneficiary since 2007, during which time she and the 
beneficiary worked together "for luxury labels like and 
Ms. states that the beneficiary "has helped to create fantastic garments and 
phenomenal gowns with press coverage worldwide" and that garments the beneficiary helped create 
are worn by musicians and famous actresses and celebrities. The record does not include any press 
coverage of the beneficiary or her work. Specifically, the copied screen shots of website pages that 
appear in the portfolio do not specifically mention the beneficiary. Ms. describes the 
beneficiary's skills in pattern cutting as "remarkable" and "extraordinary ," and opines that "[t]here 
are very few pattern cutters working today that have her range of skills, experience, knowledge and 
intelligence to generate such complex garments." She concludes by stating that "[the beneficiary] 
contributes with her talent, her skills and exceptional experience to the luxury fashion world." 
The petitioner further submitted a letter from _, Atelier Director for the petitioner, 
where the beneficiary performed an internship. Ms. states that the beneficiary 
"successfully developed several patterns for our Company that have resulted in increased precision 
and accurate information for our cutter and sample makers" and that the beneficiary was also helpful 
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to the company in "writing effective cutter's musts for our production representatives." She 
describes the beneficiary as a "team player" who "assumed a leadership role in inspiring and 
motivating other employees and interns." 
The petitioner did not provide any additional evidence in response to the RFE. The director found 
that the petitioner did not establish that the beneficiary meets this criterion. Upon review, the 
petitioner has not submitted sufficient evidence to satisfy this criterion. While the evidence 
establishes that the beneficiary has made valuable contributions to the employers for whom she has 
worked, the petitioner has not provided evidence of any original contributions of major significance 
made by the beneficiary to the field of fashion design. There is nothing in the evidence to suggest 
that the beneficiary introduced new pattern-making techniques to the field. While the letter from 
Head of deems the beneficiary to be "expert at 
historical corset making" and as having "achieved a level of prominence in garment construction," 
the record does not establish that the beneficiary has received had the type of impact on the field that 
is indicative of an original contribution of major significance. Regardless of the field, the plain 
language of the phrase "contributions of major significance in the field" requires evidence of an impact 
beyond one's employer and clients or customers. Cf Visinscaia v. Beers, 4 F.Supp.3d 126, 134-35 
(D.D.C. 2013) (upholding a finding that a ballroom dancer had not met a similarly worded criterion 
because she did not demonstrate her impact in the field as a whole). Ultimately, the letters are 
conclusory and unsupported. USCIS need not accept primarily conclusory assertions. 1756, Inc. v. 
The Attorney General of the United States, 745 F. Supp. 9, 15 (D.C. Dist. 1990). 
Based on the foregoing, the petitioner has not established eligibility under the criterion at 8 C.F.R. 
§ 214.2(o)(3)(iii)(B)(5). 
Evidence that the alien has been employed in a critical or essential capacity for 
organizations and establishments that have a distinguished reputation 
In order to meet the seventh criterion, the petitioner must submit evidence that the beneficiary has been 
employed in a critical or essential capacity for organizations and establishments that have a 
distinguished reputation. 8 C.F.R. § 214.2(o )(3)(iii)(B)(7). This criterion requires the petitioner to 
establish the beneficiary's prior essentiality to and employment with such organizations. The 
petitioner asserts that the beneficiary has had a critical role in creating patterns for several fashion 
design organizations. 
The letter from 
like 
stating that she and the beneficiary worked together "for luxury labels 
," does not constitute evidence of the 
beneficiary's employment with those other organizations. 
The petitioner documented the beneficiary's prior employment with only the petitioner and one other 
organization. The letter from specifically states the beneficiary was an intern at the 
petitioning organization without sufficiently explaining how that role may be considered critical or 
essential beyond the need for the organization to employ competent and creative interns. For 
example, Ms. does not suggest that the beneficiary's work resulted in more customers or 
press coverage or increased the company's profits and the record contains no evidence to support 
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such an impact. The letter from Head of London, 
confirmed the beneficiary's employment with that organization throughout 2011, "working on Gold 
Label runway collections and collections." She describes the beneficiary as "a creative 
pattern cutter with great talent and innovative skill in innovative pattern cutting for Womenswear" 
with "strong abilities" and an "expert at historical corset making." She states that the beneficiary 
"achieved a level of prominence in garment construction." Upon review, the petitioner has not 
submitted sufficient evidence establishing that the beneficiary was employed in a critical or essential 
capacity at While the beneficiary's former employer certainly conveys its 
satisfaction with her pattern cutting work and overall job performance, the record does not contain 
sufficient evidence to establish that the beneficiary's assignments in the organization were in a 
"critical or essential capacity" that significantly impacted the employer, such as, for example, its 
customer base or profits. Rather, the submitted letter conveys that beneficiary is a talented pattern 
cutter who performed her duties satisfactorily during her employment. 
Based on the foregoing, the petitioner has not established eligibility under the criterion at 8 C.F.R. 
§ 214.2( o )(3)(iii)(B)(7). 
Evidence that 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 
The eighth criterion requires the petitioner to establish that the beneficiary has either commanded a high 
salary or will command a high salary or other remuneration for services, evidenced by contracts or other 
reliable evidence. 8 C.F.R. § 214.2( o )(3)(iii)(B)(8). 
The petitioner has offered the beneficiary an annual base salary of $70,000 for the proffered position 
"Creative Pattern Maker." In support of this assertion, the petitioner submitted an unexecuted copy of 
its employment offer to the beneficiary. The petitioner has not provided its contract with the 
beneficiary or other reliable evidence of the salary the beneficiary will receive, as required by the plain 
language of this criterion. 
In the request for evidence, the director observed that the proffered salary does not appear to be high 
compared with others in the industry. On appeal, the petitioner asserts that it has documented that 
the proffered salary is high compared to others in the industry. Upon review, the evidence does not 
establish that the beneficiary will command a high salary as a creative pattern maker. 
The petitioner submitted salary information from the websites 
The information 
provided from the website for the occupation "Pattern Maker" indicates that the average 
salary in the field nationally is $41,000. However, the documentation states, "[t]his salary was 
calculated using the average salary for all jobs with the term 'pattern maker' anywhere in the job 
listing," and does not provide a description of this occupation. The website further states: "Average 
pattern maker salaries can vary greatly due to company, location, industry, experience and benefits." 
Finally, providing the average salary does not establish what is considered "high" in the occupation. 
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Page 9 
The information provided from the website provides a job description for the position of 
'pattern maker', as follows: "[f]abricates foundr / patterns from various materials, such as wood, metal, 
and plastic, for use in forming molds for castings, according to blueprint specifications, and using 
various machine tools, power tools, and hand tools. Assesses blueprint of part to be cast ... . " This 
description does not appear to apply to the beneficiary's occupation as a fashion pattern maker. Thus, 
the petitioner has not established that the information from these websites provides a meaningful 
salary comparison with the beneficiary's position. 
The information provided from the website for the occupation "Fabric/ Apparel 
Patternmaker" indicates that the median salary in the field nationally is $43,885, while the top 90% 
wage level nationally is $62,672. The petitioner did not submit evidence pertaining to the reliability of 
this website. In addition, the job description for this position states: "[f]abricates foundry patterns from 
various materials." Again, this description does not appear to apply to the beneficiary's occupation as a 
fashion pattern maker. As such, the petitioner has not established that the information from this 
website provides a meaningful salary comparison with the beneficiary's position. Regardless, while 
the proffered salary of $70,000 may be high for average level positions in the field, which the 
website says requires only a high school diploma, it may not be considered high for those with the 
beneficiary's education and experience. The beneficiary has a master's degree and several years of 
professional experience. 
Based on the above, the petitioner has not established that the beneficiary's proffered salary is high 
among similarly employed individuals. The petitioner has also not documented the salaries the 
beneficiary has received as a fashion pattern maker during her employment with various fashion 
houses in England. 
Based on the foregoing, the petitioner has not established eligibility under the criterion at 8 C.F.R. 
§ 214.2(o)(3)(iii)(B)(8). 
III. Conclusion 
The petitioner submitted no evidence that the beneficiary has received a major, internationally 
recognized award and the documentation submitted does not meet three of the eight other 
evidentiary criteria specified in the regulation at 8 C.F.R. § 214.2(o)(3)(iii)(B). The evidence shows 
that the beneficiary is a skilled and experienced fashion pattern maker. Upon review of the totality 
of the evidence submitted, the petitioner has not established that the beneficiary has extraordinary 
ability as a fashion pattern maker, which has been demonstrated by sustained national or 
international acclaim and that her achievements have been recognized in the field through extensive 
documentation, as required by section 101(a)(15)(0) of the Act. 
The extraordinary ability provisions of this visa classification are intended to be highly restrictive. See 
137 Cong. Rec. S18247 (daily ed., Nov. 16, 1991). In order to establish eligibility for 0-1 
classification, the petitioner must establish that the beneficiary is "at the very top" of her field of 
4 According to Webster's New World College Dictionary (2010) a foundry is a place where metal is cast. 
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endeavor. 8 C.F.R. § 214.2(o)(3)(ii). Despite the recommendations and endorsements submitted, it 
must be concluded that the beneficiary's achievements have not yet risen to this level. The type of 
sustained national or international recognition of accomplishments necessary for 0-1 classification has 
not been presented. Consequently, the beneficiary is not eligible for nonimmigrant classification 
under section 101(a)(15)(0) of the Act. For this reason, the petition may not be approved. 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely 
with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has not been met. Accordingly, the appeal will be 
dismissed. 
ORDER: The appeal is dismissed