dismissed O-1A Case: Engineering

U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: WAC 06 187 51596 Office: CALIFORNIA SERVICE CENTER Date: SEP 19 2007
identifyingdatadeletedto
preventclearlywtwllTlllted
Invasionofpenonal privacy
PUBLICCOpy
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(l5)(O)(i) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(15)(O)(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.
~~~-~:rtP."~ann, Chief
, Administrative Appeals Office
www.uscis.gov
WAC 0618751596
Page 2
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner engages in real estate development, general contracting, real estate sales and architectural design.
The petitioner seeks 0-1 nonimmigrant classification of the beneficiary, as an alien with extraordinary ability
under section 101(aX15XOXi) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(l5XO)(i), in
order to employ him temporarily in the United States as an engineer supervisor for a period of three years at an
annual salary of $60,000.
The director denied the petition because the petitioner had failed to file a complete petition, including an 0 and P
Classifications Supplement and a peer group advisory opinion.
On appeal, the petitioner submits a brief from counsel, new documents, and copies of previously submitted
materials.
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 extraordinary ability. 8 U.S.C. § 1101(a)(15)(0)(i).
An application or petition form must be completed as applicable and filed with any initial evidence required by
regulation or by the instructions on the form. 8 C.F.R. § I03.2(b)(1). See also 8 C.F.R. § 103.2(a)(I).
The instructions to Form 1-129, Petition for a Nonimmigrant Worker, state on page 2 that the petitioner must
"Complete the basic form and any relating supplement." The instructions list the various supplements,
including the 0 and P Classifications Supplement. On page 7, the instructions state that an 0-1 petition "must
be submitted with ... [a] written consultation from a peer group or labor management organization with
expertise in the field. If the above item cannot be obtained, the consultation can be from a person of your (the
employer's) choosing with expertise in the alien's area of ability[.]"
The 0 and P Classifications Supplement (hereafter "Supplement") calls for basic information that is necessary for
a proper adjudication of the visa petition, such as, for instance, the nature of the work that the beneficiary is to
perform in the United States, and the name of the recognized peer group providing a written advisory consultation
regarding the petition. Pursuant to the instructions quoted above, the Supplement is considered an integral part of
the 1-129 petition form, and a petition submitted without the Supplement is therefore necessarily incomplete.
8 C.F.R. § 214.2(o)(5Xi) reads, in pertinent part:
(A) 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
an 0-1 or 0-2 classification can be approved.
WAC 06 18751596
Page 3
(B) Except as provided in paragraph (o)(5)(i)(Ei of this section, evidence of consultation
shall be in the form of a written advisory opinion from a peer group (which could include a
person or persons with expertise in the field), labor and/or management organization with
expertise in the specific field involved.
(C) Except as provided in paragraph (0)(5)(i)(E) of this section, the petitioner shall obtain a
written advisory opinion from a peer group (which could include a person or persons with
expertise in the field), labor, and/or management organization with expertise in the specific
field involved. The advisory opinion shall be submitted along with the petition when the
petition is filed.... Advisory opinions must be submitted in writing and must be signed by an
authorized official of the group or organization.
The regulation at 8 C.F.R. § 214.2(o)(3)(ii) prescribes the following pertinent definition:
Peer group means a group or organization which is comprised of practitioners of the alien's
occupation. If there is a collective bargaining representative of an employer's employees in
the occupational classification for which the alien is being sought, such a representative may
be considered the appropriate peer group for purposes of consultation.
A cover letter from counsel, submitted at the time of filing, indicated that the initial submission included the
Supplement. The record, however, does not contain the Supplement. Counsel's cover letter said nothing about
the required U.S. peer group advisory opinion, and nothing in the initial submission identified the U.S. peer group
that would provide the advisory opinion. Therefore, pursuant to 8 C.F.R. § 103.2(b)(8), the director issued a
request for evidence (RFE) on June 15, 2006, instructing the petitioner to submit, among other things, a
completed Supplement and the required evidence of "consultation from the national office [ot] an appropriate
labor union" or "an appropriate U.S. peer group."
The petitioner, through counsel, responded to the RFE. The RFE response does not include the required
Supplement or U.S. peer group advisory opinion, and counsel's five-page cover letter, including a list of materials
accompanying the RFE response, does not mention the Supplement or the advisory opinion or the director's
instruction to submit those materials. The titioner did submit, in an unrelated context back ouod
documentation about the
headquartered in Chantilly, Virginia, with "98 chapters throughout the United States, Canada, Australia and
Brazil." The petitioner's initial submission included a letter from ~a Silva, Executive Vice
President of_I Brazilian chapter, attesting to the beneficiary's role in various projects that had won
_awards.
The director denied the petition on July 19, 2006, citing the petitioner's failure to submit the mandatory peer
group consultation and the required Supplement. On· appeal, counsel asserts that the petitioner had already
submitted the Supplement and evidence of consultation with the initial filing. As we have already noted, the
I Paragraph (o)(5)(i)(E) does not apply in this proceeding; the cited paragraph applies only "where the alien will be
employed in the field of arts, entertainment, or athletics, and the Service has determined that a petition merits expeditious
handling."
WAC 0618751596
Page 4
record does not show that any Supplement was included with the initial filing. The petitioner submits, on appeal,
a photocopy of a Form 1-129, including the Supplement, which identifies the "Recognized Peer Group" as
-Counsel acknowledges that no Supplement accompanied the RFE response. Where 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 ofSoriano, 19 I&N Dec. 764,
766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 1988). We must, therefore, examine
counsel's assertion that the petitioner had included the Supplement in its initial filing. If there were credible
evidence that the petitioner did, indeed, submit the Supplement with the initial filing, then we could properly
consider the newly-submitted Supplement as a replacement for a document previously filed. If, on the other
hand, doubt were to arise as to the provenance of the newly-submitted Supplement, this would in tum cast
doubt on counsel's claim that the petitioner submitted the form previously.
The appeal does not include any objective evidence that the Supplement reproduced on appeal was ever
previously submitted. In fact, the record suggests the opposjte. The original Form 1-129 petition, stamped as
having been received on May 22, 2006, used the October 26, 2005 revision of the petition form. At the bottom
right comer of every page is the legend "Form 1-129(Rev. 10126/05)Y." Pages 3 and 4 of the photocopied Form
1-129 submitted on appeal, however, show a different revision date: "(Rev. 04/01/06)." Therefore, the photocopy
does not match the original from which it was supposedly made. The Supplement submitted on appeal also
shows a revision date of April 1,2006, which matches the newly-submitted copy of pages 3 and 4, but does not
match the petition as originally filed.
Beyond the revision dates, some information that appeared on the original Form 1-129, both handwritten and
computer printed, is either different in appearance or missing from the new copy. For example, telephone
numbers shown on under Parts 6 and 7 of the original Form 1-129 are provided without spaces between the digits
(e.g., "0050"). On the copy submitted on appeal, there are spaces between every digit (e.g., "0 0 5 0"). As
another example, under "Type of Business" on Part 5, line 10, the original Form 1-129 includes a handwritten
description. On the copy, the line is blank. There are other differences as well.
The variations between the original and photocopied Forms 1-129 prove beyond any doubt that the copies of
pages 3 and 4 submitted on appeal were not photocopied from the corresponding pages ofthe petitioner's original
Form 1-129. Rather, the copies were re-created.
Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency
of the remaining evidence offered in support of the visa petition. Matter ofBo, 19 I&N Dec. 582, 591 (BIA
1988). Because it is a demonstrable fact that at least some of the petition documents reproduced on appeal were
not photocopied from the previously submitted originals, we have no confidence that the photocopied
Supplement submitted on appeal was, in fact, copied from an original that was duly submitted but that somehow
disappeared from the record. We conclude that the petitioner has not credibly demonstrated that the initial filing
included the required Supplement.
WAC 06 18751596
Page 5
As for the advisory opinion, counsel maintains that such a document has been in the record all along, although it
was not until the appeal that counsel actually identified it as such. As noted above, the Supplement submitted on
appeal identifies as the beneficiary's "Recognized Peer Group." The original submission included a
letter from an official o~Brazilian chapter.
8 C.F.R. § 214.2(0)(5)(i)(A) requires consultation with an appropriate u.s. peer group. Counsel argues,' on
appeal, that international headquarters is in the United States and therefore SMACNA is a "U.S.
peer group" even if some of its offices are overseas. A letter from a Brazilian organization, however, is not
from "a U.S. peer group," even if it is affiliated with an organization in the United States.
The petitioner submits, on appeal, a letter from Executive Director of Market
Sectors, who states: "As a matter of policy, _ does not attest to or offer comments/objections with regard
to individuals in the industry since members are employers. The~ takes no position
with regard to [the beneficiary's] qualifications." This letter indicates that _has, in effect, refused to
provide a peer group consultation. We note that. letter is dated July 26, 2006, a week after the denial
of the petition, and therefore the letter represents an attempt to obtain required initial evidence at an unacceptably
late stage in the proceedings.
We find that the petitioner, prior to the denial, failed to submit the required advisory opinion from a United States
peer group, and that on appeal, the petitioner has simply identified an organization that refuses to act as a United
States peer group.
With regard to the petitioner's failure to submit the required evidence in response to the RFE, counsel states:
the RFE demanded . . . the previously submitted advisory opinion and "0" form in bold and
eight-point type set ...physically below the main ten-point heading of "comparable evidence."
Because the other two items had been previously submitted . . . and because the demand was.
placed ostensibly under the heading of "comparable evidence" - and since these documents are
otherwise "initial evidence" and preliminary processing had already begun, Petitioner deemed
this demand redundant and/or "optional."
After the denial but prior to filing the appeal, counsel sent an inquiry by electronic mail to the California Service
Center. The petitioner incorporates this message into .the record by submitting a copy on appeal. In that message,
counsel stated that the placement within the RFE of the requests for the Supplement and advisory opinion
amounted to "stealth." In that message, counsel again alleged that the relevant portion of the RFE was in a
smaller typeface. Counsel did not claim that the typeface was illegibly small, nor did counsel cite any authority
that would lead counsel to believe that specific evidentiary requests in a small typeface are inherently "optional"
in relation to other requests in a larger typeface.
Because part of counsel's appellate argument rests on the assertion that the format of the RFE was confusing or
misleading, we will examine the RFE here. Most of the RFE is devoted to the detailed evidentiary requirements
set forth at 8 C.F.R. § 214.2(0)(3)(iii)(B). The director first listed eight types of evidence, corresponding to the
eight subsections of the aforementioned regulation, followed by these concluding passages:
WAC 0618751596
Page 6
9) Comparable Evidence.
If the preceding criteria do not readily apply to the beneficiary's occupation, the petitioner may
submit comparable evidence in order to establish the beneficiary's eligibility.
Additional Evidence:
[NOTE: Only one advisory OpInIOn from a labor organization is required for aliens of
extraordinary ability in the fields of science, education, business, and athletics. However, if an
appropriate labor organization does not exist then an advisory opinion from a peer group is
sufficienti
Consultation: Provide a consultation from the national office [of] an appropriate labor union.
Consultation: Provide a consultation from an appropriate U.S. peer group.
Contracts: Provide a copy of any written contracts between the petitioner and the beneficiary or,
if there is no written contract, a summary of the terms of the oral agreement under which the
alien will be employed.
Submit a completed "0 and P Classifications Supplement to Form 1-129f']
We note that the instructions in the RFE to "Provide a consultation from an appropriate U.S. peer group" and
"Submit a completed '0 and P Classifications Supplement to Form 1-129" are in the same size font as the other
evidentiary descriptions listed in the RFE (some section headings use a bold font for emphasis). These
instructions appear at the end of a four-page RFE, but the director never stated or implied that the various
instructions had been ranked in order of importance or that any of the instructions were "optional." Citizenship
and Immigration Services cannot be responsible for counsel's unwarranted presumption that the last instructions
listed in the RFE were somehow less important or mandatory than those preceding them.
The bold-face heading "Comparable Evidence" does appear half a page above the references to the Supplement
and the advisory opinion, but that heading refers to the "comparable evidence" clause at 8 C.F.R.
§ 214.2(0)(3XiiiXC), which permits the submission of comparable evidence when the eight listed evidentiary
criteria at 8 C.F.R. § 214.2(oX3XiiiXB) are not applicable to the beneficiary's occupation. The requirements
relating to submitting an advisory opinion and a complete petition form are contained in different sections of the
regulations. Counsel's purported confusion as to the format of the RFE does not relieve the petitioner of its
burden of proof.
2 The brackets around this paragraph are the director's. The other brackets in the quoted passage denote the AAO's
inserted grammatical or typographical corrections.
-------------------------------------------------------'
WAC 06 18751596
Page 7
Counsel notes, on appeal, that the director's denial did not discuss the regulatory criteria related to a finding of
extraordinary ability. Counsel therefore concludes that the director has conceded the beneficiary's eligibility in
this regard. We disagree with this assessment. The burden of proof is on the petitioner to establish eligibility, not
on the director to rebut any supposed presumption of eligibility. Therefore, the director's silence on the issue
should not be construed as an implicit finding of eligibility. Because the petitioner never properly filed the
petition, there was no basis to proceed with adjudication on the merits. The AAO will not make an initial finding
on the merits at this late stage. Even a favorable determination, were the AAO so inclined, would still not negate
or overcome the director's stated grounds for denial.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.c. § 1361.
The petitioner has not sustained that burden. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.