dismissed O-1B Case: Art Dealing

identifying data deleted to 
prevent clearly unwarranted 
invasion of persona\ privacy 
U.S. Department of Homeland Security 
US. Citizenship and Inmigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washinrrton. DC 20529-2090 - 
U.S. Citizenship 
and Immigration PUBtrC COPY 
DATE: APR 0 7 2011 office: CALIFORNIA SERVICE CENTER FILE: WAC 10 12751551 
IN RE: 
PETITION: Petition for a Nonimmigrant Worker under Section 101(a)(15)(0)(i) of the Immigration and 
Nationality Act, 8 U.S.C. 5 11 OI(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. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. 5 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank vou. 
Chief, Administrative Appeals Office 
WAC 10 127 51551 
Page 2 
DISCUSSION: The Director, California Service Center, denied the nonimmigrant visa petition. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to extend the beneficiary's status as an 0-1 nonimmigrant 
pursuant to section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
5 1101(a)(15)(0)(i), as an alien with extraordinary ability in the arts. The petitioner is self-described as a 
photography agency and gallery. It seeks to employ the beneficiary in the position of "Art Dealer, International" 
for one additional year. 
The director denied the petition, concluding that the petitioner failed to establish that the petitioner will engage 
the beneficiary's services for a specific event or events as required by the regulations, and failed to satisfy the 
regulatory requirement at 8 C.F.R. 5 214.2(0)(2)(ii)(C). Specifically, the director concluded that the petitioner 
failed to establish that the beneficiaty "will be performing in a particular event, project, conference, convention or 
engagement, but rather would be performing "the usual duties of someone employed as an International Art 
Dealer." The director determined that the petitioner has not offered a temporary position with specific beginning 
or end dates. 
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 emphasizes that the term "event" as defined at 8 C.F.R. 
5 214.2(0)(3)(ii) is in fact not limited to a scientific conference, convention, lecture series, tour, exhibit, business 
project, academic year or engagement." Counsel cites a July 20,2010 United States Citizenship and Immigration 
Services (USCIS) Policy Memorandum, "Clarifying Guidance on '0' Petition Validity Period" in support of his 
assertion that "a job which may not have a specific engagement or project may also fall under this definition if the 
job is the 'activity within the alien's area of extraordinary ability." 
I. TheLaw 
Section 101(a)(15)(0)(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. 
Pursuant to 8 C.F.R. 5 214.2(o)(l)(i), a qualified alien may be authorized to come to the United States to 
perform services relating to an event or events if petitioned for by an employer. The regulation at 8 C.F.R. 
5 214,2(0)(2)(ii) provides that petitions for 0 aliens shall be accompanied by the following: 
(A) The evidence specified in the particular section for the classification; 
(B) Copies of any written contracts between the petitioner and the alien beneficiary or, if 
there is no written contract, a summary of the terms of the oral agreement under 
which the alien will be employed; 
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(C) An explanation of the nature of the events or activities, the beginning and ending 
dates for the events or activities, and a copy of any itinerary for the events or 
activities; and 
(D) A written advisory opinion(s) from the appropriate consulting entity or entities 
The regulation at 8 C.F.R. 5 214.2(0)(3)(ii) defines "event" as follows: 
Event means an activity such as, but not limited to, a scientific project, conference, 
convention, lecture series, tour, exhibit, business project, academic year, or engagement. 
Such activity may include short vacations, promotional appearances, and stopovers which are 
incidental andlor related to the event. A group of related activities may also be considered to 
be an event. In the case of an 0-1 athlete, the event could be the alien's contract. 
11. Discussion 
A. The Issue on Appeal 
The sole issue addressed by the director is whether the petitioner established that it seeks to engage the 
beneficiary's services for a specific event or events and otherwise satisfied the regulatory requirement at 8 
C.F.R. 5 214,2(0)(2)(ii)(C). The director concluded that "the beneficiary will be performing the usual duties 
of someone employed as an International Art Dealer," rather than "performing in a particular event, project, 
conference, convention or engagement" with specific beginning and ending dates. 
The petitioner filed the Form 1-129, Petition for a Nonimmigrant Worker, on April 6, 2010. The petitioner 
indicated that it intends to employ the beneficiary in the position as "Art Dealer, International" for a period of 
one year at an annual salary of $150,000 plus bonus. 
The petitioner is self-described as a photography agency and gallery established in 2007, with gross annual 
income in excess of $800,000. The petitioner did not identify its number of employees but instead indicated 
"agency." On the 0 and P Classification Supplement to Form 1-129, where asked to "explain the nature of 
the event," the petitioner stated "photography agency." 
In a letter dated March 23, 2010, the petitioner described the beneficiary's position and terms of employment 
as follows: 
We entered into an agreement with [the beneficiary] three years ago whereby she would 
provide the company with her expertise and give us a competitive advantage in the highly 
competitive indusby of photography collection, dealing, and representation of emerging and 
established photographers and artists. In the past three years, [the beneficiary] has 
consistently demonstrated her expertise by locating and representing emerging talent and 
making extensive investments in the Agency's proprietary inventory. Her highly specialized 
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expertise and leadership has increased our company's productivity and she has proven to be 
an indispensable contribution to [the petitioner]. 
We wish to extend our present agreement with [the beneficiary] for one (1) year in the same 
capacity, whereby she will continue her assignment with [the petitioner] as an Intemational 
Art Dealer. [The beneficiary] will be remunerated in excess of $150,000.00 per annum. 
The director issued a request for additional evidence ("RFE") on April 22, 2010, in which he requested, inter 
alia, the following: (1) an explanation of the nature of the events or activities and a copy of any itinerary for 
the events or activities; and (2) a complete itinerary for all events, including exact periods for each service and 
the names and address of the locationslemployers. 
In a response dated May 18, 2010, counsel stated: 
[The beneficiary] is the proprietor and owner of a stock of art works and prints that exceeds 
well over $1,000,000.00 in commercial value. [The beneficiary's] collection is now part of 
[the petitioner] and the arrangement has proved commercially beneficial to the U.S. 
enterprise and [the beneficiary]. 
As for the request for an itinerary of events, please be advised that the regulatory definition of 
event includes "engagement" and "a group of related activities." See 8 C.F.R. 
242(0)(3)(ii) [The beneficiary's] ongoing work and employment with [the petitioner] 
qualifies as [an] "engagement" comprised of "a group of related activities" involving buying 
and selling of art in the United States and abroad. 
The petitioner submitted a spreadsheet listing the details of the beneficiary's collection of approximately 60 
photographic works valued at $1,023,500. The spreadsheet indicates that twelve photographs from the 
collection were sold between 2007 and 2010 at a total price of $697,628. 
The director denied the petition on June 3, 2010, concluding that the petitioner failed to provide an 
explanation of the nature of the events or activities, and the beginning and ending dates for the events or 
activities, pursuant to 8 C.F.R. 5 214.2(0)(2)(ii)(C). 
The director emphasized that the examples provided by the regulation suggest that a qualifying event or 
events will be occurrences or phenomena of detinite and finite duration. The director concluded that "[tlhe 
record does not establish that the beneficiary will be performing in a particular event, project, conference, 
convention, or engagement," and that "there is no specific beginning or ending dates to the beneficiary's 
employment." Rather, the director determined that "the beneficiary will be performing the usual duties of 
someone employed as International Arts Dealer." 
WAC 10 127 51551 
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On appeal, counsel for the petitioner states that the evidence submitted "clearly establishes" that the beneficiary 
will continue to represent the petitioner as an art dealer at an annual salary of $150,000. Counsel further asserts: 
The regulatory requirement in this respect is found at 8 C.F.R. 5 214.2(0)(3)(ii). The term event 
is defined as "an activity such as, but NOT LIMTED TO, a scientific project, conference, 
convention, lecture series, tour, exhibit, business project, academic year, or engagement." 
[Emphasis added]. 
A recent Policy Memorandum PM-602-0003 issued by C.I.S. further clarifies this issue and goes 
on to say that "In addition, a job which may not have a specific engagement or project may also 
fall under this definition ifthejob is the "activity within the alien's area of extraordinary ability." 
[Emphasis added] 
Finally, the Adjudicator's Field Manual Chapter 33.4(e)(2) contains identical language and 
recognizes that a job in a person's field of endeavor may be classified as an event for purposes of 
0-1 visa eligibility when that person is deemed to be a person of such ability. {AFM Chapter 
33.4(e)(2)1 
The beneficiary in this matter is indeed such a person of extraordinary ability and has been duly 
accorded that status in the past by C.I.S. 
B. Analysis 
Upon review, the AAO concurs with the director's ultimate conclusion that the petitioner failed to meet the 
regulatory requirements set forth at 8 C.F.R. 5 214,2(0)(2)(ii)(C). 
The director concluded that the beneficiary "will be performing the usual duties of someone employed as an 
international arts dealer." We agree, in part, with counsel's assertions that there may in fact be instances in which 
performing the "usual" or "normal" duties of one's occupation falls within the meaning of "event." The AAO 
notes that aliens with extraordinary ability in athletics hired by professional sports teams, as well as aliens with 
extraordinary ability in education hired by U.S. universities, are often hired under multi-year contracts and also 
perform the "normal duties" of professional athletes or university professors, respectively. Such employment 
circumstances are clearly considered to be within the definition of "event" at 8 C.F.R. 5 214,2(0)(3)(ii), which 
includes an "academic year" and, for athletes, "the alien's contract," as qualifying activities. 
The regulatory definition of "event" provides only a short list of examples of qualifying activities and specifically 
states that it is not an exhaustive or definitive list, thus suggesting that officers would have the discretion to 
determine on a case-by-case basis what constitutes a qualifying "event." This flexibility in the regulatory 
definition is also reflected in the evidentiary requirements at 8 C.F.R. 5 214,2(0)(2)(ii)(C) which instruct the 
petitioner to provide "an explanation of the nature of the events or activities, and to provide a copy of any 
itinerary." The regulations recognize that not every petitioner will be able to provide an itinerary or evidence 
of a list of discrete performances, competitions, or tour dates, depending on the field of employment. The 
WAC 10 127 51551 
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definition of event must be interpreted broadly, as the visa classification is expected to encompass a diverse 
array of occupations spanning the professions, business, athletics, and the arts and entertainment fields. 
Therefore, an established art gallery might reasonably require the services of a full-time art dealer to perform 
"the normal duties" of that occupation, and under certain circumstances, the AAO could deem such an 
employment arrangement a qualifying "event" for the purposes of this classification. 
However, the petitioner must still provide a detailed description of the nature of the activities, the beginning 
and ending dates of such activities, and provide a copy of its written contract or a summary of the terms of its 
oral agreement with the alien. 8 C.F.R. 5 214.2(0)(2)(ii)(B) and (C). Here, the petitioner has not fulfilled 
these requirements. 
The petitioner has not submitted a copy of a written contract with the beneficiary, nor has it provided a 
summary of the terms of an oral agreement with the beneficiary. The petitioner indicates in its letter dated 
March 23, 2010 that it "entered into an agreement" with the beneficiary three years ago, now seeks to extend 
that agreement, and will remunerate the beneficiary at an annual rate of $150,000. The petitioner's statements 
to this effect are insufficient to establish that it has a written or oral agreement in place with the beneficiary 
defining the terms and conditions of her employment, including the beginning and ending dates of that 
employment. Going on record without supporting documentary evidence is not sufficient for purposes of 
meeting the burden of proof in these proceedings. Mutter of Soffici, 22 I&N Dec. 158, 165 (Comm'r. 1998) 
(citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm'r. 1972)). 
Furthermore, in order to meet the plain language of the regulation at 8 C.F.R. 5 214.2(0)(2)(ii)(C), the petitioner 
must provide an explanation of the nature of the events or activities. The petitioner initially stated that the 
beneficiary provides the company with expertise in photography dealing and representation of emerging and 
established photographers and artists. Specifically, the petitioner stated that the beneficiary "has consistently 
demonstrated her expertise by locating and representing emerging talent and making extensive investments in 
the Agency's proprietary inventory." 
In response to the director's request for further explanation of the nature of the events or activities to be 
undertaken, counsel indicated that "[the beneficiary's] collection is now part of [the petitioner] and the 
arrangement has proved commercially beneficial to the U.S. enterprise and [the beneficiary]." As noted 
above, the evidence submitted indicates that the beneficiary sold twelve paintings from her collection since 
2007 for a total of nearly $700,000. 
The petitioner describes itself as "a dynamic international photo agency and gallery whose mission is to 
acquire and sell highly significant works of photography from the 20" century masters and today's 
contemporary masters." The petitioner states that it assists collectors with building and refining their 
photography art collections, represents prominent and up-and-coming photographers, and maintains an 
archive of major works of art. The record contains no additional evidence regarding the petitioner's agency 
and gallery, such as copies of its marketing materials, media about the gallery, evidence that it maintains a 
WAC 10 127 51551 
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web site, a list of photographers it represents, a list of the gallery's overall inventory, or any other evidence 
that the petitioner is an ongoing business venture.' 
Based on the foregoing, the beneficiary's only documented activities as an art dealer in the United States 
appear to include selling photographic works from her own private collection. The petitioner did not explain 
under what terms the beneficiary's million-dollar art collection is "now part of' the petitioning organization, 
and the AAO cannot conclude that the beneficiary is selling arhvork from her collection on behalf of the 
petitioner. The nature of the beneficiary's relationship with the petitioner, duties performed for the petitioner, 
and the terms of her employment are not adequately documented in the record, and therefore, the AAO cannot 
determine that the beneficiary's proposed employment for the petitioner as an art dealer is a qualifying "event" 
for the purposes of this classification. 
While we acknowledge that there is more flexibility in the regulatory definition of "event" than the director 
allowed, a petitioner cannot be exempted from providing a detailed description of the nature of the activities 
and a copy of its written contract or a summary of the terms of its oral agreement with the alien, as required 
by 8 C.F.R. $5 214,2(0)(2)(ii)(B) and (C). There is no reliable other way to determine whether the 
beneficiary possesses a firm offer of employment from a U.S. company to perform work in her field of 
extraordinary ability. 
Therefore, we concur with the director's ultimate conclusion that the petitioner has not submitted evidence to 
meet the plain language of the regulatory requirement at 8 C.F.R. 5 214,2(0)(2)(ii)(C). We further find that 
the petitioner has not submitted a written contract or a summary of the terms of the oral agreement under 
which the beneficiary will be employed, pursuant to 8 C.F.R. 5 214.2(0)(2)(ii)(B). Accordingly, the appeal 
will be dismissed. 
C. The Beneficiary's Area of Extraordinarily Ability 
We further note for the record that the director misapplied the regulations pertaining to aliens of extraordinary 
ability in the arts in adjudicating this petition. The petitioner sought to classify the beneficiary as an alien of 
extraordinary ability in the arts, and the director applied the evidentiary criteria at 8 C.F.R. 5 214,2(0)(3)(iv). 
However, while the petitioner sought to classify the beneficiary in the arts, the petitioner simultaneously claimed 
that the beneficiary meets the evidentiary criteria for aliens of extraordinary ability in business, as set forth at 8 
which is incorporated into record of proceeding). The petitioner indicates that the beneficiary works at this 
address. One of the individuals who provided an advisory opinion in support of the petition, - 
of Philips de Pury & Company, states that "due to the strength of [the beneficiary's] inventory, I am 
anticipating a visit to her Colorado residence to review the material." 
WAC 10 127 51551 
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C.F.R. 5 214.2(0)(3)(iii), although it never specifically cited to this section of the regulations. For example, the 
petitioner indicated that it was submitting "published material about the beneficiary," "evidence of the 
beneficiary's participation on panels," and evidence of her "photography-related contributions." See 8 C.F.R. 
214,2(0)(3)(iii)(B)(3), (4) and (5). 
The director applied the evidentiary standard for aliens for extraordinary ability in the arts. Upon review, the 
director should have evaluated the instant petition as a petition for classification of the beneficiary as an alien 
of extraordinary ability in the field of business. 
For purposes of the 0-1 classification, the applicable definition of "arts" at 8 C.F.R. 5 214,2(0)(3)(ii) is as 
follows: 
Arts includes any field of creative activity or endeavor such as, but not limited to, fine arts, 
visual arts, culinary arts, and performing arts. Aliens engaged in the field of arts include not 
only the principal creators and performers but other essential persons such as, but not limited 
to, directors, set designers, lighting designers, sound designers, choreographers, 
choreologists, conductors, orchestrators, coaches, arrangers, musical supervisors, costume 
designers, makeup artists, flight masters, stage technicians and animal trainers. 
The AAO can find no basis for including an art dealer or artist agent among this group of creative workers. 
The beneficiary is claimed to be responsible for the purchase and sale of works of art, and the representation 
and marketing of artists' works. Such responsibilities would reasonably require such tasks as negotiation of 
prices, collection of fees and other business-related matters and transactions. While we acknowledge that the 
beneficiary's work requires extensive knowledge and connections in the field of art photography, the field is 
properly classified as a "business" field. 
The regulation at 8 C.F.R. 5 214.2(0)(3)(ii) defines, in pertinent part: 
Extraordinary ability in the field of science, education, business, or athletics means a level of 
expertise indicating that the person is one of the small percentage who have arisen to the very 
top of the field of endeavor. 
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 resewed only 
for those aliens who have reached the very top of their occupation or profession. The 0-1 
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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. Comm'r., INS, "Policy Guidelines for the Adjudication of 0 
and P Petitions" (June 25, 1992). 
While the director determined that the beneficiary meets the lower standard of "distinction" applicable to 
aliens of extraordinary ability in the arts, the petitioner has not submitted evidence that would satisfy the 
regulatory criteria applicable to aliens of extraordinary ability in business at 8 C.F.R. 5 214,2(0)(3)(iii)(A) 
or (B), nor has it established through submission of extensive evidence that the beneficiary has a 
demonstrated record of sustained national or international acclaim as an art dealer, or that she is one of the 
small percentage who have arisen to the very top of her field. 8 C.F.R. 5 214.2(3)(ii). For this additional 
reason, the petition cannot be approved. 
An application or petition that fails to comply with the technical requirements ofthe law may be denied by the 
AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. See 
Spencer Enterprises, Inc. v. UnitedStutes, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), afd. 345 F.3d 683 
(9th Cir. 2003); see also Soltune v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004)(noting that the AAO conducts 
appellate review on a de nova basis). 
111. Prior Approval and Conclusion 
The AAO acknowledges that USCIS previously approved a petition for 0-1 status filed on behalf of the 
beneficiary. The prior approval does not preclude USClS from denying an extension of the original visa based on 
a reassessment of the petitioner's or beneficiary's qualifications. Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 
556,2004 WL 1240482 (5th Cir. 2004). In matters relating to an extension of nonimmigrant visa petition validity 
involving the same petitioner, beneficiary, and underlying facts, USClS will generally give deference to a prior 
determination of eligibility. However, the mere fact that USCIS, by mistake or oversight, approved a visa petition 
on one occasion does not create an automatic entitlement to the approval of a subsequent petition for renewal of 
that visa. RoyalSiam Corp. v. Chertofi 484 F.3d 139, 148 (1st Cir 2007); see also Mutter of Church Scientology 
Int?., 19 I&N Dec. 593, 597 (Comm'r. 1988). Each nonimmigrant petition filing is a separate proceeding with a 
separate record and a separate burden of proof. See 8 C.F.R. 5 103.8(d). In making a determination of statutory 
eligibility, USClS is limited to the information contained in that individual record of proceeding. See 8 C.F.R. 5 
103,2(b)(16)(ii). 
In the present matter, the director reviewed the record of proceeding and concluded that the petitioner failed to 
meet all eligibility requirements for the requested classification. If the previous nonimmigrant petition was 
approved based on the same evidence that is contained in the current record, the approval would constitute 
material and gross error on the part of the director. Furthermore, as discussed above, the petitioner and the 
director have both misclassified the beneficiary's claimed area of extraordinary ability as "arts" rather than 
WAC 10 127 51551 
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"business." Based on the lack of required evidence of eligibility in the current record, the AAO finds that the 
director was justified in departing from the previous petition approval by denying the instant petition. 
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, 
merely because of prior approvals that may have been erroneous. See, e.g. Matter of Church Scientology 
International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any agency 
must treat acknowledged errors as binding precedent. Sussex Engg Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). Despite any number of previously approved petitions, 
USCIS does not have any authority to confer an immigration benefit when the petitioner fails to meet its burden 
of proof in a subsequent petition. See section 291 of the Act. 
The petition will be denied and the appeal dismissed for the above stated reasons, with each considered as an 
independent and alternative basis for the decision. When the AAO denies a petition on multiple alternative 
grounds, a plaintiff can succeed on a challenge only if it is shown that the AAO abused its discretion with 
respect to all of the AAO's enumerated grounds. See Spencer Enterprises, Inc. v. United States, 229 F. Supp. 
2d at 1043 (E.D. Cal. 2001), affd 345 F.3d 683 (9th Cir. 2003). 
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. 5 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed