remanded O-1A Case: Business

(b)(6)
DATE: 
JUN 1 2 2013 
INRE : Petitioner: 
Beneficiary: 
Office: CALIFORNIA SERVICE CENTER 
U.S. Department of Hom eland Securit y 
U.S. Citizenship and Immigration Services 
Administrativ e Appeals Office (AAO) 
20 Massachus etts Ave., N.W., MS 2090 
Washim!ton. DC 20529-209 0 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. § 1101(a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administra tive 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 . 
Thank you, 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The 
director withdrew her decision and issued an additional request for evidence on October 30, 2009. 
The director again denied the nonimmigrant visa petition, and certified the decision to the 
Administrative Appeals Office (AAO). The AAO will withdraw the director's decision andremand 
the matter to the director for entry of a new decision. 
The petitioner filed this petition seeking to classify the beneficiary as an 0-1 nonimmigrant pursuant 
to section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
1101(a)(15)(0)(i), as an alien of extraordinary ability. Specifically, the petitioner requested that the 
beneficiary be classified as an alien of extraordinary ability in the field of science, education, 
business, or athletics, pursuant to the criteria at 8 C.F.R. § 214.2( o )(3)(iii). The petitioner states that 
it operates a consulting company. The petitioner seeks to temporarily employ the beneficiary in the 
position of a judge for a singing-talent reality show for a period of two months. 
On October 29, 2009, the director denied the petition concluding that the petitiOner failed to 
establish that the beneficiary meets the criteria applicable to aliens of extraordinary ability in the 
arts at 8 C.F.R. § 214.2( o )(3)(iv). The director additionally denied the petition on the basis that the 
petitioner failed to provide the appropriate written consultations applicable to aliens of extraordinary 
achievement in the motion picture or television industry at 8 C.F.R. § 214.2( o )(5)(iii). 1 
On October 30, 2009, the director withdrew her decision.2 On November 5, 2009 the director issued a 
new decision denying the petition on the basis that the petitioner failed to establish that the beneficiary 
meets the criteria applicable to aliens of extraordinary ability in the arts. The director determined the 
petitioner failed to establish that the beneficiary has been nominated for or has been the recipient of a 
significant national or international award, pursuant to 8 C.F.R. § 214.2(o)(3)(iv)(A), or that she has met 
at least three of the six evidentiary criteria set forth at 8 C.F.R. § 214.2(o)(3)(iv)(B). The director issued 
a notice of certification advising the petitioner that the matter has been certified to the AAO pursuant 
to 8 C.F.R. § 103.4(a)(2), and granting 30 days in which to submit a brief or written statement. As 
of this date, the AAO has not received a brief or statement from the petitioner and the record will be 
considered complete. 
Section 101(a)(15)(0)(i) of the Act, 8 U.S.C. § 1101(a)(15)(0)(i), provides for the classification of 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 ... and whose 
achievements have been recognized in the field through extensive documentation, and 
10n October 27, 2009, the director 's initial request for evidence (RFE) stated that the petitioner sought to classify the 
beneficiary pursuant to the criteria at 8 C.F.R. § 214.2(o)(3)(v), as an alien of extraordinary achievement in the motion 
picture or television industry, and instructed the petitioner to submit additional evidence to satisfy the criteria pertinent to 
this classification. 
2 On October 30, 2009, the director 's additional RFE stated that the petitioner sought to classify the beneficiary pursuant 
to the criteria at 8 C.F.R. § 214.2( o )(3)(iv), as an alien of extraordinary ability in the field of the arts, and instructed the 
petitioner to submit additional evidence to satisfy the criteria pertinent to this classification. The director's decision states 
that the petitioner filed a timely response to the director's requests for evidence. 
(b)(6)
Page 3 
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 for 
aliens in the fields of business, education, athletics, and the sciences. See 59 FR 41818, 41819 
(August 15, 1994); 137 Cong. Rec. S18242, 18247 (daily ed., Nov. 26, 1991) (comparing and 
discussing the lower standard for the arts). 
In a policy memorandum, the legacy Immigration and Naturalization Service (INS) emphasized: 
It must be remembered that the standards for 0-1 aliens in the fields of business, 
education, athletics, and the sciences are extremely high. The 0-1 classification should 
be reserved only for those aliens who have reached the very top of their occupation or 
profession. The 0-1 classification is substantially higher than the old H-1B prominent 
standard. Officers involved in the adjudication of these petitions should not "water down" 
the classification by approving 0-1 petitions for prominent aliens. 
Memorandum, Lawrence Weinig, Acting Asst. Comm'r., INS, "Policy Guidelines for the 
Adjudication of 0 and P Petitions" 
(June 25, 1992). 
The regulation at 8 C.F.R. § 214.2( o )(3)(iii) states, in pertinent part: 
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 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; 
(b)(6)
Page 4 
(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 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. 
(C) If the criteria in paragraph (o)(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 
The issue to be determined on certification is whether the director erred by adjudicating the instant 
petition under the definition of "extraordinary ability " and evidentiary criteria applicable to aliens of 
extraordinary ability in the arts. 
The petitioner has clearly indicated, on the Form 1-129, Petition for a Nonimmigrant Worker, that it 
seeks to classify the beneficiary as an alien of extraordinary ability in the fields of science, education, 
business, or athletics, pursuant to the regulations at 8 C.F.R. § 214.2(o)(3)(iii)(A) and (B). 
As stated above, in previous decisions the director denied the petition utilizing the standards of 
review and evidentiary criteria applicable to aliens of extraordinary ability in the arts pursuant to 8 
C.F.R. § 214.2(o)(3)(iv) and aliens of extraordinary achievement in the motion picture and television 
industry pursuant to 8 C.F.R. § 214.2( o )(3)(v). 
The director clearly erred by failing to adjudicate the petition according to the regulations applicable 
to the requested 0-1. classification. The petitioner bears the burden of proof with respect to the 
specific visa classification that they request on the Form 1-129 and cannot be required to meet the 
burden of proof for an alternative classification. USCIS will only consider the visa classification 
that the petitioner annotates on the petition, and has no authority to consider other classifications in 
the alternative. 3 
3 The Ninth Circuit has determined that once USCIS concludes that an alien is not eligible for the specific ally requested 
classification, the agency is not required to consider, sua sponte, whether the alien is eligible for an alternate 
classification. Brazil Quality Stones, Inc., v. Chertoff, Slip Copy, 2008 WL 2743927 (9th Cir. July 10, 2008). 
(b)(6)
Page 5 
Here, the director failed to consider the beneficiary's eligibility under the requested 0-1 
classification, and had no authority to adjudicate the petition under an alternate classification. The 
AAO notes that, given the nature of the beneficiary's claimed area of extraordinary ability, the 
petitioner could have reasonably requested review of the petition under the regulations applicable to 
the field of arts at 8 C.F.R. § 214.2(o)(3)(iv). However, as the petitioner requested that the 
beneficiary be granted 0-1 status as an alien of extraordinary ability in the field of science, 
education, business, or athletics, the director must limit his review of the evidence as it pertains to the 
definition of extraordinary ability and specific eligibility criteria applicable to that classification at 
8 C.F.R. § 214.2(o)(3)(iii). The director failed to reach any conclusion regarding the beneficiary's 
eligibility under the requested classification, and instead determined that the beneficiary did not qualify 
under an alternative classification which is governed by a different definition of "extraordinary ability" 
and a different set of evidentiary criteria, at 8 C.F.R. § 214.2(o)(3)(iv). · 
At this time, the AAO takes no position on whether the beneficiary qualifies for the classification 
sought. The director must make the initial determination on that issue. So far, the director has not 
done so. By remanding this matter, the AAO does not necessarily find that the beneficiary is 
ineligible. Rather, we remand the matter because the director based the decision on incorrect 
grounds and failed to address the beneficiary's eligibility under the requested classification. 
Accordingly, the AAO will withdraw the director's decision and remand the petition to the director 
for entry of a new decision. The director is instructed to apply the definition of extraordinary ability 
and evidentiary criteria applicable to aliens of extraordinary ability in the fields of science, 
education, business or athletics pursuant to 8 C.F.R. § 214.2( o )(3)(iii). If necessary, the director 
should re-issue the RFE to request additional evidence relevant to the criteria applicable to aliens of 
extraordinary ability in the fields of science, education, business or athletics. 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361. 
ORDER: The director's November 5, 2009 decision is withdrawn. The petition is 
remanded to the director for further action in accordance with the foregoing 
discussion and entry of a new decision which, if adverse to the petitioner, 
shall be certified to the Administrative Appeals Office for review.