dismissed O-1A Case: Business

PUBLIC COPY 
iddQing data delcted'to 
pvmt clearly unwaniimted 
U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: WAC 06 197 52823 Office: CALIFORNIA SERVICE CENTER Date: 
PETITION: 
 Petition for a Nonimmigrant Worker under Section 1 0 1 (a)( 1 5)(0)(i) of the Immigration and 
Nationality Act, 8 U.S.C. $ 1 101(a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
Thls 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. Wiemann, C 'ef 
* 
Q 
Administrative Appeals Office 
WAC 06 197 52823 
Page 2 
DISCUSSION: The nonimmigrant visa petition was denied by the Director, California Service Center, and is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is self-described as a major distributor of "skin care products and services." It seeks to employ the 
beneficiary as its vice president for rnarketinglsales in Russia and Ulu-aine. The company 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), as an alien with extraordinary ability in business. 
The director denied the petition concluding that the record as presently constituted fails to establish that the 
beneficiary has been recognized as one of the small percentage of persons at the very top of the field of business. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO for review. On appeal, the petitioner asserts that the director erred and that the beneficiary 
is a celebrity who qualifies as an alien with extraorhary ability in business. 
Section 10 1 (a)(15)(0)(i) of the Act provides classification to a qualified alien who has extraordmry 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 issue raised by the director in this proceeding is whether the petitioner has shown that the beneficiary 
qualifies for classification as an alien with extraordinary ability in business as defined by the statute and the 
regulations. 
The regulation at 8 C.F.R. § 2 14.2(0)(3)(ii) defines, in pertinent part: 
Extraordinary ability in theJield 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. 5 2 14.2(0)(3)(iii) states, in pertinent part, that: 
Evidentiary criteria for an 0-1 alien of extraordinary ability in thejelds 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 
WAC 06 197 52823 
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(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 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 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 hstinguished 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 reahly apply to the beneficiary's 
occupation, the petitioner may submit comparable evidence in order to establish the beneficiary's 
eligibility. 
The regulation at 8 C.F.R. 9 2 14.2(0)(5)(i)(A) requires, in pertinent part: 
WAC 06 197 52823 
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Consultation with an appropriate U.S. peer group (which could include a person or persons with 
expertise in the field), labor andlor 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. 
As a threshold issue, counsel on appeal raises the issue of the standard of proof in these proceedings. It is 
therefore noted that in visa petition proceedings, the burden is on the petitioner to establish eligibility for the 
benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The petitioner must prove by a 
preponderance of evidence that the beneficiary is fully qualified for the benefit sought. Matter of Martinez, 
21 I&N Dec. 1035, 1036 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of Soo Hoo, 1 1 
I&N Dec. 15 1 (BIA 1965). As discussed herein and for the reasons given below, the petitioner has failed to 
establish by a preponderance of the evidence that the beneficiary is hlly qualified as an alien with 
extraordinary ability in business. 
The record consists of a petition with supporting documentation, a request for additional evidence (RFE) and the 
petitioner's reply, the director's decision, an appeal and letter and additional evidence supporting the appeal. 
There is no evidence that the beneficiary has received a major, internationally recognized award equivalent to that 
listed at 8 C.F.R. 5 214.2(0)(3)(iii)(A). Further, the record does not demonstrate that the beneficiary has met at 
least three of the criteria at 8 C.F.R. 5 214,2(0)(3)(iii)(B). On appeal, counsel fails to address any of the criteria 
outlined in the regulations. Instead, counsel argues that the petitioner "needs" the beneficiary's services, that the 
beneficiary is qualified for the position, and that the beneficiary is a "celebrity." 
For criterion number one, the petitioner submits newspaper or magazine articles that indicate that the 
beneficiary was previously crowned Miss Hawaiian Tropic International. Although the director specifically 
requested this type of evidence in the RFE, the petitioner did not submit these 2005 articles as part of its 2006 
RFE response and instead submits them for the first time on appeal. The regulation states that the petitioner 
shall submit additional evidence as the director, in his or her discretion, may deem necessary. The purpose of 
the request for evidence is to elicit further information that clarifies whether eligibility for the benefit sought 
has been established, as of the time the petition is filed. See 8 C.F.R. 58 103.2(b)(8) and (12). The failure to 
submit requested evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 
C.F.R. 5 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and has been given an 
opportunity to respond to that deficiency, the AAO will not accept evidence offered for the first time on 
appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 
(BIA 1988). If the petitioner had wanted the submitted evidence to be considered, it should have submitted 
the documents in response to the director's request for evidence. Id. Under the circumstances, the AAO need 
not and does not consider the sufficiency of the evidence submitted on appeal. 
WAC 06 197 52823 
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However, even if the AAO were to consider this evidence, such an award does not demonstrate that the 
beneficiary has received nationally or internationally recognized prizes or awards for excellence in her field of 
endeavor, i.e., the marketing and sales of slun care products and services. 
For criterion number two, the record contains no evidence which demonstrates the beneficiary'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. 
For criterion number three, the record contains no evidence to establish that there has been published material 
in professional or major trade publications or major media about the beneficiary alien, relating to her work in 
the field for which classification is sought. First, as noted above, the only articles submitted were done so in 
support of the appeal instead of in response to the director's RFE in wlvch this evidence was specifically 
requested. As such, the AAO will not consider this evidence for any purpose. Id. The appeal will be 
adjudicated based on the record of proceeding before the director. Second, the petitioner has not established 
that these articles were published in professional or major trade publications in the field of marketing or sales. 
Instead, the articles appear to have been published in local Canadian newspapers and tabloid magazines. In 
addition, the articles do not address the alien's work in the field of marketing and sales and focus instead on 
the beneficiary's appearance on A-Channel and ABC's The Bachelor as well as rumors regarding her social 
life and relationships. As such, this evidence, even if properly submitted, fails to meet the requirements of 
criterion number three. 
For criterion number four, the record contains no evidence which documents the beneficiary'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. 
number five, the record contains letters attesting to the value of the beneficiary's work. = 
, principal of the Madonna Catholic School in Sherwood Park, Alberta, Canada, indicates that the 
beneficiary's "performance as a Ukrainian Bilingual Educational Assistant as well as a Ukrainian translator 
for the Bilingual Ukrainian children 
 ing" and that she "was an exceptional representative to our 
School Association." A letter from 
 the ownedfounder of Hawaiian Tropic Canada, Tanning 
Research Labs., Inc., states that the beneficiary "has proven, through her excellent professional skills and 
leadership, that she was able to promote our brand right across Canada" and that she "assisted in organizing 
sales and marketing meetings to prospect these markets and promot[e] our product in various aspects." The 
letters, however, do not indicate that the beneficiary's contributions were original and that they were of a 
major significance to her field of endeavor. 
WAC 06 197 52823 
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For criterion number six, the record contains no evidence of the alien's authorship of scholarly articles in the 
field, in professional journals, or other major media. 
For criterion number seven, the regulation clearly requires evidence that the alien has been employed in a critical 
or essential capacity for organizations and establishments that have a distinguished reputation. In ths instance, 
the petitioner fails to provide any evidence which establishes that the beneficiary has ever been employed in a 
critical or essential capacity for an organization or establishment that has a distinguished reputation. Specitically, 
the only apparent work experience the beneficiary possesses in the field of marketing and sales was with 
Hawaiian Tropic Canada. The letter provided by that employer only indicates that the beneficiary was part of the 
Hawaiian Tropic Canada team and fails to indicate the critical or essential nature of her duties with this company. 
Moreover, no evidence has been provided to establish that Hawaiian Tropic Canada is an organization or 
establishment that has a distinguished reputation in the field of business or, in particular, in sales and marketing. 
For criterion number eight, although the Form 1-129 petition indicates that the beneficiary will earn an annual 
salary of $50,000 per year, the record contains no documentary evidence of the beneficiary's salary history or 
salary surveys to determine whether such a salary is considered high in comparison to others in the beneficiary's 
field of endeavor. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Matter of Sofici, 22 I&N Dec. 1 5 8, 1 65 (Cornm. 1 998) (citing 
Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Cornm. 1 972)). 
Although the issue of comparable evidence was not specifically addressed by counsel or the petitioner, it appears 
that counsel is seeking to have the beneficiary's language skills considered as evidence of her extraordinary ability 
in the chosen field of endeavor. First, while it is true that the regulation at 8 C.F.R. § 214.2(0)(3)(iii)(C) permits 
"comparable evidence" where the eight criteria do not "readily apply" to the alien's occupation, the petitioner has 
not shown how these criteria fail to readily apply to the beneficiary's occupation. Regardless, the regulation 
neither states nor implies that language skills are "comparable" to the strict documentation requirements in the 
regulations setting forth the eight criteria. Second, the petitioner has still failed to establish that the beneficiary's 
knowledge of Ukrainian and Russian are exceptional or that these slulls qualifi her as an alien of extraordinary 
ability in business. To the contrary, the University of Alberta records submitted on appeal appear to indicate that 
the beneficiary has only taken one 200 level course, "The Ukrainian -Speaking World I." The record otherwise 
fails to document her knowledge above that of a general speaker of the language. 
The extraordinary ability provisions of this visa classification are intended to be highly restrictive. See 137 
Cong. Rec. S 18247 (daily ed., Nov. 16, 1991). In order to establish eligibility for extraordinary ability, the 
statute requires evidence of "sustained national or international acclaim" and evidence that the alien's 
achievements have been recognized in the field of endeavor through "extensive documentation." The 
petitioner has not established that the beneficiary's abilities have been so recognized. In order to establish 
WAC 06 197 52823 
Page 7 
eligibility for 0-1 classification, the petitioner must establish that the beneficiary is "at the very top" of her 
field of endeavor. 8 C.F.R. 5 214.2(0)(3)(ii). The beneficiary's achievements have not yet risen to this level. 
Finally, on appeal, counsel requests an oral hearing before the AAO "if necessary" to establish the 
beneficiary's eligibility for the benefit sought. The regulations provide that the requesting party must explain 
in writing why oral argument is necessary. Furthermore, Citizenship and Immigration Services has the sole 
authority to grant or deny a request for oral argument and will grant argument only in cases involving unique 
factors or issues of law that cannot be adequately addressed in writing. See 8 C.F.R. 
 103.3(b). In this 
instance, counsel identified no unique factors or issues of law to be resolved. In fact, counsel set forth no 
specific reasons why oral argument should be held. Moreover, the written record of proceedings fblly 
represents the facts and issues in this matter. Consequently, the request for oral argument is denied. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. 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. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.