remanded O-1A Case: Dancesport

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnvac) 
PUBLIC COPY 
DATE: APR Q ! 2011 Office: 
IN RE: Petitioner: 
Beneficiary: 
FILE: 
PETITION: Petition for a Nonimmigrant Worker under Section 1OI(a)(15)(O)(i) of the Immigration and 
Nationality Act, 8 U.S.C. § 1 101 (a)(15)(O)(i) 
ON BEHALF OF PETITIONER: 
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. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will withdraw the director's decision 
and remand the petition for further action and entry of a new decision. 
The petitioner, a dance studio, filed this nonimmigrant petition seeking to classifY the beneficiary as an 0-1 
nonimmigrant pursuant to section 10 I (a)(IS)(O)(i) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 
I IOI(a)(lS)(O)(i), as an alien of extraordinary ability in the arts. The petitioner seeks to employ the beneficiary 
as a Dance Competitor for a period of three years. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary qualifies as 
an alien of extraordinary ability in the arts. The director determined that the petitioner failed to establish that the 
beneficiary meets the evidentiary criterion at 8 C.F.R. § 214.2(0)(3)(iv)(A), and submitted evidence to satisfY 
only two of the six evidentiary criteria set forth at 8 C.F.R. § 214.2(0)(3)(iv)(B). The petitioner must submit 
qualifYing evidence under at least three of the six regulatory categories of evidence to establish the basic 
eligibility requirements. The director further found that the beneficiary violated his nonimmigrant status and was 
therefore otherwise ineligible the requested change of status from B-2 to 0_1.1 
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, counsel asserts that the beneficiary meets four of the six criteria set 
forth at 8 C.F.R. § 214.2(0)(3)(iv)(B) and therefore qualifies an alien of extraordinary ability in the arts. In 
support ofthe appeal, the petitioner submits additional evidence pertaining to the beneficiary's eligibility under 8 
C.F.R. § 214.2(0)(3)(iv)(B)(l) and (6). Counsel further contests the director's determination that the beneficiary 
violated his previously accorded B-2 nonimmigrant status. 
Upon review, and for the reasons discussed below, the AAO finds that the appropriate 0-1 category for an alien 
coming to the United States primarily to participate in professional DanceSport competitions is that of an alien of 
extraordinary ability in athletics, rather than an alien of extraordinary ability in the arts. As 0-1 athletes and 0-1 
artists are subject to different eligibility criteria and different regulatory definitions for "extraordinary ability," the 
AAO will withdraw the director's decision and remand the petition for further action and entry of a new decision. 
I. The Beneficiary's Area of Extraordinary Ability 
Section IOI(a)(IS)(O)(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 The director correctly advised the petitioner that there is no appeal from the denial of an application for a change 
of status filed on Form 1-129. 8 C.F.R. § 248.3(g). 
Page 3 
The regulation at 8 C.F.R. § 214.2(o)(3)(i) provides, in relevant part, that an 0-1 petition must be accompanied by 
evidence that the work which the alien is coming to the United States to continue is in the area of extraordinary 
ability. 
The petitioner has offered the beneficiary employment as a Dance Competitor and states that he will represent its 
studios in DanceSport competitions throughout the United States and internationally. The petitioner summarized 
the beneficiary's qualifications as follows: 
[The beneficiary's] impressive resume is enclosed with a complete list of winning Awards in 
competitions; in sum he accomplished the following: he placed ]" in Latin and I" place in 10-
dance in the (IDS F) _ National Championship. He was a semi-finalist in the World _ 
Championship and he was also in the final of many International Championships in" In 
2006 he ranked 4th in the_ Grand Prix Ranking List. 
In addition to his achievements in competitive ballroom U"llt~IIIe;, 
performer in the popular dance television show, in_ for over nine 
months, from September 2008 to June 2009. Due to its popularity, the show was featured every 
day of the week except Saturday. He also performed in the movie 
concert show ("2009-XLVI_Festiwal 
and the live 
in June 2009. 
We intend to compensate [the beneficiary] for his participation in dance competitions scheduled 
through October 20 13. 
The petitioner claimed eligibility under the evidentiary criteria for aliens of extraordinary ability in the arts at 8 
C.F.R. § 214.2(o)(3)(iv)(B), and asserted that the beneficiary meets the standard of "distinction" applicable to the 
arts, pursuant to the definition at 8 C.F.R. § 214.2(o)(3)(ii). The director reviewed the petition under these criteria 
and determined that the petitioner failed to establish the beneficiary's eligibility as an alien of extraordinary ability 
in the arts. 
While we acknow ledge the beneficiary's credentials as a dancer for stage, film and television productions, the 
petitioner clearly seeks to employ the beneficiary in the field of competitive ballroom dance, also known as 
"DanceSport." The petitioner has neither claimed nor submitted evidence that the beneficiary will be performing 
as a dancer in any other capacity than that of a professional competitive ballroom dancer. 
The evidence of record indicates that the International Olympic Committee (IOC) has formally recognized 
DanceSport as a sport under consideration for inclusion in the Olympic Games, although it is not yet a medal 
sport in the Olympic Games. The International DanceSport Federation (IDSF) has been designated as the 
world governing body of the sport. The recognition of DanceSport by the 10C is a clear indication that 
DanceSport or competitive ballroom dance, has evolved into an acknowledged form of athletic competition. 
We note that there may be instances in which a competitive ballroom dancer seeks to enter the United States 
to provide services as an entertainer or performing artist, rather than as a competitive dancer-athlete. The 
Page 4 
nature of the intended events or activities In the United States is critical in determining whether the 
beneficiary is entering the United States to provide services as "athlete" or as an "artist." 
Here, as the beneficiary is clearly coming to the United States to participate in athletic events, the petition 
must be adjudicated according to the definition of "extraordinary ability" applicable to athletes, and pursuant 
to the regulatory criteria at 8 C.F.R. § 214.2(0 )(3)(iii). 
The regulations clearly prescribe different evidentiary criteria and standards of review for aliens of extraordinary 
ability in the arts as opposed to aliens of extraordinary ability in athletics. Consequently, the director's decision 
dated September 14, 2010 is withdrawn. The petition will be remanded to the director, who is instructed to 
adjudicate the petition pursuant to the definition of "extraordinary ability in the field of science, education, 
business or athletics" at 8 C.F.R. § 214.2(0 )(3)(ii) and the evidentiary criteria at 8 C.F.R. § 214.2(0)(3)(iii). Prior 
to making a determination, director should issue a request for additional evidence to allow the petitioner a 
reasonable period oftime to submit evidence relevant to the criteria applicable to aliens with extraordinary ability 
in athletics. 
II. Conclusion 
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 this issue. By remanding this matter, the AAO does not 
necessarily find that the beneficiary is ineligible. Rather, we remand the matter because the director failed to 
apply the appropriate regulations to the petition. 
As always, in visa petition proceedings, the burden of proof rests solely with the petitioner. Section 291 of the 
Act, 8 U.S.c. § 1361. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for 
further action in accordance with the foregoing and entry of a new decision which, if 
adverse to the petitioner, is to be certified to the Administrative Appeals Office for 
reVIew.