dismissed O-1A Case: Psychotherapy

.
U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATfER OF C-8-S-, INC. DATE: APR. 19,2018 
APPEAL OF VERMONT SERVICE CENTER DECISION 
PETITION: FORM 1-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, an outpatient mental health clinic, seeks to temporarily employ the Benefi ciary as a 
psychotherapist. To do so, the Petitioner seeks an extension of his status as an 0-l nonimmigrant, 1 a 
visa classification available to foreign nationals who can demonstrate their extraordinary ability 
through sustained national or international acclaim and whose achievement s have been recognized in 
the tield through extensive documentation. See Immigration and Nationality Act (the Act) 
section I 0 I (a)( 15)(0)( i), 8 U.S.C. ~ II 0 I (a)(15)(0)(i). 
The Director of the Vermont Service Center denied the petitiOn, concluding that the Petitioner 
offered inconsistent information regarding the Beneficiary's terms of employment under 8 C.F.R. 
§ 214.2(o)(2)(ii)(B). 
On appeal, the Petitioner contends that it provided a proper employment agreement, that the Director 
applied an incorrect legal standard, and that the Beneficiary meets the regulatory requirements tor 0-1 
classification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
As relevan~ here, section 101 (a)( 15)(0)(i) of the Act establishes 0- I classification for an individual who 
has extraordinary ability in the sciences, arts, education, business, or athletics that has been 
demonstrated by sustained national or international acclaim, whose achievements have been recognized 
in the tield through extensive documentation, and who seeks to enter the United States to continue work 
in the area of extraordinary ability. Department of Homeland Security (DHS) regulations include the 
following detinition: "Extraordinary ability in the tield 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(o)(3)(ii). 
1 The Petitioner's most recent prior 0 -1 petition on behalf of the Beneficiary 
October 3 I, 20 16. 
\vas· approved on 
Mauer rifC-8-S-. Inc. 
Next, DHS regulations set forth the initial evidentiary criteria for establishing a beneficiary's sustained 
acclaim and the recognition of achievements. 8 C.F.R. § 214.2( o )(3)(iii). First, a petitioner can 
demonstrate a beneficiary's sustained acclaim and the recognition of the individual's achievements in 
the field through evidence of a major, internationally recognized award, such as the Nobel Prize. 
8 C.F.R. ~ 214.2(o)(3)(iii)(A). If the petitioner does not submit this evidence, then it must submit 
sufficient qualifying evidence that meets at least three of the eight categories of evidence listed at 
8 C. F.R. § 214.2( o )(3)(iii)(B)( I )-(8). l f the petitioner demonstrates that the criteria in paragraph 
(o)(3)(iii) of this section do not readily apply to the beneficiary's occupation, it may submit comparable 
evidence in order to establish the individual's eligibility. 8 C.F.R. § 214.2(o)(3)(iii)(C). 
The submission of documents satisfying the initial evidentiary criteria aoes not, in and of itself 
establish eligibility for 0-1 classification. See 59 Fed. Reg. 41818, 41820 (Aug. 15, 1994) ("The 
evidence submitted by the petitioner is not the standard for the classification, but merely the 
mechanism to establish whether the standard has been met."). Accordingly, where a petitioner 
provides qualifying evidence satisfying the initial evidentiary criteria, we will detem1ine whether the 
totality of the record and the quality of the evidence shows extraordinary ability under section 
IOI(a)(IS)(o)(i) of the Act and 8 C.F.R. § 214.2(o)(3)(ii), (iii).2 
Furthermore, an 0-1 petition "may only be tiled by a United States employer, a United States agent, 
or a foreign employer through a United States agent." 8 C.F.R. § 214.2(o)(2)(i). In addition, the 
petition must be accompanied by copies 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 individual will be employed. 8 C.F.R. § 214.2(o)(2)(ii)(B). Finally, the regulation at 
8 C.F.R. § 214.2(o)(2)(iv)(E) imposes the following requirements on petitions filed by United States 
agents: 
Agents as petitioners. A United States agent may tile a petition in cases involving 
workers who are traditionally self~employed or workers who use agents to arrange 
short-tenn employment on their behalf with numerous employers, and in cases where 
a foreign employer authorizes the agent to act in its behalf. A United States agent 
may be: The actual employer of the beneficiary; the representative of both the 
employer and the beneficiary; or a person or entity authorized by the employer to act 
lor, or in place ol; the employer as its agent. A petition tiled by an agent is suqject to 
the following conditions: 
(I) An agent performing the function of an employer must provide the contractual 
agreement between the agent and the beneficiary which specifles the wage 
offered and the other terms and conditions of employment of the beneficiary. 
2 See also Maller ofChawarhe, 25 I&N Dec. 369,376 (AAO 2010), in which we held that, "truth is to be determined not 
by the quantity of evidence alone but by its quality." 
2 
Mul/erolC-B-S-. Inc. 
(2) A person or company in business as an agent may 'tile the petition involving 
multiple employers as the representative of both the employers and the 
beneficiary, if the supporting documentation includes a complete itinerary of the 
event or events. The itinerary must specify the dates of each service or 
engagement, the names and addresses of the actual employers, and the names and 
addresses of the establishments, venues or locations where the services will be 
performed. A contract between the employers and the beneficiary is required. 
The burden is· on the agent to explain the terms and conditions of the 
employment and to provide any required documentation. 
(3) A foreign emplo)•er who, through a United States agent, Iiles a petition for an 0 
nonimmigrant alien is responsible for complying with all of the employer 
sanctions provisions of section 274A of the act and 8 CFR part 274a. 
II. ANALYSIS 
A. Nature of Proposed Employment 
We will first address the Director's finding that the Petitioner offered inconsistent information 
regarding the Beneficiary's terms of employment under 8 C.F.R. § 214.2(o)(2)(ii)(B). The petition 
indicates that the Petitioner is seeking to employ the Beneficiary on its premises as a psychotherapist 
for a period of one year at a weekly wage of $1,400.00 plus "standard benefits." An. April 2017 
"Purchase of Service Agreement" (PSA) accompanying the initial filing identifies the Beneficiary as 
the "Contractor" and states that she will be paid "for services rendered in accordance with the rate of 
$40.00 per hour." 3 In addition, the PSA explains that "[a]s an independent contractor," the 
Beneficiary "is not eligible for the benefits provided to [the Petitioner's] employees, including, but 
not limited to, fringe benefits ... , health insurance, workers' compensation, unemployment 
compensation or any other employee benefit." The PSA further states that the Beneficiary "reserves 
the right to work for other organizations or agencies at any time during the duration of this 
Agreement." 
The Director issued a request for evidence (RFE) advising 'the Petitioner that the record "contains 
discrepant and conflicting information regarding the terms of the Beneficiary's employment." For 
example, the Director noted that while the petition stated the Beneficiary would receive "standard 
benefits," the PSA indicated that as a contractor, she was "not eligible for the benefits provided to 
[the Petitioner's] employees." Additionally, the RFE mentioned the clause of the PSA indicating 
that the Beneficiary "reserves the right to work for other organizations or agencies at any time during 
the duration of this Agreement'' despite the information listed on the petition indicating that the 
Beneficiary would be working "full-time" and not "off-site at another company or organization's 
location." Based on this information, the Director concluded it was "not evident from [the PSA J 
3 
Part D of the PSA states that it does not ·'create an employer-employee relationship between [the Petitioner] and 
Contractor. Contractor is an independent contractor and not an employee of[ the Petitioner]:· 
1 
Mauer of C-B-S-, Inc. 
whether [the Petitioner] is the Beneficiary's employer or acting as an agent on behalf of the 
Beneficiary and her employer(s)." 
The RFE explained that the PSA was "not sufficient . to demonstrate the contractual agreement 
between [the Petitioner], the Beneticiary, and other employers" and advised the Petitioner of the 
evidentiary requirements for agents set forth at 8 C.F.R. § 214.2(o)(2)(iv)(E). In addition, it afforded 
the Petitioner an opportunity to submit further documentation demonstrating the terms of the 
Beneficiary's employment and to provide a "written statement that addresses the discrepant and 
conflicting terms of the Beneliciary's employment." 
In response, the Petitioner offered a July 2017 "Employment Agreement" between the Petitioner and 
Beneficiary indicating that she would be paid "a salary at the rate of $1,400 per week" and that 
benefits such as "life insurance and health and dental" plans would be available to her. This new 
agreement states that the Beneticiary "is an employee of [the Petitioner]." A July 17, 2017 letter 
accompanying the Petitioner's response to the RFE contends that "[t]he contract previously provided 
has been a generic contract that is not applicable to the Beneticiary." 
The Director denied the petition, stating: "This new employment agreement has significantly 
changed the terms of employment from the [PSA] you submitted in the initial tiling. Whereas the 
initial filing indicated that the Beneticiary is "not an employee of [the Petitioner]," you now assert 
that the Beneficiary is an employee .... " Citing to Matter of lzummi, 22 l&N Dec. 169, 175 
(Comm'r 1998), the Director noted that a petitioner may not make material changes to a petition that 
has already been tiled in an cflort to make an apparently deficient petition conform to USCIS 
requirements. In addition, the denial decision indicated that the Petitioner provided "conflicting and 
discrepant information regarding the Beneficiary's terms of employment in the United States" and 
that these discrepancies "have not been explained satisfactorily." The Director further concluded 
that the record did not show whether the Petitioner was "the Beneficiary's direct employer or acting 
as an agent on behalf of the Beneficiary and her employers." 
On appeal, the Petitioner asserts that the July 2017 Employment Agreement establishes that the 
petitioning organization "is the Beneficiary's direct employer." The Petitioner further states that 
"even though it was not clearly stated in the previous contracts," it "has been the sole employer of 
the Beneficiary." In addition, while the Petitioner notes that "[p ]sychotherapists have been 
considered to be an 'independent contractor' profession in general," 4 it maintains that "the 
Beneficiary did not act as an independent contractor despite the fact that the [PSA] contract was 
accepted by USCIS during those approved years." 
We tinct that the Petitioner has not overcome the inconsistencies in the record with respect to the 
Bene.ficiary's terms of employment. Although the Petitioner offered a new employment agreement 
in response to the Director's RFE, we find this evidence insufticient to resolve the aforementioned 
4 
We note that a United States agent may file a petition in cases involving workers who are traditionally self-employed. 
See 8 C.FR § 214.2(o)(2)(iv)(E). 
4 
.
Mauer of C-B-S-. Inc. 
inconsist encies in the record. The Petitioner must resolve these inconsistencies with independent, 
objective evidence pointing to where the truth lies . Maller r~f Ho, 19 l& N Dec. 582, 591-92 (BIA 
1988). Unresolved material incons istenc ies may lead us to reeva luate the rel iability and su fficiency 
of other evidence submitted in support of the reque sted immigration benefit. !d. In the present 
/ matter , despite the Director 's RFE , the Petitioner has not provided su11icient evidence or argument s 
to overcome the Director's findings that it otTer.ed incon sistent information regard ing the 
Beneficiary' s terms of employment under 8 C.F.R. § 214.2(o)(2)(ii)(B) . Accordingly, we uphold the 
Director' s determination on this issue. 
B. Beneficiary 's Eligibility as an Individual ofExtraordinary Ability Under the Evidentiary Criteria 
Although not addressed by the Director, we additionally find that the Petitioner has not offered 
sufticient evidence to estabii sh that the Benefici ary sat isfies at least three of the eight evidentiary 
categories listed at 8 C.F.R. § 214.2(o)(3)(iii)(B)(l)-(8). 5 On appeal, the Petitioner claims that the 
documentation meets at least four of those criteria. As discussed below, we tind that the exhibits do 
not satisfy any ofthe evide ntiary categories described at 8 C.F.R. § 214.2(o)(3)(iii)(B ). 
Published material in pn~{essional or major trade publication s or major media about 
the alien. relating to the alien's work in the field for which class[fication is sought, 
which shall include the title. date, and author (?(such published material, and any 
necessa1y trans/{l[ion. 8 C.F.R. § 214.2( o )(3)(iii)(B)(J). 
The Petitioner listed interne t links to various online YouTube videos, but did not provide any 
supporting documentary evidence of the tele vision shows to demon strate that they were about the 
Benetici ary. No r did it provide the date and aut hor of the television programming , or English 
language translations of the shows' transcripts. In addition, the Petitioner listed internet links to 
"articles published," but the inform ation offered does not indicate whether the articles 
were authored by 
the Beneficiary or if they were written about her. Regardless, the record does not include copies of 
these articles including their date, author, and any necessary translation. Furthe rmore , the record doe s 
not show that the coverage was in professional or major trade publication s or major media. 
The record also includes various articles written by the Benefici ary in a free monthl y 
Spanish lang uage ' magazine distributed in 
Pennsylvani a and New Jersey , which discussed topics such as confidence, life balance, and 
· procrastination. As these articles are not about the Beneticiary, they do not meet this regulatory 
criterion. The regulations conta in a separat e and distinct criterion relating to authorship of schola rly 
articles in profess ional journal s at 8 C.F.R. § 214.2(o)(3)(iii)(B)(6). The Beneficiary 's articles are 
further addressed in our discu ssio n of that criterion. The plain language of the regul ation require s 
"published material ... about the alien." Without evide~ce that the Beneficiary has been the subject of 
5 The Petitioner does not claim a major, internationall y recognized award to establish the Beneficiary 's eligibility under 
the single evident iary criterion at 8 C.F.R . § 214.2(o)(3)(iii)(A). 
5 
.
Maller of C-B-S-. Inc. 
material in professional or major trade publ icat ions or maJOr media , the Petitione r h as not 
establ ished that she satisfie s this criter ion. 
Evidence of the alien 's original scient[fic. scholar ly. or business-related contributions 
(?lmqjor sign[ficance in the.field. 8 C.F.R. § 214.2(o) (3)( iii)(B)(5). 
In order to sat isfy the regul ation at 8 C.F.R. § 214.2(o)(3)(iii)(B)(5), a petitioner mu st establish not 
only that a benef iciary has made original contributi ons but that they have been of major sig nificance 
in the field. For instance , a peti tioner may show that a beneficiar y's contribu tions have been widely 
implemented throughout the field , have substantially impacted or influ enced the f-i eld, or have 
otherwi se risen to a level of majo r significanc e in her overall field. 
The record includes letters of support from the Petitioner, 
(the Beneficiary's forme r employer in the Dominican Republic) , magaz ine, and 
var ious religious organization s. These letters discuss the Beneficiary's talent as a psychotherapist, 
writing and presen tations ski lls, job respo nsibilities, and experti se in her l"ield. For example, 
Senior Pastor at asserts that the Bencticiar y "is a 
stron g resource that we would like to take advantage of and plan to use her to help this congregatio n 
and our communi ty." In additio n, founder and editor, praises the 
Beneficiar y's skills "as a writer and researcher" and states that "[s]he always takes grea t pride in her 
writing , conducts herself profe ssionally and is easy to work with." The record, howeve r, does not 
show that the Benefi ciary's work has affected psychot~erapy practices in the field or has o therwise 
risen to the leve l of an orig inal sc ientitic con trib ution of major significance in the field. 
With respect to the Benefici ary' s published and presented wor k, there is no presump tio n that every 
research article or conference present ation is a contribution of majo r significanc e in the field; rather, 
a petiti oner must document its act ual impact. In this case, the Petitioner has not offered eviden ce 
demonstrating that the Beneficiary's articles are cited at a level commensurate ~ith contributions "of 
major sign itica nce in the field," nor does the reco rd include other documen tation showing her 
art icles ' influence or importan ce. For the a bove reasons , the Petitioner has not estab lished that the 
Beneficiary meet s this regulator y criterion . 
Evidence of the alien 's aut horship (~(s cho larly articl es in the .field, in prr?fessional 
journal s, or other major media. 8 C.F .R. § 214.2(o)(3)(iii)(B)( 6). 
The Petition er offered articles autho red by the Beneficiary in but the record does not 
de mons trate that this regio nal m agaz ine is a profe ssional journal or form of maj or media . 
Furthermor e, the Petition er has not shown that the Beneficiary 's gene ral we ll ness article s for 
readersh ip in Penn sylvania and New .Jersey con stitut e scho larly articles in the field of 
psychotherapy, as opposed to att icles for the general popul ation in the aforementi oned state s. 
Therefor e, the Petitioner has esta blished that the Beneticiary meets this regulatory criterion . 
6 
.
Maller of C-B-S-. Inc. 
Evidence that the alien has been employed in a critical or essential capacily for 
organizations and esTablishments that have a dislinguished reputcaion. 
8 C.F.R. § 214.2(o)(3)(iii)(B)(7). 
The record includes a letter from the Petitioner stati ng that the Benefic iary performs her duties in an 
excellent manner and that she has helped her patients examine and improve their lives. In add ition, 
the Petition er submitted a letter from indicating tha t the Beneficiary worked there from 
2003 until 20 I 0, performed quality work, and demonstrated responsibility and commitment to the 
center. The aforementioned stateme nts, however , are not sufficient to demonstrate that the 
Beneficiary has been emplo yed in a critica l or essential capacity for the aforement ioned organizations . 
The evidence doe s not differentia te the Beneficiary from the Petitioner and other therapists , 
and is insuffici ent to establish that her spec ific role has contributed to those organ izations in a way that 
was of substantial importanc e to their success or standing . Furth ermore, the reco rd does not incl ude 
supporting eviden ce demon strating these organiz ations' distin guished reputation in the field. As a 
result , the Petitioner has not provided s ufficient material to meet this criterion. 
C. Prior 0-1 approvals 
The record indicates that USClS has previously approved multipl e petitions to r 0- 1 status f iled on 
behalf of the Beneficiary. These prior approval s do not preclude USC IS from denying an extensio n 
of the origi nal visa based on a reassessment of the petitioner's or beneficiary 's qualifications. We 
are not required to approve applicatio ns or petitions where eligibi lity has not been demon strated , 
merely becau se of prior approvals that may have been erroneou s. See Maller (?(Church Scientology 
lnt 'l, 19 I&N Dec. 593 , 597 (Comm ' r 1988); see also Sussex Eng 'g, Ltd. v. Monlgomery , 825 F.2d 
I 084, I 090 (6th Cir. 1987). Furthermore, we are not be bound to follow a contradictory decis ion of 
a servic e center. La. Philh armonic Orchestra v. INS, No. 98-2855, 2000 WL 282785 , at *2 (E.D. 
La. 2000). 
III. CONCLUS ION 
The Petitioner has not reso lved the inconsistencies regarding the Beneficiary's terms of emp loyment 
under 8 C.F.R . § 214.2(o)(2)(ii)(I3). Further, the record does not satisfy at least three of the eight 
evidentiary criteria at 8 C. f. R. § 214.2( o )(3 )(iii)(B) . Even if the se initial evident iary requirements had 
been met , the cumulati ve record does not demonstrate the Beneficiaty's sustained national or 
international acclaim and recognition fo~ achievements. 8 C.F.R. § 214.2(o)(3)(iii). Nor does the 
evidence show a level of expet1ise indicating that she is one of the small percentage at the very top of 
the field of endeavo r. 8 C.F.R. § 2 14.2(o)(3)(i i). Consequen tly, the Petitioner has not established that 
the Benefici ary is eligible for an extens ion of her 0- 1 nonimmigrant status as an individua l with 
extraordinary ability in the sciences. 
7 
Maller of C-B-S-. Inc. 
ORDER: The appeal is dismissed. 
Cite as ivlatter of'C-13-S-. Inc., JD# 1096656 (AAO Apr. 19, 2018) 
8