remanded O-1A Case: Management Consulting

- 
k?td1)3ng deEa c?ek?ted to 
prevent cllt&.:l, unwarranted 
iavssico of jxxsonal privacy 
U.S. Department of Homeland Security 
20 Mass. Ave., NW, Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
PUBLIC COPY 
FILE: EAC 05 050 52533 Office: VERMONT SERVICE CENTER 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 10 1 (a)(15)(0)(i) of the Immigration 
and Nationality Act, 8 U.S.C. 8 1 10 1 (a)(15)(0)(i) 
ON BEHALF OF PETITIONER: 
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. 
Administrative Appeals Office 
u 
EAC 05 050 52533 
Page 2 
The Vermont Service Center Acting Director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Ofice (AAO) on appeal. The petitioner's motion to reopen and reconsider was 
forwarded to the AAO pursuant to 8 C.F.R. 5 103.3(a)(2)(iv). The decision of the director will be withdrawn 
and the petition will be remanded for further action and consideration. 
The petitioner is an international management consulting firm and seeks 0-1 classification of the beneficiary 
under section 10 1 (a)(l 5)(O)(i) of the Immigration and Nationality Act (the Act), as an alien with extraordinary 
ability in science. The petitioner seeks to employ the beneficiary temporarily in the United States for a period of 
three years as a management consultant. 
The director denied the petition, finding that the petitioner failed to establish that the beneficiary has sustained 
recognition as being one of a small percentage at the very top of her field. 
On appeal, counsel submits a brief in which she asserts that the director failed to send the petitioner a request for 
additional evidence (WE) and denied the petition based on a lack of initial evidence. Counsel expounds, stating: 
The Denial stated that "the petition contains all of the required initial evidence and therefore a 
final decision will be made based on the record of the proceeding" . . . We contend, however, 
that the Service failed to acknowledge a substantial portion of the evidence that was submitted. 
Thus, the Service adjudicated the petition as if the petition lacked initial evidence. In such 
cases, the Service must issue an RFE unless clear ineligibility for approval of the petition 
exists. Since no such clear ineligibility was present here, the petition should be reopened and 
an RFE issued to the petitioner. 
Although we do not concur with counsel's assertion that the director "failed to acknowledge a substantial portion 
of the evidence," and that as a result, adjudicated the petition "as if the petition lacked initial evidence," we find 
that the petition did not include all of the initial evidence required by the regulation. Additionally, as there was no 
clear evidence of ineligibility, pursuant to regulations, the director should have issued an WE. 
The regulation at 8 C.F.R. 5 214.2(0)(2)(ii) requires that a written advisory opinion from the appropriate 
consulting entity must accompany petitions for 0 aliens. On the Form 1-129, Petition for a Nonimmigrant 
Worker, the petitioner indicated that it had not obtained a written consultation. The petitioner submitted no 
evidence that it had requested a consultation in accordance with the regulation. 
The regulation at 8 C.F.R. 5 103.2(b)(8) states, in pertinent part: 
Request for evidence. If there is evidence of ineligibility in the record, an application or 
petition shall be denied on that basis notwithstanding any lack of required initial evidence . . . 
[I]n other instances where there is no evidence of ineligibility, and initial evidence or eligibility 
information is missing or the Service finds that the evidence submitted either does not hlly 
establish eligibility for the requested benefit or raises underlying questions regarding 
eligibility, the Service shall request the missing initial evidence. 
As the petition was not accompanied by all of the initial evidence, there was no evidence of ineligibility in the 
record, and the evidence did not fully establish eligibility, an RFE was appropriate and required. 
Accordingly, the record is remanded for the director to issue an RFE in accordance with the above-cited 
regulation. 
EAC 05 050 52533 
Page 3 
This matter is remanded. The director may request any additional evidence deemed warranted. 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 and entry of a new decision, which, if adverse to the petitioner, is to be certified to 
the AAO for review.