dismissed O-1A Case: Physical Therapy

identifying data deleted to 
prevent clearly unwmnted 
invasion of personal privacy 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflee ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: WAC 09 800 02878 Office: CALIFORNIA SERVICE CENTER Date: 
MAY 1 7 2010 
PETITION: Petition for Nonimmigrant Worker Pursuant to Section 101(a)(15)(0) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 10 1 (a)(15)(0) 
ON BEHALF OF PETITIONER: SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $585. Please be aware that 8 C.F.R. 3 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
uerry Rhew 
Chief, Administrative Appeals Office 
WAC 09 800 02878 
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 AAO will summarily dismiss the appeal. 
The petitioner filed the nonimmigrant visa petition seeking classification of the beneficiary under section 
10 l(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 9 1 10 l(a)(15)(0)(i), as an alien with 
extraordinary ability in the sciences, art, education or business. The petitioner operates a nursing home and seeks 
to employ the beneficiary as a physical therapist for a period of 13 months. 
The director denied the petition on January 20, 2009, concluding that the petitioner failed to submit any of the 
required initial evidence in support of its petition, which was filed using the U.S. Citizenship and Immigration 
Services (USCIS) Electronic Filing (e-Filing) system.' 
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 states that it regrets its failure to submit 
the required documentation within seven business days of e-filing the petition, noting that it "just totally 
overlooked the said requirement." In support of the appeal, the petitioner submits: a completed Form 1-129 
requesting that the beneficiary be granted an amendment and extension of her existing H-1B status; H 
Classification Supplement to Form 1-129; H-1B Data Collection and Filing Fee Exemption Supplement; 
evidence that the beneficiary is maintaining H-1B status, an employer letter and the petitioner's 2007 
corporation tax return (IRS Form 1 120s). 
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, or, with regard to motion picture and television productions, a demonstrated record of extraordinary 
achievement, and 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 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 his field of endeavor. 8 C.F.R. 5 214.2(0)(3)(ii). 
The regulation at 8 C.F.R. 5 214.2(0)(3)(ii) defines, in pertinent part: 
Extraordinav ability in the Jield 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 evidentiary criteria for aliens of extraordinary ability in the fields of science, education, business or 
athletics are set forth at 8 C.F.R. 5 214.2(0)(3)(iii). In addition, all 0 nonimmigrant petitions must be 
accompanied by the evidence set forth at 8 C.F.R. 5 214.2(0)(2)(ii). 
1 Subsequent to the denial of the petition, the payment method used to pay the filing fee for the petition was 
rejected. The required fee was eventually collected from the petitioner on June 10, 2009. As the petition was 
already denied, the director's decision is not affected by the non-payment of the filing fee. New fees will be 
required with any new application or petition. See 8 C.F.R. 5 103.2(a)(7)(ii). 
WAC 09 800 02878 
Page 3 
The issue in this matter is whether the director appropriately denied the petition based on the petitioner's 
failure to submit the required initial evidence for the visa classification in support of its electronically filed 
petition. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, using the USCIS e-Filing system on 
December 23, 2008. The form instructions for Form 1-129 advise that if a petition is filed without the required 
initial evidence, the petitioner will not establish a basis for eligibility and USCIS may deny the petition. The 
instructions for electronic filing firther instruct the petitioner that the required initial evidence must be received 
by the Service Center within seven business days of filing the form electronically. 
Pursuant to 8 C.F.R. 3 103.2(a)(1), the instructions contained on a petition are to be given the force and effect of a 
regulation: 
Every application, petition, appeal, motion, request or other document submitted on the form 
prescribed by this chapter shall be executed and filed in accordance with the instructions on the 
form, such instructions (including where an application or petition should be filed) being hereby 
incorporated into the particular section of the regulations in this chapter requiring its 
submission.. . . 
The regulation at 8 C.F.R. 9 103.2(b)(l) states: 
An applicant or petitioner must establish that he or she is eligible for the requested benefit at the 
time of filing the application or petition. A11 required application or petition forms must be 
properly completed and filed with any initial evidence required by applicable regulations and/or 
the form's instructions. Any evidence submitted in connection with the application or petition is 
incorporated into and considered part of the relating application or petition. 
Finally, the regulation at 8 C.F.R. fj 103.2(b)(8)(ii) states, in pertinent part: 
Initial evidence. If all required initial evidence is not submitted with the application or petition 
or does not demonstrate eligibility, USCIS in its discretion may deny the application or petition 
for lack of initial evidence or ineligibility. . . . 
The director denied the p.etition on January 20, 2009, after waiting 23 days for submission of the required initial 
evidence, which, as noted above, was due within seven business days of the date of filing. While the regulations 
at 8 C.F.R. tj 214.2(0)(11) provide that no supporting documents are required when a petitioner seeks to extend 
the validity of a beneficiary's original 0-1 petition unless requested by the director, the instant petition was for 
new employment. Therefore, the AAO concludes that the director's decision to deny the petition based on lack of 
initial evidence was proper. 
On appeal, counsel requests that the AAO approve the petition based on the newly submitted documentation. As 
noted above, the petitioner has submitted an amended 1-1 29 Petition requesting that the beneficiary be granted an 
' 
WAC 09 800 02878 
Page 4 
extension of her H-1B status. The petitioner does not address, and the submitted evidence does not satisfy, any of 
the evidentiary requirements pertaining to 0-1 nonimmigrants. See 8 C.F.R. $9 2 14.2(0)(2)(ii ) and (0)(3)(iii). 
Regulations at 8 C.F.R. 5 103.3(a)(l)(v) state, in pertinent part: 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party 
concerned fails to identify specifically any erroneous conclusion of law or statement of 
fact for the appeal. 
On appeal, the petitioner does not identify an erroneous conclusion of law or statement of fact on the part of the 
director. Rather, the petitioner concedes that it simply overlooked the requirement that it promptly submit the 
required supporting evidence. Furthermore, the evidence submitted on appeal suggests that the petitioner likely 
intended to file an H-IB, rather than an 0-1, nonimmigrant petition. There is no statutory or regulatory 
provision allowing for the approval of the petitioner's request to amend the petition on appeal. 
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. Inasmuch as the petitioner has failed to identify 
specifically an erroneous conclusion of law or a statement of fact in support of the appeal, the petitioner has 
not sustained that burden. 
The denial of this petition is without prejudice to the filing of a new petition by the petitioner accompanied by the 
appropriate supporting evidence and filing fees. 
ORDER: The appeal is summarily dismissed.