dismissed O-1A Case: Squash

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U.S. Departmentof Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S.Citizenship
and Immigration
Services
FILE: WAC 06 267 54051 Office: CALIFORNIA SERVICE CENTER Date: S£P 25 21lJl
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(l5)(O)(i) of the Innnigration and
Nationality Act, 8 U.S.C. § 1101(a)(15)(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.
~~ ~
~obert P. Wiemann, Chief
I' -Administrative Appeals Office
www.uscis.gov
__._ I
WAC 06 267 54051
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 rejected.
The petitioner seeks 0-1 nonimmigrant classification of the beneficiary, as an alien with extraordinary ability
under section 101(a)(15)(0)(i) of the Immigrat ion and Nationality Act (the Act), 8 U.S .C. § 1l01(a)(l5)(0)(i) .
and Fitness Club in Berwyn, Pennsylvania, seeks to employ the beneficiary temporarily in the
United States as a squash professional for a period of three years at an annual salary of $65,464.
The director denied the petition, finding that the petitioner failed to establish that the beneficiary has received
sustained national or international acclaim and is one of the small percentage who has risen to the very top of his
field of endeavor.
Review of the record shows that the petition has not been properly filed, and therefore there is no legitimate basis
to continue with this proceeding.
The Form 1-129 petition identifies and Fitness Club as the employer and the pet itioner. 8 C.F.R.
§ 103.2(a)(2), requires that the petitioner must sign the petition. In this instance, no official ofllllllllllll
and Fitness Club signed Form l~ture on that form is that of attorney
who represents the employer. _ did not sign Part 7, "Signature of person preparing form."
Rather, he signed Part 6 , "Signature," thereby taking responsibility for the petition. has not
claimed to be an official of and Fitness Club. His correspondence is on
letterhead, and next to his signature on Form 1-129, he provided the law firm 's telephone number.
The regulations do not permit an attorney to sign Form 1-129 on behalf of a United States employer; by signing
Part 6 of the petition form, became the defacto petitioner.
An 0-1 or 0-2 petition may only be filed by a United States employer, a United States agent, or a foreign
employer through a United States agent. 8 C.P.R. § 214.2(0)(2)(i). 8 C.F.R. § 214.2(o)(2)(iv)(E) sets forth the
circumstances under which a United States agent may file a petition:
Agents as petition ers. A United States agent may file a petition in cases involving workers
who are traditionally self-employed or workers who use agents to arrange short-term
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 for , or in place of, the employer as its agent. A
petition filed by an agent is subject to the following conditions:
(1) An agent performing the function of an employer must provide the contractual
agreement between the agent and the beneficiary which specifies the wage offered and
the other terms and conditions of employment of the beneficiary .
WAC 06 267 54051
Page 3
(2) A person or company in business as an agent may file 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 employer who, through a United States agent, files 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.
The above regulations do not indicate that is an "agent" with standing to file the petition.
Furthermore, the record does not show that workers in the beneficiary's field are traditionally self-employed,
or that the beneficiary seeks short-term employment with numerous employers. Therefore, the terms of
employment in this proceeding do not trigger the regulatory provisions relating to agents.
The petition has not been properly filed because: 1) the record does not show that is the
authorized agent of the and Fitness Club pursuant to 8 C.F.R. § 214.2(0)(2)(iv)(E); and 2) no
authorized official of the and Fitness Club has signed the petition. Pursuant to 8 C.F.R.
§ 103.2(a)(7)(i), an application or petition which is not properly signed shall be rejected as improperly filed,
and no receipt date can be assigned to an improperly filed petition.
As the petition was never properly filed in the first place, the director should not have accepted the petition
for adjudication. The director's erroneous acceptance of the improperly filed petition does not compel the
AAO to render a decision on the merits of the petition. It would be absurd to suggest that we, or any agency,
must treat acknowledged errors as binding precedent. See Sussex Engr. Ltd. v. Montgomery, 825 F.2d 1084,
1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).
The petition has not been filed by a United States employer. Even if the employer's attorney was its
authorized agent (which is not the case), the nature ofthe employment offer precludes invoking the regulatory
provisions relating to agents. Therefore, the petition has not been properly filed, and we must reject the
appeal.
ORDER: The appeal is rejected.