dismissed O-1B Case: Automotive Fabrication And Painting

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-H-R-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 30, 2017 
APPEAL OF CALIFORNIA SERVICE CENTER DECISION 
PETITION: FORM I-129, PETITION FOR A NONIMMIGRANT WORKER 
The Petitioner, a custom hot rod company, seeks to temporarily employ the Beneficiary in the United 
States as a fabricator and painter. To do so, the Petitioner seeks to classify him as an 0-1 
nonimmigrant, a visa classification available to foreign nationals who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements 
have been recognized in the field through extensive documentation. S'ee Immigration and 
Nationality Act (the Act) section 101(a)(15)(0)(i), 8 U.S.C. § 1101(a)(l5)(0)(i). 
The Director of the California Service Center denied the petition, concluding that the Petitioner did 
not satisfy, as required, the evidentiary criteria applicable to individuals of extraordinary ability in 
the arts, either a significant national or international award or at least three of six possible forms of 
documentation. 8 C.F.R. § 214.2(o)(3 )(iv)(A)-(B). 
On appeal, the Petitioner avers that the Director did not properly consider the record and maintains that 
the evidence satisfies the regulatory requirements. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
As relevant here, section 1 01(a)(l5)(0)(i) of the Act establishes 0-1 classification for an individual 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. Department of Homeland Security (DHS) regulations detine 
"extraordinary ability in the field of arts" as '"distinction,'' and '"distinction" as ''a high level of 
achievement in the field of 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." 8 C.F.R. § 214.2(o)(3)(ii). 
Next, DHS regulations set forth alternative evidentiary criteria for establishing a beneficiary's 
sustained acclaim and the recognition of achievements. A petitioner may submit evidence either of 
nomination for or receipt of '"significant national or international awards or prizes" such as '"an 
.
Matter of N-H-R-
Academy Award, an Emmy, a Grammy, or a Director's Guild Award:· or at least three of six listed 
categories of documents. 8 C.F.R. § 214.2(o)(3)(iv)(A)-(B). If the petitioner demonstrates that the 
listed criteria do not readily apply to the beneficiary's occupation, it may submit comparable evidence 
to establish eligibility. 8 C.F.R. § 214.2(o)(iv)(C). When a petitioner provides the requisite evidence, 
we then determine whether the record, viewed in its totality, shows sustained national or 
international acclaim such that the individual is prominent in the field of endeavor. 
Additionally, the regulation at 8 C.F.R. § 214.2(o)(2)(ii) sets forth evidence that must accompany 
petitions for 0 foreign nationals, including in pertinent part: 
(C) An explanation of the nature of the events or activities, the beginning and end dates 
for the events or activities, and a copy of any itinerary for the events or activities 
II. ANALYSIS 
A. Evidentiary Criteria 
The Director determined that the Petitioner did not satisfy any of the criteria at 8 C.F.R 
§ 214.2(o)(3)(iv)(A)-(B). The Petitioner maintains that the exhibits satisfy four of those criteria. It 
also avers that it submitted comparable evidence of the Beneficiary's eligibility under 8 C.F.R 
§ 214.2( o )(3)(iv)(C). As discussed below. we find that the exhibits do not satisfy any of the 
evidentiary categories described at 8 C.F.R. § 214.2(o)(3)(iv)(A)-(B), or the comparable evidence 
provision at 8 C.F.R. § 214.2(o)(3)(iv)(C). 
Evidence that the alien has achieved national or international recognztwn .fhr 
achievements evidenced by critical reviews or other published materials by or about the 
individual in major newspapers. trade journals. magazines. or other publications. 
8 C.F.R. § 214.2(o)(3)(iv)(B)(2). 
We agree with the Director's determination that the Petitioner has not met the requirements of this 
criterion. It provided photographs, excerpts from foreign language magazines, and a print out of a 
foreign language page from the website www. However, the Petitioner 
did not submit a properly certified English language translation of the foreign language text 
contained in these submissions. Any document in a foreign language must be accompanied by a full 
English language translation. 8 C.F.R. § 103.2(b)(3). The translator must certify that the English 
language translation is complete and accurate, and that the translator is competent to translate from 
the foreign language into English. /d. Thus, we cannot identify the publications or meaningfully 
determine whether the documents represent critical reviews or other published materials by or about 
the Beneficiary, as required by the plain language of the criterion. 
Evidence that the alien has a record of' major commercial or critically acclaimed 
successes as evidenced by such indicators such as title. rating. standing in the field. 
box office receipts, motion pictures or television ratings. and other occupational 
2 
.
Matter of N-H-R-
achievements reported in trade journals, major newspapers. or other publications. 
8 C.F.R. § 214.2(o)(3)(iv)(B)(4). 
The Director determined that the evidence does not satisfy this evidentiary criterion. We note that 
the Petitioner provided testimonial evidence from the Beneficiary's customers indicating that their cars' 
value increased following his paint work. However , the Petitioner has not provided evidence of the 
Beneficiary's own commercial success , such as documentation of his business revenue , nor has it 
otherwise shown that he has achieved "major commercial or critically acclaimed success .. in the 
fabrication industry. 
On appeal, the Petitioner contends that testimonials from recognized experts in the fabrication 
industry, as well as newly submitted reference letters from numerous clients who use the 
Beneficiary's services, satisfy this criterion. While we will examine this evidence below in our 
discussion of the criterion at 8 C.F.R. § 214.2( o )(3)(iv)(B)(5). the Petitioner has not demonstrated 
that these letters meet the objective requirements of this regulatory criterion. Although several 
letters attest to the Beneficiary's skill, they do not offer specific examples of how his work 
constitutes a record of major commercial or critically acclaimed successes in the field. 
Evidence that the alien has received significant recognition for achie1•ements fi'om 
organizations. critics, government agencies. or other recognized experts in the field 
in which the alien is engaged. Such testimonials must he in a fimn '>rhich clear~v 
indicates the author's authority. expertise. and knowledge of the alien ·s 
achievements. 8 C.F.R. § 214.2(o)(3)(iv)(B)(5). 
As noted above, the Petitioner submitted several testimonial letters in support of the petition. We 
determine that the submitted testimonials do not satisfy this criterion. Most of the letters discuss the 
Beneficiary's talent, work ethic, personal traits, and artistry rather than his achievements as an 
automotive fabricator and painter. For example, a customer painter with 
states that the Beneficiary is "an exceptional artist."' Similarly. host of the television 
show praises his work stating that his "touch is absolutely incomparable, .. and 
customer painter from Brazil, states that the Beneficiary is "accurate'· and "thorough in his 
research."' Lastly , president of a custom car and bike restoration shop. 
maintains that the Beneficiary is "a phenomenal artist and one of a kind.'' While complementary of his 
artistry, the letters do not explain how the Beneficiary's achievements to date have received 
significant recognition from organizations, critics, government agencies, or other recognized experts 
in the field of automotive fabrication, nor do the letters themselves reflect such recognition. 
On appeal, the Petitioner claims that the testimonial letters include statements that the Beneficiary 
"has won multiple awards in his field," constituting significant recognition. For example, 
letter stated that the Beneficiary has won several awards as ''best paint. .. Similarly, 
the owner of the Petitioning entity in Nevada , noted that his bike was painted by 
the Beneficiary and went on to win first place in a custom paint show known as in 
California. Their statements are not sufficient evidence that the Beneficiary won award(s) 
.
Matter of N-H-R-
or that such awards constitute significant recognition in the field. The letters do not specify the 
nature of the competitions or provides additional details regarding the Beneficiary's entry or results. 
Further, the Petitioner has not offered suflicient evidence confirming that winning an award at 
is commensurate with significant recognition in the field. Accordingly, the record does not 
satisfY this criterion. 
Evidence that the alien has either commanded a high salary or 1vill command a high 
salary or other substantial remuneration/or services in relation to others in thefield. as 
evidenced by contracts or other reliable evidence. 8 C.F.R. § 214.2(o)(3)(iv)(B)(6). 
The Petitioner did not submit material relating to the Beneficiary's past salary or remuneration, such 
as letters from former employers, income tax forms, or pay statements. On the Form 1-129. the 
Petitioner indicates that the Beneficiary will receive $15 per hour for his services as a fabricator. 
However, the contract between the Petitioner and the Beneficiary. provided in response to a request for 
evidence from the Director, indicates that he will earn $1 ,200 per week or the equivalent of $30 per 
hour. The Director noted the discrepancy and found that this change constituted an impennissible 
material change. We agree that amending the terms of the Beneficiary's employment constituted a 
material change, therefore requiring the Petitioner to submit an amended 0-1 petition with U.S. 
Citizenship and Immigration Services. If "material changes" in the terms and conditions of 
employment or the beneficiary's eligibility are made. an amended petition must be tiled with the 
service center of original jurisdiction to reflect those changes. 8 C.F.R. §214.2( o )(2)(iv)(D) 
On appeal, the Petitioner asserts that "'this evidence should be considered in its totality" and that the 
record 
supports its contention that the Beneficiary commands a high salary compared to others in the 
field. However, even if we were to accept the higher wage ($30 per hour) as evidence of the 
Beneficiary's compensation, the evidence of record does not indicate the Beneficiary's protTered 
salary is a "high salary." The Petitioner provided comparative wage data relating to average or 
median wages of "Painters, Transportation Equipment," in California. from the Occupational 
Outlook Handbook published on the website www.bls.gov. The Beneficiary's salary does not exceed 
the Level 4 prevailing wage for the Petitioner's area, and regardless. the prevailing wage only re11ects 
the average wage paid to all similarly employed workers in the same occupation in the same area. 
20 C.F.R. § 655.10. This evidence does not sufficiently demonstrate that the Beneficiary's profTcrcd 
salary in the position of automotive fabricator is a '"high salary." 
B. Comparable Evidence 
On appeal, the Petitioner contends that the Director eJTed in not considering the Beneficiary's ''renown 
on social media as well as portions of his portfolio" under the "comparable evidence·· regulation at 
8 C.F.R. § 214.2(o)(3)(iv)(C) because it claims that the regulatory criteria are not applicable to 
automotive fabricators. The regulation at 8 C.F.R. § 214.2(o)(3)(iv)(C) provides that comparable 
evidence "may" be submitted if the criteria in 8 C.F.R. § 214.2(o)(3)(iv) do not readily apply to the 
beneficiary's occupation. It is the Petitioner's the burden to articulate why the criteria do not readily 
apply and how the evidence submitted is ""comparable ... 
4 
.
Matter of N-H-R-
llere. the Petitioner has not provided sufficient documentation of the Bcnellciary · s social media 
presence or portfolio. 1 or explained hmv this evidence is comparable to the evidentiary criteria at 
8 C.F.R. § 214.2(o)(3)(iv). nor has it established that it is rcllectivc of a high level of achievement in 
the field of 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. 8 C.F.R. § 214.2(o)(3)(ii). 
C. Intended Employment and Itinerary 
Finally, although not discussed by the Director, the Petitioner has not sufficiently clarified or 
documented the dates of intended employment. On the Form 1-129. the Petitioner indicates that it 
seeks 
to employ the Beneficiary through December 2018. However, counsel for the Petitioner states 
that the "Petitioner seeks 
to employ the Beneficiary to work on custom and automotive design and 
paint for display at automotive trade shows leading up to the which will take place 
2017 in Nevada. and the which will 
take place 2017 in California." The Petitioner further indicates that. 
"in order to accomplish" the display of the Beneficiary's work at these "premier" events, it will 
show his work at small trade shows throughout the year. The Petitioner has not explained whether it 
will continue to employ the Beneficiary after the show in December 2017 and through December 
2018 as indicated in the initial filing. Also, the Petitioner has not provided a copy of an itinerary for 
the events. 8 C.F.R. § 214.2(o)(2)(ii). 
III. CONCLUSION 
For the reasons discussed above, the Petitioner has not established that the Beneficiary is eligible for the 
0-1 visa classification as a foreign national with extraordinary ability in the m1s. 
ORDER: The appeal is dismissed. 
Cite as Matter ofN-H-R-, ID# 709390 (AAO Nov. 30. 2017) 
1 
The record does include photographs, however, they are not dated or annotated and we cannot therefore. determine 
whether they are indicative of the Beneficiary"s eligibility.