dismissed O-1B Case: Animation

i61entifyingdatadeletedto
prevent clearly unwarranted
invasionofpersonalprivuy
V.S. Department of Homeland Security .
20 Mass, N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
ptmLICCOP"l
FILE: WAC 06 16750726 Office: CALIFORNIA SERVICE CENTER Date: MAR.' 20'7
IN RE: Petitioner:
Beneficiary:
PETITION: Petition for Nonimmigrant Worker Pursuant to Section 101(a)(15)(O)(i) of the Immigration
and NationalityAct, 8 U.S.C. § 1l01(a)(15)(O)(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 .
.~.t. ·
Robert P. iemann, Chief
Administrative Appeals Office
www.uscis.gov
WAC 06 167 50726
Page 2
DISCUSSION: The nonimmigrant visa petition was denied by the Director , California Service Center.
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be
dismissed.
The petitioner is an animation production and de velopment company. The beneficiary is a multi-media
artist, illustrator and designer. The petitioner is an agent who seeks 0-1 classification of the beneficiary
as an alien with extraordinary ability in the arts under section 101(a)(15)(O)(i) of the Immigration and
NationalityAct (the Act), 8 U.S.C. § IIOI(a)(15)(O)(i), to work in the United States as an independent
contractor for three years. -
The director denied the petition because the petitioner failed to establish that the beneficiary satisfied
the statutory and regulatory requirements for classification as an alien with extraordinary ability in the
arts.
On appeal , counsel submits a letter and additional evidence. We concur with the director 's
determination that the record does not establish that the beneficiary is an alien with extraordinary ability
in the arts who is eligible for classification under section 101(a)(15)(O)(i) ofthe Act.
Section IOI(a)(15)(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 .. . 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 abilityl.]:
. . .
Section IOI(a)(15)(O)(i) of the Act, 8 U.S.C. § I 101(a)(15)(O)(i).
The regulation at 8 C.F.R. § 214.2(0)(3)(ii) provides the following pertinent definitions:
Arts includes any field of creative activity or endeavor such as, but not limited to, fine
arts, visual arts, culinary arts, and performing arts....
* * *
Extraordinary ability in the field of arts means distinction . Distinction means a high
level of achievement in the arts evidenced by a degree of skill and recognition
substantially above that ordinarily encountered to the extent that a person described as .
prominent is renowned, leading, or well-known in the field of arts.
The regulation at 8 C.F.R. § 214.2(0)(3)(iv), further prescribes:
Evidentiary criteria/or an 0-1 alien ofextraordinaryability in thearts. To qualify as an alien of
extraordinary ability in the field of arts, the alien must be recognized as being prominent in his or
her field of endeavor as demonstrated by the following: ·
WAC 06 167 50726
Page 3
(A) Evidence that the alien has been nominated for, or has been the recipient of,
significant national .or international awards or prizes in the particular field such as an
Academy Award ,·an Emmy , a Grammy , or a Director's Guild Award ; or
(B) At least three of the following forms of documentation:
(1) Evidence that the alien has performed,and will perform, services as a lead or
starring participant in productions or events which have a distinguished reputation as
evidenced by critical reviews, advertisements, publicity releases, publications[,]
contracts, or endorsements;
(2) Evidence that the alien has achieved national or international recognition for
achievements evidenced by critical reviews or other published materials by or about
the individual in major newspapers , trade journals , magazines, or other publications;
(3) Evidence that the alien has perfoimed , and will perform , in a lead, starring, or
critical role for organizations and establishments that have adistinguished reputation
evidenced by articles in newspapers , trade journals , publications , or testimonials ;
(4) Evidence that the alien has a record of major commercial or critically acclaimed
successes as evidenced by such indicators as title , rating, standing in the field , box
office receipts , motion pictures or television ratings, and other occupational
achievements 'reported in trade journals , major newspapers , or other publications ;
(5) Evidence that the alien has received significant recognition for achievements from
organizations , critics, government agencies, or other recognized experts in the field in
which the alien is engaged. Such testimonials must be in a form which clearly
indicates the author's authority, expertise, and knowledge of the alien's achievements;
or
(6) Evidence that the alien has either commanded a high salary or will command a
high salary' or other substantial remuneration for services in relation to others in the
field, as evidenced by contracts or other reliable evidence ; or
(C) If the criteria in paragraph (0)(3)(iv) 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 beneficiary in this case is a native and citizen of Japan who entered the United States on October 1,
2005 , as a nonimmigrant student {F-I) . At .the time this petition was filed , the beneficiary was
completing her optional practical training. Counsel claims that the beneficiary is eligible for 0-1
classification as an alien with extraordinary ability in .the arts , bur counsel does not specify which
evidentiary criteria the beneficiary meets. Accordingly, we will address the evidence submitted in
relation to the relevant criteria in the regulation at 8 C.F.R. § 214.2(0)(3)(iv).
WAC 06 167 50726
Page 4
Significant national or international awards or prizes
. .
·The record shows that the beneficiary received the "$1,000 Award in Memory of Verdon Flory" in the
2005 annual scholarship competition of the Society of Illustrators and that her animated short film,
"Forget Me Not," won third prize at the 2006 Jay Sanders Film Festival's Movie Gallery Student Video
Competition. The catalogue of the 2005 Society of Illustrators scholarship competition states that the
event is "the world's largest competition for college-level illustration students and their respective
schools." The submitted excerpt from the 2006 Jay Sanders Film Festival program explains that the
event screens the work of students and that the beneficiary won third prize in the college division. As
only students were eligible for the beneficiary's awards, those honors are not indicative of the requisite
sustained national or international acclaim and are not comparable to an Academy Award or the other
prizes cited in the regulation at 8 C.F.R. § 214.2(o)(3)(iv)(A). '
On appeal, counsel also asserts that "the beneficiary's work was responsible for the EMMY IN
CHILDREN 'S TELEVISION (Emmys are given to shows, not to people) " (emphasis in original). The
record does not support this claim. On appeal , the petitioner submits a letter from •••••••
creator of the ' " program shown on the Home Box Office (HBO) network, who states
that the beneficiary "had a great influence on the show.", j , Producer at HBO, clarifies that
the beneficiary "illustrated and animated various animals in the Classical Baby segment entitled
'Trucks.' '' The record shows that "Classical Baby " won an Emmy Award for best children's program
in 2005. However, a printout from the HBO website shows that the "Classical Baby" program
consisted of five episodes. The beneficiary contributed to one of at least seven segments of one
episode. .The beneficiary 's limited contribution to just one short segment of only one episode indicates
that the Emmy Award received for the "Classical Baby" program as a whole was not largely or
substantially attributable to the beneficiary's work. "
The record also shows that the beneficiary's animated short film, , I" won second prize at
the 2004 Dong-A LG International Festival of Comics and Animation. However, the record contains
·no evidence that honors granted .at this festival are ,significant international awards or prizes in the
beneficiary's field. To the contrary, the submitted excerpt from the festival's brochure states that the
·festival received only 60 international entries. The petitioner , claims that " also won a
"Sponsor's Award" at the 2004 Krok animation festival in Russia, but the submitted excerpt from the
festival does not state that the petitioner's film won an award and the record is devoid of any other
evidence of the alleged award or -its international significance. Accordingly , the beneficiary does not
meet this criterion.
(1) Evidence that the alien has performed , and will perform, services as a lead or starring
participant in productions or events which have a distinguished reputation as evidenced by
critical revie ws, advertisements, publicity releases, publications, contracts, or endorsements .
Although the "Classical Baby" program has a distinguished reputation by virtue of its Emmy Award,
the beneficiary's limited contribution to just one segment of one episode of the program (as
discussed above) shows that she was not a lead or starring participant in the program. The petitioner
WAC 06 167 50726
Page 5,
also submitted a printout from the website of Nick Jr. from the Nickelodeon network regarding the
"Wonder Pets" program and a favorable review of the program published in the New York Times on
March 28, 2006. Etsu Kahata , lead designer for the "Wonder Pets" program , states that the
beneficiary "contributed her artistic talent and skills" to the program , but does not indicate that the
beneficiary was a leading or starring participant in the program . The beneficiary has also made three
animated films, " , , t" and' ," that have been shown 'at numerous
animation festivals and the first two films won awards at two events , but the submitted programs
from these festivals and events do not indicate that the beneficiary was a lead or starring participant
in any animation festival which has a distinguished reputation. Accordingly, the beneficiary does
not meet this criterion.
(2) Evidence that th e alien has achieved national or international recognition for achievements
evidenced by critical reviews or other published materials by or about the individual in major
newspapers, trade journals, magazines, or other publications.
The beneficiary won two prizes for two of her animated films; which were documented in the programs
of the animation festivals. The beneficiary also won an award in the 2005 Society of Illustrators ,
scholarship competition , as documented by the catalogue of the competition and corresponding
exhibition. However , the record does not indicate that the beneficiary achieved national or international
recognition for her work. As previously discussed, two of her awards were granted at student
competitions and the third was presented at an animation festival with no demonstrated significant,
international recognition in the beneficiary's field. The record is devoid of any critical reviews or other
published materials by or about the beneficiary in major newspapers, trade journals , magazines or other
publications. Accordingly , the beneficiary does not meet this criterion,
(3) Evidence that the alien has performed , and will perform, in a lead , starring, or critical role for
organizations and establishments that hav e a distinguished reputation evidenced by articles in
newspapers, tradejournals, publications,or testimonials. .
Letters from the beneficiary's employers indicate that she made valuable contributions to the work of
their companies, but the testimonials do not demonstrate that the beneficiary has or will perform in a
lead; starring or critical role for any distinguished organizations or establishments. Ms. 3SiLL, from
HBO, confirms that the beneficiary worked on one segment in one episode of the "Classical Baby"
program , but Ms. _does not indicate that .the beneficiary performed a lead, starring or critical role
for HBO as a whole. president ofFlickerl.ab, states that the beneficiary provided "key
design elements for many of [the company's] most successful projects," but Mr. ~does not indicate
that the beneficiary performed a lead, starring or critical role for his company and the record is devoid
of any independent evidence that FlickerLab has a distinguished reputation. , co­
founder and partner of the petitioner, confirms that the beneficiary was the company's "primary
animator" on the "Trucks " segment for one episode of "Classical Baby." However, Mr. ( does
not indicate that the beneficiary performed a lead, starring or critical role for the petitioner as a whole in
the past and the submitted work agreements show that the beneficiary would only perform services for
the petitioner as an independent contractor in the future. The record also contains no corroborative
documentation of the petitioner's reputation in the beneficiary's field.
WAC 06 '167 50726
Page 6
and Creative Director and Animation Producer of•••••••
Productions, Inc., confirm that the beneficiary made valuable contributions to some of the company's
productions. Specifically , Ms. _notes the ''unique [and] creative touch" of the beneficiary's props
for "The Wonder Pets" program shown on Nick Jr . Despite their praise, Ms . ~and 7 5 § do
not indicate that the beneficiary ,performed a lead, starring or critical role for their company. The record
also contains no corroborative evidence that Little Airplane Productions , Inc. has a ' distinguished
reputation in the beneficiary's field.
Apart from testimonials of her employers, the petitioner submitted no other evidence that the
beneficiary has or will perform in a lead, starring ,or critical role for distinguished organizations or
establishments. Accordingly, the beneficiary does not meet this criterion.
(4) Evidence that the alien has a record of major commercial or critically acclaimed successes as
evidenced by such indicators as title, rating, standing in the field, box office receipts, motion
pictures or television ratings, and other occupational achievements reported in trade journals,
major newspapers, or other publications;
Although the record shows that the beneficiary contributed to one segment of one episode of an
Emmy Award-winning program , there is no evidence that the award was directly or significantly
attributable to the 'beneficiary herself. The beneficiary won two awards for her animated films, but
the record is de void of any evidence that the awards garnered major commercial success or critical
acclaim forthe beneficiary's work. The petitioner submitted no other evidence that the beneficiary
has a record of major commercial or critically acclaimed successes. Accordingly, the beneficiary
does not meetthis criterion. . '
(5) Evidence that the alien has received significant recognition , for achievements from
organizations , critics, government agencies, or other recognized experts in the field in which
the alien is engaged. Such testimonials must be in a form which clearly indicates the author's
authority, expertise , and knowledge ofthe alien's achievements.
The petitioner submitted 16 support letters from 13 experts in the beneficiary's field who have worked
, with the beneficiary as either a student or employee . As discussed above under the third criterion , Ms.
••; Mr. F J ,·Mr.... Mr._l ::, Ms. J Mr. and __
J all praise the beneficiary's work on various projects for their respective companies. Their
testimonials alone, however, 40 not establish that the beneficiary has received significant recognition
for her achievements in her field apart from those individuals with whom she has worked directly.
In response to the director 's Request for Evidence (RFE) , the petitioner submitted a letter from_
••••• Chair of the Illustration Department at Parsons, The New School for Design , as an "expert
opinion" on the beneficiary 's " stature as .an illustrator and as a contributor to the expanding corpus of
contemporary multi-media illustration." Mr. a states that the beneficiary "is an emerging ,
leader in the field of illustration-based new media art." Yet Mr. does not discuss any of the
WAC 06 167 50726
Page 7
beneficiary's workin detail and indicates that he is primarily acquainted with the beneficiary as "one of
Parson's most.talented graduates."
Four of the beneficiary's former professors,
and , praise the beneficiary's talent, skills, and style as well as her achievements as a
student, but they do not indicate that the beneficiary has received significant recognition in her field for
her achievements as a professional illustrator or multi-media artist. The support letters fail to establish
that the beneficiary has received significant recognition for her achievements from recognized experts
in her field that demonstrates the requisite distinction and sustained national or international acclaim.
Accordingly, the beneficiary does not meet.this criterion.
Consultation with an Appropriate Us. Peer Group.
The director also denied the petition because the petitioner did not submit a consultation with an
appropriate U.S. peer group, as required by the regulation at 8 C.F.R. §§ 214.2(0)(2)(ii)(D), 214.2(0)(5).
On appeal, counsel states, "We trust you will agree that the Society of Illustrator's Award, together with
the testimony from the Chair of the Illustration Department at Parson, The New School of Design [sic],
constitutes an advisory opinion[.]" As previously discussed, the beneficiary's award from the 2005
annual scholarship competition of the Society of Illustrators only documents her achievement as a
student and the record contains no evidence that the Society of Illustrators assessed the beneficiary's
. ability as a professional illustrator or multi-media artist. While Mr. . I is an expert in the
beneficiary's field as Chair ofthe Illustration Department at Parsons; The New School for Design, his
• I
letter does not comply with the regulation at 8 C.F.R. § 214.2(0)(5)(ii)(A), which specifies that a
favorable advisory opinion should "describe the nature of the duties to be performed, and state whether
the position requires the services of an alien of extraordinary ability." Accordingly, Mr. 2 . ,
letter is insufficient to meet the consultation requirement.
The petitioner has not established that an appropriate U.S. peer group does not exist pursuant to the
regulation at 8 C.F.R. § 2l4.2(0)(5)(i)(G) or that the beneficiary is eligible for a waiver of the
consultation requirement pursuant to the regulation at 8 C.F.R. § 214.2(0)(5)(ii)(B). Consequently, the
petition must also be denied for lack of the required consultation.
Coming Temporarily to the United States to Work in the Area ofExtraordinary Ability
The director denied the petition on the additional ground that the petitioner did not establish that the
beneficiary was coming temporarily to the United States to work in her field. 1 Aliens are eligible for
1 In reaching this conclusion, the director stated, "No evidence' of an unrelinquished foreign
residence was provided [.]" However, neither the statute nor the regulations require evidence of an
unrelinquished foreign residence for 0-1 nonimmigrant classification as an alien with extraordinary
ability in the arts, as opposed to 0-2 nonimmigrant classification as an accompanying alien
providing essential support to an 0-1 artist or athlete. Compare Section 101(a)(15)(0)(i) ofthe Act,
8 U.S.C. § Il01(a)(15)(0), with Section 101(a)(15)(0)(ii)(IV) of the Act, 8 U.S.C.
§ 1101(a)(15)(0)(ii)(IV). See also 8 C.F.R. § 214.2(0).
.--
WAC 06 167 50726
Page 8
nonimmigrant 0-1 classification if they are coming temporarily to the United States to continue work in
the area of extraordinary ability. 8 C.F.R. § 214.2(o)(1)(ii)(A)(j) .·The petitioner submitted no evidence
that the beneficiary intends to stay in the United States temporarily. On the Form 1-129, Part 5, Number
8, "Dates of intended employment ," the petitioner left blank the boxes for the beginning and ending
dates of the intended employment. The "Design/illustration Agreement" and the "Independent
Contractor Agreement ," both dated May 25,2006 and signed by the petitioner and the beneficiary , also
fail to state a beginning or ending date for the intended employment. The "Design/illustration
Agreement" states, "The length of this contract will be mutually determined and can be terminated by
the Company with 24 ' hours notice." The "Independent Contractor Agreement" states, "The
Contractor's duties, term of engagement, compensation and provisions for payment thereof shall be as
set forth in the estimate previously provided to the Company by the Contractor[.]" The record contains
. no copy of such an estimate. .
. In none of his three letters does Mr. , on behalf of the petitioner, state the duration of the
. beneficiary 's intended stay in the United States. In his first , undated letter , Mr. __ states: "In
light of [the beneficiary 's] already substantial contributions to U.S . commercial art, we hope that she
will consider relocating here permanently .... [W]e hope that the 0-1 status will allow her to continue
exploring her opportunities as an independent artist, and make her decision about staying here. " The .
petitioner submitted an "Itinerary" for the beneficiary , which spans from May 2006 to April 2009, but
lists only one project that would continue through 2009 and indicates that the beneficiary would
otherwise be engaged in unspecified "Freelance Conimercial Works." The record fails to establish the
dates of the beneficiary 's intended stay in the United States and the evidence does not demonstrate that
she would be actively working in her field for the duration of her stay. Accordingly , the petitioner has
not established that the beneficiary is coming temporarily to the United States to continue work in the
area of extraordinary ability, as required by the regulation at 8 C.F.R. § 214.2(0)(1)(ii)(A)(1).
The petitioner has not 'established that the beneficiary meets the evidentiary criteria for extraordinary
ability in the arts, has not provided the requisite consultation from a U.S. peer group and has not shown
that the beneficiary is coming temporarily to ' the United States to ' continue work in her field .
Consequently, the beneficiary is ineligible for 0-1 nonimmigrant classification under section
10I(a)(15)(O)(i) of the Act.
In visa petition proceedings , the burden of proving eligibility for the benefit sought remains entirely
with the petitioner. Section 291 of the Act , 8 U.S .c. § 1361. Here , that burden has not been met.
Accordingly , the appeal will be dismissed .
ORDER: The appeal is dismissed.