dismissed O-1B Case: Acting

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DATa.fAR 0 7 201J Office: CALIFORNIA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
u.s. Deparlment'ofHomeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 · 
u.s. CitiZenshi 
and Immigtat~Ii 
Services. · 
FILE: 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section IOI(a)(IS)(O)(i) of the Immigration 
and Naiionality Act, 8 U .S.C. § II 0 l (a)( IS)(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 maner 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. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have ~dditional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form 1-2908, Notice of Appeal or Motion, with a fee of $630. The. 
specific requirements for filing such a m9tion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be awarethat 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the deCision that the motion seeks t'o reconsider or reopen. 
Thank you, 
·_ ~ ~v __ . ~~, 
<: :., , •C}.f~:i;. .. .. / . 
·Ron Roseiiberg . 
Acting Chiet: Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The the Director, California Service Center, denied the nonimmigrant visa petition, 
and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner filed this petition seeking to classify the beneficiary as an 0-1 nonimmigrant pursuant to 
section 101(a)(l5)(0)(i) of the lmmigration and Nationality Act (the Act), as an alien with 
extraordinary achievement in the motion picture or television industry. The petitioner, a California­
based production company, seeks to employ the beneficiary as an actor for a: period of six days. 
The director denied the petition, concl4ding that ·the petitioner failed to provide written consultations 
from an appropriate union representing the beneficiary's occupational peers and a management 
organization in the area of the beneficiary's extraordinary achievement, as required by section 
214(c)(3)(A) of the Act and the regulations at 8 C.F.R. §§ 214.2(o)(2)(ii)(D) and 214.2(o)(5)(iii). 
The petjtioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
fmwarded the appeal to the AAO for review. 
On appeal, the petitioner submitted a Form 1-2908, notice of appeal, stating as follows: 
... Last time we didn't submit all necessary documents (U.S. peer group letters and 
con:mltations), we are now sending these as evidence ... Please approve 3 day 
working visa 0-1B for [the beneficiary.] We have filmed the movie without him and 
we are only waiting on him to come for 3 days (Sep 1 to Sep 4). 
Accompanying the Fonn .i-290 B, notice of appeal, the petitioner submitted a letter signed by 
purportedly the Administrative Officer of 
in which he asserts: 
This letter from in conjunction 
with is proud to support one of our own nominees 
tor his splendid . directorial debut of film 
eaming candidacy for that year. · 
We are a US based organization and this letter is only a consultation peer review in 
sHpport of futw'e endeavors. 
The cor.sultation letter did not contain any contact information for the organization or for 
such as an address or a telephone number, which would permit USCIS to verify the information 
contained in the letter. USCIS was not able to locate an address or telephone number for 
or any evidence that this organization exists and that 1s 
employed by it. In addition, in attempting to obtain contact information for USCIS 
determined that he is credited as being both an actor in and second unit director/assistant director for the 
petitioner's motion picture titled the same film for which the petitioner seeks to 
utilize the beneficim)''s setvices. 1 
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1 Also a('companying the Form 1-2908 was a letter from a Serbian management company, 
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Based upon the above information, the AAO concluded that the letter is fraudulent. The 
· petitioner submitted a consultation letter from an organization that does not exist, whose name was an 
alteration of the name of the m an 
attempt to obtain credibility from the fame of that organization and. its 
Further, the letter misrepresents the beneficiary's qualifications. The beneficiary was never an Oscar 
Nominee. In for an m 
the category of Best Foreign Language Film, but the film did not receive an The 
petitioner's submission of this letter constitutes a willful misrepresentation of two material facts, i.e., the 
claim that the beneficiary is an alien of extraordinary ability, as demonstrated by an evaluation from 
The to this effect, and that petitioner has obtained a valid 
consultation as required by the regulation at8 C.F.R. § 214.2(o)(2)(ii)(D). 
PW"suam to USCIS regulations at 8 C.F.R. § 103.2(b)(16)(i), the AAO issued a notice of intent to 
dismiss dated January 24, 2013, in which it notified the petitioner of the derogatory information and 
provided the petitioner with an opportunity to respond before rendering a fmal decision. Specifically, 
the AAO notified the petitioner of its intent to make a finding of fi·aud. The AAO gave the petitioner 
thirty days to respond to the notice of intent to dismiss .. 
The petitioner, through cotmsel, responded to the notice on February 25, 2013. The petitioner submitted 
unswom statements iiom respectively. 
states: 
states that the U.S. consultation letter he signed was drafted as a "sample", and further 
When I drafted these letters, I only did so in order to give the writers an outline of 
what I wanted in the letter and how I wanted the letter to look . . . My sample 
letter .... was never intended to be used by [the petitioner] to attach with his 
submission to support his appeal of the denial of the 0 visa. . My letter got 
inadvertently maikd with the submission. My intention of creating the letter was 
only Lo try and sl10rtcut the work that (sic) an administrative officer or someone in 
a similar position, in preparing a letter in support of [the beneficiary.] 2 · 
states that in the "sample" consultation letter, he erroneously referred as which "I 
now know [is] called the " He also states 
that at the time he drated the· "sample'' U.S. consultation letter, "I did not know the technical 
difference between a 'candidate'· and a 'nominee' for an Academy award." 
does not explain · why the "sample" consultation 
administrative assistant of the U.S. consulting entity, when 
contained his signature as an 
statement does not indicate 
that he was ever employed by 
abo :;tates he diafted a ":;ample letter" a management company in Serbia, 
was alsc filed with the Form 1/~908. 
__ ___. which as stated above, 
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Further, statement that the "sample" consultation letter was inadvertently included in the 
appeal packet is inconsistent with the information on the Fortm 1-290-B, notice of appeal, stating a 
U.S. peer group letter accompanies the appeal. 
on behalf of the petitioning entity, states he verified that the beneficiary's film titled 
was a candidate for an [as opposed to being actually nominated for the 
award], but that. he did not intend to mislead USCIS about the beneficiary's "accolades or 
accomplishments." He also states, regarding the U.S. consultation letter: 
I asked to call the and try to obtain a letter from an administrative 
officer or someone in that capacity to try to satisfy your requirements.· I sent the 
packet that prepared for me, not realizing that sample letter had 
been inadvertently added to the packet - we were in a big hurry. At no time did I 
mean to send the letter . . . ~ 
Further, confirms that the beneficiruy did perform the services which the petition was 
filed, acting in the petitioner's motion picture titled _ although states 
"we both agreed that in order to respect the law of the Uriited States and his tourist visa, that he 
would not be compensated in any way." 
These dedarations do not suillce as evidence that the letter was not fraudulent and that the 
letter ·.vas not a willful misrepresentation that the beneficiruy is an alien of extraordinary ability. In 
addition, these declarations do not sufiice as evidence that the letter was not a willful 
misrepresentation that the p~titioner has obtained a valid consultation as required by the regulation at 
8 
C.F.R. § 214.2(o)(2)(ii)(D). -, · 
Firstly, the declaratiqns are not affidavits as they were not sworn to or affirmed by the declarants 
before an officer authorized to administer oaths or affirmations who, having confirmed the 
declarant's identity, has administered the requisite oath or affirmation. See Black's Law Dictionary 
58 (7th Ect., West 1999). Nor, in lieu of having been signed before an officer authorized to 
administer ,)aths or atfrcrnations, do they contain the requisite statement, permitted by Federal law, 
that the signer, in signing the statements, certifies the truth of the statements, under penalty of 
peljury. 28 U.S.C. § 1746. Such unsworn statements mad.e in support of a motion are not evidence 
and thus, as is the case with the arguments of counsel, are not entitled to any evidentiary weight. See 
INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503 
(BIA 1980). 
Secondly, even if the AAO were to accept the declaration of on its face, his statements are 
still insufficient evidence that the consultation letter was a . "sample" letter which was "never 
intendt~.:i to br, used hy lthe pet.itioner] to attach with his submission to support his appeal of the 
denial of the 0 visa," and not a fraudulent letter intended~to be submitted appeal with the Form 
I-290-B, notice of appeal. The statements of in this regard are inconsistent with the 
statements of the of the petitioning entity on appeal that," ... Last time we didn't submit 
all nee:;:ssary docw.nents (U.S. peer group letters and consultations), we are now sending these as 
"d .. ; ev1 ene;e . . : · . . 
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By signing the Form I-129 petition, the petitioner certified under penalty of perjury that all of the 
information submitted with the petition was, to the best of its knowledge, true and correct. It is 
axiomatic, therefore, that the submission of any material claim, information, or doctiment that the 
petitioner knew to be incorrect constitutes perjury. 
Based upon the discussion above, the AAO finds that the petitioner knowingly submitted documents 
containing talse statements in an effort to mislead OSCIS. and the AAO on an 'element material to the 
beneficiary's eligibility for a benefit sought under the immigration laws of the United States. See 18 
U.S.C. §§ 1001, 1546. The AAO hereby enters a finding of fraud. 
Additionally, the required consultation letter is not credible and will not be given any weight in this 
proceeding. IfUSCIS tails to believe that a fact stated in the petition is true, USCIS.may reject that 
fact. See section 204(b) of the A~t, 8 U.S.C. § 1154(b); see also Anetekhai v. INS., 876 F.2d 1218, 
1220 (:5th Cir. 1989); Lu-Ann Bakery Shop, Inc. v. Nelson, 705 .F. Supp. 7, 10 (D.D.C. 1988); 
Systronics Corp. v. INS, 15~ F. Supp. 2d 7, 15 (D.D.C. 2001). Moreover, the petit~oner's submission 
of a fhmdulent document brings into question the reliability and sufficiency of the remaining 
evidence off~red in suppon of the visa petition. See Matter of Ho, 19 I&N Dec. 582, 591 (BIA 
1988). 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. Here, the petitioner has not met that burden. 
Finally, the AAO notes that the beneficiary's admission and continued stay in the United States is 
conditioned on the full and truthful disclosure of all information requested by USCIS in conjunction 
with this petition. The willful failure to provide truthful information constitutes a failure to maintain 
nonimmigrant status 
under section 237(a)(l)(C)(i) of the Act, 8 U.S.C. § 1227(a)(l)(C)(i). 
\\'1lile the AAO observes that it was the beneficiary's employer that technically provided the fraudulent 
documentation to USCIS, the director's denial of the petition and the dismissal ofthis appeal effectively 
tenninate tJ1e beneficiruy's lavvfi.ll status in the United States. Accordingly, the AAO recommends that 
the director issue a Notice to Appear and coinmence proceedings to remove the beneficiary from the 
United States in accordance with section 239 ofthe Act, 8 U.S.C. § 1229. 
ORDER: The appeal is dismissed. 
FUR'J'HER ORilEJR: The AAO :finds that the petitioner knowingly submitted documents 
containing false statements in an effort to mislead USCIS and the AAO 
on an element Inatc:cial to the beneficiary's eligibility for a benefit sought 
under the immigration laws of the United States.