remanded O-1A Case: Digital Imaging Retouching

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department ofHomelsnd Security 
CIS. Citizenship and Inmigration Services 
Administrative Aoocals Office (AAOI 
20 ~assachusetts~ve., N.W., MS 2090 
Washineton. DC 20529.2090 
U.S. Citizenship 
and Immigration 
Services 
Office: VERMONT SERVICE CENTER FILE: EAC 10 1 1 1 50771 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. 5 1 10 l(a)(I 5)(0)(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 oftice 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, 
V Perrv Rhew 
Chief, Administrative Appeals Office 
EAC10111 50771 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Ofice (AAO) on appeal. The AAO will withdraw the director's decision 
and remand 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 10 l(a)(I 5)(0)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1 101 (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. 5 214,2(0)(3)(iii). The petitioner, a creative photography and retouching studio, seeks to employ the 
beneficiary in the position of Digital Imaging Retoucher for a period of three years. 
On June 10, 2010, 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. 
5 2 14.2(0)(3)(iv). 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and forwarded 
the appeal to the AAO. On appeal, counsel asserts that the director applied the incorrect regulations, as the 
petitioner clearly indicated on the Form 1-129, Petition for a Nonimmigrant Worker, that it seeks to classify the 
beneficiary in the "0-IA" category pursuant to the criteria at 8 C.F.R. 5 214.2(0)(3)(iii). Counsel further contends 
that the director erred by applying the regulatory criteria applicable to aliens of extraordinary ability in the arts, as 
such criteria are "totally unrelated," and the beneficiary is "not an artist." Counsel submits a brief in support of 
the appeal. 
I. The Law 
Section 10l(a)(15)(0)(i) of the Act, 8 U.S.C. 5 IlOl(a)(I5)(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 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 
EAC 10 111 50771 
Page 3 
those aliens who have reached the very top of their occupation or profession. The 0-1 
classification is substantially higher than the old H-IB 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. Cornm'r., INS, "Policy Guidelines for the Adjudication of 0 
and P Petitions" (June 25, 1992). 
The regulation at 8 C.F.R. § 214.2(0)(3)(iii) states, in pertinent part: 
Evidentiary criteria for an 0-1 alien of extraordinary abili@ in the Jields 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: 
(I) 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; 
(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 in the field, in professional 
journals, or other major media; 
EAC 10 11 1 50771 
Page 4 
(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. 
11. The Issue on Appeal 
The primary issue raised by the petitioner on appeal 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 and consistently indicated, on the Form 1-129, Petition for a Nonimmigrant Worker, 
and in all supporting documentation, that it seeks to classify the beneficiary as an alien of extraordinary 
ability pursuant to the regulations at 8 C.F.R. 5 214,2(0)(3)(iii)(A) and (B), which are applicable to aliens who 
possess extraordinary ability in the fields of science, education, business, or athletics. 
The director issued a request for evidence on March 25, 201 0, in which he acknowledged that the petitioner 
sought to classify the beneficiary pursuant to the criteria at 8 C.F.R. 5 214,2(0)(3)(iii), and instructed the 
petitioner to submit additional evidence to satisfy these criteria. 
After reviewing the petitioner's response, the director denied the petition on June 10, 2010, concluding that 
the petitioner failed to establish that the beneficiary qualifies as an alien of extraordinary ability in the arts, 
pursuant to the regulations at 8 C.F.R. 5 214,2(0)(3)(iv). 
The AAO concurs with counsel's assertion that 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. USClS will only consider the visa 
classification that the petitioner annotates on the petition, and has no authority to consider other classifications 
in the alternative.' 
' The Ninth Circuit has determined that once USCIS concludes that an alien is not eligible for the 
specifically requested classification, the agency is not required to consider, sua sponte, whether the alien is 
eligible for an alternate classification. Brazil Qualify Stones, Inc., v. Chertofl, Slip Copy, 2008 WL 2743927 
(9th Cir. July 10,2008). 
. . 
EAC 10 111 50771 
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(0)(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(0)(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(0)(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. 5 214,2(0)(3)(iii). 
As always in these proceedings, the burden of proof rests solely with the petitioner. Section 291 of the Act, 8 
U.S.C. 5 1361. 
ORDER: The director's 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.