dismissed O-1A Case: Management Consulting

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PUBLICCOP~
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE: WAC 06262 52536 Office: CALIFORNIA SERVICE CENTER Date:
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(15)(O)(i) ofthe Immigration and
Nationality Act, 8 U.S.C. § llOl(a)(l5)(O)(i)
ON BEHALF OF PETITIONER:
SELF-REPRESENTED
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.
~---/~6e-­it- ~~~~nn, Chief
! . Administrative Appeals Office
www.uscis.gov
WAC 06 26252536
Page 2
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is
now before the Administrative Appeals Office on appeal. The appeal will be dismissed.
The petitioner is a management consulting firm. The petitioner seeks 0-1 nonimmigrant classification of the
beneficiary, as an alien with extraordinary ability under section 101(aXI5)(OXi) of the Immigration and
Nationality Act (the Act), 8 U.S.C. § 11 OI(aXI5XOXi), in order to employ her temporarily in the United States as
a senior management consultant for a period of three years at an annual salary of $60,000.
The director denied the petition, finding that the petitioner failed to provide sufficient information regarding the
temporary project for which the petitioner requires the beneficiary's services.
On appeal, the petitioner submits an unsigned letter and a project schedule.
Section 101(aXI5XO)(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.
I. Event
The regulation directs that "[u]nder section 101(a)(15)(0) of the Act, a qualified alien may be authorized to
come to the United States to perform services relating to an event or events if petitioned for by an employer"
(emphasis added). 8 C.F.R. § 214.2(oXI)(i). Pursuant to 8 C.F.R. § 214.2(oX2)(ii)(C), petitions for 0 aliens
shall also be accompanied by an explanation of the nature of the events or activities, the beginning and ending
dates for the events or activities, and a copy of any itinerary for the events or activities.
The regulation at 8 ~.F.R. § 214.2(oX3)(ii) defines "event" as follows:
Event means an activity such as, but not limited to, a scientific project, conference,
convention, lecture series, tour, exhibit, business project, academic year, or engagement.
Such activity may include short vacations, promotional appearances, and stopovers which are
incidental and/or related to the event. A group of related activities may also be considered to
be an event.
On the 0 and P Classifications Supplement to Form 1-129, under "Explain the nature of the event," the
petitioner stated that it "has a project with Tobyhanna Army Depot in the Directorate of Engineering for the
Department of Defense to develop and install an enigneering [sic] workload management system."
The Form 1-129 petition includes this job description:
Must work with clients to ensure productivity and reduced cost goals can be achieved.
Position entails working with the client personnel to identify and analyze activities within
specific job categories to determine value added activities. Must be able to use this data to
WAC 06262 52536
Page 3
develop a set of metrics, graphs, supervisor controls and management reports that show
productivity and efficiency within the department. Also must be able to develop training
manuals and presentations to train the client personnel in the use and understanding of the
tools developed.
While the Form 1-129 indicate that the term of intended employment would be for three years, ending September
30, 2009, an "Employment Agreement" submitted with the petition stated: "The term of employment shall
commence on this 1sl day of October, 2006 and will remain in effect until terminated by either party hereto,
giving the other notice."
On October 10, 2006, the director issued a request for evidence (RFE), instructing the petitioner to submit, among
other things, "a complete itinerary for all events" including exact dates, and "evidence that the beneficiary has a
specified beginning and ending date of employment."
The next day, in response to the notice, the petitioner submitted an addendum to the Employment Agreement,
indicating that the term of employment "will remain in effect for a period of three years from [the] employment
commencement date, or until terminated by either party hereto, giving the other notice."
The director denied the petition on October 16, 2006, stating:
When a petition is filed for an alien of extraordinary ability in business, the petitioner must show
that the beneficiary is coming to the United States to perform services relating to an event or
events for an employer.
In this case, the petitioner has not explained the specifics of the proffered duties and how long it
would take the beneficiary to perform those duties. Further, the petitioner has not submitted an
itinerary; or defined a project or engagement.
The record does not establish that the beneficiary will be performing in a particular project.
There [are] no beginning or ending dates to the beneficiary's employment. Instead, the evidence
indicates that the beneficiary will be performing the usual duties of someone employed as a
management consultant.
On appeal, the petitioner submits an unsigned letter on the petitioner's letterhead. The letter reads, in part:
[The petitioner] is a global operations management consulting firm providing services to
multinational organizations in North America and Asia. Being primarily a private sector
consulting services provider, [the petitioner] is currently expanding into the US Government
sector through a long term contract with the Department of [the] Army. The contract awarded is
to provide services to Tobyhanna Army Depot. ...
Attached is a copy of the project schedule, with start and end dates, along with detailed activities
relating to the above summary.
WAC 06 262 52536
Page 4
The "Project Schedule," bearing the insignia of Tobyhanna Anny Depot, covers 18 weeks, from the week ending
October 13 to the week ending February 9 of the following year. The schedule does not specify the years
covered, but given the petition's September 15, 2006 filing date, it appears that the schedule covers the period
from October 2006 to February 2007. The petition may not be filed more than 6 months before the actual need
for the alien's services. 8 C.F.R. § 214.2(oX2)(i). Therefore, if the project schedule relates to any period
other than 2006-2007, then the petition was filed prematurely.
Because the project schedule covers only 18 weeks, it cannot justifY a three-year term of nonimmigrant status for
the beneficiary as requested. The final task shown on the schedule refers to "Phase 2," suggesting future activity
beyond the 18-week period shown, but the petitioner has submitted nothing about this future activity.
We concur with the director's decision. The petitioner failed to submit the requisite explanation and
documentation of the project or other event(s) which would require the beneficiary's services for the three­
year period requested pursuant to 8 C.F.R. § 214.2(0)(1)(i), (2)(ii)(C), (3)(ii).
II. Consultation
Beyond the decision of the director, review of the record reveals other serious deficiencies in the petition. An
application or petition that fails to comply with the technical requirements of the law may be denied by the
AAO even if the Service Center does not identifY all of the grounds for denial in the initial decision. See
Spencer Enterprises. Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd. 345 F.3d 683
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews
. appeals on a de novo basis).
8 C.F.R. § 214.2(0)(5)(i) 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.
(B) Except as provided in paragraph (0)(5)(iXE)1 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
I Paragraph (o)(5Xi)(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 06 262 52536
Page 5
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 ofthe group or organization.
8 C.F.R. § 214.2(0)(3Xii)states, in pertinent part:
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.
On the Form 1-129 0 and P Classifications Supplement, the petitioner identified the beneficiary's
"Recognized Peer Group" as the "United States Army Europe, 21st Theater Support Command." The
petitioner's initial submission included no advisory opinion from that entity or from any peer group.
The director, in the RFE, instructed the petitioner to submit "a consultation from an appropriate U.S. peer
group." In response, the petitioner submitted a copy of an electronic mail message from
Deputy General Manager ofthe General Support Center-Europe. ,tated:
There is no doubt in my mind that [the beneficiary] will excel in the position you hired her
for....
[The beneficiary) worked as a Local National employee with the General Support Center­
Europe (GSC-E) in Kaiserslautem Germany. The GSC-E is a subordinate organization of the
21 st Theater Support Command, United States Army Europe.
While raises the beneficiary's past work for GSC-E, _does not describe the
beneficiary's ability and achievements in her field beyond her work for GSC-E, does not describe the nature
of the duties to be performed for the petitioner and does not state whether the position requires an alien of
extraordinary ability. Accordingly, _ electronic mail message does not constitute a consultation
pursuantto 8 C.F.R. § 214.2(oX5Xii)(A).
Furthermore, the beneficiary is a management consultant by occupation. The regulation defines a peer group
as a group or organization with expertise in the alien's specific field and which is comprised of practitioners
of the alien's occupation. 8 C.F.R. § 214.2(0)(5Xi)(C), (oX3)(ii). Accordingly, in this proceeding, the peer
group must be comprised of management consultants. The petitioner has not demonstrated that the GSC-E of
the United States Army is an organization with expertise in the field of management consulting. Therefore,
we find that the petitioner has not submitted the required advisory opinion from a United States peer group.
III. Extraordinary Ability
Finally, we note that the 0-1 nonimmigrant classification is reserved for aliens of extraordinary ability.
8 C.F.R. § 214.2(oX3Xii)defines "extraordinary ability," in pertinent part, as follows: "Extraordinary ability in
WAC 06 262 52536
Page 6
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."
8 C.F.R. § 214.2(oX3Xiii)states:
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 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 m the field, m
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.
WAC 06 262 52536
Page 7
(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.
When the petitioner first filed the petition, the petitioner never explained how the beneficiary supposedly
qualifies as an alien of extraordinary ability. Indeed, the petitioner's initial submission consisted of little
more than the petition form and the employment agreement.
When the director issued the RFE on October 10,2006, the director requested "evidence that the beneficiary
has sustained national or international acclaim." Relating to this requirement, the director listed, and
described in great detail, the regulatory, evidentiary requirements cited above. Pursuant to 8 C.F.R.
§ 103.2(b )(8), the director allowed the petitioner 12 weeks to collect and submit evidence in response to the RFE.
The petitioner's response consisted of copies of _ electronic mail message, the petitioner's letter to
_and the addendum to the Employment Agreement. None of these documents are sufficient to
establish the beneficiary's eligibility under any ofthe requisite evidentiary criteria at 8 C.F.R. § 214.2(0)(3)(iii).
Despite having had two opportunities to do so (in the initial filing, and then in response to the RFE), the petitioner
has never submitted any evidence that the beneficiary is an alien of extraordinary ability, nor has the petitioner
even expressly claimed as much (beyond the implied claim inherent in the petitioner's filing of an 0-1 petition).
The petitioner's evident failure to offer any evidence of the beneficiary's extraordinary ability and sustained
acclaim is, by itself, a fatal flaw beyond which the petition cannot progress, even if there were no other problems.
The petitioner has indicated that the beneficiary would work on an 18-week project, during which she would
apparently be performing the routine duties of a management consultant. The.petitioner has not established that
the beneficiary's services are needed for a qualifying project or other event (or events) for the duration of the
three-year term of employment specified on the Form 1-129. The record also does not contain the requisite peer
group advisory opinion. Finally, the petitioner has failed to establish that the beneficiary is an alien of
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. Consequently, the petitioner has not demonstrated that the beneficiary is eligible for
nonimmigrant classification under section 101(a)(15)(0) of the Act and the petition cannot be approved.
The appeal will be dismissed 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. § 1361. The petitioner has not sustained that
burden.
ORDER: The appeal is dismissed.